Federal Acquisition Regulation; Conforming Late Offer Treatment

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 14, 15, 22, and 52

[FAC 97-14; FAR Case 97-030; Item VII]

RIN 9000-AI25

Federal Acquisition Regulation; Conforming Late Offer Treatment

AGENCIES: Department of Defense (DoD), General Services Administration

(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense

Acquisition Regulations Council (Councils) have agreed on a final rule

amending the Federal Acquisition Regulation (FAR) to provide uniform

guidance regarding receipt of late offers for commercial, sealed bid,

and negotiated acquisitions.

EFFECTIVE DATE: November 23, 1999.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405, (202) 501-4755, for information

pertaining to status or publication schedules. For clarification of

content, contact Mr. Ralph De Stefano, Procurement Analyst, at (202)

501-1758. Please cite FAC 97-14, FAR case 97-030.

SUPPLEMENTARY INFORMATION:

A. Background

The Councils published a proposed rule in the Federal Register on

January

[[Page 51838]]

27, 1999 (64 FR 4248), amending the FAR to provide a single standard

for receipt of late offers under commercial, sealed bid, and negotiated

acquisitions. The final rule makes additional revisions to the proposed

rule.

The rule amends paragraph (f) of the clause at FAR 52.212-1,

Instructions to Offerors--Commercial Items, to permit consideration of

late offers if the Government mishandled the offer. This rule also

amends guidance on receipt of late offers in FAR 14.304 and 15.208 and

associated FAR solicitation provisions at 52.214-7, Late Submissions,

Modifications, and Withdrawals of Bids; 52.214-23, Late Submissions,

Modifications, and Withdrawals of Technical Proposals under Two-Step

Bidding; and paragraph (c)(3) at 52.215-1, Instruction to Offerors--

Competitive Acquisitions, to provide uniform guidance for sealed bids

and negotiated acquisitions. The rule also deletes the solicitation

provisions at 52.214-32, Late Submissions, Modifications, and

Withdrawals of Bids (Overseas), and 52.214-33, Late Submissions,

Modifications, and Withdrawals of Technical Proposals under Two-Step

Sealed Bidding (Overseas), since the revisions to 52.214-7 and 52.214-

23 eliminate the need for separate provisions, respectively.

Six respondents provided comments on the proposed rule. The

Government considered the comments in finalizing the rule.

This action is not subject to Office of Management and Budget

review under Section 6(b) of Executive Order 12866, Regulatory Planning

and Review, dated September 30, 1993, and is not a major rule under 5

U.S.C. 804.

B. Regulatory Flexibility Act

The Department of Defense, the General Services Administration, and

the National Aeronautics and Space Administration certify that this

final rule will not have a significant economic impact on a substantial

number of small entities within the meaning of the Regulatory

Flexibility Act, 5 U.S.C. 601, et seq., because the rule will affect

when an offer is considered late; and, although no statistics regarding

the number of late proposals exist, we expect that less than 1 percent

of the offers will be received late. Under the rule, the Government

will consider late offers, including late offers under commercial

acquisitions that are late because of Government mishandling.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to

the FAR do not impose information collection requirements that require

the approval of the Office of Management and Budget under 44 U.S.C.

3501, et seq.

List of Subjects in 48 CFR Parts 14, 15, 22, and 52

Government procurement.

Dated: September 14, 1999.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, DoD, GSA, and NASA amend 48 CFR Parts 14, 15, 22, and 52

as set forth below:

1. The authority citation for 48 CFR Parts 14, 15, 22, and 52

continues to read as follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42

U.S.C. 2473(c).

PART 14--SEALED BIDDING

2. Amend section 14.201-6 to revise paragraph (c)(3), remove

paragraph (c)(4), revise paragraphs (g)(2), (o)(2)(i), (o)(2)(ii), and

(r), remove paragraph (v), redesignate paragraphs (w) through (y) as

(v) through (x), respectively, and revise newly designated paragraphs

(w) and (x) to read as follows:

14.201-6 Solicitation provisions.

* * * * *

(c) * * *

(3) 52.214-7, Late Submissions, Modifications, and Withdrawals of

Bids.

* * * * *

(g) * * *

(2) Use the provision with its Alternate I in invitations for bids

that are for perishable subsistence, and when the contracting officer

considers that offerors will be unwilling to provide acceptance periods

long enough to allow written confirmation.

* * * * *

(o) * * *

(2) * * *

(i) If the nature of the required product does not necessitate

limiting the grant of a waiver to a product produced at the same plant

in which the product previously acquired or tested was produced, use

the provision with its Alternate I; or

(ii) If the nature of the required product necessitates limiting

the grant of a waiver to a product produced at the same plant in which

the product previously acquired or tested was produced, use the

provision with its Alternate II.

* * * * *

(r) Insert the provision at 52.214-23, Late Submissions,

Modifications, and Withdrawals of Technical Proposals under Two-Step

Sealed Bidding, in solicitations for technical proposals in step one of

two-step sealed bidding.

* * * * *

(w) Insert the provision at 52.214-34, Submission of Offers in the

English Language, in solicitations subject to the Trade Agreements Act

or the North American Free Trade Agreement Implementation Act (see

25.408(d)). It may be included in other solicitations when the

contracting officer decides that it is necessary.

(x) Insert the provision at 52.214-35, Submission of Offers in U.S.

Currency, in solicitations subject to the Trade Agreements Act or the

North American Free Trade Agreement Implementation Act (see 25.408(d)).

It may be included in other solicitations when the contracting officer

decides that it is necessary.

2a. In addition to the amendments set forth above, in section

14.201-6, remove the words ``The contracting officer shall insert'' and

add, in their place, the word ``Insert'' in the following places:

a. The introductory text of paragraphs 14.201-6(b), (c), and (e);

b. Paragraphs (f), (g)(1), and (h);

c. Paragraph (i);

d. Paragraphs (j), (l), (m), and (o)(1);

e. Paragraph (p)(1); and

f. Paragraphs (q), (s), (t), (u), and newly redesignated paragraph

(v).

14.202-7 [Amended]

3. Amend section 14.202-7 in the introductory text of paragraph (a)

by removing ``(see 14.201-6(w))'' and adding ``(see 14.201-6(v))'' in

its place.

14.303 [Amended]

4. Amend section 14.303 in the fourth sentence of paragraph (a) by

removing ``14.201-6(w)'' and adding ``14.201-6(v)'' in its place.

5. Section 14.304, consisting of sections 14.304-1 through 14.304-

4, is revised to read as follows:

14.304 Submission, modification, and withdrawal of bids.

(a) Bidders are responsible for submitting bids, and any

modifications or withdrawals, so as to reach the Government office

designated in the invitation for bid (IFB) by the time specified in the

IFB. They may use any transmission method authorized by the IFB (i.e.,

regular mail, electronic commerce, or facsimile). If no time is

specified in the IFB, the time for receipt is 4:30 p.m., local time,

for the designated Government office on the date that bids are due.

(b)(1) Any bid, modification, or withdrawal of a bid received at

the

[[Page 51839]]

Government office designated in the IFB after the exact time specified

for receipt of bids is ``late'' and will not be considered unless it is

received before award is made, the contracting officer determines that

accepting the late bid would not unduly delay the acquisition; and--

(i) If it was transmitted through an electronic commerce method

authorized by the IFB, it was received at the initial point of entry to

the Government infrastructure not later than 5:00 p.m. one working day

prior to the date specified for receipt of bids; or

(ii) There is acceptable evidence to establish that it was received

at the Government installation designated for receipt of bids and was

under the Government's control prior to the time set for receipt of

bids.

(2) However, a late modification of an otherwise successful bid,

that makes its terms more favorable to the Government, will be

considered at any time it is received and may be accepted.

(c) Acceptable evidence to establish the time of receipt at the

Government installation includes the time/date stamp of that

installation on the bid wrapper, other documentary evidence of receipt

maintained by the installation, or oral testimony or statements of

Government personnel.

(d) If an emergency or unanticipated event interrupts normal

Government processes so that bids cannot be received at the Government

office designated for receipt of bids by the exact time specified in

the IFB, and urgent Government requirements preclude amendment of the

bid opening date, the time specified for receipt of bids will be deemed

to be extended to the same time of day specified in the IFB on the

first work day on which normal Government processes resume.

(e) Bids may be withdrawn by written notice received at any time

before the exact time set for receipt of bids. If the IFB authorizes

facsimile bids, bids may be withdrawn via facsimile received at any

time before the exact time set for receipt of bids, subject to the

conditions specified in the provision at 52.214-31, Facsimile Bids. A

bid may be withdrawn in person by a bidder or its authorized

representative if, before the exact time set for receipt of bids, the

identity of the person requesting withdrawal is established and the

person signs a receipt for the bid. Upon withdrawal of an

electronically transmitted bid, the data received must not be viewed

and, where practicable, must be purged from primary and backup data

storage systems.

(f) The contracting officer must promptly notify any bidder if its

bid, modification, or withdrawal was received late, and must inform the

bidder whether its bid will be considered, unless contract award is

imminent and the notices prescribed in 14.409 would suffice.

(g) Late bids and modifications that are not considered must be

held unopened, unless opened for identification, until after award and

then retained with other unsuccessful bids. However, any bid bond or

guarantee must be returned.

(h) If available, the following must be included in the contract

files for each late bid, modification, or withdrawal:

(1) The date and hour of receipt.

(2) A statement, with supporting rationale, regarding whether the

bid was considered for award.

(3) The envelope, wrapper, or other evidence of the date of

receipt.

6. Amend section 14.503-1 by revising paragraph (h) to read as

follows:

114.503-1 Step one.

* * * * *

(h) Late technical proposals are governed by 15.208 (b), (c), and

(f).

* * * * *

PART 15--CONTRACTING BY NEGOTIATION

7. Revise section 15.208 to read as follows:

15.208 Submission, modification, revision, and withdrawal of

proposals.

(a) Offerors are responsible for submitting proposals, and any

revisions, and modifications, or withdrawals, so as to reach the

Government office designated in the solicitation by the time specified

in the solicitation. Offerors may use any transmission method

authorized by the solicitation (i.e., regular mail, electronic

commerce, or facsimile). If no time is specified in the solicitation,

the time for receipt is 4:30 p.m., local time, for the designated

Government office on the date that proposals are due.

(b)(1) Any proposal, modification, revision, or withdrawal that is

received at the designated Government office after the exact time

specified for receipt of proposals is ``late'' and will not be

considered unless it is received before award is made, the contracting

officer determines that accepting the late proposal would not unduly

delay the acquisition; and--

(i) If it was transmitted through an electronic commerce method

authorized by the solicitation, it was received at the initial point of

entry to the Government infrastructure not later than 5:00 p.m. one

working day prior to the date specified for receipt of proposals; or

(ii) There is acceptable evidence to establish that it was received

at the Government installation designated for receipt of proposals and

was under the Government's control prior to the time set for receipt of

proposals; or

(iii) It was the only proposal received.

(2) However, a late modification of an otherwise successful

proposal, that makes its terms more favorable to the Government, will

be considered at any time it is received and may be accepted.

(c) Acceptable evidence to establish the time of receipt at the

Government installation includes the time/date stamp of that

installation on the proposal wrapper, other documentary evidence of

receipt maintained by the installation, or oral testimony or statements

of Government personnel.

(d) If an emergency or unanticipated event interrupts normal

Government processes so that proposals cannot be received at the

Government office designated for receipt of proposals by the exact time

specified in the solicitation, and urgent Government requirements

preclude amendment of the solicitation closing date, the time specified

for receipt of proposals will be deemed to be extended to the same time

of day specified in the solicitation on the first work day on which

normal Government processes resume.

(e) Proposals may be withdrawn by written notice at any time before

award. Oral proposals in response to oral solicitations may be

withdrawn orally. The contracting officer must document the contract

file when oral withdrawals are made. One copy of withdrawn proposals

should be retained in the contract file (see 4.803(a)(10)). Extra

copies of the withdrawn proposals may be destroyed or returned to the

offeror at the offerors request. Where practicable, electronically

transmitted proposals that are withdrawn must be purged from primary

and backup data storage systems after a copy is made for the file.

Extremely bulky proposals must only be returned at the offeror's

request and expense.

(f) The contracting officer must promptly notify any offeror if its

proposal, modification, or revision was received late, and must inform

the offeror whether its proposal will be considered, unless contract

award is imminent and the notice prescribed in 15.503(b) would suffice.

(g) Late proposals and modifications that are not considered must

be held unopened, unless opened for identification, until after award

and then retained with other unsuccessful proposals.

[[Page 51840]]

(h) If available, the following must be included in the contracting

office files for each late proposal, modification, revision, or

withdrawal:

(1) The date and hour of receipt.

(2) A statement regarding whether the proposal was considered for

award, with supporting rationale.

(3) The envelope, wrapper, or other evidence of date of receipt.

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

22.1009-4 [Amended]

8. Amend section 22.1009-4 in the first sentence of paragraph (d)

by removing ``14.304-1'' and adding ``14.304'' in its place.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

9. Amend section 52.212-1 to revise the date of the provision and

paragraph (f) to read as follows:

52.212-1 Instructions to Offerors--Commercial Items.

* * * * *

Instructions to Offerors--Commercial Items (Nov 1999)

* * * * *

(f) Late submissions, modifications, revisions, and withdrawals

of offers. (1) Offerors are responsible for submitting offers, and

any modifications, revisions, or withdrawals, so as to reach the

Government office designated in the solicitation by the time

specified in the solicitation. If no time is specified in the

solicitation, the time for receipt is 4:30 p.m., local time, for the

designated Government office on the date that offers or revisions

are due.

(2)(i) Any offer, modification, revision, or withdrawal of an

offer received at the Government office designated in the

solicitation after the exact time specified for receipt of offers is

``late'' and will not be considered unless it is received before

award is made, the Contracting Officer determines that accepting the

late offer would not unduly delay the acquisition; and--

(A) If it was transmitted through an electronic commerce method

authorized by the solicitation, it was received at the initial point

of entry to the Government infrastructure not later than 5:00 p.m.

one working day prior to the date specified for receipt of offers;

or

(B) There is acceptable evidence to establish that it was

received at the Government installation designated for receipt of

offers and was under the Government's control prior to the time set

for receipt of offers; or

(C) If this solicitation is a request for proposals, it was the

only proposal received.

(ii) However, a late modification of an otherwise successful

offer, that makes its terms more favorable to the Government, will

be considered at any time it is received and may be accepted.

(3) Acceptable evidence to establish the time of receipt at the

Government installation includes the time/date stamp of that

installation on the offer wrapper, other documentary evidence of

receipt maintained by the installation, or oral testimony or

statements of Government personnel.

(4) If an emergency or unanticipated event interrupts normal

Government processes so that offers cannot be received at the

Government office designated for receipt of offers by the exact time

specified in the solicitation, and urgent Government requirements

preclude amendment of the solicitation or other notice of an

extension of the closing date, the time specified for receipt of

offers will be deemed to be extended to the same time of day

specified in the solicitation on the first work day on which normal

Government processes resume.

(5) Offers may be withdrawn by written notice received at any

time before the exact time set for receipt of offers. Oral offers in

response to oral solicitations may be withdrawn orally. If the

solicitation authorizes facsimile offers, offers may be withdrawn

via facsimile received at any time before the exact time set for

receipt of offers, subject to the conditions specified in the

solicitation concerning facsimile offers. An offer may be withdrawn

in person by an offeror or its authorized representative if, before

the exact time set for receipt of offers, the identity of the person

requesting withdrawal is established and the person signs a receipt

for the offer.

* * * * *

10. Revise section 52.214-7 to read as follows:

52.214-7 Late submissions, modifications, and withdrawals of bids.

As prescribed in 14.201-6(c)(3), insert the following provision:

Late Submissions, Modifications, and Withdrawals of Bids (Nov 1999)

(a) Bidders are responsible for submitting bids, and any

modifications or withdrawals, so as to reach the Government office

designated in the invitation for bids (IFB) by the time specified in

the IFB. If no time is specified in the IFB, the time for receipt is

4:30 p.m., local time, for the designated Government office on the

date that bids are due.

(b)(1) Any bid, modification, or withdrawal received at the

Government office designated in the IFB after the exact time

specified for receipt of bids is ``late'' and will not be considered

unless it is received before award is made, the Contracting Officer

determines that accepting the late bid would not unduly delay the

acquisition; and--

(i) If it was transmitted through an electronic commerce method

authorized by the IFB, it was received at the initial point of entry

to the Government infrastructure not later than 5:00 p.m. one

working day prior to the date specified for receipt of bids; or

(ii) There is acceptable evidence to establish that it was

received at the Government installation designated for receipt of

bids and was under the Government's control prior to the time set

for receipt of bids.

(2) However, a late modification of an otherwise successful bid

that makes its terms more favorable to the Government, will be

considered at any time it is received and may be accepted.

(c) Acceptable evidence to establish the time of receipt at the

Government installation includes the time/date stamp of that

installation on the bid wrapper, other documentary evidence of

receipt maintained by the installation, or oral testimony or

statements of Government personnel.

(d) If an emergency or unanticipated event interrupts normal

Government processes so that bids cannot be received at the

Government office designated for receipt of bids by the exact time

specified in the IFB and urgent Government requirements preclude

amendment of the IFB, the time specified for receipt of bids will be

deemed to be extended to the same time of day specified in the

solicitation on the first work day on which normal Government

processes resume.

(e) Bids may be withdrawn by written notice received at any time

before the exact time set for receipt of bids. If the IFB authorizes

facsimile bids, bids may be withdrawn via facsimile received at any

time before the exact time set for receipt of bids, subject to the

conditions specified in the provision at 52.214-31, Facsimile Bids.

A bid may be withdrawn in person by a bidder or its authorized

representative if, before the exact time set for receipt of bids,

the identity of the person requesting withdrawal is established and

the person signs a receipt for the bid.

(End of provision)

11. Revise section 52.214-23 to read as follows:

52.214-23 Late submissions, modifications, revisions, and withdrawals

of technical proposals under two-step sealed bidding.

As prescribed in 14.201-6(r), insert the following provision:

Late Submissions, Modifications, Revisions, and Withdrawals of

Technical Proposals Under Two-Step Sealed Bidding (Nov 1999)

(a) Bidders are responsible for submitting technical proposals,

and any modifications or revisions, so as to reach the Government

office designated in the request for technical proposals by the time

specified in the invitation for bids (IFB). If no time is specified

in the IFB, the time for receipt is 4:30 p.m., local time, for the

designated Government office on the date that bids or revisions are

due.

(b)(1) Any technical proposal under step one of two-step sealed

bidding or modification, revision, or withdrawal of such proposal

received at the Government office designated in the request for

technical proposals after the exact time specified for receipt will

not be considered unless the Contracting Officer determines that

accepting the late technical proposal would not unduly delay the

acquisition; and--

(i) If it was transmitted through an electronic commerce method

authorized by the request for technical proposals, it was

[[Page 51841]]

received at the initial point of entry to the Government

infrastructure not later than 5:00 p.m. one working day prior to the

date specified for receipt of proposals; or

(ii) There is acceptable evidence to establish that it was

received at the Government installation designated for receipt of

offers and was under the Government's control prior to the time set

for receipt; or

(iii) It is the only proposal received and it is negotiated

under part 15 of the Federal Acquisition Regulation.

(2) However, a late modification of an otherwise successful

proposal that makes its terms more favorable to the Government will

be considered at any time it is received and may be accepted.

(c) Acceptable evidence to establish the time of receipt at the

Government installation includes the time/date stamp of that

installation on the technical proposal wrapper, other documentary

evidence of receipt maintained by the installation, or oral

testimony or statements of Government personnel.

(d) If an emergency or unanticipated event interrupts normal

Government processes so that technical proposals cannot be received

at the Government office designated for receipt of technical

proposals by the exact time specified in the request for technical

proposals, and urgent Government requirements preclude amendment of

the request for technical proposals, the time specified for receipt

of technical proposals will be deemed to be extended to the same

time of day specified in the request for technical proposals on the

first work day on which normal Government processes resume.

(e) Technical proposals may be withdrawn by written notice

received at any time before the exact time set for receipt of

technical proposals. If the request for technical proposals

authorizes facsimile technical proposals, they may be withdrawn via

facsimile received at any time before the exact time set for receipt

of proposals, subject to the conditions specified in the provision

at 52.214-31, Facsimile Bids. A technical proposal may be withdrawn

in person by a bidder or its authorized representative if, before

the exact time set for receipt of technical proposals, the identity

of the person requesting withdrawal is established and the person

signs a receipt for the technical proposal.

(End of provision)

52.214-31 [Amended]

12. Amend section 52.214-31 in the introductory text of the

provision by removing ``14.201-6(w)'' and adding ``14.201-6(v)'' in its

place.

52.214-32 and 52.214-33 [Removed and Reserved]

13. Remove and reserve sections 52.214-32 and 52.214-33.

52.214-34 [Amended]

14. Amend section 52.214-34 in the introductory paragraph of the

provision by removing ``14.201-6(x)'' and adding ``14.201-6(w)'' in its

place.

52.214-35 [Amended]

15. Amend section 52.214-35 in the introductory paragraph of the

provision by removing ``14.201-6(y)'' and adding ``14.201-6(x)'' in its

place.

16. Amend section 52.215-1 to revise the date of the provision and

paragraph (c)(3) to read as follows:

52.215-1 Instructions to Offerors--Competitive Acquisition.

* * * * *

Instructions to Offerors--Competitive Acquisition (Nov 1999)

* * * * *

(c) * * *

(3) Submission, modification, revision, and withdrawal of

proposals. (i) Offerors are responsible for submitting proposals,

and any modifications, revisions, or withdrawals, so as to reach the

Government office designated in the solicitation by the time

specified in the solicitation. If no time is specified in the

solicitation, the time for receipt is 4:30 p.m., local time, for the

designated Government office on the date that proposal or revision

is due.

(ii)(A) Any proposal, modification, revision, or withdrawal

received at the Government office designated in the solicitation

after the exact time specified for receipt of offers is ``late'' and

will not be considered unless it is received before award is made,

the Contracting Officer determines that accepting the late offer

would not unduly delay the acquisition; and--

(1) If it was transmitted through an electronic commerce method

authorized by the solicitation, it was received at the initial point

of entry to the Government infrastructure not later than 5:00 p.m.

one working day prior to the date specified for receipt of

proposals; or

(2) There is acceptable evidence to establish that it was

received at the Government installation designated for receipt of

offers and was under the Government's control prior to the time set

for receipt of offers; or

(3) It is the only proposal received.

(B) However, a late modification of an otherwise successful

proposal that makes its terms more favorable to the Government, will

be considered at any time it is received and may be accepted.

(iii) Acceptable evidence to establish the time of receipt at

the Government installation includes the time/date stamp of that

installation on the proposal wrapper, other documentary evidence of

receipt maintained by the installation, or oral testimony or

statements of Government personnel.

(iv) If an emergency or unanticipated event interrupts normal

Government processes so that proposals cannot be received at the

office designated for receipt of proposals by the exact time

specified in the solicitation, and urgent Government requirements

preclude amendment of the solicitation, the time specified for

receipt of proposals will be deemed to be extended to the same time

of day specified in the solicitation on the first work day on which

normal Government processes resume.

(v) Proposals may be withdrawn by written notice received at any

time before award. Oral proposals in response to oral solicitations

may be withdrawn orally. If the solicitation authorizes facsimile

proposals, proposals may be withdrawn via facsimile received at any

time before award, subject to the conditions specified in the

provision at 52.215-5, Facsimile Proposals. Proposals may be

withdrawn in person by an offeror or an authorized representative,

if the identity of the person requesting withdrawal is established

and the person signs a receipt for the proposal before award.

* * * * *

[FR Doc. 99-24416 Filed 9-23-99; 8:45 am]

BILLING CODE 6820-EP-P