Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: Late Proposal.
General Counsel P.C. Highlight: Oral advice that would have the effect of altering the written terms of a solicitation, even from the contracting officer, does not operate to amend a solicitation or otherwise legally bind the agency.
Noble Supply and Logistics (Noble) protests the rejection of its proposal as late under a request for proposals (RFP), issued by the Department of the Air Force, for operation of the civil engineer supply store at Minot Air Force Base (AFB) in North Dakota.
The RFP set the closing date for receipt of proposals as 4:30 p.m. on December 22, 2010. Noble explains that on December 21, it delivered its proposal package to UPS to be shipped using “Next Day” service, but that when it checked on the status of the delivery the following morning, UPS advised it that severe weather would delay delivery of the package to the 23rd. According to Noble, it then located a UPS store in Minot, North Dakota and spoke with an employee of the store, who advised it that he would be able to print, package, and deliver a copy of the proposal to the base prior to the 4:30 p.m. closing time. However, Noble contacted the contracting officer and explained its situation and, according to Noble, the contracting officer advised that she understood the protester’s problem and stated “that if the proposal was delivered on December 23, it would still be evaluated.” Nobel was then advised that its proposal had been received after the specified closing time and would not be considered.
Noble argues that its proposal was not late because the contracting officer orally amended the RFP on December 22 to extend the closing date to December 23. In the alternative, Noble argues that even if its proposal was late, the agency should have considered it, because the late delivery was the result of incorrect information furnished by the contracting officer. GAO states that, according to FAR, a contracting officer may provide oral notice of a solicitation amendment “when time is of the essence,” but Noble has not alleged that the contracting officer ever in fact advised Noble that she would “amend” the solicitation to extend the closing date until December 23. Rather, Noble essentially argues that it understood the contracting officer’s oral assurance that its proposal would be evaluated even if submitted on the 23rd as implying that the RFP would be amended since there would not otherwise have been any basis for the contracting officer to consider its proposal. However, absent an unambiguous statement from the contracting officer conveying her intent to amend the closing date for all offerors, Noble could not reasonably disregard the solicitation’s express closing date and instead rely on an implied understanding of the contracting officer’s oral assurances, which were otherwise inconsistent with the terms of the RFP. GAO has repeatedly held that oral advice that would have the effect of altering the written terms of a solicitation, even from the contracting officer, does not operate to amend a solicitation or otherwise legally bind the agency.
As for Noble’s second argument, GAO states that while it is an offeror’s responsibility to deliver its proposal to the proper place at the proper time, and late delivery generally requires rejection of the proposal, a hand-carried proposal that arrives late may be considered if improper government action was the paramount cause of the late submission and consideration of the proposal would not compromise the integrity of the competitive procurement process. Even assuming that the contracting officer did incorrectly advise Noble regarding the acceptability of delivery on the 23rd, this misinformation did not prevent Noble from delivering its proposal on time, and thus was not the paramount cause of the late submission; rather, it was the Noble’s decision to rely on the contracting officer’s erroneous oral advice. The protest is denied.