A procuring agency acted improperly by allowing bidders a mere 15 hours to respond to an amended Invitation for Bids–especially given that most of those 15 hours were outside of ordinary working times.

In a recent bid protest decision, the GAO sustained an offeror’s protest of the 15-hour deadline, holding that the procuring agency had acted improperly by failing to give prospective bidders a reasonable time to prepare and submit amended bids.

The GAO’s decision in Eastern Forestry, B-411848 (Nov. 9, 2015) involved an Army IFB for landscaping services at Fort Lee, Virginia.  The IFB was originally issued on July 16, 2015.  As originally issued, the IFB called for bid opening at 10:00 a.m. on July 30.  The IFB required bids to be submitted both in electronic and hard copy.

On July 23, the Army posted Amendment 2 on the Army Single Face to Industry website.  However, Amendment 2 was not published on FedBizOpps until 7:00 p.m. on July 29.

At 9:15 a.m. on July 30–a mere 45 minutes before bids were due–Eastern Forestry first saw Amendment 2 on FedBizOpps.  Eastern Forestry was unable to successfully deliver its amended bid before the 10:00 deadline.

After the Army refused to accept its bid, Eastern Forestry filed a GAO protest.  Eastern Forestry argued that the Army gave prospective bidders insufficient time from the posting of Amendment 2 on FedBizOpps to respond to the amended solicitation.

The Army, likely aware of prior GAO case law on this subject, did not attempt to argue that the earlier posting on the ASFI website was sufficient to put Eastern Forestry on notice of Amendment 2.  Instead, the Army tried to escape on a technicality, arguing that Eastern Forestry’s protest was untimely because it had not been filed before the deadline for bid opening.  The GAO rejected this argument, writing that “given the extremely limited amount of time available before bid opening,” Eastern Forestry was entitled to a lengthier period in which to file its protest.

Turning to the merits of the protest, the GAO wrote that under FAR Part 14, “contracting agencies are to allow a reasonable period of time for prospective bidders to prepare and submit their bids.”  Additionally, “[b]efore issuing an amendment, contracting officials must consider the period of time remaining until bid opening and whether there is a need to extend it.”  The GAO continued:

Here, we conclude that Eastern Forestry was not allowed sufficient time to submit its bid.  The after-hours publication of amendment No. 2 effectively left Eastern Forestry with only a very limited, unreasonably short time on the morning of July 30–whether counted from the time of its discovery of amendment No. 2 on FBO at 9:15 a.m. or earlier that morning–to amend its bid as necessary and to deliver the amended bid, in hard copy and on a CD, to the base contracting office on a secure military base some distance from its office.

The GAO sustained the protest, holding that “the Army failed to allow a reasonable period of time for prospective bidders to prepare and submit their revised bids after the posting of amendment No. 2 on FBO.”

Procuring agencies enjoy a degree of discretion when it comes to setting response times to IFBs.  Nevertheless, as the Eastern Forestry case demonstrates, those response times must meet the test of reasonableness.  Where, as here, an agency’s designated response time is unreasonably short, the GAO will sustain a protest.

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