[Federal Register Volume 61, Number 81 (Thursday, April 25, 1996)]
[Proposed Rules]
[Pages 18480-18482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10043]
[[Page 18479]]
_______________________________________________________________________
Part III
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Parts 14, 15, and 52
Federal Acquisition Regulation; Consideration of Late Offers; Proposed
Rule
Federal Register / Vol. 61, No. 81 / Thursday, April 25, 1996 /
Proposed Rules
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[[Page 18480]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 14, 15, and 52
[FAR Case 95-019]
RIN 9000-AG89
Federal Acquisition Regulation; Consideration of Late Offers
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are proposing to amend the Federal
Acquisition Regulations (FAR) to broaden the conditions under which
late offers for procurements other than commercial items can be
considered. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993.
DATES: Comments should be submitted on or before June 24, 1996 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (VRS), 18th & F
Streets NW., Room 4037, Washington, DC 20405.
Please cite FAR case 95-019 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAR case 95-019.
SUPPLEMENTARY INFORMATION:
A. Background
The proposed coverage amends the late bid rule to allow an offer to
be accepted if Government mishandling after receipt at the Government
installation is determined (by the Government) to be the primary cause
of delay. The proposed rule recognizes use of hand-carried offers as a
common business practice, (consistent with GAO case law); proposes a
change to provide more flexibility in determining when an offer (bid or
proposal) was received at the Government installation (again by
applying standards used by the GAO); expands the definition of
acceptable evidence to prove mishandling beyond a date/time stamp or
other documentary evidence of receipt, to include oral testimony and
statements of Government personnel; and adds a new exception at 52.215-
10(a)(5) which would allow consideration of a proposal which was
misdirected or misdelivered (not necessarily through mishandling) to an
office other than that designated in the solicitation. This exception
would require that there be a reasonable basis to conclude that the
offer was delivered into Government control prior to the time proposals
were due, that it was thus out of the offeror's control, and, in the
determination of the contracting officer, accepting the offer would not
unduly delay the procurement.
These changes will not apply to commercial items solicitations
which contain 52.212-1(f), Late Offers.
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
only applies in situations where late offers are received. 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 95-019), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose recordkeeping or information
collection requirements, or collections of information from offerors,
contractors, or members of the public which 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: April 18, 1996.
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 14.304-1 is amended by revising paragraphs (a)(2) and
(c) to read as follows:
14.304-1 General.
* * * * *
(a) * * *
(2) It was sent by mail (or telegram or facsimile if authorized) or
hand-carried (including delivery by a commercial carrier) and if it is
determined by the Government that Government mishandling after receipt
at the Government installation was the primary cause of delay;
* * * * *
(c) Acceptable evidence to establish the time of receipt at the
Government installation includes the time/date stamp of such
installation on the bid wrapper, other documentary evidence of receipt
maintained by the installation, or oral testimony or statements of
Government personnel.
* * * * *
PART 15--CONTRACTING BY NEGOTIATION
3. Section 15.412 is amended by revising paragraph (c) to read as
follows:
15.412 Late proposals, modifications, and withdrawals of proposals
* * * * *
(c) Proposals, and modifications to them, that are received in the
designated Government office after the exact time specified are
``late''and shall be considered only if (1) they are received before
award is made, and (2) the circumstances meet the specific requirements
of the provision at 52.215-10, Late Submissions, Modifications, and
Withdrawals of Proposals.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Section 52.214-5 is amended by revising the date of the
provision; revising paragraph (a)(2); redesignating paragraphs (b)
through (d) as (c) through (e), respectively; and adding a new
paragraph (b) to read as follows:
52.214-5 Submission of Bids.
* * * * *
Submission of Bids (Date)
(a) * * * (2) showing the time and date specified for receipt,
the solicitation number, and the name and address of the bidder.
(b) Bidders using commercial carrier services shall ensure that
the bid is addressed
[[Page 18481]]
and marked as prescribed in paragraphs (a)(1) and (2) of this
provision when delivered to the office specified in the
solicitation.
* * * * *
5. Section 52.214-7 is amended by revising the date of the
provision; and revising paragraphs (a)(2) and (d) to read as follows:
52.214-7 Late Submissions, Modifications, and Withdrawals of Bids.
Late Submissions, Modifications, and Withdrawals of Bids (Date)
* * * * *
(a) * * *
(2) Was sent by mail (or telegram or facsimile, if authorized)
or hand-carried (including delivery by a commercial carrier) and if
it is determined by the Government that Government mishandling after
receipt at the Government installation was the primary cause of
delay;
* * * * *
(d) 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.
* * * * *
6. Section 52.214-23 is amended by revising the date of the
provision; and by revising paragraphs (a)(2) and (e) to read as
follows:
52.214-23 Late Submissions, Modifications, and Withdrawals of
Technical Proposals under Two-Step Sealed Bidding.
* * * * *
Late Submissions, Modifications, and Withdrawals of Technical Proposals
Under Two-Step Sealed Bidding (Date)
(a) * * *
(2) Was sent by mail (or telegram or facsimile, if authorized)
or hand-carried (including delivery by a commercial carrier) and if
it is determined by the Government that Government mishandling after
receipt at the Government installation was the primary cause of
delay;
* * * * *
(e) 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.
* * * * *
7. Section 52.214-32 is amended by revising the date of the
provision; and by revising paragraphs (a)(1) and (c) to read as
follows:
52.214-32 Late Submissions, Modifications, and Withdrawals of Bids
(Overseas).
* * * * *
Late Submissions, Modifications, and Withdrawals of Bids (Overseas)
(Date)
(a) * * *
(1) Was sent by mail (or telegram or facsimile, if authorized)
or hand-carried (including delivery by a commercial carrier) and if
it is determined by the Government that Government mishandling after
receipt at the Government installation was the primary cause of
delay; or
* * * * *
(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.
* * * * *
8. Section 52.214-33 is amended by revising the date of the
provision; and by revising paragraphs (a)(1) and (d) to read as
follows:
52.214-33 Late Submissions, Modifications, and Withdrawals of
Technical Proposals Under Two-Step Sealed Bidding (Overseas).
* * * * *
Late Submissions, Modifications, and Withdrawals of Technical Proposals
Under Two-Step Sealed Bidding (Overseas) (Date)
(a) * * *
(1) Was sent by mail (or telegram or facsimile, if authorized)
or hand-carried (including delivery by a commercial carrier) and if
it is determined by the Government that Government mishandling after
receipt at the Government installation was the primary cause of
delay;
* * * * *
(d) 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.
9. Section 52.215-9 is amended by revising the date of the
provision; by revising paragraph (a)(2); redesignating paragraphs (b)
through (e) as (c) through (f), respectively, and adding a new
paragraph (b) to read as follows:
52.215-9 Submission of Offers.
* * * * *
Submission of Offers (Date)
(a) * * * (2) showing the time and date specified for receipt,
the solicitation number, and the name and address of the offeror.
(b) Offerors using commercial carrier services shall ensure that
the proposal is addressed and marked as prescribed in subparagraphs
(a)(1) and (2) of this provision when delivered to the office
specified in the solicitation.
* * * * *
10. Section 52.215-10 is amended by revising the date of the
provision; by revising paragraphs (a) and (b); by removing paragraph
(c) and redesignating paragraphs (d) through (h) as (c) through (g),
respectively, and revising the newly designated (d) to read as follows:
52.215-10 Late Submissions, Modifications, and Withdrawals of
Proposals.
* * * * *
Late Submissions, Modifications, and Withdrawals of Proposals (Date)
(a) Any proposal received at the office designated in the
solicitation after the exact time specified for receipt of offers
will not be considered unless it is received before award is made
and--
(1) It was sent by registered or certified mail not later than
the fifth calendar day before the date specified for receipt of
offers (e.g., an offer submitted in response to a solicitation
requiring receipt of offers by the 20th of the month must have been
mailed by the 15th);
(2) It was sent by mail (or telegram or facsimile, if
authorized) or hand-carried (including delivery by a commercial
carrier) and if it is determined by the Government that Government
mishandling after receipt at the Government installation was the
primary cause of delay;
(3) It was sent by U.S. Postal Service Express Mail Next Day
Service-Post Office to Addressee, not later than 5:00 p.m. at the
place of mailing two working days prior to the date specified for
receipt of proposals. The term ``working days'' excludes weekends
and U.S. Federal holidays;
(4) It was transmitted through an electronic commerce method
authorized by the solicitation and was received by the Government
not later than 5:00 p.m. one working day prior to the date specified
for receipt of proposals;
(5) There is acceptable evidence to establish that it was
received at the activity issuing the solicitation and was under the
Government's control prior to the time set for receipt of offers,
and the Contracting Officer determines that accepting the late offer
would not unduly delay the procurement; or
(6) It is the only proposal received.
(b) Any modification of a proposal or quotation, including a
modification resulting from the Contracting Officer's request for
``best and final'' offer, is subject to the same conditions as in
subparagraphs (a) (1), (2), (3), (4) and (5) of this provision.
* * * * *
(d) 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.
* * * * *
11. Section 52.215-36 is amended by revising the date of the
provision; by revising paragraphs (a)(1) through (3) and (b); by
removing paragraph (c) and redesignating paragraphs (d) through (f) as
(c) through (e), respectively; and
[[Page 18482]]
revising the newly designated paragraph (c) to read as follows:
52.215-36 Late Submissions, Modifications, and Withdrawals of
Proposals (Overseas).
* * * * *
Late Submissions, Modifications, and Withdrawals of Proposals
(Overseas) (Date)
(a) * * *
(1) Was sent by mail (or telegram or facsimile, if authorized)
or hand-carried (including delivery by a commercial carrier) and if
it is determined by the Government that Government mishandling after
receipt at the Government installation was the primary cause of
delay;
(2) Was transmitted through an electronic commerce method
authorized by the solicitation and was received by the Government
not later than 5:00 p.m. one working day prior to the date specified
for receipt of proposals;
(3) There is acceptable evidence to establish that it was
received at the activity issuing the solicitation and was under the
Government's control prior to the time set for receipt of offers,
and the Contracting Officer determines that accepting the late offer
would not unduly delay the procurement; or
(b) Any modification of a proposal or quotation, including a
modification resulting from the Contracting Officer's request for
``best and final'' offer, is subject to the same conditions as in
subparagraphs (a)(1), (2), and (3) of this provision.
(c) Acceptable evidence to establish the time of receipt at the
Government installation includes the time/date stamp of the
installation on the proposal wrapper, other documentary evidence of
receipt maintained by the installation, or oral testimony or
statements of Government personnel.
* * * * *
[FR Doc. 96-10043 Filed 4-24-96; 8:45 am]
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