Do you think that agencies are likely to delay the closing date of a solicitation because they issue amendments very close to the due date? Frequently, agencies do not change the closing date, and this is deemed proper. Consider the follow excerpt from Federal Acquisition Regulation (“FAR”) 5.203:
(b) The contracting officer must establish a solicitation response time that will afford potential offerors a reasonable opportunity to respond to each proposed contract action.… The contracting officer should consider the circumstances of the individual acquisition, such as the complexity, commerciality, availability, and urgency, when establishing the solicitation response time.
(c) Except for the acquisition of commercial items … agencies shall allow at least a 30–day response time for receipt of bids or proposals from the date of issuance of a solicitation, if the proposed contract action is expected to exceed the simplified acquisition threshold.
FAR 15.206 states that whenever the Government changes its requirements or terms and conditions, “the contracting officer shall amend the solicitation” and shall make a “revision to [the] solicitation closing date, if applicable.”
When should a contracting officer extend the closing date, and for how long? The Government Accountability Office (“GAO”) has answered the question by saying that the determination of a sufficient amount of time for proposal preparation is a matter committed to the discretion of the contracting officer and the GAO will only object to that determination if it is shown to be unreasonable. In most cases, the GAO finds that an agency’s decision not to extend the closing date to be reasonable, as in Financial Asset Management Systems, Inc., B-409722.9, April 24, 2015, 2015 WL 2124247.
In Financial Asset, a procurement for student loan debt collection and administrative resolution services, the protester asserted that the agency (Department of Education) was required to extend the date for submission of proposals in order to provide adequate time for offerors to prepare them. The protester noted that amendment no. 20 included agency answers to 359 offeror questions only 3 days before the closing date, and the agency provided incumbent contractors with completed past performance questionnaires for their incumbent contracts with the agency only 2 days before the closing date.
The GAO examined whether the agency’s refusal to extend the closing date was reasonable. It noted that the protester had not identified any specific questions or answers that required additional proposal response time, nor had amendment no. 20 changed any terms of the solicitation. GAO also noted that sheer numbers were deceptive, because many questions were repetitious. “The protester has failed to show that it could not have reasonably prepared its proposal within the 28 days between amendment no. 17’s provision of the revised past performance evaluation terms and the closing date for receipt of proposals.” The GAO found no basis that the agency’s action in not extending the closing date was “unreasonable”.
The GAO has frequently noted there is no per se requirement that the closing date in a negotiated procurement be extended following a solicitation amendment. Harmonia Holdings, LLC, B-407186.2, Mar. 5, 2013, 2013 CPD ¶ 66. GAO also states that prospective offerors bear an affirmative duty to make reasonable efforts to timely obtain solicitation materials. Coyol Int'l Grp., B-408982.2 ,Jan. 24, 2014, 2014 CPD ¶ 40. Finally, if an offeror cannot meet a closing date is caused by that offeror’s failure to make reasonable efforts to promptly obtain information that it deemed necessary, rather than any improper action by the agency, the GAO will not find an agency at fault. See Am. Material Handling, Inc., B-281261, Jan. 19, 1999, 99-1 CPD ¶ 13.
Protesters will find it very difficult to protest an agency failure to extend a closing date when late amendments are issued. There is one circumstance where the GAO generally endorses the extension of a closing date, and that is when the primary purpose of such an action is to enhance competition. Here’s a typical GAO statement:
[W]e have repeatedly approved of the issuance of amendments extending closing dates after the expiration of the original closing date when the result is enhanced competition. See Fort Biscuit Co., 71 Comp. Gen. 392 (1992), 92-1 CPD ¶ 440 (not improper to issue an extension of the closing date for the submission of best and final offerors after that date so as to permit one of four offerors more time to submit its best and final offer); Varicon Int'l, Inc.; MVM, Inc., B-255808; B-255808.2, Apr. 6, 1994, 94-1 CPD ¶ 240 (not improper to extend the closing date after expiration of the original date so as to enhance competition by permitting two offerors submitting late proposals to compete against the two offerors that submitted timely proposals).
Ivey Mech. Co., B-272764, Aug. 23, 1996, 96-2 CPD ¶ 83.
The answer for contractors is simple. If there’s a late solicitation amendment but no change in the closing data, you must work diligently to meet the closing date. Better to do that, than to protest. Your protest of not being given enough time to prepare a proposal is not likely to be sustained, even if you have been given very little time to respond to a late amendment. You are likely to be successful only if you demonstrate that there was a significant and material change to the solicitation that requires more preparation time.
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