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The Government will often release amendments to a Request for Proposal (RFP) when it has reason to make changes or revisions to the RFP. Some of these changes may be “minor,” such as correcting an error in typing or they may be “major” or “material,” such as a change in the date or location set for receipt of proposals, changes to the specifications or delivery dates, and so forth.
In either event, always read the amendment. If you ignore the amendment, you do so at your peril. The reason for the importance of these amendments is that it further defines or clarifies the terms and conditions of the resultant contract. The identical information is provided to all offerors. The offeror who is awarded the contract resulting from the proposal submitted to the Government in response to the RFP should have an unambiguous understanding of the terms and conditions of the contract.
Amendments are “minor” if they clarify some portion of the solicitation. A “minor amendment” that is not signed or acknowledged in any way may be accepted by the Government. The Contracting Officer may waive the failure to acknowledge the amendment as a minor informality. The Comptroller General decided that an “agency improperly rejected a bid that failed to acknowledge a solicitation amendment which was not material.” 1
Amendments are “material” if they have an effect on the obligations of the contractor, such as price, statement of work, delivery schedule, etc. “Generally, a bid which does not include an acknowledgment of a material amendment must be rejected because absent such an acknowledgment the bidder is not obligated to comply with the terms of the amendment and is thus nonresponsive.” 2
The subject of amendments was discussed by the General Accountability Office (GAO) in Fort Mojave/Hummel, a Joint Venture, B-296961, dated October 18, 2005. This protest involved an Invitation For Bid (IFB) rather than a Request For Proposal (RFP). The GAO restated its previous position that “a bidder's failure to acknowledge a material amendment to the IFB renders the bid nonresponsive, since absent such an acknowledgment the Government's acceptance of the bid would not legally obligate the bidder to meet the Government's needs as identified in the amendment.”
The GAO went on to discuss “minor” amendments by stating that “where the amendment has no effect or merely a negligible effect on price, quantity, quality, delivery of the item bid upon, or no effect on the relative standing of the bidders, then it is not material and the failure to acknowledge it should be waived as a minor informality.”
The GAO also clarified its position on this issue by stating that “an agency is not required to enter into a contract which presents the potential for litigation stemming from an ambiguity in the solicitation.” 3 In lieu thereof, “an agency has an affirmative obligation to avoid potential litigation by resolving solicitation ambiguities prior to bid opening and amendments clarifying matters which could otherwise engender disputes during contract performance are generally material and must be acknowledged.”
To simplify your life, sign and date all amendments without exception, and return them with the proposal.
The United States Court of Federal Claims (COFC or the Court) also addressed this issue in a post-award bid protest entitled Agencord Machinery & Equipment (AME) Inc. v. United States of America; No. 05-731C dated October 7, 2005. AME delivered its proposal to the Army six (6) days late to provide tie rod assemblies for Black Hawk helicopters. Although it was late, the proposal was accepted. A month later, Amendment 1 was issued to the initial offerors. The amendment authorized progress payments and it stated alternate materials may need if they pass fatigue tests.
The late bid rule is “late is late.” This is a very strict rule with limited exceptions. There were three (3) other offerors who submitted timely proposals. Nevertheless, the Contracting Officer “accepted” the late proposal apparently inadvertently. The response to Amendment 1 was received by the Government timely from all four (4) offerors. AME offered the lowest price for the first year unit price of the tie rods.
It was not until a month after receipt of amended proposals that the Army realized that the AME proposal was late - nearly four months after receipt of the initial offers. Two months later, AME was notified that its proposal was not only late but it had been submitted by facsimile which was not authorized. Thereafter, the proposal was rejected.
The Court quoted the Comptroller General by stating that the “late is late” rule “may seem harsh, [but] it alleviates confusion, ensures equal treatment of all offerors, and prevents one offeror from obtaining a competitive advantage that may accrue if it is permitted to submit a proposal later than the deadline set for all competitors.” 4
The COFC continued, “The Government may lose the benefit of the special skills and experience of a late submission, 'protecting the integrity of the competitive procurement process by ensuring fair and equal treatment among competitors' is of greater importance than the possible advantage that can be gained by considering a late proposal.” 5
An amendment to an RFP does not extend the time to submit proposals to the Government. The COFC clearly stated that once a proposal is late, “it [cannot] be revived by a subsequent timely acknowledgment of an amendment that AME never should have received.” The COFC went on to state, “By issuing the amendment [1] to [AME], the Army did not waive its right to reject Plaintiff's original offer as untimely.”
Therefore, “AME's timely offer in response to Amendment 1 did not cure its late original offer. An extended period of negotiations that includes the submission of revised proposals cannot legally cure a late submission.” 6
In addition, when an offeror's proposal is late and, therefore prohibited from receiving an award, the offeror also lacks “standing” to raise challenges to the acquisition process by an agency.
Consequently, as I have stated in a previous discussion, the timeliness rule is rigid. “Late is late!!” An amendment that may extend a deadline does not cure a late proposal. The COFC clearly stated that form is more important than substance. Hence, work within the rules and submit your proposals on time and don't rely on an amendment to cure a late delivery of a proposal. It won't work!
Do you require additional information about the impact of amendments, timeliness or assistance with in federal procurements and contracts or with other issues?
This article is not legal advice and should be not be construed as a legal opinion. You should consult your attorney for legal advice.
1 Pro Alarm Company, Inc., B-240137, September 20, 1990
2 Gulf Electric Construction Co., Inc., 68 Comp. Gen. 719 (1989)
3 See also ACC Construction Co., B-277554, September 22, 1997
4 PM Tech, Inc. B-291082, 2002. See also Zebra Techs, Intl. LLC B-296135.2 2005
5 See Zebra Techs. Int'l; See also Inland Service Corporation, Inc., B-252947, 1993
6 See also Hausted, Inc., B-257087, 1994
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