Gone in 60 seconds

In the world of federal contracting, for whatever reason, proposals to the government often are submitted at the last minute. Considering that agencies typically reject late proposals out of hand, this practice has its risks.

Thanks to the General Accounting Office, however, federal contractors now have an additional 59 seconds of submission cushion. This little gift is the result of a bid protest involving two contractors, three clocks, a wounded courier, a suspicious project manager and an astute contracting official. Government contracting doesn't get any more exciting than this.

Our story begins in mid-2003, when two vendors responded to a solicitation issued by the Navy for improving certain facilities at Travis Air Force Base in California. The solicitation called for a two-part proposal, the second part of which had to be submitted by 1400 hours on the submission day — that is, by 2:00 p.m.

When submission day rolled around, one of those contractors, the Haskell Co., submitted its proposal in a timely fashion. The other contractor, however, the James N. Gray Co., wasn't having such a good day. Although the

behind-the-scenes story is unclear, we do know that, with a few seconds to go before 2:01 p.m., the company's courier came running into the proposal submission room with blood gushing from his hand and tried to pass his company's proposal to the contracting official operating the time stamp machine. In the time it took the official to reposition the machine to avoid the stream of blood, however, the time clicked from 2:00 to 2:01.

The official, who apparently was paying close attention to the clock at the time of the courier's dramatic arrival, later testified, "If I had not taken those additional seconds to adjust the angle of the box so I wouldn't get his blood on me, it would have been stamped in at the required time of 2:00 p.m."

Unfortunately for Gray, the contracting official was not the only one watching the clock. The Haskell project manager apparently had hung around after submitting his proposal and saw the event take place. According to the project manager, whose eyes were intently focused on his watch and the submission room's wall clock, Gray's proposal was submitted after 2:00:00.

Gray ultimately was awarded the Navy contract and Haskell officials protested, claiming that Gray's proposal should have been rejected as untimely. The protest raised the following question: Is a proposal with a submission deadline of 2:00 p.m. due before 2:00:00 or before 2:01:00? In other words, who owns those key 59 seconds that reside between 2:00 and 2:01?

According to GAO officials, unless the agency explicitly sets a deadline of "2:00:00," which it did not in this case, that time belongs to the contractor. Thus, since Gray's proposal was in the government's control before 2:01:00, Gray's proposal was timely. The wounded courier never even entered into the analysis.

The case gives new meaning to waiting until the last minute and should serve as a reminder of the importance of the government's timeliness rules.

Aronie is a partner in the government contracts group of Sheppard, Mullin, Richter & Hampton LLP in Washington, D.C. He can be reached at jaronie@sheppard

mullin.com or (202) 218-0039.

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