This is the situation. Proposals were due 20 Aug 01 by 4:00p.m. Contractor sent proposal via US Mail next day delivery on 17 Aug 01. Proposal was received at installation post office at 11:00a.m. on the 20th. Contracting was notified on the 22nd that we had express mail to pick up. The express mail package contained no information/indication that there was a proposal inside. Old FAR 15 stated that proposal must be sent nlt 5:00 p.m. 2 working days prior to due date. New FAR 15 doesn't say. I say late - I have protest.

By Vern Edwards on Thursday, September 06, 2001 - 03:02 pm:

According to FAR 15.208(b)(1)(ii), if you have acceptable evidence that the proposal was "received at the Government installation designated for receipt of proposals and was under the Government's control" before the deadline, then you can accept it. It says "installation," not office. And it doesn't matter how the proposal was sent.

It sounds to me like the proposal was timely.

By bob antonio on Friday, September 07, 2001 - 08:37 am:

I read B-285484 and it looks like a decent case. However, it is a bid and it is for timber sales which may make a difference. That is up to you to decide. B-285484 mentions another decision B-224818 which should be read also.

From the B-285484 decision, we see the following Comptroller General statement which I feel is most pertinent.

"We do not think the late receipt of Travis's bid is attributable in any significant way to the absence of bid markings on the package. The absence of markings did not prevent the package from being delivered to the desk of the official designated for receipt of the bids. While it is possible that the staff officer would have hand-carried the package to the bid opening official (instead of leaving it at the contracting officer's desk) if the package were marked as a bid, this at best would have remedied a problem created in the first instance by the cognizant officials' failure to follow a reasonable course of action to ensure that all bids were identified prior to bid opening."

You will have to determine if the above paragraph is controlling based on your analysis of the differences between your situation and the protest decision.

By Mary M. Corbin on Friday, September 07, 2001 - 10:16 am:

Alright, let me give you more of my thoughts. FAR 15.208 states Offeror's are responsible for submitting proposals, (etc. etc.) so as to reach the Government office DESIGNATED in the solicitation by the time specified in the solicitatation. FAR 52.212-1 states in relvant part, that offers received at the government office DESIGNATED in the solicitation after the exact time specified for receipt are late and will not be considered. Granted it is hard to find current cases but I believe the basic concepts of prior GAO cases would still prevail. See B-280005 which states "...receipt for purposes of the FAR clause means receipt at the procuring agency or ultimate destination, and not receipt at the local post office." Also see B-281067 which states"Contrary to Comspaces's understanding, the arrival of a proposal at the government installation is not equivalaent to the arrival in the room disignated in the RFP for opening. The RFP requires that proposals be received at the designated room by the established time. Proposals are properly rejected as late where they are delivered to an intermediary stop prior to the designated time, but received late at the specified location." " Since receipt at the mail depot does not constitute receipt at the designated location, the agency properly treated Comspaces' proposal as late."

I have a real problem with 52.212-1 and 15.208 which both start out talking about offers being late if not received at the Gov't office designated in the solicitation, then throw in two paragraphs about delivery to Gov't installation and then end with the language designated office again. I also feel that if the clause requires an "electronic" bid to be at the GPE 1 day prior to proposal due date then most definately a snail mail proposal should be at the GPE (installation post office) at least 1 day prior to proposal due date.

By Vern Edwards on Friday, September 07, 2001 - 11:32 am:

Mary:

I think the late proposal/offer rule in FAR 15.208, 52.212-1, and 52.215-1 is clear. If you determine that there is "acceptable evidence" that the proposal/offer was received at the "installation" and was under the Government's control prior to the time set for receipt, then you must consider it.

I would not rely on B-280005. It predates the current regulatory language, which was changed by FAC 97-14 in September 1999.

If you have questions, call Ralph De Stafano at the DAR Council, (202) 501-1758. He was the FAR case manager and the FAC said that he could clarify content.

By Anon3 on Friday, September 07, 2001 - 11:40 am:

I'm not sure that 2-day priority mail was an option under the old FAR (I doubt that it was considered when the FAR terms were written). Take a look at the process:

1. Contractor gives package to Govt agency (USPS) one day late (under old FAR guidance), but uses special handling to get it delivered in a timely fashion (using express mailing service). It could be argued that there were at least 2 working days of the USPS as USPS works on Sat (and I think Sun). Also, depending on where contractor and installation are located, USPS may have a standard delivery time span for mail (I think it is 1 day for local mail),
2. Govt agency (USPS) delivers package to 2nd Govt agency (your installation). Your installation then takes 2 days to notify you that a package has arrived, a package that has express markings on it.
3. If you want to use the old FAR reference, then you must infer that receipt is at the installation, not at the CO office.

If I were to make a decision, I would have to say the contractor was late in mailing, but by using express mailing, mitigated the circumstances. The fact that your office received it by 11AM, then took 2 days to notify you is where I have a problem.

By anon7 on Friday, September 07, 2001 - 11:51 am:

Why set yourself up for protest pain? The contractor naively trusted the "U.S." Postal Service to honor its next day delivery "contract." It did not. It is not quite an agency of the U.S., but remains so in most minds and at least for tax returns retains some of its old clout. The USPS let a next day delivery that was delivered late sit for about 48 hours before notifying the recipient. A quasi government agency fell flat. And you want to get all sticky on technicalities.

Why on Earth set yourself up for that pain and fame by not saying "I can accept this proposal, I will." Yeah, sure, then someone else might protest your acceptance. Your logical ammunition supply is better defending against that than this. You have, or had, a reasonable escape route. Sometimes taking it is the better part of valor than fighting to the death over a wrinkle in a technicality.

Let me put it this way. Be thankful you won't be up before a jury. They'd eat you alive. If they found you perhaps had previous difficulties with your "installation post office" and didn't take steps to either correct the problem or warn users of its unreliability they'd punish. A reasonable CG decision might be another one of those embarrassing moments cited for years with your agency's name up on the boards. Think of it, you too can become B-something.

By Anonymous on Friday, September 07, 2001 - 11:53 am:

Anon3--How can you say the contractor was late in mailing when FAR no longer says when a proposal must be mailed?

By anon7 on Friday, September 07, 2001 - 12:03 pm:

An afterthought: You know your brakes tend to fail and drive anyway. Guess what happens after an accident. Now that you have absolute knowledge of the unreliability of the installation's USPS facility are you posting that to warn all contractors? If not, I'd call that negligence.

By sineq on Friday, September 07, 2001 - 12:05 pm:

Just out of curiosity where exactly was the mailed item addressed to?

By Kennedy How on Friday, September 07, 2001 - 12:23 pm:

I guess the question is "what is meant by Installation Post Office"? Is it the mail room? Or, is it the USPS postal station that services the town you are located in?

Here at my activity, we have our own ZIP Code, it doesn't really go to the town post office. I THINK it's sorted into a special bag, and may be delivered by them, but it may come by big truck. It then goes to the mail room.

OK, bids and proposals go to Bid Opening. They do the time stamp for receipt, etc. The issue that we've run into is, what happens when the mail room drops the ball, and now it's 4:00pm, the things are opened, the abstract is done. And, now, somebody from the mail room comes by and says "Oh, we forgot to give this to you all!"

I've always thought that internal activity procedures cause nothing but problems. If I need a parcel delivered to me overnight, it will never get to me on time, since all packages are REQUIRED to go to the central receiving warehouse location, even if it specifically is addressed to me. Oh, those guys are off this afternoon, because Charlie is retiring. Well, so much for me! Same with these time-sensitive documents; it's routed through the mailing system, and it may or may not get there in time, since the Post Office can't directly hand the document to the office responsible to time/date stamping it.

To be fair, I believe that over the years, we've implemented a lot of procedures to streamline the flow of a document through the system so that bids get to the bid room on time.

Kennedy

By joel hoffman on Friday, September 07, 2001 - 12:26 pm:

The following assumes that "the installation post office" refers to a USPS facility located on (in - at?) "an installation".

I believe there is a significant difference between a proposal received by the office at its "mail room" and mail received by the independent USPS on an installation. I wouldn't think that the Government office receiving proposals is in control of the proposal until the independent US Post Office releases it and it is picked up by a courier or other employee of the agency receiving proposals.

On the other hand, if "the installation post office" refers to a mailroom within the agency, that would seem to fit the criteria for reasonable Government control of the proposal, when received. Happy Sails!

By Mary Corbin on Friday, September 07, 2001 - 12:44 pm:

Sineq, The proposal was addressed properly to the contracting office. Normal process here is that when express mail is received a slip stating we have Express Mail is put into our daily mail. Our daily mail is delivered to this office between 8:00 and 9:00 a.m. (The proposal was received at the post office at 11:00 a.m. on the due date)when we receive the Express Mail Slip, someone from this office immediatly goes to the post office and picks it up. When Express Packages are clearly identifieable as a bid/proposal and clearly marked as to the time they must be in our office, the Post Office will call us.(This package had no such information) For those of you who like to read cases I have found another interesting one B-279575 (again not current but I still feel the fundamentals stay the same). In this particular case the Gov't tries to claim Mishandling by the Gov't and Comp Gen says No!! The offeror significantly contributed to the late receipt by not acting reasonably in fulfilling its responsibility for ensuring delivery to the designated place for recept by the proper time.

By Anonymous on Friday, September 07, 2001 - 10:25 pm:

I use the standard that if it made it to the mail room in time, it was timely. The U.S. Post Office across the street is not timely, they should have mailed sooner or hand delivered. If I know our agency personnel had it in their possesion, then it is only fair that it be considered timely. If I cannot determine exact time of delivery from USPS/courier and it is not at the bid opening, it is late. That is my interpretation of the FAR.

It don't matter when they mailed it or how fast they thought the USPS/courier could deliver it. It is in agency possession or it isn't.

That's my story and I am sticking to it.

By Anonymous on Friday, September 07, 2001 - 11:04 pm:

Mary, you are determined to reject that proposal as late even though you admit it was received at the government installation on time and was in the control of the government. Go ahead, reject it. Please. There's at least one protest lawyer out here who can use the money.

Please give us the name of the company that submitted the proposal you're getting ready to reject. Telephone number would be nice too. You want immortality? You're going to get it with a B number attached.

By Anon32 on Sunday, September 09, 2001 - 09:37 am:

Where did Mary admit the proposal was "in the control of the government"? Come on, Anon!

By Anonymous on Sunday, September 09, 2001 - 12:13 pm:

She said it was received at "the installation post office." The post office! Who else had control of it after that time? Do you think that the offeror was able to enter the installation post office, modify or revise its proposal, and put it back? Come on, Anon32.

By anon32 on Monday, September 10, 2001 - 08:39 am:

Anonymous, is the bottom line that the offeror mailed the proposal on time, it arrived at the post office in time to meet the deadline, the post office had control over it so that the offeror couldn't revise it - "so what's the big deal" - go ahead and accept the proposal" ?

I won't say that totally I agree with your "in the Government control" statement but probably agree with the bottom line assessment.

By Anonymous on Monday, September 10, 2001 - 09:59 am:

Anon32, the bottom line is that FAR 15.208(b) says that the Government will consider a late proposal if it was received before award, and was received at the Government "installation" before the deadline, and was under the control of the Government, even if it was late getting to the office designated for receipt of proposals. The rule could not be clearer or less ambiguous. It does not matter what method was used to send the proposal--USPS first class mail, USPS express mail, Federal Express, UPS, DSL, handcarried by an employee of the offeror or by the offeror's dog. It does not matter that there was no bid/proposal label and I bet the GAO will consider a proposal delivered to the installation post office by USPS to be under the control of the Government.

This is a negotiated procurement. The proposal arrived at Mary's office two days late. Two days will not unduly delay the procurement. Two days would not unduly delay a sealed bid procurement. Mary is mad at the offeror when she says it was the installation post office that waited two days to tell her she had an express mail package.

The only thing I can think of that would get her off the hook and let her reject the proposal is if "the installation post office" is actually a USPS facility on Ft. Stewart rather than an Army mail room. The GAO has said in the past that the USPS does not count as "the Government." So if by "installation post office" she meant "the U.S. Postal Service facility on Ft. Stewart," she could argue that possession by the USPS meant that it was not under the control of "the Government." But if the installation post office is an Army mail room ("post office"), then she'd better consider that proposal.

By anon32 on Monday, September 10, 2001 - 11:52 am:

Anonymous, we are in total agreement - the reason I questioned "in government control" was based on an assumption that this is a USPS facility, not a mailroom. Yeah yeah, technically, the FAR defines the "government" as any private or public US agency. That's like saying, if the TVA, Forest Service, HUD, etc. had an office at Fort Stewart and the proposal showed up there, it would be "in the control of the government" per FAR!

After your post, I thought - phooey -
1.The proposal was "one-day" mailed three days before due date.
2.It was received at the USPS on time.
3.It wasn't the offeror's fault that Mary didn't get the proposal before 4:00PM. Not everyone can hand deliver proposals - that would be cost prohibitive. Overnight mailing 2-3 days early was reasonable.
4.Plus, what difference does it make? The source selection board probably didn't meet for a couple of days after receipt of proposals.

By formerfed on Monday, September 10, 2001 - 01:19 pm:

All this discussion just makes the late rule, which is really more relevant to sealed bidding, kind of ridiculous. Isn't obtaining competition and choosing the most advantageous proposal what the game is all about?

I remember a proposed FAR rule change on this a few years ago that allowed acceptance of a late response providing acceptance wasn't prejudicial to other offerors. Unfortunately, it didn't get anywhere.

If I was in this particular situation, I would simply take the proposal, add a note saying it was received at such a time, and give it to the evaluators. In many instances we are our own worse enemy.

By Anonymous on Monday, September 10, 2001 - 01:39 pm:

I'm the Anonymous who first wrote on 9-7 at 11:04pm and last wrote on 9-10 at 9;59am.

Look at the current rule, the one that presumably applies to Mary. It appears in FAR 15.208(b) and in 52.215-1(c)(3). Notice anything? They removed the part about "mishandling by the Government"! These days a late proposal gets considered if it is received at the designated office before award, was received at the installation before the deadline for submission, was in the Government's control whether it was mishandled by the Government or not, and consideration of it will not unduly delay the award.

Read the FAR you "contracting officers"!

By Anonymous on Monday, September 10, 2001 - 02:14 pm:

Read the FAR and quit letting a little power go to your heads. What is the issue here? Is it some legitimate concern that someone used late informatin to gain some sort of advantage? No more likely here than finding a cobra under a bed in Georgia.

Formerfed has it right. Attach a note describing exactly what happened and let the selection people sort it out.

This really seems to be about contracting office power plays despite some significant rule changes. So evaluation of a possible excellent proposal - not sealed bid - may be denied on these petty grounds? The end customer should be furious if that is the case. I really do hope to see this outfit's name up in B-something supporting the protest if this goes so far. It would at least clear this up for other obtuse contracting offices.

By Vern Edwards on Monday, September 10, 2001 - 02:21 pm:

All:

Anonymous is right up to a point.

The background statement that accompanied FAC 97-14, Item VII, which changed the late proposal rule, said that the rule was being changed to permit consideration of late offers for commercial items due to mishandling by the Government and to conform the language in FAR Parts 14 and 15 accordingly. However, the "mishandling" language was deleted from the rule itself. Who knows why?

I won't predict how the GAO would interpret the new rule and whether it would consider the FAC background statement in making its interpretation. It's even harder to say how the Court of Federal Claims would interpret the rule. But I'd wager that a lawyer would argue for an interpretation based on the plain language of the FAR.

Besides, the delay in sending the Express Mail package from the installation post office to the contracting office appears to have been substantial. The offeror sent the properly addressed (tho' not labeled) proposal by Express Mail three days before of the due date and it was received at the installation post office six hours before of the cutoff time, but the installation post office waited two days to send it on to the contracting office. Express Mail packages are hard to miss. I'd say that the offeror behaved responsibly and that the Government mishandled the proposal.

I agree with Anonymous to the extent that I would not rely on decisions that predate the rule change. If I was the contracting officer I'd rather fight a protest that I considered the proposal than fight a protest that I did not.

I would add that a lawyer wouldn't be much help here since there doesn't appear to be any pertinent case law to consider. He or she would be just as much in the dark as the CO.

By Anonymous on Monday, September 10, 2001 - 03:43 pm:

Prof. John Cibinic wrote about the new rules for late proposals in The Nash & Cibinic Report, January 2000, pp. 10-11. He made a point about the change from "mishandling by the Government" to "Government control" and noted the liberalization about what constituted "acceptable evidence" of Government receipt. He said that the new rules were simpler but that there would probably be litigation about what constituted "Government control."

By anonymous8 on Monday, September 10, 2001 - 09:33 pm:

This is interesting and I am too lazy to research right now. Are there accepted definitions for:

Installation
Government Control

Does it make a difference if the installation is a base or post with several contracting offices?

Does Government control mean the Activity which issues the RFP or just any arm of the (federal) government?

By Vern Edwards on Monday, September 10, 2001 - 09:45 pm:

One thought: Should Mary's objective be to reject the proposal in order to punish the offeror for not labeling the envelope properly, or should it be to enhance competition?

The purpose of the late proposal rule is to protect the integrity of the competitive process, not to enforce proposal labeling requirements. But the integrity of the process does not seem at stake here, where it is apparently beyond dispute that the proposal had been shipped three days before the cutoff date, received six hours before the cutoff time, and was in the Government's control thereafter. The GAO has allowed agencies to amend the RFP after the deadline to extend the deadline in order to accomodate late proposals, on grounds that to do so would enhance competition. The FAR does not explicitly require Government mishandling. So why refuse to consider it. Wouldn't it be more honorable for Mary to lose a protest attempting to get more competition than attempting to reject what might be the best proposal?

It seems to me that in light of the changes in the late proposal rule Mary should try to justify considering the proposal, rather than try to find a way to reject it. Don't you think that would be in the better interests of the Government?

And shouldn't Mary's office have checked with the installation post office prior to the cutoff time? That's what we did in my Air Force base procurement office more than 25 years ago. I also did it while working in Air Force weapon system offices. About one-half hour before the cutoff time someone would call the mail room to ask if they had any packages for us. The GAO doesn't require this, but don't you agree that it's good practice? Isn't it possible that the mail room would have notified Mary that they had an Express Mail package for her office, and wouldn't that have eliminated the problem? We also notified base security of the possibility that someone would try to deliver a proposal to us at the last minute and to call us to come escort the courier. I was taught to do that by Air Force NCOs as a young contracting trainee. (No better source of training in the world than NCOs.)

I think that Mary should consider the proposal. I think that to do anything else in this case would only reinforce the image of Government employees as mindless bureaucrats.

By anon32 on Tuesday, September 11, 2001 - 01:20 pm:

Vern and anonymous 9/10 09:59, Anon32 agrees with you. The integrity of the acquisition competition has not been compromised. No advantage has been provided to the "late offeror". It sent its proposal 3 days prior to the cut-off date.

By Anonymous on Tuesday, September 11, 2001 - 03:34 pm:

Although not exactly on point for this discussion, a recent late bid issue here may shed some light on how GAO will/still does look at mishandling. In this case, the second low attempted to fax in a bid modification (allowed in the IFB), but was unable due to the fact that someone had unplugged the designated fax machine and left it that way apparently for several days. Despite his best attempts prior to bid opening to send the modification, the contractor could not reach the contracting POC and finally got someone else in another office who gave him a different fax number. His modification arrived shortly after bid opening. After considering the facts, the contracting officer concluded that the late arrival was due primarily to government mishandling and accepted the modification. However, since the modification raised his price and he was no longer low, the contractor protested to GAO that his modification was late and could not be accepted. He cited the clause in the contract which allowed faxed modifications and which stated: "If the bidder chooses to transmit a facsimile bid modification, the Government will not be responsible for any failure attributable to the transmission or receipt of the facsimile modification, including but not limited to, the following:....(2) Availability or condition of the receiving facsimile equipment." Although we felt that this was clearly a failure on the part of the Government, the GAO,as others already pointed out, is often very literal in its interpretation. We requested a form of ADR with the GAO and all parties involved (including the second low). GAO pointed to the language cited above and indicated they would uphold the protest. We took corrective action and the second low has protested to COFC. We will see if they agree with the GAO.

By Anonymous on Sunday, September 16, 2001 - 01:48 pm:

Let me get this straight. A contractor fought its way through a government "mishandling" and got its revision through. The contractor took the fact that the government had been at fault in a very short delay and gave the contractor a quite reasonable break.

The result was that it lost because the revision raised the price. Then the contractor protested that, despite his valiant efforts and the government's being reasonable, the government should have been unreasonable (as I'm sure the protest would have been otherwise), thrown the bid out and reverted to the original.

That is cynically gaming the system and it appears GAO being literal here endorses such behavior. One thing is for sure. I'd not want that type contractor working for me! One could expect endless wrangling and double dealing attempts to have their cake and eat it as well. Let us hope GAO's shortsighted inability to see forest for trees is overturned.

By Kennedy How on Monday, September 17, 2001 - 12:07 pm:

Heh! That's the same thing I thought of, when I first read the details. I suppose next thing is that the contractor, who's now low again, will plead "unable to perform at the price bid", since he's already submitted "evidence" that the price was too low! Maybe we can have him verify his bid!

Literal interpretation or not, it's been my experience in the past that sometimes, adjudicating bodies tend to rule on "equity" rather than looking at the overall picture. For some reason, there was a time where we lost a number of case whereby we were told that "Yeah, you're right, but see if you can't do something to help the guy." In this case, to me, it may be that GAO used the literal interpretation to grant the decision to the contractor's favor.

Kennedy

By Head Shaking Anonymous on Monday, September 17, 2001 - 12:31 pm:

Kennedy, it does cause head shaking and amazement. We wonder why things get into a mess? Look no further for a type of blindness that just makes messes.

I realize I made one too. Guess I was shaking my head too hard. Instead of "The contractor took the fact that the government had been at fault
in a very short delay and gave the contractor a quite reasonable break." it should have been "The contractor took the fact that the government had been at fault in a very short delay and the government gave the contractor a quite reasonable break."

Now in consideration of that reasonable break the government and public are simply getting screwed by the contractor. It is going to cost in direct effort and delay to straighten this thing out. Personally, I think there should be a special category of permanent black listing of contractors exhibiting such cynical behavior.

By Vern Edwards on Monday, September 17, 2001 - 12:57 pm:

I have a different take on this. Accepting Anonymous 9-11 3:34's facts, the GAO took the right position. It's advice was in accord with the terms of FAR 52.214-31(g) and it enabled the taxpayers to pay a lower price than they would have paid if the bid modification had been accepted. That's a good deal for the taxpayer.

Those of you who are complaining about what the bidder did seem to be complaining that it did not show good sportsmanship. Bidding is not about sportsmanship and I don't see any reason to impugn the integrity of the bidder because it used the government's rules to its own advantage. We have lawyers and accountants to help us do just that when we file our tax returns. I do, anyway.

If there is any indication that the bidder doesn't have a satisfactory record of integrity or business ethics the CO can declare it nonresponsible.

By Anonymous on Tuesday, September 18, 2001 - 12:20 pm:

Of course there is always a twist to the story (the rest of the story). The contractor who protested and with whom GAO sided did not submit the low bid. He was actually second low, but claimed (and substantiated) preference as a HUBZone contractor. The preference added to the low bidder's price (a LB) made the protester low. If his bid was modified as requested, he would no longer have displaced the low bidder. I have no reason to believe GAO was looking for equity as Kennedy suggested. I think it was consistent with a literal interpretation of the clauses. What I'm curious about is what COFC will do. They seem to not read things so literally and look for a rational answer. It seems clear to me the rational answer here is that the bid modification was late due to government mishandling and should have been accepted. Stay tuned.

By Vern Edwards on Tuesday, September 18, 2001 - 12:32 pm:

Anonymous:

You seem to think that a "literal interpretation" is not rational in this case. Is that so? If so, why?

By Mary on Tuesday, September 18, 2001 - 04:49 pm:

My thanks to all of you who responded with thoughtful comments and insights be it in my favor or in the contractors. I am standing by my decision based on all the cases I have read which emphasize "that receipt is at the procuring agency or ultimate destination not the installation post office". Contrary to many opinions stated above, this offeror was not low, I know nothing about this offeror so I have absolutely no reason to want to reject them, we received adequate competition, offers were due 20 Aug with a 1 Sep start date so a quick award was required, and this was no formal source selection. Should this protest go to GAO I will let you know the outcome.

By Kennedy How on Wednesday, September 19, 2001 - 12:06 pm:

These little twists and turns is why I've always had that little feeling in the back that when Sealed Bidding is not clean, we get bogged down into some kind of dispute somewhere. If it all goes well, it's fast and simple. If not, look out!

We had a case once where we knew the low bidder erred. We gave him 4 chances to verify. He affirmed the bid all 4 times. After award, he alleged mistake. We refused to terminate. The ASBCA said that even though you got 4 affirmations, you should have known he was wrong, and not made the award to him!

OK, so let's speculate here on the case we've been discussing. The guy with the modified bid won his protest, and got the award, even though his modified bid raised the price. If he decides to allege mistake in bid, given the "evidence" based on his modified bid, should the GAO grant him relief? Remember that the GAO disallowed his modified bid in the first place.

I'm curious because certainly, it would seem the bidder may be "gaming" the system, so I'm taking it to the next step.

Kennedy

By Vern Edwards on Wednesday, September 19, 2001 - 12:33 pm:

Kennedy:

Do you have the name and number of the ASBCA case you mentioned?

In your scenario, is the bidder asserting mistake before or after award? (Since you mentioned the GAO I assume you mean that the bidder is asserting a mistake before award.)

If the assertion is before award, is the bidder asking to withdraw its bid or to correct it? If the bidder is asking to correct its mistake, will it still be the low bidder? What is the bidder's evidence?

By Kennedy How on Thursday, September 20, 2001 - 12:24 pm:

Vern,

No, I don't have the case cite handy, though I recall it was in the mid-80s. It was something our area discussed off and on, because we had followed "all the rules", and we got zinged. This was the first step towards some of the incidents later on where we felt the Board was ruling on Equity rather than the facts of the case at hand.

(As an aside, it was these earlier case incidents that makes me say some of the comments I've made in the past, especially under T4D and T4C.)

But, I may have misspoke regarding the GAO, since we don't normally deal with them. I guess what I really want to posit is the mistake will be asserted after award.

But, to restate the entire scenario, GAO said that the Government should not allow the modified bid. Therefore, we're back to the original bid. Presume this original bid is low (not that far a stretch, since it was stated that the modified bid made him no longer the low).

At this point, a couple things could happen. The Govt could look at his bid again, and ask him to confirm it, based on the bidder's desire to modify the bid upwards. I like this option, mainly because as an 1102, I start wondering why somebody is playing all these games with the system. But, I will say that it might be tempered by the magnitude of the "change", as well as the low bid's relationship (percentagewise) to the other bids, as well as what we know about the low, period. But, let's say that while the change was significant, it's still within, say 5% of the next low, and everybody else. So, the other choice is to make the award.

Now that we've done so, the contractor comes in and alleges mistake in bid, saying he can't perform at the price awarded, and maybe pointing to his modified bid as proof. The contractor is now trying to have it both ways.

Another thought occurred to me. If this all happened prior to award, is it possible to petition the GAO to reconsider, in the fact that the protestor is now changing his tune, and wants his modified bid to stand? Especially if we are going to award to him, and he suddenly realizes that this isn't good for him?

Kennedy