BNUMBER: B-270993
DATE: May 10, 1996
TITLE: Family Stress Clinics of America
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Matter of:Family Stress Clinics of America
File: B-270993
Date:May 10, 1996
Clifford K. Brickman for the protester.
Mike Colvin and Steven L. Zangwill, Department of Health and Human
Services, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of
the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
An oral amendment extending the closing date for submission of
proposals indefinitely is in full force and effect, even though it was
not confirmed in writing, where the amendment was issued under exigent
circumstances accompanying the shutdown of the contracting agency and
the terms of the oral amendment are not in dispute.
DECISION
Family Stress Clinics of America protests request for proposals (RFP)
No. 240-BPHC-8(6), issued by the Department of Health and Human
Services (HHS), Health Resources and Services Administration, for
counseling services for the Employee Assistance Program for the
western region of the United States Postal Service. Family Stress
contends that the agency orally amended the RFP by indefinitely
extending the closing date for receipt of proposals and then failed to
honor the terms of that amendment.
We sustain the protest.
The RFP contemplated the award of a cost-plus-award-fee contract for 1
year with 4 option years. HHS issued two written amendments, the
second of which set the closing date for receipt of proposals as
December 29, 1995.
Because of the budget impasse, the agency was shut down from December
18 through January 5, 1996. Additionally, due to snow emergencies,
the shutdown was extended for all but 1 day thereafter until normal
operations resumed on January 16. According to the agency, the duties
and responsibilities of the contracting staff during this period,
including answering of telephones and receipt of mail, were primarily
performed by the contracting officer.
On December 21, the contracting officer contacted ROW Sciences, Inc.,
a technical support contractor of the agency, and instructed ROW to
call all of the 125 firms on the RFP distribution list, obtain their
fax numbers, and provide an explanation about extending the closing
date for submission of proposals, if necessary. The ROW employees
making the calls read the following prepared statement to each firm on
the list:
"I am calling for the contracts office at [HHS].
"The due date this week for proposals in response to the Postal
Service Employee Assistance Program RFPs has been extended. We
do not have a firm date yet, but the extension will be for at
least a couple of weeks.
"We will fax the amendment to the RFP in the next day or so. The
amendment will identify who you can call if you have questions."
The ROW employees were instructed that, in the event someone persisted
with questions, they should repeat the last sentence of the statement
and should not give out HHS phone numbers.
On December 28, ROW contacted Family Stress and read the statement
into the Family Stress's voice mail. ROW repeated the statement
during several telephone conversations with Family Stress in early
January. ROW states that Family Stress was persistent in requesting
more information about the extension and that ROW only repeated the
prepared statement, as instructed. ROW states that after the shutdown
was over, it obtained permission to provide Family Stress with an HHS
phone number.
Prior to the end of the shutdown, Family Stress faxed a letter on
January 11 to the contracting specialist on this RFP. This letter
referenced previous letters faxed on December 22 and 27, which raised
questions about the RFP and requested a response. The letter stated
that attempts to reach the contracting specialist by phone in the
interim had been unsuccessful.
On January 17, the contracting specialist left a voice mail message
for Family Stress answering its questions and stating that HHS had not
extended the closing date. In a later phone conversation with Family
Stress, the contracting officer confirmed that the agency had not
extended the closing date. Six proposals were received in response to
the RFP.
Family Stress protests that the oral statement disseminated by ROW
amended the solicitation to extend the closing date indefinitely. In
response, HHS contends that the oral statement is not an amendment
because it was never followed by written confirmation. We find that
the oral statement read by ROW to prospective offerors constituted an
oral amendment extending indefinitely the closing date for submission
of proposals and that the agency's failure to confirm this amendment
in writing does not preclude its enforceability.
When the closing date for receipt of proposals is to be changed, the
RFP is to be amended prior to the closing date. Federal Acquisition
Regulation (FAR) sec. 15.410(a)(3). Where the time available before the
closing date is insufficient for issuance of a written amendment,
prospective offerors are to be notified by electronic data
interchange, telegram, or telephone of an extension of the closing
date. FAR sec. 15.410(b). While such telephonic and telegraphic notices
are required to be confirmed in a written amendment to the
solicitation, id., we have long recognized that an agency may need to
orally amend a solicitation and require offerors to act on the terms
of the amendment before the agency can disseminate a written amendment
confirming those terms. See Porta-Fab Corp., B-213356, May 7, 1984,
84-1 CPD para. 511; Chrysler Motors Corp., B-186600, Sept. 29, 1976, 76-2
CPD para. 294. When such exigent circumstances exist, an oral amendment
is effective. See Porta-Fab Corp., supra.
Here, such exigent circumstances clearly existed--the agency was shut
down and the notification of closing date extension was provided only
one day prior to that date. Obviously, with the agency closure and
the repeated statements from ROW during early January, a prompt
written confirmation of the extension could not reasonably have been
expected shortly after December 28.[1] See Porta-Fab Corp., supra.
The facts also are not in dispute. In response to the contracting
officer's instruction, ROW contacted the firms on the distribution
list and unambiguously stated that it was calling for HHS, that the
closing date for proposals "had been extended" indefinitely, that "the
extension will be for at least a couple of weeks," and that an
amendment to the RFP confirming this extension would be issued. The
agency does not assert that ROW disseminated this statement without
the authority of the contracting agency. Under the circumstances, we
think that this statement clearly constituted an oral amendment
extending the closing date indefinitely.
HHS nevertheless alleges that the fact it received six proposals
demonstrates that ROW's oral statement did not confuse any other
offeror into not submitting a proposal. The record shows that only
two proposals were received by HHS on or before December 29; three
others were received on January 3, and one was received on January 23.
Two of the proposals were submitted by offerors who were not on the
list of 125 prospective offerors from which ROW made its calls, and of
the remaining four, the agency states, one was delivered by courier
the morning of December 28 and two were in the possession of couriers
as early as December 27 or 28. Since ROW first made its call to
Family Stress on December 28, it appears that at least three of these
four proposals may have left the offerors' hands prior to ROW's calls
advising of the extended closing. Thus, the number of proposals
received does not negate the unequivocal nature or effect of ROW's
message on behalf of HHS' extending of the closing date.
Finally, HHS alleges that Family Stress's protest should not be
sustained because that firm was not ready to submit a proposal either
on December 29, or in January when the shutdown ended. Family Stress
responds that it was in the process of preparing its proposal for
submission at the time of the oral amendment and, when notified of the
indefinite extension of the closing date, it gave its subcontractors
additional time to provide information for the proposal. Under the
circumstance, we cannot find that Family Stress could not have
submitted a timely proposal if the agency had not extended the closing
date. Nevertheless, in view of the indefinite extension, Family
Stress's readiness to submit a proposal by either December 29 or in
January would not be controlling.
We recommend that the agency reopen the competition, issue an
amendment establishing a closing date for submission of proposals, and
proceed with the procurement. We also recommend that the protester be
reimbursed its costs of filing and pursuing its protest, including
reasonable attorneys' fees. 4 C.F.R. sec. 21.8(d)(1) (1996). The
protester should submit its certified claim for costs to the
contracting agency within 90 days of receiving this decision. 4
C.F.R. sec. 21.8(f)(1).
The protest is sustained.
Comptroller General
of the United States
1. In addition, because of the unusual exigent circumstances and ROW's
declination to give HHS phone numbers, we do not think that the
protester should have been greatly concerned that no written
amendment, confirming the closing date extension and establishing a
new closing date, was issued until normal HHS operations resumed in
mid-January.
Moreover, the record evidences that Family Stress attempted to contact
the contracting office telephonically during the shutdown and was
unsuccessful on every attempt, as evidenced by its unanswered faxes to
the contracting specialist for this RFP. Although the contracting
officer states that he was performing all of the duties of his laid
off staff, including answering phones, it is not surprising under the
extreme demands of the shutdown that some phones, fax messages, and
even attempts by couriers to deliver packages went unanswered, as the
record evidences occurred here.