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    My research on how to proceed has been somewhat stymied, because 2 of the 2 approved vendors were late. It's not a matter of whether or not to include one or the other, because 'late is late' from the case studies I've read. FAR 15.208(a) and (b) back my assertion because I cannot find an exception based on my circumstances. My question is related to how to move forward... Option 1: Should I issue an Amendment to reopen the RFP period and allow each vendor to resubmit their proposals since both were late? I am at odds with this option, because one of the vendors did follow Section L and had the minimum number of required references replay. PPQ's while the other vendor disregarded this instruction. Option 2: Should I kick Proposal #2 out since they did not follow Section L instructions, but still utilize their proposed price to fulfill competition requirements since the proposal itself appears to be of good quality? Is there another approach I should be considering? Neither proposal has had a TAR yet, because I want to make sure of this level of acceptability prior to Technical reviewing. Thank you in advance for any assistance!


    Answer

    I cannot tell you how to move forward with your acquisition other than to say that from what you have outlined both submissions are late.  As you noted FAR Part 208 (b) (1) states that “Any proposal, modification, or revision, that is received at the designated Government office after the exact time specified for receipt of proposals is “late” and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late proposal would not unduly delay the acquisition;”  it goes on to say in (b) (2) “However, a late modification of an otherwise successful proposal, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.”

    The GAO has repeatedly denied protests where submissions were late as in GGear, File: B-41321 in which they state “it is an offeror’s responsibility to deliver its proposal to the proper place by the proper time, and late delivery generally requires rejection of the proposal.  FAR § 15.208; Shirlington Limousine & Transportation, Inc., B-299241.2, Mar. 30, 2007, 2007 CPD ¶ 68 at 3.  An offer that arrives late may only be considered if it is shown that the paramount reason for late receipt was improper government action, and where consideration of the proposal would not compromise the integrity of the competitive procurement process. Sector One Security Solution, B-400728, Dec. 10, 2008, 2008 CPD ¶ 224 at 2-3.”  
     
    Having said this the decision rests with the Contracting Officer, there is no prohibitions that prevent you from accepting both offers although they were both late.  Regardless of your decision, I would recommend that you consult your legal office and document your contract file outlining your decision and how that decision is in the best interest of the Government.


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