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Posted on Wednesday, July 17, 2019

FAR Submission Deadline for “Offers” Can Apply to “Quotes”

We have previously blogged about some of the critical differences between an offer submitted in response to a Request for Proposal (RFP) and a quote submitted in response to a Request for Quotation (RFQ). A recent decision of the Government Accountability Office (GAO) highlighted another difference: language in an RFQ requesting quotations by a certain date does not establish a firm closing date for receipt of quotations unless the RFQ has a late submission provision expressly providing that quotations must be received by that date to be considered. 

In that case, the Army issued an RFQ for laundry and dry cleaning services. The RFQ added confusion to the procurement process because the RFQ included references to “offers.” For example, although the solicitation contained instructions for the preparation and submission of quotations, the solicitation also included FAR 52.212–1, Instructions to Offerors-Commercial Items” that included language (FAR 52.212-1(f)(2)(i)) dealing with late submission of offers. Specifically, offers submitted after 12:00 p.m. on December 17, 2018 would be late.

Robertson & Penn, Inc. (Robertson) submitted its response several hours after the deadline had passed, allegedly on the word of an Army employee who said the deadline was 4:30 that day.

After the Army disqualified Robertson’s submission as late, Robertson protested to GAO, arguing that because it had submitted a quote and not an offer, its submission could not be disqualified.   

However, what Robertson ignored, and what GAO relied on in denying the protest, was the Army’s inclusion in the solicitation of FAR 52.212-1(f)(2)(i) that makes late offers, generally, ineligible.

GAO did not accept Robertson’s argument that the FAR provision applied not to quotes but only to offers: “the solicitation unequivocally instructed vendors to submit their quotations in accordance with FAR provision 52.212–1, Instructions to Offerors-Commercial Items. This provision includes the late submission provision FAR 52.212–1(f)(2)(i), which expressly provides that submissions must be received by the stated deadline in order to be considered.”

Moreover, GAO has previously taken this position: “This is precisely the type of solicitation term and solicitation provision that we have repeatedly found precludes an agency from considering a quotation if received after the stated deadline.”

To GAO’s credit, its decision acknowledged the Government role in confusing a solicitation:

Agencies routinely issue RFQs that include solicitation provisions referring to ‘offers,’ and interchangeably use the terms ‘offers’ and ‘quotations.’ Offers and quotations, however, are not synonymous, see FAR 13.004, Legal effect of quotations, noting that a quotation is not an offer. In order to avoid confusion, agencies should take care to consider the terminology in their solicitations and tailor the language as necessary to ensure that they are appropriately and consistently using the correct terminology.

  

It is often difficult to determine the precise nature of the government’s solicitation: RFQ or RFP. As this decision shows, the government can use the terms incorrectly at a great cost to a contractor. Berenzweig Leonard is available to help contractors to correctly identify the specific solicitation process the government is using and help them successfully navigate that solicitation process.

Robertson & Penn, Inc. dba Cusseta Laundry, B-417323 (May 16, 2019).

Berenzweig Leonard is teaming up with Red Team Consulting for a monthly newsletter featuring reports on recent contract decisions,  recent upcoming contracts, key protest decisions, events, and more. This post was published in the July 2019 newsletter. To sign up for our govcon newsletters, please click here. 

Terry O’Connor is a Partner at Berenzweig Leonard. Terry and Stephanie Wilson  lead the firm’s Government Contracts practice. Terry can be reached at toconnor@berenzweiglaw.com.