Late Solicitation Amendment Requires Cancellation Only If “Substantial”

An agency may amend a solicitation after the deadline for receiving offers, so long as the amendment is not “so substantial as to exceed what prospective offerors reasonably could have anticipated” in submitting offers under the original solicitation.

This rule, which is codified at FAR 15.206(e), was at issue in a recent GAO bid protest decision, in which the GAO held that the amendment merely clarified the original solicitation and thus did not require cancellation.

The GAO’s decision in Latvian Connection, LLC; Solution Managers International–USA, LLC, B-408182.3, B-408183.4 (Aug. 13, 2013), involved an Army solicitation for energy-efficient, rigid-walled shelters.  Proposals under the initial solicitation were due by November 26, 2012.  Neither Latvian Connection, LLC nor Solution Managers International–USA, LLC submitted a proposal.

After a bid protest, the Army took corrective action and issued two new amendments to the solicitation.  The Army established a June 12, 2013 deadline for the submission of proposals.  In response to an inquiry from Latvian Connection, the Army indicated that proposals would only be accepted from companies that had submitted proposals by the original November 26, 2012 deadline.

Latvian Connection and Solution Managers each filed a bid protest with the GAO.  In their protests, the companies argued that the two new amendments were so substantial as to require the Army to cancel the solicitation and issue a new solicitation open to all potential offerors.

The GAO began by quoting FAR 15.206(e), which states, in relevant part:

If, in the judgment of the contracting officer . . . an amendment proposed for issuance after offers have been received is so substantial as to exceed what prospective offerors reasonably could have anticipated, so that additional sources likely would have submitted offers had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.

In this case, the GAO determined that the two amendments “merely clarify requirements already in the initial solicitation, and the magnitude of the changes are not beyond what reasonably could have been anticipated.”  The GAO denied the bid protest.

The Latvian Connection GAO bid protest decision offers a real-life example of the rule established under FAR 15.206(e).  As seen in the case, unless an amendment to a solicitation is “so substantial” as to exceed the reasonable expectations of prospective offerors, the GAO will not overturn an agency’s decision not to cancel the solicitation.

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