BNUMBER:  B-270009
DATE:  January 16, 1996
TITLE:  Nueva Construction Company, Inc.

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Matter of:Nueva Construction Company, Inc.

File:     B-270009

Date:     January 16, 1996

Terry P. Esser, Esq., for the protester.
Philip Kauffman, Esq., and Merilee Rosenberg, Esq., Department of 
Veterans Affairs, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

Where the protester submitted its bid seconds after the bid opening 
officer reasonably declared that the time for bid opening stated in 
the solicitation had arrived, the agency properly rejected the bid as 
late, even though the bid opening 
clock continued to display the same minute in time.

DECISION

Nueva Construction Company, Inc. protests the rejection of its bid as 
late under invitation for bids (IFB) No. 678-19-95, issued by the 
Department of Veterans Affairs (VA) Medical Center, Tucson, Arizona, 
for the construction of building wings connected to the nursing home 
health care unit.

We deny the protest.

The IFB stated that bids should be delivered to Building 5, Room 204 
of the VA Medical Center by 3 p.m. on the amended bid opening date of 
September 19, 1995.[1]  According to the sworn statements submitted by 
the agency, the contracting officer called the Naval Observatory on 
September 19 for the correct time and set VA's time/date stamp digital 
clock in Room 204 to that time (2:45 p.m.).  At 2:50 p.m., the 
contracting officer stood at the doorway of Room 204 so that he could 
see the time/date stamp clock, as well as the doorway of Room 207A, 
the bid opening room.  A contracting specialist stood at the doorway 
of Room 207A, less than 50 feet from Room 204, where she could see 
both the contracting officer at the doorway of Room 204 and the bid 
opening officer in Room 207A (the bid opening officer stationed 
herself in Room 207A at 2:55 p.m.).  Two hand-carried bids were 
delivered to Room 204 and stamped in at 2:55 p.m.  At 2:58 p.m., the 
contracting officer announced to the contracting specialist the 
remaining time(2 minutes) until bid opening.  A similar announcement 
was made at 2:59 p.m.  When the time/date stamp clock changed to 3 
p.m., the contracting officer announced the time to the contracting 
specialist, who in turn announced the time to the bid opening officer.  
The bid opening officer announced that the time for bid opening had 
arrived and that no additional bids would be accepted.  The 
contracting officer joined the contracting specialist and the bid 
opening officer in Room 207A, and the agency began opening the bids 
received.  A secretary who had been in Room 204 all along remained in 
that room. 

The protester's representative entered Room 204 and placed a bid 
package on a desk.  The protester's representative states that the 
time/date stamp clock displayed 2:59 p.m. when he entered Room 204, 
and that the clock changed to 3 p.m. shortly thereafter.  He states 
that the secretary was the only other person in the vicinity, but that 
she had her back to the clock.  The secretary states that the 
representative entered the room seconds after the contracting officer 
had announced 3 p.m. and left the room, and that the time/date stamp 
clock displayed 3 p.m. both when the representative entered the room 
and when she attempted to stamp the bid.  Since the bid was too thick 
for the secretary to fit it into the stamping device, Nueva's 
representative grabbed a sheet of paper, stamped it, and handed it to 
the secretary.  The time date stamp on this paper said 3 p.m.

The secretary then carried the bid to Room 207A.  The bid opening 
officer was in the process of opening and reading the second bid when 
the secretary entered Room 207A with the protester's bid.  The bid 
opening officer advised the secretary that the bid was late and could 
not be accepted.

Shortly thereafter, the protester's representative entered Room 207A 
with the protester's bid and stated that it had been timely submitted 
because he had delivered it by 3 p.m.  The contracting officer stated 
that the bid was late.  Neither the contracting officer nor the 
protester's representative had seen each other prior to the start of 
bid opening, and the contracting officer states that he did not know 
the identity of the bidder submitting the bid until after he had 
determined that the bid was late.  The contracting officer accepted 
the bid with the stipulation that the agency would hold it unopened 
until the matter was resolved.  After the agency denied Nueva's 
agency-level protest, this protest was filed.  Nueva alleges that its 
bid is not late because it was submitted by the time stated in the 
IFB, but the agency commenced bid opening prior to that time.

Under Federal Acquisition Regulation (FAR)  14.402-1(a), the bid 
opening officer must decide when the time set for opening bids has 
arrived and must inform those present of that decision.  Bids received 
in the office designated in the IFB after the exact time set for 
opening are late bids.  FAR  14.304-1.  The bid opening officer's 
declaration of bid opening is determinative of lateness unless it is 
shown to be unreasonable under the circumstances.  J. C. Kimberly Co., 
B-255018.2, Feb. 8, 1994, 94-1 CPD  79; Swinerton & Walberg Co., 
B-242077.3, Mar. 22, 1991, 91-1 CPD 318.

Here, the clock upon which the bid opening officer relied to determine 
when the time for opening had arrived was the time/date stamp clock in 
Room 204.  The contracting officer verified the time on this clock 
with the time stated by the Naval Observatory.  When the contracting 
officer saw this clock change to 3 p.m., he announced the time.  The 
bid opening officer relied upon this announcement to determine that 
the time for bid opening had arrived.  Since the agency had verified 
the time on the clock, the bid opening officer had no reason to doubt 
the accuracy of the time; the agency thus reasonably relied on this 
clock to determine that the time for bid opening had arrived.  See id.  

Although the protester alleges that its representative delivered its 
bid when the clock read 2:59 p.m., it has not provided any evidence 
that would either corroborate this statement or cast doubt upon the 
agency's record of events.  On the other hand, the sworn statements of 
the secretary and the contracting specialist corroborate the sworn 
statement of the contracting officer, and all are consistent with each 
other.  Both the secretary in Room 204 and the contracting specialist 
at the doorway of Room 207A heard the contracting officer announce 3 
p.m.  The secretary states that Nueva's representative entered the 
room at 3 p.m. "in a matter of seconds" after the contracting officer 
had announced 3 p.m. and had exited to the bid opening room.  Nueva's 
bid was stamped received at 3 p.m., which lends support to the 
secretary's account of the time that Nueva's bid was tendered.  Other 
than his statement that he entered room 204 at 2:59 p.m., the sworn 
statements of Nueva's representative are consistent with the agency's 
account of events in that the representative states that the bid was 
stamped approximately 12 to 17 seconds after he entered the room, 
which would allow for the contracting officer's announcement and exit, 
the representative's entrance, and the stamping of the bid to occur 
within the same minute that the digital clock displayed 3 p.m.  
Finally, the protester has not suggested any reason why the 
contracting officer would announce 3 p.m. before the clock actually 
displayed 3 p.m., particularly after he had made the effort to verify 
the precise time.  Accordingly, we think its clear from this record 
that Nueva delivered its bid after the bid opening officer reasonably 
declared the start of bid opening.

The protester alleges in the alternative that even if this is so, the 
IFB instruction for bidders to submit bids "by 3 p.m." means anytime 
before 3:01 p.m.,[2] and thus its bid cannot be considered late since 
it was received at 3 p.m. as indicated by the time/date stamp.  We 
disagree.  The bid opening officer reasonably declared the start of 
bid opening immediately upon learning that the bid opening clock had 
struck 3 p.m.  See  Chattanooga Office Supply Co., B-228062, Sept. 3, 
1987, 87-2 CPD  221.  The decisive event in determining the time for 
bid opening is not the ticking of a clock; rather, it is the agency's 
reasonable declaration of the start of bid opening that demarcates the 
points in time at which a hand-carried bid will be determined either 
timely or late.  Compare Carothers Constr., Inc., B-235910, Oct. 11, 
1989, 89-2 CPD  338 (a bid submitted at the same instant the agency 
declared the start of bid opening is not late) and Amfel Constr., 
Inc., B-233493.2, May 18, 1989, 89-1 CPD  477 (bid submitted after 
clock struck the stated time for bid opening, but prior to agency's 
declaration of the start of bid opening, is not late) with Chattanooga 
Office Supply Co., supra (bid submitted seconds after, though during 
the same minute of, the exact time for bid opening, but after agency 
had declared the start of bid opening, is late).  Since the bid 
opening officer had declared the start of bid opening while the 
contracting officer was at the doorway of Room 204, and since Nueva's 
representative did not arrive in Room 204 to submit Nueva's bid until 
after the contracting officer had left the doorway of that room and 
entered the bid opening room, Nueva's bid, submitted after the agency 
had reasonably declared the start of bid opening, was properly 
rejected as late.  See Hi-Grade Logging, Inc., B-222230; B-222231, 
June 3, 1986, 86-1 CPD  514.

The protest is denied.

Comptroller General
of the United States

1. The amendment changing the date also stated that bid opening would 
be in Room 207A.

2. The protester specifically alleges that "3" means all of the time 
between 3 hours, 0 minutes and 0 seconds up through and including 3 
hours, 0 minutes and 59 seconds because the IFB did not specifically 
state the time in terms of seconds.