As experienced government contractors well know, submitting a proposal after a solicitation has closed is a bad idea. One of the first lessons contractors, and agency personnel, learn is that “late is late,” period. GAO has consistently and repeatedly reinforced this tenet. The Agency, however, does have latitude in adjusting a due date. This often occurs when a solicitation is amended or clarified, or for other non-obvious reasons. An Agency’s discretion to extend a solicitation’s due date may continue to apply after the solicitation has closed, as a disappointed offeror, National Disability Rights Network, Inc. (NDRN), recently learned.
NDRN protested an award by the Social Security Administration (SSA) of a contract to Information Systems and Networks Corporation (ISN) for management of SSA’s representative payee program, which disburses Social Security payments to representatives of eligible individuals where those recipients are unable to manage their own benefits. The solicitation was for a single requirements contract under which fixed price task orders would be issued as necessary. Award was made on a best-value determination basis, considering price and non-price factors. The five non-price evaluation factors, when combined, were significantly more important than price. The solicitation stated a submission deadline for proposals of 9:00 am, Eastern Time, on January 26, 2016. NDRN’s protest focused mainly on the Agency’s evaluation of both its own and ISN’s proposals.
The Agency issued two amendments during the solicitation period. The first amendment answered questions from potential offerors and made minor changes to the RFP. The second amendment was issued on January 27, 2016—after submissions were due—and extended the due date to February 3, 2016. In its protest, NDRN objected to this due date extension as well. On January 25 and 26, federal offices were closed in the National Capitol Region due to a major snowstorm. Before the January 26 deadline, only NDRN had submitted a proposal; by the end of the extended solicitation period, the Agency had received eight proposals in total.
GAO denied the protest grounds challenging the Agency’s evaluations. It further rejected NDRN’s argument that the Agency had improperly extended the deadline for submissions. NDRN’s argument was premised on the fact that this extension was granted after the initial due date for submissions. GAO ruled “there is no prohibition against a procuring agency issuing an amendment to extend the closing time for receipt of proposals after that time has passed to accommodate even one offeror, where the motivation for the extension is enhanced competition.” GAO cited to its previous decision in Geo-Seis Helicopters, Inc., B-299175, B-299175.2, Mar. 5, 2007, 2007 CPD ¶135. In that case, the Agency twice extended the submission deadline for proposals to accommodate one offeror when it became aware that that offeror would miss the deadline. Even there—when, ostensibly, the procurement official could be viewed as treating offerors disparately by changing the deadline so a single offeror could submit a proposal—GAO held that the action was appropriate because the agency increased the time allotted to offerors for the purpose of enhancing competition by keeping one more offeror in contention.
This decision serves as a reminder of a fundamental goal of the procurement system: full and open competition. As GAO ruled in Geo-Seis, accommodating even one offeror may justify an extension to an RFP, or perhaps a clarification of its terms. This is not to say that contracting officials are by any means required to accommodate offerors, of course, but contractors should always strive for open, professional, cooperative relationships with agency officials, and an appreciation of their authority and constraints. Good contracting officers will seek to protect the same relationships. Ideally, mutual respect will help minimize disagreements and lead to successful performance.
Carrie Willett is responsible for the contents of this Article.
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