For one reason or another, the date on which an agency anticipates granting a contract award often comes and goes with no award decision being made. In these situations, contractors are often asked beforehand to extend the acceptance period of their proposals to accommodate the expected delay in award. But what happens when the contractor does not agree to the extension by the agency’s deadline for doing so? Does that mean the contractor foregoes any chance it may have had at receiving the award? According to GAO, the answer is sometimes “no.”
In an April 6, 2011 decision, Ocean Services, LLC, B-404690, GAO dealt with this exact situation. In this total small business set-aside, the agency thrice asked offerors to extend the acceptance period of their proposals, and each time, the offerors agreed to the extension. When the agency sought a fourth extension so that it could perform additional market research, Ocean Services initially responded that it was concerned that the agency was pursuing a re-competition without the small business component. Ocean Systems, at that time, did not extend the acceptance period of its proposal.
The agency then sent, Ocean Services an e-mail on Friday, December 17, 2010, reminding Ocean Services that its proposal was set to expire the next day, a Saturday. The agency requested an extension of the offer, and on the next business day, Monday, December 20, Ocean Services extended its proposal. All other offerors extended their proposals before December 18, 2010.
The agency subsequently excluded Ocean Services from the competition because Ocean Services’ did not extend its proposal until December 20, two days after the proposal had expired. Ocean Services filed a bid protest at GAO challenging the exclusion.
In its decision, GAO applied the rule that when a proposal has expired, an offeror may “revive its proposal . . . if doing so would not compromise the integrity of the competitive bidding system.” GAO found that revival of the bid was appropriate because, in this case, Ocean Systems never declined to extend its offer and sought to extend it on the first business day after the offer expired. Because only two days had elapsed between the proposal’s expiration and revival, GAO concluded that Ocean Systems could not have “compromised the procurement process by avoiding market fluctuations to which other offerors were exposed.” Absent prejudice to other offerors, GAO recommended that the agency accept the revival of Ocean Systems’ proposal.
Although there certainly would be cases where revival of an expired proposal might not be appropriate, Ocean Services demonstrates that GAO does not condone strict enforcement of proposal expiration dates where the competitive process is not harmed by the proposal’s revival.