B-171689, APR 2, 1971

B-171689, APR 2, 1971

BID PROTEST - CONTRACTS - INTERSTATE COMMERCE ACT DECISION DENYING PROTEST AGAINST AWARD OF CONTRACT TO ART POE'S MOVING AND STORAGE COMPANY FOR SERVICES RELATED TO THE PREPARATION OF PERSONAL PROPERTY FOR SHIPMENT, GOVERNMENT STORAGE, AND PERFORMING INTRA-CITY AND INTRA-AREA MOVEMENT, PURSUANT TO A SOLICITATION ISSUED BY FORT BENJAMIN HARRISON, INDIANA. THE NECESSITY OF HOLDING ICC OPERATING AUTHORITY IS A MATTER OF RESPONSIBILITY, AND WAS PROPERLY DELETED FROM THE IFB; NOTHING IN THE INTERSTATE COMMERCE ACT PREVENTS THE CARRIAGE, STORAGE OR HANDLING OF PROPERTY FREE OR AT REDUCED RATES FOR THE UNITED STATES; THEREFORE, THE PROMPT PAYMENT DISCOUNT WAS PROPER; THE ACT DOES NOT PROHIBIT FORMAL ADVERTISING WHERE DEEMED APPROPRIATE; FINALLY, NOT EVERY POSSIBLE BIDDER MUST BE AFFORDED THE OPPORTUNITY TO BID. FOR THE ABOVE REASONS THE PROTEST IS DENIED.

TO BIVIN TRANSFER COMPANY, INCORPORATED:

YOUR LETTER OF DECEMBER 31, 1970, CONCERNING IRREGULARITIES IN THE SOLICITATION AND AWARDING OF A CONTRACT AT FORT BENJAMIN HARRISON, INDIANA, PURSUANT TO SOLICITATION NO. DABE 09-71-B-0018, WAS TRANSMITTED TO OUR OFFICE FOR CONSIDERATION.

THE SUBJECT INVITATION FOR BIDS (IFB), A TOTAL SMALL BUSINESS SET ASIDE, WAS ISSUED ON OCTOBER 20, 1970, AND CALLED FOR BIDS ON PACKING, CRATING AND RELATED SERVICES FOR PREPARATION OF PERSONAL PROPERTY FOR SHIPMENT, GOVERNMENT STORAGE, AND PERFORMING INTRA-CITY OR INTRA-AREA MOVEMENT. THE CONTRACT WAS AWARDED TO ART POE'S MOVING AND STORAGE COMPANY ON DECEMBER 7, 1970, PURSUANT TO 10 U.S.C. 2304(A)(1), AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER.

YOUR FIRST OBJECTION RELATES TO DELETION OF THE REQUIREMENT IN THE IFB THAT THE BIDDER CERTIFY THAT HE HOLDS, IN HIS OWN NAME, THE NECESSARY INTERSTATE COMMERCE COMMISSION (ICC) OPERATING AUTHORITY. THE ARMY REPORTS THAT THIS REQUIREMENT WAS DELETED TO AVOID ANY IMPLICATION THAT ICC OPERATING AUTHORITY IS A TEST OF RESPONSIVENESS TO THE IFB, SINCE THE EXISTENCE OF SUCH OPERATING AUTHORITY IS A MATTER OF RESPONSIBILITY OF THE BIDDER. IN THIS CONNECTION, IT IS POINTED OUT THAT OUR OFFICE HAS HELD THAT THE PRIMARY PURPOSE OF REQUIRING A BIDDER TO CERTIFY HIS OPERATING RIGHTS IS TO DETERMINE HIS LEGAL AUTHORIZATION TO PERFORM THE CONTRACT, WHICH IS A MATTER OF RESPONSIBILITY AND MAY PROPERLY BE ESTABLISHED ANY TIME AFTER BID OPENING AND PRIOR TO THE TIME FOR PERFORMANCE. SEE 47 COMP. GEN. 539 (1968); 46 COMP. GEN. 326 (1966); 17 COMP. GEN. 72 (1937). FURTHERMORE, IT IS REPORTED THAT THE SUCCESSFUL BIDDER HAS ICC OPERATING AUTHORITY.

YOU ALSO CONTEND THAT THE PROVISION FOR A PROMPT PAYMENT DISCOUNT VIOLATES THE PROVISION OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 41, PROHIBITING THE SOLICITATION, ACCEPTANCE OR RECEIVING OF ANY REBATES OR CONCESSIONS. THE ARMY POINTS OUT THAT SECTION 22 OF THE ACT, 49 U.S.C. 22, PROVIDES THAT NOTHING IN THE ACT SHALL PREVENT THE CARRIAGE, STORAGE, OR HANDLING OF PROPERTY FREE OR AT REDUCED RATES FOR THE UNITED STATES.

NEXT, YOU CALL ATTENTION TO THE FACT THAT SECTION 321 OF THE ACT, 49 U.S.C. 65, PROVIDES THAT SECTION 5 OF TITLE 41 SHALL NOT BE CONSTRUED AS REQUIRING ADVERTISING FOR BIDS FOR TRANSPORTATION SERVICES WHEN THE SERVICES WHEN THE SERVICES REQUIRED CAN BE PROCURED FROM ANY COMMON CARRIER LAWFULLY OPERATING IN THE TERRITORY WHERE SUCH SERVICES ARE TO BE PERFORMED. IT IS THE ARMY'S POSITION THAT ALTHOUGH THIS PROVISION RELAXES THE REQUIREMENT FOR FORMAL ADVERTISING, IT DOES NOT PROHIBIT FORMAL ADVERTISING WHERE DEEMED APPROPRIATE. IN ADDITION, THE ARMY IS NOT SUBJECT TO THE PROVISIONS OF 41 U.S.C. 5. SEE 10 U.S.C. 2303 AND 2314. IT SHOULD ALSO BE NOTED THAT THE PROCUREMENT WAS SET ASIDE ENTIRELY FOR SMALL BUSINESS UNDER 10 U.S.C. 2304(A)(1), WHICH AUTHORIZES PROCUREMENT BY NEGOTIATION IN APPROPRIATE CIRCUMSTANCES.

FINALLY, YOU QUESTION THE FAILURE OF THE ARMY TO SOLICIT ALL COMMON CARRIERS OPERATING IN THE AREA. THE ARMY REPORTS THAT THE IFB WAS SENT TO 10 PROSPECTIVE BIDDERS. THESE SOURCES WERE PROVIDED BY THE TRANSPORTATION DIVISION FROM A LIST OF BIDDERS WHO HAD RESPONDED TO PREVIOUS SOLICITATIONS AND FROM A BIDDERS MAILING LIST COMPRISED OF FIRMS WHO HAD ON FILE A STANDARD FORM 129, BIDDERS MAILING LISTS APPLICATION. ADDITION, THE PROCUREMENT WAS SYNOPSIZED IN THE COMMERCE BUSINESS DAILY PURSUANT TO ASPR 2-203.4. FIVE BIDDERS RESPONDED. IT IS REPORTED THAT YOU WERE SOLICITED FOR 12 PREVIOUS PROCUREMENTS, BUT DID NOT SUBMIT A BID. ON ANOTHER OCCASION YOU SUBMITTED A BID, BUT DID NOT RECEIVE THE AWARD BECAUSE YOU WERE NOT THE LOW BIDDER. FURTHER, IT IS REPORTED THAT YOU WERE AWARDED TWO CONTRACTS.

WE HAVE HELD THAT THE PROPRIETY OF A PARTICULAR PROCUREMENT MUST BE DETERMINED FROM THE GOVERNMENT'S POINT OF VIEW UPON THE BASIS OF WHETHER ADEQUATE COMPETITION AND REASONABLE PRICES WERE OBTAINED, NOT UPON WHETHER EVERY POSSIBLE BIDDER WAS AFFORDED AN OPPORTUNITY TO BID. B-167379, AUGUST 15, 1969. THERE IS NO INDICATION IN THE RECORD THAT THERE WAS ANY CONSCIOUS OR DELIBERATE INTENTION TO EXCLUDE YOU OR ANY OTHER INTERESTED FIRM FROM PARTICIPATING IN THE PROCUREMENT. IN THE ABSENCE OF SUCH INTENT OR PURPOSE THERE IS NOT A SUFFICIENT BASIS TO QUESTION AN OTHERWISE PROPER AWARD. B-164047, JUNE 10, 1968.

WE NOTE THAT THE SERVICES CALLED FOR UNDER THE INVITATION ARE TO BE PERFORMED INTRA-CITY OR INTRA-AREA. FURTHERMORE, THE "CONTRACT AREAS OF PERFORMANCE" LISTED ON PAGE 40 OF THE INVITATION ARE ALL STATED TO BE WITHIN THE STATE OF INDIANA. SINCE PART II OF THE INTERSTATE COMMERCE ACT, 49 U.S.C. 301, ET. SEQ., APPLIES TO TRANSPORTATION BY MOTOR CARRIERS "ENGAGED IN INTERSTATE AND FOREIGN COMMERCE", IT WOULD APPEAR THAT THE PROVISIONS OF THE ACT ARE NOT RELEVANT TO THIS CONTRACT.

ACCORDINGLY, THERE IS NO BASIS FOR OUR OFFICE TO TAKE EXCEPTION TO THE ADMINISTRATIVE ACTION OR DISTURB THE CONTRACT AWARD.