Government Contracts Monitor

Don’t Dawdle in Formulating Your Bid and Teaming Strategy!

April 14, 2015

Be diligent in identifying bidding opportunities, and formulating and implementing your bidding and teaming strategy, and do not count on a proposal due date extension to bail you out – particularly in commercial item procurements. As seen in Richen Management, LLC, B-410903, decided March 10, 2015, an agency’s refusal to allow more than 28 days to submit initial proposals, notwithstanding the intervening Thanksgiving holiday and the fact that the incumbent contract did not expire for almost another four months and the proposed contract required only a 30-60 day transition period, may be upheld by the Government Accountability Office (GAO).

The GAO acknowledged that agencies generally must allow at least 30 days from the date of issuance of an RFP for receipt of proposals. However, GAO noted that the FAR explicitly permits agencies to allow less than 30 days for the receipt of offers for commercial items, although, even as to commercial items, FAR 5.203(b) requires that agencies afford offerors a “reasonable opportunity” to respond, considering the complexity, commerciality, availability and urgency of the requirement.

The subject procurement was for maintenance services, and was conducted as a small business set-aside using commercial item procedures under FAR Part 12. The RFP was issued on November 6, 2014, and initially required proposals by December 2, 2014 – a mere 26 days later. A pre-proposal conference was held on November 17^th. On November 25^th – just two days before Thanksgiving and the long holiday weekend, and only one week before the initial proposal due date – the agency issued two amendments to the solicitation, clarifying various requirements. The first of these amendments extended the proposal due date for two additional days, to December 4 – thereby providing offerors a total of 28 days from the solicitation issuance.

On December 1^st – two business days after the issuance of Amendments One and Two, and the first day after the end of the long Thanksgiving holiday weekend – Richen requested that the agency extend the proposal due date by just one week. This request was denied, and Richen protested to GAO. Five proposals were received by the December 4, 2014 closing time.

Richen argued that 28 days was not enough to furnish “the extensive information required under the solicitation,” including an executed joint venture or partnership agreement for offerors proposing a contractor team arrangement and a minimum of three past performance evaluations. Richen also argued that the agency did not consider the intervening Thanksgiving holiday.

The agency, however, pointed out that it had provided offerors substantial advance notice of the requirement through a Sources Sought Announcement published on January 14, 2014, and had provided interested offerors additional detail as to the required services, operating hours, tenant numbers and interior and exterior footage via a pre-solicitation synopsis published on October 8, 2014. The contracting officer explained that “she also considered denying the request for an extension due to the urgency of the procurement,” stating that “the procurement could not be delayed any further if continuity of services was to be maintained since the current contract had been extended for the last time, and will expire on March 31, and a 30-60 transition period will be required for the new contract.”

It would appear that Richen had a strong case for the modest requested one-week extension, particularly given the late issuance of the two amendments, the intervening long Thanksgiving holiday weekend and the absence of any true “urgency” if the incumbent contract still had almost more four months to go and the new contract required only a 30-60 day transition period. However, GAO was not willing to second-guess the agency here, given the commercial nature of the services, the advance notice provided by the sources sought notice and the detailed synopsis, the provided 28-days response period and the asserted urgency. GAO stated that the reasonableness of the response period was supported by the fact that the agency received five proposals by the closing date.

A footnote to GAO’s discussion sheds some important light. GAO noted that the record indicated that “a significant reason” Richen required an extension is because it reportedly waited until the November 17 pre-proposal conference to determine potential team members. According to GAO there was no reason Richen could not have looked for team members earlier, citing the January 14^th sources sought notice and October 8^th synopsis.

The bottom line is that offerors need to be diligent in identifying procurement opportunities early on, and in identifying and formalizing arrangements with potential teaming members. Offerors should not count on being able to obtain proposal due date extensions, and should recognize that the GAO is going to be reluctant to second-guess and overrule agency decisions denying (or granting) proposal extension requests.