Q. Is it possible for a transit authority to determine that an incumbent is the best choice for award even though the incumbent failed to submit a timely response to an RFP? The incumbent's proposal arrived 15 minutes after the deadline. Under these circumstances, can the transit authority choose to not select from those responding to the RFP and award instead to the incumbent based on the incumbentís five-year performance history?
A. A transit agency conducting a competitive procurement lacks legal authority to award a contract to a company that did not submit a proposal within the time limit specified in the solicitation. The agency is required to evaluate all competitive proposals in accordance with the evaluation criteria established beforehand and communicated to all prospective offerors in the solicitation. To award a contract on some basis other than that communicated to all offerors would undermine the integrity of the agency's procurement process. This action would subject the agency to protests that would undoubtedly be escalated to the FTA. Under these circumstances, FTA would not allow federal assistance to be used to fund the contract.
In addition, grantees are required by FTA to evaluate prices in their competitive acquisitions (except for A&E services). In the case described above, no price proposal was submitted by the incumbent and thus there is no way for the grantee to comply with the price evaluation requirement. (Revised: July 9, 2009)