[Federal Register Volume 61, Number 252 (Tuesday, December 31, 1996)]
[Rules and Regulations]
[Pages 69292-69294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32809]


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DEPARTMENT OF DEFENSE
48 CFR Parts 14, 15, and 52

[FAC 90-44; FAR Case 95-019; Item V]
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: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council have agreed on a final rule amending 
the Federal Acquisition Regulation (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. This is not a major rule under 5 U.S.C. 804.

EFFECTIVE DATE: March 3, 1997.

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 FAC 90-44, FAR case 95-019.

SUPPLEMENTARY INFORMATION:

A. Background

    This final rule amends the late bid rule to allow an offer to be 
accepted if the late receipt was due primarily to Government 
mishandling after receipt at the Government installation. The rule 
recognizes the use of hand-carried offers (including delivery by a 
commercial carrier) as a common business practice, and provides 
flexibility in determining when an offer (bid or proposal) was received 
at the Government activity, by applying standards used by the General 
Accounting Office. The rule also expands the definition of acceptable 
evidence to support acceptance of a late offer and adds a new exception 
at FAR 52.215-10(a)(5) and 52.215-36(a)(3) which allows consideration 
of a proposal that was misdirected or misdelivered (not necessarily 
through mishandling) to an office other than that designated for 
receipt of offers in the solicitation. These changes do not apply

[[Page 69293]]

to commercial item solicitations which contain the provision at FAR 
52.212-1(f), Late Offers.
    A proposed rule was published in the Federal Register at 51 FR 
18480, April 25, 1996. Six comments were received from four 
respondents. All comments were considered in developing the final rule.

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 applies only 
in situations where late offers are received. The late offers to which 
this case applies are only a small portion of all offers received.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the 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: December 19, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, 48 CFR Parts 14, 15, and 52 are 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).

PARTS 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) if it is 
determined by the Government that the late receipt was due primarily to 
government mishandling after receipt at the Government installation;
* * * * *
    (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)(2) to read 
as follows:


15.412  Late proposals, modifications, and withdrawals of proposals.

* * * * *
    (c) * * * (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 clause date and 
paragraph (a)(2), redesignating paragraphs (b), (c), and (d), as (c), 
(d), and (e), respectively, and adding a new paragraph (b) to read as 
follows:


52.214-5  Submission of Bids.

* * * * *

Submission of Bids (Feb. 1997)

    (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 and marked on the outermost envelope or wrapper 
as prescribed in subparagraphs (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 clause date and 
paragraph (a)(2) to read as follows:


52.214-7  Late Submissions, Modifications, and Withdrawals of Bids.

* * * * *

Late Submissions, Modifications, and Withdrawals of Bids (Feb. 1997)

    (a) * * *
    (2) Was sent by mail (or telegram or facsimile, if authorized) 
or hand-carried (including delivery by a commercial carrier) if it 
is determined by the Government that the late receipt was due 
primarily to Government mishandling after receipt at the Government 
installation;
* * * * *
    6. Section 52.214-23 is amended by revising the clause date and 
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 (Feb. 1997)

    (a) * * *
    (2) Was sent by mail (or telegram or facsimile, if authorized) 
or hand-carried (including delivery by a commercial carrier) if it 
is determined by the Government that the late receipt was due 
primarily to Government mishandling after receipt at the Government 
installation;
* * * * *
    (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 clause date and 
paragraph (a)(1) to read as follows:


52.214-32  Late Submissions, Modifications, and Withdrawals of Bids 
(Overseas).

* * * * *

Late Submissions, Modifications. and Withdrawals of Bids (Overseas) 
(Feb. 1997)

    (a) * * *
    (1) Was sent by mail (or telegram or facsimile, if authorized) 
or hand-carried (including delivery by a commercial carrier) if it 
is determined by the Government that the late receipt was due 
primarily to Government mishandling after receipt at the Government 
installation; or
* * * * *
    8. Section 52.214-33 is amended by revising the clause date and 
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) (Feb. 1997)

    (a) * * *
    (1) Was sent by mail (or telegram or facsimile, if authorized) 
or hand-carried (including delivery by a commercial carrier) if it 
is determined by the Government that the late receipt was due 
primarily to Government mishandling after receipt at the Government 
installation;
* * * * *
    (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

[[Page 69294]]

by the installation, or oral testimony or statements of Government 
personnel.
* * * * *
    9. Section 52.215-9 is amended by revising the clause date and 
paragraph (a)(2); by 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 (Feb. 1997)

    (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 on the outermost envelope or 
wrapper 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 clause date and 
paragraphs (a) and (b); by removing paragraph (c) and redesignating 
paragraphs (d) through (i) as (c) through (h) respectively; and 
revising the newly designated (d). The revised text reads as follows:


52.215-10  Late Submissions, Modifications, and Withdrawals of 
Proposals.

* * * * *

Late Submissions, Modifications, and Withdrawals of Proposals (Feb. 
1997)

    (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) if it is determined by the Government that the late receipt 
was due primarily to Government mishandling after receipt at the 
Government installation;
    (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 designated for receipt of offers 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) through (a)(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 clause date and 
paragraphs (a) and (b); by removing paragraph (c) and redesignating 
paragraphs (d), (e), (f), and (g) as (c), (d), (e), and (f); and 
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) (Feb. 1997)

    (a) Any proposal received at the office designated in the 
solicitation after the exact time specified for receipt will not be 
considered unless it is received before award is made and--
    (1) It was sent by mail (or telegram or facsimile, if 
authorized) or hand-carried (including delivery by a commercial 
carrier) if it is determined by the Government that the late receipt 
was due primarily to Government mishandling after receipt at the 
Government installation;
    (2) 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;
    (3) There is acceptable evidence to establish that it was 
received at the activity designated for receipt of offers 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
    (4) 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), 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. 96-32809 Filed 12-30-96; 8:45 am]
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