I recently litigated a bid protest seeking to overturn acceptance of a bid for a $7 million dollar paving job. The time set for bid opening was 2:00. On the date of bid opening, the low bidder ran into the room, self-stamped his bid, and handed it over to the public agency rep. behind the counter. The bid was stamped on time, but was not received in the hands of the public agency until 1 minute after the bid deadline.
We protested the low bid, taking the bid to the DCCA administrative hearing level. The hearings officer ruled in our favor, finding that in order for a bid to be deemed "received" it had to be in the agency's possession and control, and if that happened after the bid deadline set forth in the invitation for bids, the bid was late.
The hearing officer's decision is here:
Download MMB - Hearing Officer's Decision_120914
The low bidder and agency appealed their loss to the Second Circuit Court, where the original decision was upheld.
It didn't end there, however. The public agency still refused to award to the remaining low bidder, saying it was going to rebid the entire job rather than award to the low bidder. We asked the Second Circuit to hold the public agency in contempt for refusing to comply with a pending court order, and on Tuesday, February 17 a notice of award letter was issued.
Bids on public jobs often do come down to the last few minutes, due to subcontractor price changes or other variables, but it is pretty rare to see one that comes down to seconds. Still, especially for the bidder who got his bid in on time, late is late, and the law is pretty unequivocal on the issue -- when a bid is turned in after the time identified in the invitation for bids, it will not be opened but returned to the bidder. The big question in this protest is what "delivered" means -- does it mean self-stamping, especially a tacit practice that is not advertised as being allowed and is not used by the majority of bidders? Or does it mean both stamping and delivery of the bid into the hands of the agency? In this case, the hearings officer found it meant both -- which does make sense since if self-stamping alone could constitute "delivery," a bid could be deemed delivered even if it never reached the hands of the agency. In any event, the case teaches bidders that they must have a failsafe plan for ensuring their bids get in on time.
