B-175319, MAY 15, 1972

B-175319: May 15, 1972

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SWIFT'S PROPOSAL WAS PROPERLY CONSIDERED PURSUANT TO ASPR 2-203 SINCE THE BID WAS SENT BY CERTIFIED MAIL AND THE STATEMENT OF THE LOCAL POSTMASTER INDICATES THAT LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS. WILL NOT DISTURB THE CONTRACTING OFFICER'S DECISION IN THE ABSENCE OF CONVINCING EVIDENCE THAT THE FINDING WAS ARBITRARY. THE PROTEST IS DENIED. TO FLEETWOOD PACKAGING CO.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 1. TWO BIDS INCLUDING THAT OF YOUR FIRM WERE PUBLICLY OPENED AND READ. IT IS REPORTED THAT AT APPROXIMATELY 8:40 A.M. A BID WAS RECEIVED IN THE BID OPENING OFFICE FROM SWIFT SERVICES. WHICH ALLOWS THE CONSIDERATION OF LATE BIDS IF THE BID WAS RECEIVED LATE SOLELY BECAUSE OF A PROVEABLE DELAY IN THE MAILS.

B-175319, MAY 15, 1972

BID PROTEST - LATE BID - DELAY IN MAILS - RESPONSIBILITY DECISION DENYING THE PROTEST OF FLEETWOOD PACKAGING CO., AGAINST AWARD OF A CONTRACT TO SWIFT SERVICES UNDER AN IFB ISSUED BY THE NAVAL ADMINISTRATIVE COMMAND, SUPPLY DEPARTMENT, GREAT LAKES, ILL. SWIFT'S PROPOSAL WAS PROPERLY CONSIDERED PURSUANT TO ASPR 2-203 SINCE THE BID WAS SENT BY CERTIFIED MAIL AND THE STATEMENT OF THE LOCAL POSTMASTER INDICATES THAT LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS. WITH REGARD TO THE QUESTION OF SWIFT'S RESPONSIBILITY, THE COMP. GEN. WILL NOT DISTURB THE CONTRACTING OFFICER'S DECISION IN THE ABSENCE OF CONVINCING EVIDENCE THAT THE FINDING WAS ARBITRARY, CAPRICIOUS, OR NOT BASED ON SUBSTANTIAL EVIDENCE. 45 COMP. GEN. 4 (1965). IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.

TO FLEETWOOD PACKAGING CO.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 1, 1972, AND YOUR PREVIOUS COMMUNICATION, PROTESTING AGAINST THE AWARD OF A CONTRACT TO SWIFT SERVICES, DAVENPORT, IOWA, UNDER DEPARTMENT OF THE NAVY INVITATION FOR BIDS (IFB) NO. N000128-72-B-0102, AS AMENDED, ISSUED BY THE NAVAL ADMINISTRATIVE COMMAND, SUPPLY DEPARTMENT, GREAT LAKES, ILLINOIS.

THE SUBJECT IFB, AS AMENDED, REQUESTED BIDS - TO BE OPENED AT 2 P.M. ON FRIDAY, FEBRUARY 4, 1972 - FOR FURNISHING NECESSARY SERVICES AND MATERIALS REQUIRED TO UNPACK, REPROCESS, REPACKAGE AND REPACK FOR SHIPMENT ALL MATERIALS, EQUIPMENT AND SUPPLIES WHICH MAY BE ALLOCATED BY THE GOVERNMENT AT GREAT LAKES, ILLINOIS. THE RECORD INDICATES THAT AT THE TIME OF THE SCHEDULED BID OPENING ON FEBRUARY 4, 1972, TWO BIDS INCLUDING THAT OF YOUR FIRM WERE PUBLICLY OPENED AND READ.

IT IS REPORTED THAT AT APPROXIMATELY 8:40 A.M. ON MONDAY, FEBRUARY 7, 1972, A BID WAS RECEIVED IN THE BID OPENING OFFICE FROM SWIFT SERVICES. IN ACCORDANCE WITH PARAGRAPH 2-303 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR), WHICH ALLOWS THE CONSIDERATION OF LATE BIDS IF THE BID WAS RECEIVED LATE SOLELY BECAUSE OF A PROVEABLE DELAY IN THE MAILS, THE PROCURING ACTIVITY PROCEEDED TO DETERMINE WHETHER SWIFT'S BID COULD BE CONSIDERED. ULTIMATELY IT WAS DETERMINED BY THE PROCURING ACTIVITY THAT THE BID OF SWIFT WAS TIMELY MAILED AND, THEREFORE, SHOULD BE OPENED AND CONSIDERED FOR AWARD. UPON OPENING SWIFT'S BID, IT WAS NOTED THAT IT WAS THE LOWEST OF THE THREE BIDS RECEIVED. SINCE THE BID OF SWIFT WAS SUBSTANTIALLY LOWER THAN THE OTHER BIDS RECEIVED, THE COMPANY WAS REQUESTED BY LETTER DATED FEBRUARY 15, 1972, TO VERIFY ITS BID PRICES. TELEGRAM OF FEBRUARY 23, 1972, SWIFT CONFIRMED ITS BID PRICES. FEBRUARY 28, 1972, CONTRACT NO. N00128-72-D-0066 WAS AWARDED TO SWIFT SERVICES.

YOU CONTEND THAT THE ACTION OF THE CONTRACTING OFFICER IN CONSIDERING THE LATE BID SUBMITTED BY SWIFT WAS IMPROPER. YOU STATE THAT THE BID OF SWIFT WAS MAILED FROM DAVENPORT, IOWA, JUST 29 HOURS PRIOR TO THE BID OPENING TIME AND THAT ALTHOUGH THE POST OFFICE HAS VERIFIED THAT THEIR SCHEDULE IS SUCH THAT THE BID SHOULD HAVE ARRIVED IN TIME, YOU BELIEVE THAT THIS SCHEDULE WOULD BE THE EXCEPTION RATHER THAN THE RULE FOR A LETTER MAILED FROM DAVENPORT, IOWA, AT 9 A.M. TO ARRIVE AT GREAT LAKES, ILLINOIS, THE FOLLOWING DAY IN TIME TO MEET THE 2 P.M. BID OPENING.

WITH REGARD TO CIRCUMSTANCES PERMITTING CONSIDERATION FOR AWARD OF A LATE MAILED BID, ASPR 2-303.3(A)(I) PROVIDES THAT SUCH A BID MAY BE CONSIDERED IF IT WAS SENT BY REGISTERED OR CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POSTMARK ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, AND IT IS DETERMINED THAT LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS. ASPR 2-303.3(D) PROVIDES THAT NORMAL TIME FOR MAIL DELIVERY SHALL BE OBTAINED BY THE PROCURING ACTIVITY FROM THE POSTMASTER OF THE POST OFFICE SERVING THAT ACTIVITY.

CERTIFIED MAIL RECEIPT NO. 080931 COVERING SWIFT'S BID WAS OBTAINED FROM THE COMPANY BY THE PROCURING ACTIVITY. IN A LETTER DATED FEBRUARY 25, 1972, THE POSTMASTER FROM DAVENPORT, IOWA, AFFIRMED THAT CERTIFIED LETTER NO. 080931 WAS MAILED AT 9 A.M. ON FEBRUARY 3, 1972, AS INDICATED ON THE CERTIFIED MAIL RECEIPT. AFTER RECEIVING THE ABOVE EVIDENCE, THE PROCURING ACTIVITY CONTACTED THE GREAT LAKES, ILLINOIS, POST OFFICE AND, AFTER RECITING THE FOREGOING FACTS, IT WAS ADVISED THAT SWIFT'S BID SHOULD HAVE BEEN RECEIVED IN THE GREAT LAKES BRANCH POST OFFICE AT 11:50 A.M. ON FEBRUARY 4, 1972, AND SHOULD HAVE BEEN DELIVERED TO THE BID OPENING OFFICE PRIOR TO THE BID OPENING ON THE SAME DAY. ON THE BASIS OF THE RECORD IN THIS CASE, THE DEPARTMENT OF THE NAVY TAKES THE POSITION THAT THE BID OFFICER FOLLOWED THE ASPR PROCEDURES FOR LATE BIDS AND THAT THE CONTRACTING OFFICER ACTED PROPERLY IN OPENING THE BID. WE AGREE.

YOU ALSO QUESTION THE RESPONSIBILITY OF SWIFT AS A PROSPECTIVE CONTRACTOR. YOU STATE THAT THERE IS NO OLD OR NEW TELEPHONE LISTING FOR SWIFT SERVICES; THAT YOU HAVE BEEN INFORMED THAT THE OWNER OF SWIFT SERVICES WAS PRESIDENT OF LINCOLN INDUSTRIES OF MOLINE, ILLINOIS, WHICH, YOU STATE, HAS A LONG HISTORY OF POOR PERFORMANCE WITH REGARD TO THE QUALITY OF WORK RESULTING IN NUMEROUS DAMAGE REPORTS; THAT LINCOLN INDUSTRIES HAS GONE BANKRUPT, LEAVING A QUESTION OF FINANCIAL RESPONSIBILITY TO BE ANSWERED; THAT SWIFT SERVICES IS BEING OPERATED FROM THE OWNER'S HOME WITH NO ADDITIONAL BUILDING SPACE AT ANY OTHER LOCATION; AND THAT SWIFT SERVICES DOES NOT HAVE A CREW BUT PLANS TO HIRE A CREW IN THE CHICAGO, ILLINOIS AREA.

IT IS REPORTED THAT ALTHOUGH SWIFT SERVICES MAY NOT BE LISTED IN A PUBLISHED DIRECTORY, THE COMPANY HAS FURNISHED A TELEPHONE NUMBER BY WHICH IT MAY BE REACHED AND THAT THE CONTRACTING OFFICER HAS HAD NO DIFFICULTY IN CONTACTING THE COMPANY ON THAT NUMBER. IN REGARD TO YOUR ALLEGATION THAT MR. GEORGE SWIFT, OWNER OF SWIFT SERVICES, WAS FORMERLY PRESIDENT OF THE BANKRUPT LINCOLN INDUSTRIES, THE PREAWARD SURVEY OF SWIFT SERVICES CONTAINS NO INDICATION THAT MR. SWIFT WAS CONNECTED WITH LINCOLN INDUSTRIES IN ANY CAPACITY. THE SURVEY INDICATES THAT MR. SWIFT PREVIOUSLY SPENT TEN YEARS WITH LINCOLN PACKAGING COMPANY OF DAVENPORT, IOWA, IN THE CAPACITY OF PRESIDENT; THAT FOR THE PERFORMANCE OF THIS CONTRACT SWIFT SERVICES WILL HAVE THE SERVICES OF THREE PERSONS EXPERIENCED IN PACKAGING; AND THAT ANY ADDITIONAL PERSONNEL NEED NOT BE EXPERIENCED AND SHOULD BE AVAILABLE. IT IS REPORTED THAT SINCE THE CONTRACT CALLS FOR ALL WORK TO BE COMPLETELY PERFORMED IN GOVERNMENT FURNISHED SPACE AND FACILITIES LOCATED AT GREAT LAKES, ILLINOIS, IT WAS DETERMINED BY THE CONTRACTING OFFICER PRIOR TO ISSUANCE OF THE SUBJECT INVITATION THAT NO SPACE IN ADDITION TO THAT PROVIDED BY THE GOVERNMENT WAS NECESSARY FOR THE PERFORMANCE OF THE WORK COVERED BY THIS CONTRACT. IT LONG HAS BEEN THE RULE OF OUR OFFICE TO ACCEPT THE CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY, UNLESS IT IS SHOWN BY CONVINCING EVIDENCE THAT THE FINDING WAS ARBITRARY, CAPRICIOUS OR NOT BASED ON SUBSTANTIAL EVIDENCE. 45 COMP. GEN. 4 (1965) AND B 173157, OCTOBER 26, 1971 (51 COMP. GEN. ). WE FIND NO SUCH EVIDENCE IN THE RECORD, AND HAVE NO REASON TO QUESTION THE QUALIFICATIONS OF SWIFT SERVICES.

ACCORDINGLY, WE WOULD NOT BE JUSTIFIED IN QUESTIONING THE AWARD MADE TO SWIFT SERVICES. THE PROTEST IS THEREFORE DENIED.