Link: GAO Opinion
Agency: Department of the Navy
Disposition: Protest sustained
Keywords: Proposal Extension
General Counsel P.C. Highlight: Where a proposal or bid has expired, GAO has recognized that an offeror or bidder may extend its acceptance period and revive its proposal or bid if doing so would not compromise the integrity of the competitive bidding system.
Ocean Services, LLC protests the refusal of the Department of the Navy, Military Sealift Command (MSC) to consider its expired proposal under a request for proposals (RFP).
The MSC issued the RFP, as a total small business set-aside, to solicit proposals for the operation and maintenance of the ocean survey vessel (OSV) BOLD. The RFP advised offerors that award was to be made to the lowest-priced, technically acceptable proposal. The original closing date for proposals was April 26. The agency issued three amendments that revised the solicitation, answered questions regarding the solicitation, and ultimately extended the due date for receipt of proposals to June 9.
On June 23, the apparent awardee was announced and the offerors were informed by the agency that any challenges concerning the small business size status of the apparent awardee must be filed by June 30. Two offerors, including Ocean, timely challenged the size status of the apparent awardee. On August 2, the agency requested that Ocean and the other offerors extend the acceptance period of their proposals. Agency On that same date, Ocean extended the acceptance period of its proposal to September 30. On September 17, the Small Business Administration determined that the apparent awardee was other than small for purposes of this procurement. On September 24, the agency again requested that Ocean and the other offerors extend the acceptance period of their proposals through November 14, and on that same date Ocean again provided the requested extension. On September 30, the agency extended the incumbent’s contract until February 12, 2011.On November 8, 2010, the agency again requested the offerors to extend the acceptance period of their proposals through Saturday, December 18, and, on that same date the offerors, including Ocean, provided the requested extension. On December 10, the agency issued a market survey for the operation and maintenance of the OSV BOLD. The responses to the market survey were due on December 20. On Monday, December 13, the agency again requested the offerors, including Ocean, to extend the acceptance period of their proposals through February 12, 2011.
Ocean asked the agency for an explanation of the extension and the agency merely replied that Ocean’s offer is valid through December 18 and a request for extension could be submitted by email. On December 20, Ocean responded to the market survey and extended its proposal through February 28, 2011. The agency replied that Ocean’s proposal would no longer be considered for award.
Ocean contends that the agency should allow it to revive its offer because this would neither prejudice the other offerors nor compromise the integrity of the competitive process. GAO states that where a proposal or bid has expired, GAO has recognized that an offeror or bidder may extend its acceptance period and revive its proposal or bid if doing so would not compromise the integrity of the competitive bidding system. Circumstances that compromise the system’s integrity are where the bidder offered an acceptance period shorter than other bidders (if the solicitation afforded bidders or offerors the option to offer less than a standard time frame that otherwise would be presumed to apply), or where the bidder expressly or impliedly refused a request to extend its bid and later granted an extension as its own interests dictated; a bidder’s or offeror’s limitation of the government’s legal ability to accept the bid or proposal in a manner at variance with the terms offered by other competitors limits the bidder’s or offeror’s exposure to marketplace uncertainties and reduces that bidder’s risk.
Ocean did not decline to extend the acceptance period for its proposal, which expired on a Saturday, but extended it on the following Monday morning. GAO has recognized in such circumstances that even where other bidders or offerors had extended their proposals as required, there is no prejudice to the other bidders or offerors, or to the competitive system, by allowing the expired bid or proposal to be revived. Reviving the proposal on the morning of the first business day following its expiration negates any argument that Ocean compromised the procurement process by avoiding market fluctuations to which other offerors were exposed. The protest is sustained and GAO recommends that MSC accept revival of Ocean’s proposal.