Is reviewing/evaluating a major defense contractors proposal past the validity date a violation of FAR/DFARS? And what is the best practice for dealing with expired proposal validity dates?
You did not specify whether the proposals you are reviewing were in response to RFPs that follow FAR Part 15 competitive negotiation procedures, FAR Part 15 non-competitive negotiation, FAR Part 12 competitive or in response to some other type of procurement method. My hunch is the proposals in question were submitted in response to RFPs based on FAR Part 15 non-competitive/negotiation procedures, so my answer is mostly based on that assumption. Below, I've included several different references and excerpts mainly from the FAR which might be helpful to answering your question. First, FAR 15.509 states that "the Optional Form (OF) 307, Contract Award, Standard Form (SF) 26, Award/Contract , or SF 33, Solicitation , Offer and Award, may be used to award negotiated contracts in which the signature of both parties on a single document is appropriate." If we are talking about a FAR Part 15 non-competitive/negotiated proposal, the SF 26 would be the best standard form to use because it does NOT even have a block for the contractor to enter a proposal expiration date, and both parties normally would sign the cover page to the contract in order to leave no doubt that both parties understand the contract's requirements and agree to be legally bound by the contract. If the contractor still puts an expiration date somewhere else in their proposal (perhaps in their proposal cover letter even though they weren't able to enter it on the SF 26 cover page), and the contract is awarded after the contractor's expiration date (and we did not get an extension), then I would definitely have the contractor sign the SF 26, so there is no question there was a meeting of the minds about what was negotiated and included in the contract.
However, I think an expired proposal becomes more of an issue if the negotiated procurement is competed under FAR Part 15 or FAR Part 12. You can see the importance of it most clearly by reading the following excerpt from FAR 52.212-2: "before the offer’s specified expiration time , the Government may accept an offer (or part of an offer) , whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award." While I wasn't able to find the same language in FAR Part 15, the wording in FAR Provision 52.215-1 and FAR 15.504 imply essentially the same thing; namely, that we can award the contract without obtaining the contractor's signature if the proposal is still valid (meaning we awarded BEFORE the proposal's expiration date).
The bottom line: In a competitively negotiated acquisition, the Government should be more careful not to let the proposal expire prior to contract award. If we're not careful and the proposal expires, then we cannot automatically assume the contract will be legally binding when we award/issue the contract without the contractor's signature on the contract. In the event the proposal has already expired in order to be certain the Government has a legally binding contract, the Contracting Officer should either request a proposal extension from the contractor or have the contractor sign the contract. In a non-competitive negotiation, the best option would be to use the SF 26 and have the contractor sign the contract anyway. However, in the interest of good partnering, I would not wait until the proposal has already expired. I would discuss it with the contractor ahead of time if the proposal is getting close to the expiration date and request an extension before it happens in order to avoid any potential problems or concerns later down the road. That way there are no surprises and it builds trust since both parties are in the loop and talking to one another throughout the negotiations and/or procurement process.
52.215-1 Instructions to Offerors-Competitive Acquisition (d) Offer expiration date. Proposals in response to this solicitation will be valid for the number of days specified on the solicitation cover sheet (unless a different period is proposed by the offeror ).
52.212-2 Evaluation—Commercial Products and Commercial Services (c) A written notice of award or acceptance of an offer , mailed or otherwise furnished to the successful offeror within the time for acceptance specified in the offer , shall result in a binding contract without further action by either party. Before the offer ’s specified expiration time , the Government may accept an offer (or part of an offer) , whether or not there are negotiations after its receipt, unless a written notice of withdrawal is received before award.
15.504 Award to successful offeror.
The contracting officer shall award a contract to the successful offeror by furnishing the executed contract or other notice of the award to that offeror .
(a) If the award document includes information that is different than the latest signed proposal, as amended by the offeror ’s written correspondence, both the offeror and the contracting officer shall sign the contract award.
(b) When an award is made to an offeror for less than all of the items that may be awarded and additional items are being withheld for subsequent award, each notice shall state that the Government may make subsequent awards on those additional items within the proposal acceptance period.
(c) If the Optional Form (OF) 307, Contract Award, Standard Form (SF) 26, Award/Contract , or SF 33, Solicitation , Offer and Award, is not used to award the contract , the first page of the award document shall contain the Government’s acceptance statement from Block 15 of that form, exclusive of the Item 3 reference language, and shall contain the contracting officer ’s name, signature , and date. In addition, if the award document includes information that is different than the signed proposal, as amended by the offeror ’s written correspondence, the first page shall include the contractor’s agreement statement from Block14 of the OF 307 and the signature of the contractor’s authorized representative.
SF 33 Block # 12: In compliance with the above, the undersigned agrees, if this offer is accepted within _________________________ calendar days (60 calendar days unless a different period is inserted by the offeror) from the date for receipt of offers specified above, to furnish any or all items upon which prices are offered at the set opposite each item, delivered at the designated point(s), within the time specified in the schedule
52.215- 1 Proposal revision is a change to a proposal made after the solicitation closing date, at the request of or as allowed by a Contracting Officer as the result of negotiations.
Optional Form (OF) 307, Contract Award, Standard Form (SF) 26, Award/Contract , or SF 33, Solicitation , Offer and Award, may be used to award negotiated contracts in which the signature of both parties on a single document is appropriate. Note however, if using the SF 26 for a negotiated procurement , block 18 is not to be used. If these forms are not used, the award document shall incorporate the agreement and award language from the OF 307.