Offer Expired: The FAR’s 30-Day Offer Expiration Rule Applicable to Commercial Items

Government Contracts Newsletter

Client Alert

The language of FAR 52.212-1(c) states that an “offeror agrees to hold the prices in its offer firm for 30 calendar days from the date specified for receipt of offers, unless another time period is specified in an addendum to the solicitation.” In WIT Associates, Inc. v. United States, 122 Fed. Cl. 1 (2015), WIT Associates (WIT), a Hunt Valley, Maryland, moving and storage company, learned a tough lesson regarding this provision during a protracted contract competition. WIT’s offer was deemed to have expired 30 days after submission when WIT declined to reaffirm its pricing for an additional two-month period at the request of the contract specialist but, instead, notified her that WIT wanted to revise its pricing due to WIT’s offer having been submitted over seven months earlier.

WIT was the incumbent contractor providing household moving services for Department of Defense personnel stationed at the Naval Air Station at Guantanamo Bay, Cuba. In August of 2013, the Navy Supply (NAVSUP) Fleet Logistics Center in Jacksonville, Florida, issued a solicitation for these services that incorporated FAR clauses governing commercial items contracts, including FAR 52.212-1(c), regarding the period of acceptance for offers. WIT submitted an offer in response to this solicitation.

NAVSUP received one other offer from Platinum, a Maryland corporation in the moving and storage industry that was run by a prior owner of WIT and, interestingly, the brother of WIT’s president. After NAVSUP initially awarded the firm-fixed-price, indefinite-delivery, requirements contract to Platinum as the lowest-priced, technically acceptable offeror, several protests and corrective actions ensued that ultimately resulted in Platinum and WIT submitting offers on May 23, 2014, to an amended solicitation. That amendment also included FAR 52.212-1(c) in its terms.

On November 7, 2014, the Navy’s three-member Technical Evaluation Board concluded that both companies’ technical proposals were technically acceptable. As time passed with no award announced, Vera Smith, a contract specialist with NAVSUP, emailed WIT and Platinum separately on December 23, 2014, to inquire as to whether each company’s proposed pricing was still valid and whether it would remain valid until March 1, 2015, due to expected continued delays in completing the award. Platinum responded that, due to it having already purchased trucks, trailers, and other materials, it had no choice but to agree to extend its prices until March 1st. WIT, however, responded that since it had been 214 days since its proposal was submitted, it wanted and needed to submit a final proposal revision with updated rates given economic conditions.

Ms. Smith did not respond to WIT’s email. She also did not respond to follow-up emails sent by WIT throughout the month of January. On January 30, 2015, Ms. Smith apologized to WIT for the delay but did not directly address WIT’s request to submit a revision. After a January 31, 2015, email from WIT asking Ms. Smith to respond directly to the revision request, Ms. Smith once again did not respond.

On February 10, 2015, NAVSUP awarded the contract to Platinum. The basis for the Navy’s award was explained in a presentation by the Contract Review Board (the “Board”) that included an overview of the procurement and, more importantly, a discussion of the email exchanges between Ms. Smith and WIT throughout December 2014 and January 2015. Ultimately, the Board concluded that since WIT specifically declined to reaffirm its pricing in response to Ms. Smith’s December 23, 2014, email, WIT in effect declined to extend its offer and said offer expired 30 days after its submission, or on June 23, 2014, pursuant to FAR 52.212-1(c). The Board further noted that when Platinum expressly stated that its prices were still valid in response to Ms. Smith, it extended its offer. As such, the Board concluded that, due to the expiration of WIT’s offer, Platinum was the only valid offeror and was entitled to the contract award.

The contracting officer, Ms. Mattie Washington, notified WIT and Platinum of this decision on February 11, 2015. After WIT requested a debriefing, Ms. Washington notified WIT that the expiration of its offer rendered it invalid and, as a result, WIT was no longer considered an offeror on the solicitation and was not entitled to a debriefing.

WIT filed its protest on March 11, 2015, alleging, inter alia, that the government improperly excluded WIT from consideration in the procurement and that WIT was not immediately informed of the agency’s decision to exclude WIT’s offer from the competition. The issue before the United States Court of Federal claims was whether the Navy’s determination that WIT’s proposal had expired and that WIT declined to revive was arbitrary, capricious or contrary to law. In denying WIT’s protest, the Court agreed that the purpose of FAR 52.212-1(c) was to establish a minimum duration period of 30 days for offers in the context of commercial goods and services unless some longer period is established in an addendum to a solicitation or identified by an offeror in its proposal. Since WIT did not specify a longer acceptance period in its proposal and also agreed that it had complied with the solicitations requirements that incorporated the 30-day period, that period was applicable. As such, there was a 30-day period for acceptance by the Navy of WIT’s offer. When the Navy did not accept WIT’s offer by June 23, 2014, the offer expired and WIT did not revive it when the Navy requested that it do so.

Finally, the Court summarily rejected WIT’s complaint that it was not notified that its offer had expired by noting that the agency was under no obligation to explicitly advise WIT of something that it should have been aware--that it’s proposal had expired within 30 days of its submission as explicitly provided in the solicitation and FAR 52.212-1(c).