GAO: Initial Proposal “Nullified” By Solicitation Amendment

When an initial proposal is nullified by a subsequent solicitation amendment, an offeror must timely resubmit its proposal–or be eliminated from the competition.

As one offeror recently learned, an agency can nullify initial proposals with a solicitation amendment that substantially changes the solicitaton’s terms.  When that happens, an offeror can no longer rely on its initial proposal.

GAO’s decision in Northstar Location Services, LCC, B-409722.10 (2015) involved a two-phase procurement by the Department of Education for student loan debt collection and administrative resolution services. Northstar was successful during Phase I of the procurement, and submitted its initial proposal for Phase II on time.

On December 19, 2014, however, the Department of Education issued amendment No. 17, which significantly revised the solicitation’s evaluation criteria. The agency issued a new deadline of 5:00 p.m. on January 16, 2015 for revised proposals.

On January 13, 2015, the agency clarified it would no longer consider proposals submitted before amendment No. 17 was issued. Offerors would need to submit new proposals to be considered for the contract.

Northstar submitted a new proposal, but its proposal arrived half an hour after the 5:00 p.m. deadline. As a result, the agency excluded the proposal from consideration.

Northstar filed a GAO bid protest. In its protest, Northstar sought to avail itself of FAR 15.208, which allows for the late submission of amendments to an otherwise successful proposal, so long as the late submission contains terms more favorable to the government. Northstar argued the agency erred in rejecting its January 16, 2015 proposal as untimely because the proposal should have been treated as an amendment to its initial (and timely) Phase II proposal.

GAO rejected this argument. When the agency issued amendment No. 17, it nullified all pending Phase II proposals. Under GAO’s interpretation of nullification, it was as though Northstar never submitted a proposal for Phase II. As such, Northstar’s January 16, 2015 submission was not an amendment to a prior proposal; it was a new proposal, which was untimely.

The Northstar Location Services decision highlights how contracting with the government can be a moving target. The issuance of an amendment that nullifies prior proposal submissions essentially wipes the slate clean. Consequently, it is essential for contractors to be very mindful of revised submission deadlines and requirements when resubmitting proposals as they will not be able to rely on their initial proposals in such cases.

Ian Patterson, a summer law clerk with Koprince Law LLC, was the primary author of this post.

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