[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.

-----------------------------------------------------------------------

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: 
[email protected].
    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