[Federal Register Volume 61, Number 81 (Thursday, April 25, 1996)]
[Proposed Rules]
[Pages 18480-18482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10043]




[[Page 18479]]


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Part III

Department of Defense

General Services Administration

National Aeronautics and Space Administration
_______________________________________________________________________



48 CFR Parts 14, 15, and 52



Federal Acquisition Regulation; Consideration of Late Offers; Proposed 
Rule

Federal Register / Vol. 61, No. 81 / Thursday, April 25, 1996 / 
Proposed Rules
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[[Page 18480]]

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 14, 15, and 52

[FAR Case 95-019]
RIN 9000-AG89


Federal Acquisition Regulation; Consideration of Late Offers

AGENCIES: Department of Defense (DOD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council are proposing to amend the Federal 
Acquisition Regulations (FAR) to broaden the conditions under which 
late offers for procurements other than commercial items can be 
considered. This regulatory action was not subject to Office of 
Management and Budget review under Executive Order 12866, dated 
September 30, 1993.

DATES: Comments should be submitted on or before June 24, 1996 to be 
considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: 
General Services Administration, FAR Secretariat (VRS), 18th & F 
Streets NW., Room 4037, Washington, DC 20405.
    Please cite FAR case 95-019 in all correspondence related to this 
case.

FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758 
in reference to this FAR case. For general information, contact the FAR 
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAR case 95-019.

SUPPLEMENTARY INFORMATION:

A. Background

    The proposed coverage amends the late bid rule to allow an offer to 
be accepted if Government mishandling after receipt at the Government 
installation is determined (by the Government) to be the primary cause 
of delay. The proposed rule recognizes use of hand-carried offers as a 
common business practice, (consistent with GAO case law); proposes a 
change to provide more flexibility in determining when an offer (bid or 
proposal) was received at the Government installation (again by 
applying standards used by the GAO); expands the definition of 
acceptable evidence to prove mishandling beyond a date/time stamp or 
other documentary evidence of receipt, to include oral testimony and 
statements of Government personnel; and adds a new exception at 52.215-
10(a)(5) which would allow consideration of a proposal which was 
misdirected or misdelivered (not necessarily through mishandling) to an 
office other than that designated in the solicitation. This exception 
would require that there be a reasonable basis to conclude that the 
offer was delivered into Government control prior to the time proposals 
were due, that it was thus out of the offeror's control, and, in the 
determination of the contracting officer, accepting the offer would not 
unduly delay the procurement.
    These changes will not apply to commercial items solicitations 
which contain 52.212-1(f), Late Offers.

B. Regulatory Flexibility Act

    This proposed rule is not expected to have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule 
only applies in situations where late offers are received. An Initial 
Regulatory Flexibility Analysis has, therefore, not been performed. 
Comments from small entities concerning the affected FAR subpart will 
be considered in accordance with 5 U.S.C. 610 of the Act. Such comments 
must be submitted separately and should cite 5 U.S.C. 601, et seq. (FAR 
case 95-019), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose recordkeeping or information 
collection requirements, or collections of information from offerors, 
contractors, or members of the public which require the approval of the 
Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 14, 15, and 52

    Government procurement.

    Dated: April 18, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, it is proposed that 48 CFR Parts 14, 15, and 52 be 
amended as set forth below:
    1. The authority citation for 48 CFR Parts 14, 15, and 52 continues 
to read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 14--SEALED BIDDING

    2. Section 14.304-1 is amended by revising paragraphs (a)(2) and 
(c) to read as follows:


14.304-1  General.

* * * * *
    (a) * * *
    (2) It was sent by mail (or telegram or facsimile if authorized) or 
hand-carried (including delivery by a commercial carrier) and if it is 
determined by the Government that Government mishandling after receipt 
at the Government installation was the primary cause of delay;
* * * * *
    (c) Acceptable evidence to establish the time of receipt at the 
Government installation includes the time/date stamp of such 
installation on the bid wrapper, other documentary evidence of receipt 
maintained by the installation, or oral testimony or statements of 
Government personnel.
* * * * *

PART 15--CONTRACTING BY NEGOTIATION

    3. Section 15.412 is amended by revising paragraph (c) to read as 
follows:


15.412  Late proposals, modifications, and withdrawals of proposals

* * * * *
    (c) Proposals, and modifications to them, that are received in the 
designated Government office after the exact time specified are 
``late''and shall be considered only if (1) they are received before 
award is made, and (2) the circumstances meet the specific requirements 
of the provision at 52.215-10, Late Submissions, Modifications, and 
Withdrawals of Proposals.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Section 52.214-5 is amended by revising the date of the 
provision; revising paragraph (a)(2); redesignating paragraphs (b) 
through (d) as (c) through (e), respectively; and adding a new 
paragraph (b) to read as follows:


52.214-5  Submission of Bids.

* * * * *

Submission of Bids (Date)

    (a) * * * (2) showing the time and date specified for receipt, 
the solicitation number, and the name and address of the bidder.
    (b) Bidders using commercial carrier services shall ensure that 
the bid is addressed

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and marked as prescribed in paragraphs (a)(1) and (2) of this 
provision when delivered to the office specified in the 
solicitation.
* * * * *
    5. Section 52.214-7 is amended by revising the date of the 
provision; and revising paragraphs (a)(2) and (d) to read as follows:


52.214-7  Late Submissions, Modifications, and Withdrawals of Bids.

Late Submissions, Modifications, and Withdrawals of Bids (Date)

* * * * *
    (a) * * *
    (2) Was sent by mail (or telegram or facsimile, if authorized) 
or hand-carried (including delivery by a commercial carrier) and if 
it is determined by the Government that Government mishandling after 
receipt at the Government installation was the primary cause of 
delay;
* * * * *
    (d) Acceptable evidence to establish the time of receipt at the 
Government installation includes the time/date stamp of that 
installation on the proposal wrapper, other documentary evidence of 
receipt maintained by the installation, or oral testimony or 
statements of Government personnel.
* * * * *
    6. Section 52.214-23 is amended by revising the date of the 
provision; and by revising paragraphs (a)(2) and (e) to read as 
follows:


52.214-23  Late Submissions, Modifications, and Withdrawals of 
Technical Proposals under Two-Step Sealed Bidding.

* * * * *

Late Submissions, Modifications, and Withdrawals of Technical Proposals 
Under Two-Step Sealed Bidding (Date)

    (a) * * *
    (2) Was sent by mail (or telegram or facsimile, if authorized) 
or hand-carried (including delivery by a commercial carrier) and if 
it is determined by the Government that Government mishandling after 
receipt at the Government installation was the primary cause of 
delay;
* * * * *
    (e) Acceptable evidence to establish the time of receipt at the 
Government installation includes the time/date stamp of that 
installation on the proposal wrapper, other documentary evidence of 
receipt maintained by the installation, or oral testimony or 
statements of Government personnel.
* * * * *
    7. Section 52.214-32 is amended by revising the date of the 
provision; and by revising paragraphs (a)(1) and (c) to read as 
follows:


52.214-32  Late Submissions, Modifications, and Withdrawals of Bids 
(Overseas).

* * * * *

Late Submissions, Modifications, and Withdrawals of Bids (Overseas) 
(Date)

    (a) * * *
    (1) Was sent by mail (or telegram or facsimile, if authorized) 
or hand-carried (including delivery by a commercial carrier) and if 
it is determined by the Government that Government mishandling after 
receipt at the Government installation was the primary cause of 
delay; or
* * * * *
    (c) Acceptable evidence to establish the time of receipt at the 
Government installation includes the time/date stamp of that 
installation on the proposal wrapper, other documentary evidence of 
receipt maintained by the installation, or oral testimony or 
statements of Government personnel.
* * * * *
    8. Section 52.214-33 is amended by revising the date of the 
provision; and by revising paragraphs (a)(1) and (d) to read as 
follows:


52.214-33  Late Submissions, Modifications, and Withdrawals of 
Technical Proposals Under Two-Step Sealed Bidding (Overseas).

* * * * *

Late Submissions, Modifications, and Withdrawals of Technical Proposals 
Under Two-Step Sealed Bidding (Overseas) (Date)

    (a) * * *
    (1) Was sent by mail (or telegram or facsimile, if authorized) 
or hand-carried (including delivery by a commercial carrier) and if 
it is determined by the Government that Government mishandling after 
receipt at the Government installation was the primary cause of 
delay;
* * * * *
    (d) Acceptable evidence to establish the time of receipt at the 
Government installation includes the time/date stamp of that 
installation on the proposal wrapper, other documentary evidence of 
receipt maintained by the installation, or oral testimony or 
statements of Government personnel.

    9. Section 52.215-9 is amended by revising the date of the 
provision; by revising paragraph (a)(2); redesignating paragraphs (b) 
through (e) as (c) through (f), respectively, and adding a new 
paragraph (b) to read as follows:


52.215-9  Submission of Offers.

* * * * *

Submission of Offers (Date)

    (a) * * * (2) showing the time and date specified for receipt, 
the solicitation number, and the name and address of the offeror.
    (b) Offerors using commercial carrier services shall ensure that 
the proposal is addressed and marked as prescribed in subparagraphs 
(a)(1) and (2) of this provision when delivered to the office 
specified in the solicitation.
* * * * *
    10. Section 52.215-10 is amended by revising the date of the 
provision; by revising paragraphs (a) and (b); by removing paragraph 
(c) and redesignating paragraphs (d) through (h) as (c) through (g), 
respectively, and revising the newly designated (d) to read as follows:


52.215-10  Late Submissions, Modifications, and Withdrawals of 
Proposals.

* * * * *

Late Submissions, Modifications, and Withdrawals of Proposals (Date)

    (a) Any proposal received at the office designated in the 
solicitation after the exact time specified for receipt of offers 
will not be considered unless it is received before award is made 
and--
    (1) It was sent by registered or certified mail not later than 
the fifth calendar day before the date specified for receipt of 
offers (e.g., an offer submitted in response to a solicitation 
requiring receipt of offers by the 20th of the month must have been 
mailed by the 15th);
    (2) It was sent by mail (or telegram or facsimile, if 
authorized) or hand-carried (including delivery by a commercial 
carrier) and if it is determined by the Government that Government 
mishandling after receipt at the Government installation was the 
primary cause of delay;
    (3) It was sent by U.S. Postal Service Express Mail Next Day 
Service-Post Office to Addressee, not later than 5:00 p.m. at the 
place of mailing two working days prior to the date specified for 
receipt of proposals. The term ``working days'' excludes weekends 
and U.S. Federal holidays;
    (4) It was transmitted through an electronic commerce method 
authorized by the solicitation and was received by the Government 
not later than 5:00 p.m. one working day prior to the date specified 
for receipt of proposals;
    (5) There is acceptable evidence to establish that it was 
received at the activity issuing the solicitation and was under the 
Government's control prior to the time set for receipt of offers, 
and the Contracting Officer determines that accepting the late offer 
would not unduly delay the procurement; or
    (6) It is the only proposal received.
    (b) Any modification of a proposal or quotation, including a 
modification resulting from the Contracting Officer's request for 
``best and final'' offer, is subject to the same conditions as in 
subparagraphs (a) (1), (2), (3), (4) and (5) of this provision.
* * * * *
    (d) Acceptable evidence to establish the time of receipt at the 
Government installation includes the time/date stamp of that 
installation on the proposal wrapper, other documentary evidence of 
receipt maintained by the installation, or oral testimony or 
statements of Government personnel.
* * * * *
    11. Section 52.215-36 is amended by revising the date of the 
provision; by revising paragraphs (a)(1) through (3) and (b); by 
removing paragraph (c) and redesignating paragraphs (d) through (f) as 
(c) through (e), respectively; and

[[Page 18482]]

revising the newly designated paragraph (c) to read as follows:


52.215-36  Late Submissions, Modifications, and Withdrawals of 
Proposals (Overseas).

* * * * *

Late Submissions, Modifications, and Withdrawals of Proposals 
(Overseas) (Date)

    (a) * * *
    (1) Was sent by mail (or telegram or facsimile, if authorized) 
or hand-carried (including delivery by a commercial carrier) and if 
it is determined by the Government that Government mishandling after 
receipt at the Government installation was the primary cause of 
delay;
    (2) Was transmitted through an electronic commerce method 
authorized by the solicitation and was received by the Government 
not later than 5:00 p.m. one working day prior to the date specified 
for receipt of proposals;
    (3) There is acceptable evidence to establish that it was 
received at the activity issuing the solicitation and was under the 
Government's control prior to the time set for receipt of offers, 
and the Contracting Officer determines that accepting the late offer 
would not unduly delay the procurement; or
    (b) Any modification of a proposal or quotation, including a 
modification resulting from the Contracting Officer's request for 
``best and final'' offer, is subject to the same conditions as in 
subparagraphs (a)(1), (2), and (3) of this provision.
    (c) Acceptable evidence to establish the time of receipt at the 
Government installation includes the time/date stamp of the 
installation on the proposal wrapper, other documentary evidence of 
receipt maintained by the installation, or oral testimony or 
statements of Government personnel.
* * * * *
[FR Doc. 96-10043 Filed 4-24-96; 8:45 am]
BILLING CODE 6820-EP-P