B-157505, NOV. 3, 1965

B-157505, NOV. 3, 1965

TO IRA GELBER FOOD SERVICES, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED AUGUST 18, 1965, PROTESTING AWARD OF ANY CONTRACT UNDER ARMY INVITATION FOR BIDS NO. MD41- 244-66-1 TO TRANSPORT SERVICES, INC.

THE ABOVE INVITATION WAS ISSUED BY THE BROOKE ARMY MEDICAL CENTER, FORT SAM HOUSTON, TEXAS, ON JULY 12, 1965, FOR THE PROCUREMENT OF NONPERSONAL SERVICES--- KITCHEN POLICE FOR MESS NO. 2 AND MESS NO. 4 AT MEDICAL FIELD SERVICE SCHOOL, SAME INSTALLATION. IT PROVIDED THAT BIDS WERE TO BE OPENED AT 3:30 P.M., C.S.T., ON AUGUST 10, 1965. YOUR COMPANY'S BID WAS THE LOWEST OF SIX RECEIVED AND OPENED AT THAT TIME. ON THE SAME DATE, TRANSPORT SERVICES, INC., INQUIRED BY TELEPHONE AS TO THE STATUS OF ITS BID. UPON BEING INFORMED THAT NO BID WAS RECEIVED FROM ITS FIRM, IT CLAIMED A DELAY IN THE MAILS. TRANSPORT'S BID WAS RECEIVED AUGUST 11, 1965, AND THE TIME OF MAILING AND THE EXPECTED ARRIVAL TIME WERE INVESTIGATED. THE POSTMASTER, CORPUS CHRISTI, TEXAS, OFFICIALLY CONFIRMED BY WRITTEN STATEMENT THAT THE TRANSPORT BID WAS MAILED BY CERTIFIED AIRMAIL FROM CORPUS CHRISTI PRIOR TO 4:30 P.M. ON AUGUST 9, 1965. OFFICIAL AIRMAIL DISPATCH TIMES FROM CORPUS CHRISTI TO SAN ANTONIO, TEXAS, SHOWED THAT AIRMAIL DISPATCHED BY 9:20 P.M. ON AUGUST 9, 1965, WOULD HAVE ARRIVED IN SAN ANTONIO BY 10:37 P.M., SAME DATE, IN TIME TO BE INCLUDED IN THE MORNING (9 A.M.) DELIVERY ON THE FOLLOWING DAY. UPON RECEIPT OF OFFICIAL WRITTEN CONFIRMATION OF THE NORMAL SCHEDULES OF MAILING AND DELIVERY TIMES INVOLVED, THE BID WAS DETERMINED TO BE ELIGIBLE FOR CONSIDERATION AND WAS OPENED ON AUGUST 11, 1965, AND WAS FOUND TO BE THE LOWEST FAIR AND REASONABLE BID PRICE RECEIVED. YOUR PROTEST FOLLOWED, BASED ON SUCH VARIOUS ALLEGATIONS AS ILLEGAL RECEIPT OF A LATE BID IN ACCORDANCE WITH THE INVITATION, THAT TRANSPORT WAS A SURE LOSER NOT QUALIFIED TO HANDLE SANITATION AND THAT IT WAS NOT FINANCIALLY CAPABLE.

PARAGRAPH 2-303.2 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) (SEE, ALSO, CLAUSE 41 OF THE ADDITIONAL GENERAL PROVISIONS OF THE INVITATION FOR BIDS) PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"2-303.2 CONSIDERATION FOR AWARD. A LATE BID SHALL BE CONSIDERED FOR AWARD ONLY IF:

"/I) IT IS RECEIVED BEFORE AWARD; AND EITHER

"/II) IT WAS SENT BY REGISTERED MAIL, OR BY CERTIFIED MAIL FOR WHICH AN OFFICIAL DATED POST OFFICE STAMP (POSTMARK) ON THE ORIGINAL RECEIPT FOR CERTIFIED MAIL HAS BEEN OBTAINED, OR BY TELEGRAPH IF AUTHORIZED, AND IT IS DETERMINED THAT THE LATENESS WAS DUE SOLELY TO A DELAY IN THE MAILS (BASED ON EVIDENCE PURSUANT TO 2-303.3), OR TO A DELAY BY THE TELEGRAPH COMPANY FOR WHICH THE BIDDER WAS NOT RESPONSIBLE * * *"

IN ADDITION, APSR 2-303.3 (C) PROVIDES AS FOLLOWS:

"/C) DELIVERY TIME. INFORMATION CONCERNING THE NORMAL TIME FOR MAIL DELIVERY SHALL BE OBTAINED BY THE PURCHASING ACTIVITY FROM THE POSTMASTER, SUPERINTENDENT OF MAILS, OR A DULY AUTHORIZED REPRESENTATIVE FOR THAT PURPOSE, OF THE POST OFFICE SERVING THAT ACTIVITY. WHEN TIME PERMITS, SUCH INFORMATION SHALL BE OBTAINED IN WRITING.'

SINCE EVIDENCE OBTAINED FROM SOURCES AUTHORIZED BY THE INVITATION AND THE ABOVE REGULATION ESTABLISHED THAT THE DELAY IN RECEIPT OF TRANSPORT'S BID WAS DUE SOLELY TO A DELAY IN THE MAILS FOR WHICH THE BIDDER WAS NOT RESPONSIBLE, THE ADMINISTRATIVE ACTION IN RECEIVING ITS BID FOR CONSIDERATION OF AWARD WAS PROPER. SINCE THE BID WAS FOUND TO BE THE LOWEST FAIR AND REASONABLE BID RECEIVED, EVALUATION OF THE BID WAS IN ORDER AND A CONTRACT WAS AWARDED TO TRANSPORT SERVICES, INC., ON AUGUST 31, 1965.

PRIOR TO AWARD THE BID PRICES OF TRANSPORT SERVICES, INC., WERE VERIFIED WITH THAT FIRM. ITS MARGIN OF PROFIT ON THE CONTRACT IS IRRELEVANT TO AN AWARD FOR, WHILE ITS BID IS THE LOWEST, IT HAS NOT BEEN FOUND TO BE SO LOW AS TO PRECLUDE SUCCESSFUL PERFORMANCE.

YOUR ALLEGATIONS CONCERNING THE QUALIFICATION OF TRANSPORT SERVICES TO HANDLE A CONTRACT INVOLVING THE HIGH DEGREE OF SANITATION REQUIRED IN A MILITARY FOOD SERVICE OPERATION APPEAR TO BE WITHOUT FOUNDATION AS THE REQUIREMENT IN THIS RESPECT IS FULLY SET FORTH IN THE CONTRACT. ALL CONTRACTOR PERSONNEL ARE REQUIRED TO HAVE FOOD HANDLERS' PERMITS PRIOR TO COMMENCEMENT OF WORK. MEDICAL CERTIFICATES WILL BE REQUIRED TO BE COORDINATED WITH THE CHIEF, PREVENTIVE MEDICINE, FORT SAM HOUSTON, TEXAS. WE FIND NOTHING IN THE RECORD BEFORE US TO INDICATE THAT THE GOVERNMENT WILL NOT REQUIRE PERFORMANCE IN ACCORDANCE WITH THE TERMS OF THE CONTRACT AND WILL NOT EXERCISE SUCH RIGHTS RESERVED TO IT THEREUNDER.

A PREAWARD SURVEY CONDUCTED TO DETERMINE THE FINANCIAL CONDITION OF TRANSPORT SERVICES, INC., HAS REVEALED THAT THE COMPANY IS SOLVENT AND MAINTAINS SUFFICIENT CASH ON HAND TO COMPLETELY COVER ITS CURRENT LIABILITIES. THE CONTRACTOR'S RATIO OF ASSETS TO LIABILITIES HAS BEEN FOUND SATISFACTORY BY THE PROCUREMENT OFFICE AND ITS ADMINISTRATIVE ABILITIES ARE SATISFACTORILY EVIDENCED BY PRIOR PERFORMANCES ON OTHER CONTRACTS.

IT MAY BE STATED THAT THE SELECTION OF CONTRACTORS AND THE DETERMINATION OF THEIR QUALIFICATIONS IS PRIMARILY THE RESPONSIBILITY OF THE ADMINISTRATIVE OFFICERS CONCERNED AND, IN THE ABSENCE OF A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE ACTION TAKEN--- AND NONE IS SHOWN HERE--- WE ARE NOT REQUIRED TO OBJECT THERETO.