[Federal Register Volume 64, Number 17 (Wednesday, January 27, 1999)]
[Proposed Rules]
[Pages 4248-4251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1861]
[[Page 4247]]
_______________________________________________________________________
Part V
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Parts 14, 15, and 52
Federal Acquisition Regulation; Conforming Late Offer Treatment;
Proposed Rule
Federal Register / Vol. 64, No. 17 / Wednesday, January 27, 1999 /
Proposed Rules
[[Page 4248]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 14, 15, and 52
[FAR Case 97-030]
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: Proposed rule with request for comments.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are proposing to amend the Federal
Acquisition Regulation (FAR) to align guidance regarding receipt of
late offers for commercial, sealed bid, and negotiated acquisitions.
DATES: Comments should be submitted on or before March 29, 1999 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVR), Attn: Laurie
Duarte, 1800 F Street, NW, Room 4035, Washington, DC 20405.
E-mail comments submitted over Internet should be addressed to:
farcase.97-030@gsa.gov.
Please cite FAR case 97-030 in all correspondence related to this
case.
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 DeStefano, Procurement Analyst, at (202)
501-1958. Please cite FAR case 97-030.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule amends the FAR to provide a single standard for
receipt of late offers under commercial, sealed bid, and negotiated
acquisitions. The proposed 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 proposed rule also amends guidance on receipt of late offers in
FAR sections 14.304 and 15.208 and associated FAR solicitation
provisions 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) of the
solicitation provision at 52.215-1, Instruction to Offerors--
Competitive Acquisitions, to align the guidance for sealed bids and
negotiated acquisitions. Solicitation provision 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) are
deleted, as the revisions to 52.214-7 and 52.214-23 eliminate the need
for a separate provision.
This regulatory action was not subject to Office of Management and
Budget review under Executive Order 12866, dated September 30, 1993,
and is not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
This proposed rule is not expected to 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, late offers, including late offers under commercial acquisitions
will not be penalized for Government mishandling. An Initial Regulatory
Flexibility Analysis has, therefore, not been performed. Comments from
small entities concerning the affected FAR subpart will be considered
in accordance with 5 U.S.C. 610 of the Act. Such comments must be
submitted separately and should cite 5 U.S.C. 601, et seq. (FAR case
97-030), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
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, and 52
Government procurement.
Dated: January 22, 1999.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, it is proposed that 48 CFR Parts 14, 15, and 52 be
amended as set forth below:
1. The authority citation for 48 CFR Parts 14, 15, 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. Section 14.201-6 is amended by revising paragraph (c)(3); by
removing paragraph (c)(4); by revising paragraph (r); by removing
paragraph (v); and by redesignating paragraphs (w) through (y) as (v)
through (x), respectively.
The revised text reads as follows:
14.201-6 Solicitation provisions.
* * * * *
(c) * * *
(3) 52.214-7, Late Submissions, Modifications, and Withdrawals of
Bids.
* * * * *
(r) The contracting officer shall 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.
* * * * *
3. Section 14.304 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 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.
[[Page 4249]]
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 shall not be viewed
and, where practicable, shall be purged from primary and backup data
storage systems.
(f) The contracting officer shall promptly notify any bidder if its
bid, modification, or withdrawal, was received late, and shall 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 shall be
held unopened, unless opened for identification, until after award and
then retained with other unsuccessful bids. However, any bid bond or
guarantee shall be returned.
(h) The following shall, if available, 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.
PART 15--CONTRACTING BY NEGOTIATION
4. Section 15.208 is revised 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 proposals, 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 shall 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 offeror's request. Where practicable, electronically
transmitted proposals that are withdrawn shall be purged from primary
and backup data storage systems after a copy is made for the file.
Extremely bulky proposals shall only be returned at the offeror's
request and expense.
(f) The contracting officer shall promptly notify any offeror if
its proposal, modification, or revision was received late, and shall
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 shall
be held unopened, unless opened for identification, until after award
and then retained with other unsuccessful proposals.
(h) The following shall, if available, 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 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Section 52.212-1 is amended by revising the date of the clause
and paragraph (f) to read as follows:
52.212-1 Instructions to Offerors--Commercial Items.
* * * * *
[[Page 4250]]
Instructions to Offerors--Commercial Items (Date)
* * * * *
(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. The
contracting officer shall document the contract file when such oral
withdrawals are made. 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.
* * * * *
6. Section 52.214-7 is amended by revising the provision to read as
follows:
52.214-7 Late Submissions, Modifications, and Withdrawals of Bids.
* * * * *
Late Submissions, Modifications, and Withdrawals of Bids (Date)
(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)
7. Section 52.214-23 is amended by the revising the section heading
and the provision to read as follows:
52.214-23 Late Submissions, Modifications, Revisions, and Withdrawals
of Technical Proposals under Two-Step Sealed Bidding.
* * * * *
Late Submissions, Modifications, Revisions, and Withdrawals of
Technical Proposals Under Two-Step Sealed Bidding (Date)
(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 or 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 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
[[Page 4251]]
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)
52.214-32 and 52.214-33 [Reserved]
8. Sections 52.214-32 and 52.214-33 are removed and reserved.
9. Section 52.215-1 is amended by revising 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 (Date)
* * * * *
(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. 99-1861 Filed 1-26-99; 8:45 am]
BILLING CODE 6820-EP-P
