Federal Acquisition Regulation (FAR): Conforming late offer treatment,
[Federal Register: September 24, 1999 (Volume 64, Number 185)]
[Rules and Regulations]
[Page 51837-51841]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24se99-22]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 14, 15, 22, and 52
[FAC 97-14; FAR Case 97-030; Item VII]
RIN 9000-AI25
Federal Acquisition Regulation; Conforming Late Offer Treatment
AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to provide uniform guidance regarding receipt of late offers for commercial, sealed bid, and negotiated acquisitions.
EFFECTIVE DATE: November 23, 1999.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, (202) 501-4755, for information pertaining to status or publication schedules. For clarification of content, contact Mr. Ralph De Stefano, Procurement Analyst, at (202) 501-1758. Please cite FAC 97-14, FAR case 97-030.
SUPPLEMENTARY INFORMATION:
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Background
The Councils published a proposed rule in the Federal Register on January
[[Page 51838]]
27, 1999 (64 FR 4248), amending the FAR to provide a single standard for receipt of late offers under commercial, sealed bid, and negotiated acquisitions. The final rule makes additional revisions to the proposed rule.
The rule amends paragraph (f) of the clause at FAR 52.212-1, Instructions to Offerors--Commercial Items, to permit consideration of late offers if the Government mishandled the offer. This rule also amends guidance on receipt of late offers in FAR 14.304 and 15.208 and associated FAR solicitation provisions at 52.214-7, Late Submissions, Modifications, and Withdrawals of Bids; 52.214-23, Late Submissions, Modifications, and Withdrawals of Technical Proposals under Two-Step Bidding; and paragraph (c)(3) at 52.215-1, Instruction to Offerors-- Competitive Acquisitions, to provide uniform guidance for sealed bids and negotiated acquisitions. The rule also deletes the solicitation provisions at 52.214-32, Late Submissions, Modifications, and Withdrawals of Bids (Overseas), and 52.214-33, Late Submissions, Modifications, and Withdrawals of Technical Proposals under Two-Step Sealed Bidding (Overseas), since the revisions to 52.214-7 and 52.214- 23 eliminate the need for separate provisions, respectively.
Six respondents provided comments on the proposed rule. The Government considered the comments in finalizing the rule.
This action is not subject to Office of Management and Budget review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993, and is not a major rule under 5 U.S.C. 804.
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Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not 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 will affect when an offer is considered late; and, although no statistics regarding the number of late proposals exist, we expect that less than 1 percent of the offers will be received late. Under the rule, the Government will consider late offers, including late offers under commercial acquisitions that are late because of Government mishandling.
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Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to the FAR do not impose information collection requirements that 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, 22, and 52
Government procurement.
Dated: September 14, 1999. Edward C. Loeb, Director, Federal Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR Parts 14, 15, 22, and 52 as set forth below:
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The authority citation for 48 CFR Parts 14, 15, 22, 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
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Amend section 14.201-6 to revise paragraph (c)(3), remove paragraph (c)(4), revise paragraphs (g)(2), (o)(2)(i), (o)(2)(ii), and (r), remove paragraph (v), redesignate paragraphs (w) through (y) as (v) through (x), respectively, and revise newly designated paragraphs (w) and (x) to read as follows:
14.201-6 Solicitation provisions.
* * * * *
(c) * * *
(3) 52.214-7, Late Submissions, Modifications, and Withdrawals of Bids. * * * * *
(g) * * *
(2) Use the provision with its Alternate I in invitations for bids that are for perishable subsistence, and when the contracting officer considers that offerors will be unwilling to provide acceptance periods long enough to allow written confirmation. * * * * *
(o) * * *
(2) * * *
(i) If the nature of the required product does not necessitate limiting the grant of a waiver to a product produced at the same plant in which the product previously acquired or tested was produced, use the provision with its Alternate I; or
(ii) If the nature of the required product necessitates limiting the grant of a waiver to a product produced at the same plant in which the product previously acquired or tested was produced, use the provision with its Alternate II. * * * * *
(r) Insert the provision at 52.214-23, Late Submissions, Modifications, and Withdrawals of Technical Proposals under Two-Step Sealed Bidding, in solicitations for technical proposals in step one of two-step sealed bidding. * * * * *
(w) Insert the provision at 52.214-34, Submission of Offers in the English Language, in solicitations subject to the Trade Agreements Act or the North American Free Trade Agreement Implementation Act (see 25.408(d)). It may be included in other solicitations when the contracting officer decides that it is necessary.
(x) Insert the provision at 52.214-35, Submission of Offers in U.S. Currency, in solicitations subject to the Trade Agreements Act or the North American Free Trade Agreement Implementation Act (see 25.408(d)). It may be included in other solicitations when the contracting officer decides that it is necessary.
2a. In addition to the amendments set forth above, in section 14.201-6, remove the words ``The contracting officer shall insert'' and add, in their place, the word ``Insert'' in the following places:
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The introductory text of paragraphs 14.201-6(b), (c), and (e);
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Paragraphs (f), (g)(1), and (h);
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Paragraph (i);
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Paragraphs (j), (l), (m), and (o)(1);
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Paragraph (p)(1); and
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Paragraphs (q), (s), (t), (u), and newly redesignated paragraph (v).
14.202-7 [Amended]
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Amend section 14.202-7 in the introductory text of paragraph (a) by removing ``(see 14.201-6(w))'' and adding ``(see 14.201-6(v))'' in its place.
14.303 [Amended]
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Amend section 14.303 in the fourth sentence of paragraph (a) by removing ``14.201-6(w)'' and adding ``14.201-6(v)'' in its place.
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Section 14.304, consisting of sections 14.304-1 through 14.304- 4, is revised to read as follows:
14.304 Submission, modification, and withdrawal of bids.
(a) Bidders are responsible for submitting bids, and any modifications or withdrawals, so as to reach the Government office designated in the invitation for bid (IFB) by the time specified in the IFB. They may use any transmission method authorized by the IFB (i.e., regular mail, electronic commerce, or facsimile). If no time is specified in the IFB, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that bids are due.
(b)(1) Any bid, modification, or withdrawal of a bid received at the
[[Page 51839]]
Government office designated in the IFB after the exact time specified for receipt of bids is ``late'' and will not be considered unless it is received before award is made, the contracting officer determines that accepting the late bid would not unduly delay the acquisition; and--
(i) If it was transmitted through an electronic commerce method authorized by the IFB, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of bids; or
(ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of bids and was under the Government's control prior to the time set for receipt of bids.
(2) However, a late modification of an otherwise successful bid, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.
(c) Acceptable evidence to establish the time of receipt at the Government installation includes the time/date stamp of that installation on the bid wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel.
(d) If an emergency or unanticipated event interrupts normal Government processes so that bids cannot be received at the Government office designated for receipt of bids by the exact time specified in the IFB, and urgent Government requirements preclude amendment of the bid opening date, the time specified for receipt of bids will be deemed to be extended to the same time of day specified in the IFB on the first work day on which normal Government processes resume.
(e) Bids may be withdrawn by written notice received at any time before the exact time set for receipt of bids. If the IFB authorizes facsimile bids, bids may be withdrawn via facsimile received at any time before the exact time set for receipt of bids, subject to the conditions specified in the provision at 52.214-31, Facsimile Bids. A bid may be withdrawn in person by a bidder or its authorized representative if, before the exact time set for receipt of bids, the identity of the person requesting withdrawal is established and the person signs a receipt for the bid. Upon withdrawal of an electronically transmitted bid, the data received must not be viewed and, where practicable, must be purged from primary and backup data storage systems.
(f) The contracting officer must promptly notify any bidder if its bid, modification, or withdrawal was received late, and must inform the bidder whether its bid will be considered, unless contract award is imminent and the notices prescribed in 14.409 would suffice.
(g) Late bids and modifications that are not considered must be held unopened, unless opened for identification, until after award and then retained with other unsuccessful bids. However, any bid bond or guarantee must be returned.
(h) If available, the following must be included in the contract files for each late bid, modification, or withdrawal:
(1) The date and hour of receipt.
(2) A statement, with supporting rationale, regarding whether the bid was considered for award.
(3) The envelope, wrapper, or other evidence of the date of receipt.
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Amend section 14.503-1 by revising paragraph (h) to read as follows:
114.503-1 Step one.
* * * * *
(h) Late technical proposals are governed by 15.208 (b), (c), and (f). * * * * *
PART 15--CONTRACTING BY NEGOTIATION
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Revise section 15.208 to read as follows:
15.208 Submission, modification, revision, and withdrawal of proposals.
(a) Offerors are responsible for submitting proposals, and any revisions, and modifications, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. Offerors may use any transmission method authorized by the solicitation (i.e., regular mail, electronic commerce, or facsimile). If no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that proposals are due.
(b)(1) Any proposal, modification, revision, or withdrawal 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; and--
(i) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or
(ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of proposals and was under the Government's control prior to the time set for receipt of proposals; or
(iii) It was the only proposal received.
(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.
(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.
(d) If an emergency or unanticipated event interrupts normal Government processes so that proposals cannot be received at the Government office designated for receipt of proposals by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation closing date, the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.
(e) Proposals may be withdrawn by written notice at any time before award. Oral proposals in response to oral solicitations may be withdrawn orally. The contracting officer must document the contract file when oral withdrawals are made. One copy of withdrawn proposals should be retained in the contract file (see 4.803(a)(10)). Extra copies of the withdrawn proposals may be destroyed or returned to the offeror at the offerors request. Where practicable, electronically transmitted proposals that are withdrawn must be purged from primary and backup data storage systems after a copy is made for the file. Extremely bulky proposals must only be returned at the offeror's request and expense.
(f) The contracting officer must promptly notify any offeror if its proposal, modification, or revision was received late, and must inform the offeror whether its proposal will be considered, unless contract award is imminent and the notice prescribed in 15.503(b) would suffice.
(g) Late proposals and modifications that are not considered must be held unopened, unless opened for identification, until after award and then retained with other unsuccessful proposals.
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(h) If available, the following must be included in the contracting office files for each late proposal, modification, revision, or withdrawal:
(1) The date and hour of receipt.
(2) A statement regarding whether the proposal was considered for award, with supporting rationale.
(3) The envelope, wrapper, or other evidence of date of receipt.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1009-4 [Amended]
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Amend section 22.1009-4 in the first sentence of paragraph (d) by removing ``14.304-1'' and adding ``14.304'' in its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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Amend section 52.212-1 to revise the date of the provision and paragraph (f) to read as follows:
52.212-1 Instructions to Offerors--Commercial Items.
* * * * *
Instructions to Offerors--Commercial Items (Nov 1999)
* * * * *
(f) Late submissions, modifications, revisions, and withdrawals of offers. (1) Offerors are responsible for submitting offers, and any modifications, revisions, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. If no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that offers or revisions are due.
(2)(i) Any offer, modification, revision, or withdrawal of an offer received at the Government office designated in the solicitation after the exact time specified for receipt of offers is ``late'' and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and--
(A) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of offers; or
(B) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers; or
(C) If this solicitation is a request for proposals, it was the only proposal received.
(ii) However, a late modification of an otherwise successful offer, that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.
(3) Acceptable evidence to establish the time of receipt at the Government installation includes the time/date stamp of that installation on the offer wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel.
(4) If an emergency or unanticipated event interrupts normal Government processes so that offers cannot be received at the Government office designated for receipt of offers by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation or other notice of an extension of the closing date, the time specified for receipt of offers will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.
(5) Offers may be withdrawn by written notice received at any time before the exact time set for receipt of offers. Oral offers in response to oral solicitations may be withdrawn orally. If the solicitation authorizes facsimile offers, offers may be withdrawn via facsimile received at any time before the exact time set for receipt of offers, subject to the conditions specified in the solicitation concerning facsimile offers. An offer may be withdrawn in person by an offeror or its authorized representative if, before the exact time set for receipt of offers, the identity of the person requesting withdrawal is established and the person signs a receipt for the offer. * * * * *
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Revise section 52.214-7 to read as follows:
52.214-7 Late submissions, modifications, and withdrawals of bids.
As prescribed in 14.201-6(c)(3), insert the following provision:
Late Submissions, Modifications, and Withdrawals of Bids (Nov 1999)
(a) Bidders are responsible for submitting bids, and any modifications or withdrawals, so as to reach the Government office designated in the invitation for bids (IFB) by the time specified in the IFB. If no time is specified in the IFB, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that bids are due.
(b)(1) Any bid, modification, or withdrawal received at the Government office designated in the IFB after the exact time specified for receipt of bids is ``late'' and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late bid would not unduly delay the acquisition; and--
(i) If it was transmitted through an electronic commerce method authorized by the IFB, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of bids; or
(ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of bids and was under the Government's control prior to the time set for receipt of bids.
(2) However, a late modification of an otherwise successful bid that makes its terms more favorable to the Government, will be considered at any time it is received and may be accepted.
(c) Acceptable evidence to establish the time of receipt at the Government installation includes the time/date stamp of that installation on the bid wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel.
(d) If an emergency or unanticipated event interrupts normal Government processes so that bids cannot be received at the Government office designated for receipt of bids by the exact time specified in the IFB and urgent Government requirements preclude amendment of the IFB, the time specified for receipt of bids will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.
(e) Bids may be withdrawn by written notice received at any time before the exact time set for receipt of bids. If the IFB authorizes facsimile bids, bids may be withdrawn via facsimile received at any time before the exact time set for receipt of bids, subject to the conditions specified in the provision at 52.214-31, Facsimile Bids. A bid may be withdrawn in person by a bidder or its authorized representative if, before the exact time set for receipt of bids, the identity of the person requesting withdrawal is established and the person signs a receipt for the bid.
(End of provision)
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Revise section 52.214-23 to read as follows:
52.214-23 Late submissions, modifications, revisions, and withdrawals of technical proposals under two-step sealed bidding.
As prescribed in 14.201-6(r), insert the following provision:
Late Submissions, Modifications, Revisions, and Withdrawals of Technical Proposals Under Two-Step Sealed Bidding (Nov 1999)
(a) Bidders are responsible for submitting technical proposals, and any modifications or revisions, so as to reach the Government office designated in the request for technical proposals by the time specified in the invitation for bids (IFB). If no time is specified in the IFB, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that bids or revisions are due.
(b)(1) Any technical proposal under step one of two-step sealed bidding or modification, revision, or withdrawal of such proposal received at the Government office designated in the request for technical proposals after the exact time specified for receipt will not be considered unless the Contracting Officer determines that accepting the late technical proposal would not unduly delay the acquisition; and--
(i) If it was transmitted through an electronic commerce method authorized by the request for technical proposals, it was
[[Page 51841]]
received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or
(ii) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt; or
(iii) It is the only proposal received and it is negotiated under part 15 of the Federal Acquisition Regulation.
(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.
(c) Acceptable evidence to establish the time of receipt at the Government installation includes the time/date stamp of that installation on the technical proposal wrapper, other documentary evidence of receipt maintained by the installation, or oral testimony or statements of Government personnel.
(d) If an emergency or unanticipated event interrupts normal Government processes so that technical proposals cannot be received at the Government office designated for receipt of technical proposals by the exact time specified in the request for technical proposals, and urgent Government requirements preclude amendment of the request for technical proposals, the time specified for receipt of technical proposals will be deemed to be extended to the same time of day specified in the request for technical proposals on the first work day on which normal Government processes resume.
(e) Technical proposals may be withdrawn by written notice received at any time before the exact time set for receipt of technical proposals. If the request for technical proposals authorizes facsimile technical proposals, they may be withdrawn via facsimile received at any time before the exact time set for receipt of proposals, subject to the conditions specified in the provision at 52.214-31, Facsimile Bids. A technical proposal may be withdrawn in person by a bidder or its authorized representative if, before the exact time set for receipt of technical proposals, the identity of the person requesting withdrawal is established and the person signs a receipt for the technical proposal.
(End of provision)
52.214-31 [Amended]
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Amend section 52.214-31 in the introductory text of the provision by removing ``14.201-6(w)'' and adding ``14.201-6(v)'' in its place.
52.214-32 and 52.214-33 [Removed and Reserved]
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Remove and reserve sections 52.214-32 and 52.214-33.
52.214-34 [Amended]
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Amend section 52.214-34 in the introductory paragraph of the provision by removing ``14.201-6(x)'' and adding ``14.201-6(w)'' in its place.
52.214-35 [Amended]
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Amend section 52.214-35 in the introductory paragraph of the provision by removing ``14.201-6(y)'' and adding ``14.201-6(x)'' in its place.
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Amend section 52.215-1 to revise the date of the provision and paragraph (c)(3) to read as follows:
52.215-1 Instructions to Offerors--Competitive Acquisition.
* * * * *
Instructions to Offerors--Competitive Acquisition (Nov 1999)
* * * * *
(c) * * *
(3) Submission, modification, revision, and withdrawal of proposals. (i) Offerors are responsible for submitting proposals, and any modifications, revisions, or withdrawals, so as to reach the Government office designated in the solicitation by the time specified in the solicitation. If no time is specified in the solicitation, the time for receipt is 4:30 p.m., local time, for the designated Government office on the date that proposal or revision is due.
(ii)(A) Any proposal, modification, revision, or withdrawal received at the Government office designated in the solicitation after the exact time specified for receipt of offers is ``late'' and will not be considered unless it is received before award is made, the Contracting Officer determines that accepting the late offer would not unduly delay the acquisition; and--
(1) If it was transmitted through an electronic commerce method authorized by the solicitation, it was received at the initial point of entry to the Government infrastructure not later than 5:00 p.m. one working day prior to the date specified for receipt of proposals; or
(2) There is acceptable evidence to establish that it was received at the Government installation designated for receipt of offers and was under the Government's control prior to the time set for receipt of offers; or
(3) It is the only proposal received.
(B) 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.
(iii) 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.
(iv) If an emergency or unanticipated event interrupts normal Government processes so that proposals cannot be received at the office designated for receipt of proposals by the exact time specified in the solicitation, and urgent Government requirements preclude amendment of the solicitation, the time specified for receipt of proposals will be deemed to be extended to the same time of day specified in the solicitation on the first work day on which normal Government processes resume.
(v) Proposals may be withdrawn by written notice received at any time before award. Oral proposals in response to oral solicitations may be withdrawn orally. If the solicitation authorizes facsimile proposals, proposals may be withdrawn via facsimile received at any time before award, subject to the conditions specified in the provision at 52.215-5, Facsimile Proposals. Proposals may be withdrawn in person by an offeror or an authorized representative, if the identity of the person requesting withdrawal is established and the person signs a receipt for the proposal before award. * * * * *
[FR Doc. 99-24416Filed9-23-99; 8:45 am]
BILLING CODE 6820-EP-P
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