THE LATE OFFER RULE DOES NOT APPLY TO QUOTATIONS

The general rule in government procurement is that when a contractor submits an offer, it must be on time as stated in the solicitation. With very limited exceptions, “late is late” and the offer generally may not be considered. This is reflected in the three Federal Acquisition Regulation (“FAR”) sections dealing with instructions to offerors: FAR 52.212-1(2), Instructors to Offerors-Commercial Items (for use in Commercial Item procurements); FAR 52.214-7(b), Late Submissions, Modifications, and Withdrawals of Bids (for use in Sealed Bidding); and FAR 52.215-1(c)(3), Instructions to Offerors, Competitive Acquisition (for use in Negotiated Procurement). All three FAR sections contain virtually identical language that “[A]ny offer, [bid or proposal], modification, revision, or withdrawal of an offer received at the Government office designated in the solicitation after … Continue reading

NO ACCEPTANCE MEANS NO CONTRACT

The U.S. Forest Service manages our national forests, which includes organizing and administering timber sales. These sales result in government contracts—but in reverse—the timber companies bid a price they will pay the government for the right to remove (and presumably sell) the timber. Generally, the high responsible bidder in a timber sale is the awardee. This case address when a timber contract is formed. After reviewing two prospectuses for timber sales in two areas of the Plumas National Forest in California, Pew Forest Products submitted two bids. See Pew Forest Products v. U.S., COFC No. 09-814C (May 7, 2012). On June 26, 2007, the contracting officer opened the bids and declared Pew the high bidder on both. Because of negotiations with environmental groups, the Forest … Continue reading

KNOWINGLY MAKING FALSE STATEMENTS TO OBTAIN A CONTRACT-VOID AB INITIO REDUX

In an earlier column, “Void Ab Initio” (May 3, 2016), this blog explained the basic principle that a contract that is tainted by fraud or wrongdoing is void ab initio, i.e, void from the very beginning. If a contractor knowingly makes a material false statement which the agency relies upon, the contract will be deemed void by the Boards or the courts. Another good example of this principle is in Bryan Concrete & Excavation, Inc., CBCA 2882, August 26, 2012. In Bryan, the Department of Veterans Affairs awarded a contract to upgrade a chiller at a VA medical facility. The contract was set aside 100 percent for eligible Service Disabled Veterans Owned Small Businesses (“SDVOSB”). (Eligible SDVOSBs must have not less than 51 percent of … Continue reading

FAILURE TO ACKNOWLEDGE A MATERIAL AMENDMENT-WHAT IS MATERIAL, AND HOW DO I MAKE NO MISTAKES?

For as long as this writer can remember, the Government Accountability Office (“GAO”) has hewed to a hard and fast rule about amendments to solicitations: an offeror’s failure to acknowledge a material amendment makes the proposal (or bid) unacceptable and the proposal or bid may not form the basis for award. This same rule was applied in TTCC, Inc., B-412874, May 17, 2016. On the other hand, if a non-material amendment is not acknowledged, the agency may waive this minor informality in accordance with FAR 14.405. TTCC also states the GAO long held position that “[w]hile no precise rule exists as to whether a change required by an amendment is more than negligible, such that failure to acknowledge the amendment renders the proposal unacceptable, an … Continue reading