B-152038, OCT. 31, 1963

B-152038, OCT. 31, 1963

TO JOHN R. MOTT, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 10, 1963, PROTESTING THE REFUSAL OF THE CONTRACTING OFFICER, BOSTON REGIONAL OFFICE, POST OFFICE DEPARTMENT, TO AWARD A CONTRACT TO/YOU UNDER AN INVITATION FOR BIDS ISSUED BY THE DEPARTMENT ON MAY 6, 1963.

IT APPEARS THAT THE CONTRACT COVERING MAIL TRANSPORTATION SERVICE ON STAR ROUTE NO. 24109-T ORIGINALLY WAS AWARDED TO YOU FOR THE PERIOD OCTOBER 27, 1959, THROUGH JUNE 30, 1963. CERTAIN DELINQUENCIES SUBSEQUENTLY OCCURRED WHICH RESULTED IN YOUR REMOVAL FROM THE CONTRACT FOR UNSATISFACTORY SERVICE. THE SURETIES, WHO WERE CALLED UPON TO ASSUME CHARGE OF THE ROUTE, FURNISHED THE NAME OF MR. ELMER T. JONES AS A SUBCONTRACTOR, TO WHICH THE POST OFFICE DEPARTMENT AGREED. IN THE DEPARTMENTAL ORDER OF JULY 25, 1960, RECOGNIZING MR. JONES AS THE SUBCONTRACTOR AT THE THEN EXISTING ANNUAL RATE OF $23,016.95, IT WAS EXPRESSLY PROVIDED THAT YOU WOULD NOT BE ALLOWED TO PERSONALLY OPERATE THE ROUTE. THE POST OFFICE DEPARTMENT HAS BEEN ADVISED THAT YOU ARE THE BROTHER-IN-LAW OF MR. ELMER T. JONES. MR. JONES SUBSEQUENTLY FORMED ELMER T. JONES, INC., OF WHICH HE WAS, AND STILL IS, PRESIDENT. ON AUGUST 28, 1961, MR. JONES TERMINATED HIS SUBCONTRACT EFFECTIVE SEPTEMBER 28, 1961. UPON THE SUGGESTION OF THE PERSONAL SURETIES THAT ELMER T. JONES, INC., THEN BE ACCEPTED AS THE SUBCONTRACTOR FOR STAR ROUTE NO. 24109-T, THE POST OFFICE DEPARTMENT APPROVED THE SUBCONTRACT WITH THAT CORPORATION ALSO AT THE ANNUAL CONTRACT RATE OF $23,016.95. ULTIMATELY, BY A LETTER DATED APRIL 23, 1963, THE DEPARTMENT ADVISED ELMER T. JONES, INC., THAT BECAUSE OF SERVICE CHANGES THAT HAD OCCURRED SINCE THE CONTRACT ORIGINALLY HAD BEEN AWARDED TO YOU ON OCTOBER 27, 1959, IT HAD BEEN DECIDED NOT TO RENEW THE CONTRACT WITH THE CORPORATION FOR THE PERIOD JULY 1, 1963, TO JUNE 30, 1967, BUT TO FORMALLY ADVERTISE FOR THE SERVICE. THE DETERMINATION AFTER THE RECEIPT OF BIDS THAT YOU WERE NOT A RESPONSIBLE BIDDER UNDER THE ADVERTISED SPECIFICATIONS HAS PROMPTED YOUR PROTEST.

IN YOUR LETTER DATED JULY 10, 1963, YOU STATE THAT SINCE YOU HAD SUBMITTED THE LOW BID UNDER THE ADVERTISED SPECIFICATIONS FOR THE MAIL TRANSPORTATION SERVICE FOR THE 4-YEAR PERIOD BEGINNING JULY 1, 1963, THE CONTRACT SHOULD HAVE BEEN AWARDED TO YOU; ALSO, YOU CONTEND THAT THE ALLEGED UNSATISFACTORY SERVICE PERFORMED BY YOU WAS NOT THE REAL REASON FOR REMOVING YOU FROM THE ORIGINAL CONTRACT.

THE RECORD BEFORE US SHOWS THAT YOU WERE REMOVED FROM THE ORIGINAL CONTRACT BY THE POST OFFICE DEPARTMENT FOR UNSATISFACTORY SERVICE IN THE LATTER PART OF JULY 1960. IT IS SHOWN FURTHER THAT SUCH REMOVAL WAS UPHELD ON APPEAL BY THE DEPARTMENT'S BOARD OF CONTRACT APPEALS. IN THE ORDER OF JULY 25, 1960, RECOGNIZING THE REPLACEMENT SUBCONTRACTOR, IT WAS EXPRESSLY STATED THAT YOU WOULD NOT BE ALLOWED TO PERSONALLY OPERATE THE ROUTE. NOTWITHSTANDING THIS, THE POST OFFICE DEPARTMENT REPORTS THAT AS EARLY AS AUGUST 15, 1960, YOU ENTERED INTO AN AGREEMENT WITH MR. ELMER T. JONES, WHICH APPARENTLY WAS ALSO RECOGNIZED BY ELMER T. JONES, INC., WHICH COVERED, AMONG OTHERS, THE LEASING OF TRUCKS AND DRIVERS FROM YOU BY ELMER T. JONES, INC., AT CERTAIN SPECIFIED RATES AND PROVIDED FOR VARIOUS OTHER TYPES OF PAYMENTS TO BE MADE TO YOU BY THE SAID CORPORATION FOR CERTAIN SERVICES PERFORMED. IN OTHER WORDS, IT IS OBVIOUS THAT THE AGREEMENT OF AUGUST 15, 1960, FOR ALL PRACTICAL PURPOSES, AMOUNTED TO NOTHING MORE--- AS ADMITTED BY ELMER T. JONES, INC.--- THAN AN ARRANGEMENT WHEREBY YOU WERE AGAIN OPERATING THE MAIL TRANSPORTATION ROUTE. THERE CAN BE NO QUESTION THAT SUCH DELEGATION OF AUTHORITY BY THE JONES CORPORATION TO YOU WAS CLEARLY IMPROPER SINCE, AS YOU WERE WELL AWARE, IT WAS IN DIRECT VIOLATION OF THE TERMS OF THE ORDER DATED JULY 25, 1960. THUS, THE CONTRACTING OFFICER OF THE BOSTON REGIONAL OFFICE WAS CONFRONTED WITH A SITUATION WHERE ALTHOUGH YOU HAD BEEN REMOVED FOR UNSATISFACTORY SERVICE FROM THE ORIGINAL CONTRACT LESS THAN A MONTH BEFORE THE AGREEMENT OF AUGUST 15, 1960, WAS ENTERED INTO, YOU STILL WERE SUBSTANTIALLY OPERATING THE ROUTE. THAT CONCLUSION APPEARS TO BE CLEARLY CONFIRMED BY THE REPORTED REFERENCE BY YOU TO THE FACT THAT YOUR CONTRACT WAS CANCELED AS OF THE CLOSE OF BUSINESS ON JUNE 30, 1963.

OUR OFFICE CONSISTENTLY HAS HELD THAT THE DETERMINATION AS TO THE OVER- ALL RESPONSIBILITY OF A PROPOSED CONTRACTOR IS PRIMARILY THAT OF THE PROCUREMENT AGENCY AND NOT OF THE GENERAL ACCOUNTING OFFICE. SEE 33 COMP. GEN. 549. THEREFORE, IN THE ABSENCE OF CONVINCING EVIDENCE OF BAD FAITH OR OF A REASONABLE BASIS FOR THE DETERMINATION AS MADE, WE ARE NOT REQUIRED TO OBJECT TO THE DETERMINATION. IN THIS CASE, THERE APPEARS NO EVIDENCE OF BAD FAITH IN THE DETERMINATION OF THE POST OFFICE DEPARTMENT THAT YOU WERE NOT A RESPONSIBLE BIDDER, AT LEAST INSOFAR AS STAR ROUTE NO. 24109-T IS CONCERNED. MOREOVER, THE REASONABLENESS OF THE SAID DETERMINATION APPEARS TO BE CLEARLY ESTABLISHED BY YOUR SUBSEQUENT OPERATION OF THE ROUTE WITHIN LESS THAN A MONTH AFTER YOU HAD BEEN REMOVED FROM THE ORIGINAL CONTRACT FOR UNSATISFACTORY SERVICE WHICH WAS, OF COURSE, IN DIRECT VIOLATION OF THE TERMS OF THE POST OFFICE DEPARTMENT ORDER OF JULY 25, 1960.

IN VIEW OF THE FOREGOING, WE FIND NO LEGAL BASIS TO QUESTION THE AWARD OF CONTRACT MADE UNDER THE INVITATION DATED MAY 6, 1963.