B-181914, OCT 9, 1974

B-181914: Oct 9, 1974

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ALLEGED INABILITY OF SUCCESSFUL BIDDER TO COMPLY WITH STATE SAFETY REQUIREMENTS AND REGULATIONS IS MATTER TO BE SETTLED BETWEEN CONTRACTOR AND STATE AUTHORITIES. ISSUE REGARDING PROPRIETY OF CONSIDERATION OF ANY DISCOUNT OFFERED IN EVALUATION OF BIDS IS UNTIMELY RAISED AND NOT FOR CONSIDERATION. AS ISSUE WAS APPARENT FROM FACE OF SOLICITATION BUT NOT RAISED UNTIL AFTER BID OPENING. (4 CFR 20.2(A)) PAUL'S LINE. THE BASIS OF THE PROTEST IS TWOFOLD - (1) THAT AZTEC HAS NEITHER SCHOOL BUSES AVAILABLE FOR USE NOR QUALIFIED DRIVERS AS REQUIRED BY THE CALIFORNIA VEHICLE CODE. (2) THAT AZTEC WAS INCORRECTLY DETERMINED TO BE THE LOW BIDDER. AS THE 10 PERCENT/20 DAYS PROMPT PAYMENT IDSCOUNT OFFERED SHOULD NOT HAVE BEEN CONSIDERED.

B-181914, OCT 9, 1974

1. ALLEGED INABILITY OF SUCCESSFUL BIDDER TO COMPLY WITH STATE SAFETY REQUIREMENTS AND REGULATIONS IS MATTER TO BE SETTLED BETWEEN CONTRACTOR AND STATE AUTHORITIES, AND MAY NOT BE REGARDED AS CONTROLLING ELIGIBILITY OF BIDDER TO RECEIVE GOVERNMENT CONTRACT. 2. ISSUE REGARDING PROPRIETY OF CONSIDERATION OF ANY DISCOUNT OFFERED IN EVALUATION OF BIDS IS UNTIMELY RAISED AND NOT FOR CONSIDERATION, AS ISSUE WAS APPARENT FROM FACE OF SOLICITATION BUT NOT RAISED UNTIL AFTER BID OPENING. (4 CFR 20.2(A))

PAUL'S LINE, INCORPORATED, ET AL.:

PAUL'S LINE, INCORPORATED, AND COODALL'S CHARTER BUS SERVICE, INCORPORATED, A JOINT VENTURE, PROTESTS AN AWARD TO WILLINGHAM BUS LINES, INCORPORATED, D/B/A AZTEC BUS LINES (AZTEC) UNDER INVITATION FOR BIDS (IFB) N62474-74-C-7937, ISSUED BY THE OFFICER IN CHARGE OF CONSTRUCTION, NAVY PUBLIC WORKS CENTER, SAN DIEGO, CALIFORNIA. THE SUBJECT SOLICITATION REQUESTED BIDS TO FURNISH SCHEDULED BUS SERVICE FOR THE TRANSPORTATION OF STUDENTS FROM THE MURPHY CANYON HEIGHTS HOUSING AREA TO SAN DIEGO CITY SCHOOLS AND RETURN, BEGINNING JULY 2, 1974, AND TERMINATING JANUARY 31, 1975.

THE BASIS OF THE PROTEST IS TWOFOLD - (1) THAT AZTEC HAS NEITHER SCHOOL BUSES AVAILABLE FOR USE NOR QUALIFIED DRIVERS AS REQUIRED BY THE CALIFORNIA VEHICLE CODE, AND THAT AWARD OF THE CONTRACT TO AZTEC WOULD BE IN VIOLATION OF DEPARTMENT OF TRANSPORTATION (DOT) HIGHWAY SAFETY PROGRAM STANDARD 17 RELATING TO PUPIL TRANSPORTATION SAFETY, AND (2) THAT AZTEC WAS INCORRECTLY DETERMINED TO BE THE LOW BIDDER, AS THE 10 PERCENT/20 DAYS PROMPT PAYMENT IDSCOUNT OFFERED SHOULD NOT HAVE BEEN CONSIDERED, SINCE IT WAS NOT THE PRACTICE OF THE PROCURING AGENCY TO MAKE PAYMENTS WITHIN ANY DISCOUNT PERIOD OFFERED.

AS CONCERNS THE CONTENTION THAT AZTEC CANNOT COMPLY WITH VARIOUS SAFETY REQUIREMENTS OF CALIFORNIA STATE LAW AND DOT STANDARD 17, THIS IDENTICAL QUESTION INVOLVING THE SAME TWO PARTIES WAS PREVIOUSLY BEFORE OUR OFFICE IN MATTER OF PAUL'S LINE, INCORPORATED, ET AL., B-179605, FEBRUARY 7, 1974. IN THAT DECISION, IT WAS OUR OPINION THAT THE ALLEGED INABILITY OF THE SUCCESSFUL BIDDER TO COMPLY WITH STATE SAFETY REQUIREMENTS AND REGULATIONS WAS A MATTER TO BE SETTLED BETWEEN THE CONTRACTOR AND STATE AUTHORITIES, AND COULD NOT BE REGARDED AS CONTROLLING THE ELIGIBILITY OF A BIDDER TO RECEIVE A GOVERNMENT CONTRACT. BASED ON THE PRESENT RECORD BEFORE US, WE FIND NO BASIS TO DEPART FROM OUR PREVIOUS DECISION.

REGARDING THE SECOND ISSUE OF PROTEST, THE "INSTRUCTIONS TO BIDDERS," PARAGRAPH 9, ENTITLED "DISCOUNTS" INDICATES THAT PROMPT PAYMENT DISCOUNTS OFFERED FOR PAYMENT WITH A MINIMUM OF 20 CALENDAR DAYS WILL BE CONSIDERED IN EVALUATING OFFERS FOR AWARD. MOREOVER, ARMED SERVICES PROCUREMENT REGULATION 2-407.3, ENTITLED "DISCOUNTS," STATES AT SUBSECTION (B) THAT:

"IN DETERMINING WHICH OF SEVERAL BIDS RECEIVED IS THE LOWEST, ANY DISCOUNT OFFERED SHALL BE DEDUCTED FROM THE BID PRICE ON THE ASSUMPTION THAT THE DISCOUNT WILL BE TAKEN ***"

THEREFORE, IT SEEMS APPARENT THAT THE IFB CONTEMPLATED CONSIDERING APPROPRIATE DISCOUNTS OFFERED IN THE EVALUATION OF BIDS SUBMITTED.

HOWEVER, THE PROTESTER DID NOT RAISE THE QUESTION AS TO WHETHER IT WOULD HAVE BEEN APPROPRIATE TO CONSIDER ANY DISCOUNT OFFERED IN EVALUATION UNTIL JUNE 27, 1974, 3 DAYS AFTER BID OPENING. UNDER OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS, 4 CFR 20 (1972), A PROTEST BASED UPON AN ALLEGED IMPROPRIETY IN THE SOLICITATION WHICH IS APPARENT PRIOR TO BID OPENING MUST BE FILED PRIOR TO BID OPENING TO BE CONSIDERED AS TIMELY RAISED. THE INSTANT PROTEST, THE QUESTION AS TO THE PROPRIETY OF THE CONSIDERATION OF DISCOUNTS OFFERED IN EVALUATION OF BIDS SUBMITTED, WHILE APPARENT FROM THE SOLICITATION, WAS NOT RAISED UNTIL AFTER THE BID OPENING. THEREFORE, THIS ISSUE IS UNTIMELY RAISED AND IS NOT PROPERLY FOR CONSIDERATION.

ACCORDINGLY, THE PROTEST IS DENIED.