05/08/2020 by Daniel Salmon, Esq.
When publishing a solicitation, the Government Contracting Officer (“CO”) may set a minimum acceptance period, during which offerors must agree to hold open their bid pricing following the submission of their proposals. Federal Acquisition Regulations (“FAR”) 14.201-6(i), 14.201-6(j), 52.214-15, and 52.214-16 provide the mechanisms by which the CO may do so. A solicitation’s minimum acceptance period is a material requirement and bids that specify a shorter period will be rejected.
The Government requires compliance with a solicitation’s acceptance period so that all offerors share the same business risks of leaving their bid or proposals open for acceptance by the government for the same amount of time. Sometimes the Government is unable make an award within this period and request offerors extend the validity of their bid; for example, because of a bid protest stay. The Government Accountability Office (“GAO”) has recognized that when an agency requests that an offeror extend its acceptance period, it is the responsibility of each offeror to communicate assent, either by ensuring that the agency receives an express extension or by conduct from which the agency can infer the offeror’s intent. Recognized actions displaying the offeror’s intent to hold open its bid include pursuit of an agency-level or GAO protest or even a timely response referencing the wrong solicitation number. The more prudent course of action, however, is to affirmatively and unequivocally accept the agency’s request for more time.
The GAO has stated that that allowing offerors to revive an expired bid would compromise the integrity of the competitive bidding system where the bidder submitted an acceptance period shorter than other offerors, or where the offeror expressly or impliedly refused a request to extend its bid and later granted an extension as its own interests dictated. This applies regardless of whether the bid was not extended due to the bidder’s failure to respond or due to the bidder simply not receiving the request to extend its bid validity.
However, the GAO sometimes permits an offeror to revive its bid after a short lapse, provided that the revival does not prejudice other bidders. While the GAO has not set forth a bright line rule on how late an offeror may revive such a bid, the GAO has allowed bids to be revived where the bid expires on a weekend and the offeror revives the bid on the next business day. GAO has also permitted revival where all offerors were granted the opportunity to extend their proposals on an equal basis. On the other hand, the GAO has not permitted an offeror to revive its bid after an award has been made or after “more than a week” beyond the bid’s expiration.
Bottomline: A failure to respond to an agency’s request for more time may preclude your bid from being considered. Furthermore, if the minimum acceptance period is reaching an end and you have not heard from the agency, it is prudent to reach out since the GAO may consider a failure to do so a lack of reasonable diligence. For specific advice on minimum acceptance periods or other government contracting issues, offerors should discuss their circumstances with their attorney. Vandeventer Black’s Construction and Government Contracts Practice Group attorneys are available for consultation regarding this or other procurement related matters.
About the Author:
Daniel is an associate in the Construction & Government Contracts practice group working out of the Norfolk office of Vandeventer Black LLP. His primary focus is supporting his practice group, but he is also interested in technology law and business law. Daniel received his J.D. from Washington University in St. Louis. During law school, Daniel completed the InSITE Fellowship, where he worked on several interdisciplinary teams that provided consulting services to early-stage start-up companies. Additionally, he served as a federal judicial extern to the Honorable Nancy J. Rosenstengel of the Southern District of Illinois. Daniel also served as an Associate Articles Editor for the Washington University Jurisprudence Review. For more information, contact Daniel at email@example.com.