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Help. Sealed bid procurement for construction project. IFB said bids were due at "3:00 pm local time". Bid opening room has digital clock that displays only hours and minutes. Public bid opening yesterday with several bidders present. Clock turned to "3:00 pm". About 30 seconds later bidder shows up with bid. Several people attending bid opening audibly commented that the bid was late. Bidder claimed it was not late because digital clock still showed "3:00 pm" when she handed the bid to the bid opening official. Bid opening official and assistant agree that clock showed "3:00 pm", but also agree that it indisputably arrived some seconds after the clock changed. Bid is still unopened.

Was the bid late? Solicitation used FAR 52.214-7 (Dec 1999). Is 3:00:30 after the "exact time"?

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In my opinion, 3:00 pm last 60 seconds until it becomes 3:01 pm. If your IFB said proposals were due at 3:00 pm, then they would be on time so long as they were there before the clock read 3:01pm. If your IFB said proposals were due BEFORE 3:00 pm, then they would be late immediately upon the clock reaching 3:00 pm.

Does that make sense given what your IFB says?

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Here's what the Army JAG School's Contract Attorney's Course Deskbook says:

If the bid opening officer has not declared bid opening time, a bid is timely if delivered by the end of the minute specified for bid opening. Amfel Constr., Inc., B-233493.2, May 18, 1989, 89-1 CPD ? 477 (bid delivered within 20-50 seconds after bid opening clock ?clicked? to the bid opening time was timely where bid opening officer had not declared bid submission period ended)

See generally FAR 14.402-1(a), discussing the bid opening officer's determination and announcement. The Deskbook also cites to Action Serv. Corp., B-254861, Jan. 24, 1994, 94-1 CPD ? 33, for the proposition that the bid opening officer's declaration of the bid opening time is determinative unless it is shown to be unreasonable. Did the bid opening officer make an announcement here? Before or after the questioned bid was turned over?

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Guest Seeker

dwgerard, it makes sense to some people, but others say that 3:00:30 is after the "exact time".

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Help. Sealed bid procurement for construction project. IFB said bids were due at "3:00 pm local time". Bid opening room has digital clock that displays only hours and minutes. Public bid opening yesterday with several bidders present. Clock turned to "3:00 pm". About 30 seconds later bidder shows up with bid. Several people attending bid opening audibly commented that the bid was late. Bidder claimed it was not late because digital clock still showed "3:00 pm" when she handed the bid to the bid opening official. Bid opening official and assistant agree that clock showed "3:00 pm", but also agree that it indisputably arrived some seconds after the clock changed. Bid is still unopened.

Was the bid late? Solicitation used FAR 52.214-7 (Dec 1999). Is 3:00:30 after the "exact time"?

Did the bid opening officer follow the traditional rule at 14.402-1 (a) to announce that the time for bid opening had arrived (or that bids were closed for receipt) prior to the time that the courier arrived with the bid?

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Guest Seeker

Thank you Jacques, I'll look that up. The bid opening official said "Ladies and gentlemen, it's 3 pm." He made no other statement until he started opening bids.

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Did the bid opening officer follow the traditional rule at 14.402-1 (a) to announce that the time for bid opening had arrived (or that bids were closed for receipt) prior to the time that the courier arrived with the bid?

Did the IFB state that bids must be received "by" 3:00 PM or "before" 3:00 PM?

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The IFB said "not later than".

Interesting. Block 9 of the "old" SF33 states that "Sealed offers...will be received...until...". Block 9 of the SF 1447 is local fill in. I don't think that there is anything ambiguous about the term "until". I do think that the term "not later than..." can be ambiguous or at least argued that way. At any rate, the bid opening official's (BOO's) announcement should have closed the bid receipt period.

From the 3rd edition of Nash and Cibinics' "Formation of Government Contracts", page 525: "A bid may be submitted up to, or simultaneously with, the time the bid opening officer announces that the time for bid opening has arrived, Carouthers Constr., inc. V. United States, 18 Cl. Ct. 745 (1989) ". It also cites the aforementioned Amfel Constr., Inc. Comp Gen. Decision.

It would appear in this instance that the BOO did declare the bid opening time prior to receipt of the bid. The BOO will hopefully consult with their counsel.

I'm assuming that "Seeker" is either an interested person or is an alternate monilker for someone testing this Forum (I believe that I read hat Seeker initially addressed "Seeker" in the second person in one post, herein).

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Guest Seeker

Joel, I am an interested party but don't want to say more. I don't post often and sometimes forget the name I selected but I can't use my own name for business reasons. I have to wait to see what develops. If I can I will let everyone know what the agency decides. They should decide something soon. I don't know if the late bid was lowest or not. If anyone knows of another case, please let me know. I haven't been able to get the Action Serv. Corp. or Amfel case, but I will.

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FAR 14.402-1( a ) says "The bid opening officer shall decide when the time set for opening bids has arrived and shall inform those present of that decision."

The question is whether the bid opening officer's statement of "Ladies and gentlemen, it's 3 pm" constitutes the announcement required by FAR 14.402-1( a ) above.

If YES, the bid is a late bid.

If NO, the bid is not late.

It is important to realize that it is the bid opening officer determines the time, not the clock on the wall. We expect the bid opening officer to act reasonably.

So to me, it doesn't matter whether the clock was properly synchronized with the atomic clock, or whether the bid was received at or before 3:00:00 or 3:00:59. All that matters is whether the bid opening officer reasonably made and announced the time decision before the bid was received. There is real meaning in that announcement. Maybe like with an auctioneer -- one auctioneer might bang the gavel quickly after saying "going once, twice...", not allowing a last-second bid to be heard -- and another auctioneer might be a little slower, allowing someone to slip in a last-second bid -- even though the outcomes are different (the last-second bid got in with the second scenario but not the first), both are still fair and even reasonable. We cannot and do not want to remove the human element. When we put a matter in the hands of an auctioneer, we accept his or her conduct so long as they act reasonably -- so also with bid opening officers.

If the bid opening officer made the announcement at 3:00:00, the bid received at 3:00:30 is late. If the bid opening officer made the announcement at 3:01:00, the bid is not late.

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Seeker:

What time does the clock in the room show. Is it official U. S. time? Is it different?

http://www.time.gov/

From years past, I remember a case about a bid room clock time and official time being different. I cannot remember how it turned out.

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Guest Vern Edwards

From Chattanooga Office Supply Co., B-228062, 87-2 CPD ? 221:

Chattanooga Office Supply Company protests the rejection of its hand-carried bid as late by the Tennessee Valley Authority, (TVA), under invitation for bids (IFB) No. AB?12561A issued for an indefinite quantity of mobile partitions and components and calling for the submission of bids by 10:00 a.m. on July 30, 1987. Chattanooga states that its representative entered the bid opening room sometime between 15 and 30 seconds after the hour of 10:00 a.m. according to the bid opening room clock and that, after checking the time against the local telephone time reporting service, it was discovered that the bid opening room clock was between 1 and 2 minutes fast. Accordingly, the protester argues that the bid opening officer erroneously declared the time for the submission of bids to have expired earlier than it in fact had and that its bid was improperly rejected.

* * *

Under the Federal Acquisition Regulation (FAR), 48 C.F.R. ? 14.402?1(a) (1986) [FN1], the bid opening officer must decide when the time set for opening bids has arrived and must inform those present of that decision. That section of the FAR also requires the bid opening officer to publicly open all bids received before that time. There is no requirement that the bid opening officer check the time with the telephonic time report. Here, the bid opening officer used the clock in the bid opening room to determine that the time for the submission of bids had expired and that it was time for bid opening.

The bid opening officer's declaration of bid opening time is determinative of lateness unless it is shown to be unreasonable under the circumstances. Hi-Grade Logging, Inc., B?222230; B?222231, June 3, 1986, 86?1 CPD ? 514; K.L. Conwell Corp., B?220561, Jan. 23, 1986, 86?1 CPD ? 79. There is nothing in the protester's submission to show that the clock in the bid opening room showed a time before 10:00 a.m.; indeed, the protester's representative stated, according to the protester's submission, that the time was between 15 and 30 seconds after 10:00 a.m. on the bid opening room clock. Further, although the subsequently obtained telephonic time report showed the bid opening room clock to be between 1 and 2 minutes fast, the record contains no evidence to show that the bid opening officer acted unreasonably in declaring bid opening based upon the time shown on the bid opening room clock. The 1 to 2 minute time difference is not sufficient in itself to render the declaration unreasonable. See Hi-Grade Logging, Inc., B?222230; B?222231, supra; K.L. Conwell Corp., B?220561, supra.

Emphases added. According to Westlaw, that decision is still good law.

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Seeker:

What time does the clock in the room show. Is it official U. S. time? Is it different?

http://www.time.gov/

From years past, I remember a case about a bid room clock time and official time being different. I cannot remember how it turned out.

Bob, the 3rd edition of "Formation of Government Contracts" by Nash and Cibinic (published in 1998) discussed the bid opening time in Chapter 5, "Sealed Bidding", Section I. D. Bid opening Time. on pages 525-528. there were numerous Decisions cited that essentially say that the clock in the bid opening room will generally be used (if there is one) if it is reasonably close to universal time, even if it slightly varies from Western Union, Federal Express, telephonic report, clock in the hall outside, or the Bid opening officer's watch. One instance was cited where the clock in the bid opening room was 3 minutes fast. "The determination of the bid opening officer of when the bidding time has arrived is binding unless it is clearly unreasonable. See W.W. Asphalt, Comp. Gen. B-235560, 89-2 ?​ 106. Occasionally, a BOO declaration of the bid opening time has been shown to be unreasonable, but the examples discussed the actions of the BOO, not the clock.

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