When a bidder submits a bid under a sealed bid procurement, it is responsible for ensuring that the bid is timely submitted. But what happens if a bidder wants to revise a bid that’s already been submitted?
As a recent GAO case shows, even a revised bid must be timely submitted in order for it to be considered. If a bidder tries to revise its bid too late in the process, it might end up costing itself the award.
The facts in Williams Building Company, Inc., B-415317.3 (April 12, 2018) are pretty interesting. The Department of Veterans Affairs issued an invitation for bids for construction services and scheduled the bid opening for 9:00 on September 13. Williams Building Company submitted its bid at 8:30 but, as the deadline for opening drew close, it asked the Contracting Officer if it could change the bid. The Contracting Officer handed the bid back to Williams, who changed the bid and resubmitted it at 9:02. One minute later, the Contracting Officer opened the bids, and Williams’ revised bid was found to be the lowest price.
After a couple of bid protests—first by Williams (challenging the rejection of its bid as late, to which the VA took a voluntary corrective action) and then by the second-lowest price bidder (arguing that Williams’ bid should have been considered late and, thus, unawardable)—the VA ultimately rejected Williams’ bid as late.
Williams filed a GAO protest challenging its exclusion. It argued that even if its revised bid was considered late, the VA still should have considered its initial bid for the award.
GAO rejected Williams’ argument, focusing on who had control of the bid at the time it was due. In doing so, GAO noted that “[t]he time a hand-carried bid is considered submitted is determined by the time the bidder relinquishes control of the bid to the government.” Although Williams’ initial bid was timely submitted, the VA relinquished control of the bid back to Williams when Williams asked to make revisions. Because the VA didn’t have control of Williams’ bid—either initial or revised—at the submission deadline, the VA could not have properly considered it for the award.
When you think about it, this rule makes sense. Otherwise, bidders might be incentivized to submit incomplete or inaccurate bids by the deadline, only to “revise” them to include more complete terms or pricing after opening. Agencies wouldn’t know which bids are valid and which aren’t, and the bid submission deadline would be rendered a nullity. This result would cause chaos in the bid opening process.
So what’s a bidder to do if it wants to make changes to its bid? GAO’s decision suggests a few possibilities. Perhaps most obviously, the bidder should give itself enough time to make any revisions before the submission deadline. But if the bidder is cutting it close, it might consider exchanging its submitted bid for another instead of “pulling back” the submitted bid to make revisions. That way, the bid remains in the government’s control and will be considered for the award.
Though the underlying rule requiring bids to be timely submitted is important, the real reason I wanted to write about this decision is the irony of Williams’ bid revision: its initial bid was about $4.8 million, and its revised bid was for a little more than $4.9 million. The awardee’s bid, however, was almost $5.4 million. In other words, Williams’ bid would have been the lowest price awardee either way. Its late revision cost it the contract award.
The rule discussed in Williams Building Company is relatively straightforward; its application can have enormous consequences. In this case, a late bid revision cost the bidder an award. Bidders under a FAR Part 14 procurement should be aware of the submission deadline to timely submit their bid packages.
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