As part of the Revolutionary FAR Overhaul (“RFO”), the FAR Council issued a proposed rule that would implement — with some notable changes — the Council’s model deviation for FAR Part 15, Contracting by Negotiation.
A number of those proposed changes to the deviation version have the potential to materially impact how procurements are run and bid protests are pursued.
In this new series, we will examine the proposed changes to Part 15 one at a time. First up is the late-is-late rule.
The “Old” FAR: Under the “old” FAR 15.208(b)(1)(i)–(iii), a proposal received after the submission deadline generally could not be considered unless it fell into one of three narrow exceptions: (1) the proposal was submitted electronically and reached the government by 5:00 p.m. one working day before proposals were due; (2) there was sufficient evidence that the proposal was received and under the government’s control before the submission deadline; or (3) it was the only proposal received. Absent one of those exceptions, late meant late.
The RFO Deviation: Under the model deviation, RFO 15.107(b)(1)(i)-(iii) carried forward this same framework. Although the RFO reorganized and streamlined the rule, late proposals still could not be considered unless they satisfied one of the exceptions above. Thus, the late-is-late rule remained.
The Proposed Rule: If finalized, the proposed rule would change this regime by providing contracting officers discretion to consider late proposals if doing so is in the government’s best interest.
Under proposed FAR 15.106(b)(1), “[a]ny proposal, modification, or revision, that is received at the designated Government office after the exact time specified for receipt of proposals is ‘late’ and will not be considered, unless it is received before award is made and the contracting officer determines that accepting the late proposal is in the Government’s best interest and would not unduly delay the acquisition.”
The FAR Council describes this change as a way to simplify existing policy and “provide contracting officers with greater leeway” to accept late proposals.
The Takeaway: If this change makes it into the final rule, it has the potential for both upside and downside, as is typically the case with rules grounded in discretion. On the one hand, late proposals that previously had no realistic fighting chance now may have a shot at being accepted. On the other hand, there is likely to be little predictability to when an individual contracting officer decides that it is in the government’s best interest to accept a late proposal.
Bonus Fun Fact: According to the “You Said, We Did” page, the FAR Council made this change in the proposed rule in response to public feedback. They explain: “This [change] simplifies the problematic ‘late is late’ policy and will prevent the exclusion of potentially superior proposals on a technicality, ensuring the Government receives the best value while maintaining an efficient procurement schedule.”