23B - PROJ - SANTA CLARA AVE SEWER AND WATER MAIN

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Contract Award For Santa Clara Avenue Sewer and Water Main Improvements March 21, 2011 Page 3 • The low bid, submitted by Garcia Juarez Construction, Inc., was handed to the City at approximately 2:00:10. The envelope was returned to the bidder as it was not properly sealed, whereupon, the low bidder's representative sealed the envelope and returned it to the Public Works representative at 2:00:40. • The bid was accepted by a representative from the Public Works Agency and was eventually determined to be the low bidder. • The second low bidder timely submitted a protest asserting that the delivery of the bid at 2:00:40 did not conform to the bid specifications and the bid should not have been accepted. • Both state law and the City's bid documents and policies prohibit the consideration of late bids. Cal. Government Code §53068, Cal Public Contract Code §10168. The dispute rests on each party's interpretation of "on or before" the hour of 2:00 p.m. The protesting party contends that any bid submitted after 2:00:00 is late. In support of its contention, the protesting party stated that it has submitted bids in many cities and the majority of those cities close their bid at the beginning of the hour. However, some cities utilizing a time clock without a second hand do allow bids until 2:01. Other cities' language regarding bid closure time was not provided. Santa Ana normally utilizes a time stamp that is accurate to the minute. Therefore, City policy has been that any bid submitted until 2:01 will be accepted. At 2:01 p.m., the bid would be deemed late. On the date the subject bid was closed, the time stamp was not working and interested bidders were watching the digital clock located behind the clerk's desk, which registers seconds. In compliance with the City's practice of accepting bids at 2:00, which includes the 59 seconds between 2:00:00 and 2:01, the City accepted bids until the digital clock registered 2:01. The parties agree that if the bid was submitted late, the City could not accept it. However, the protesting party did not demonstrate that the City's policy of including the 59 seconds between 2:00:00 and 2:01:00, in its interpretation of "on or before 2:00 p.m." is arbitrary or capricious. Therefore, the bid submitted by Garcia Juarez Construction, Inc., was determined to be filed on time and should be accepted by the City of Santa Ana. ENVIRONMENTAL IMPACT In accordance with the California Environmental Quality Act, the recommended action is exempt from further review. Categorical Exemption Environmental Review No. 2011-03 has been filed. 23B-3