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

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.

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
Federal Register / Vol. 61, No. 81 / Thursday, April 25, 1996 / Proposed Rules 18481

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
18482 Federal Register / Vol. 61, No. 81 / Thursday, April 25, 1996 / Proposed Rules

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]

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