B-157764, NOV. 18, 1966

B-157764, NOV. 18, 1966

TO DENNING AND WOHLSTETTER:

BY LETTER OF JUNE 1, 1966, WITH ENCLOSURES, YOU ASKED THAT WE RECONSIDER THE PORTION OF OUR DECISION B-157764 OF APRIL 8, 1966, WHICH, ON THE BASIS OF ESTABLISHED ADMINISTRATIVE PRACTICE DENIED THE PROTEST OF UNIVERSAL VAN -PAC AGAINST THE AWARD OF A CONTRACT TO WASHINGTON MOVING AND STORAGE, INCORPORATED, UNDER INVITATION FOR BIDS NO. MTMTS-30-358-66-4, ISSUED BY THE UNITED STATES ARMY, HEADQUARTERS, EASTERN AREA, MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE (MTMTS).

THE INVITATION REQUESTED BIDS FOR THE FURNISHING OF DRAYAGE, PACKING, AND SIMILAR SERVICES INCIDENT TO THE DELIVERY OF HOUSEHOLD GOODS IN THE NEW YORK CITY METROPOLITAN AREA UPON THEIR ARRIVAL BY SHIP FROM OVERSEAS POINTS. THE HOUSEHOLD GOODS WERE TO BE PICKED UP AT THE MILITARY OCEAN TERMINAL IN BROOKLYN, NEW YORK, AND DELIVERY TO PRIVATE RESIDENCES IN THE SURROUNDING AREA, WHICH INCLUDES BERGEN, UNION, ESSEX AND MORRIS COUNTIES IN NEW JERSEY, WESTCHESTER AND NASSAU COUNTIES IN NEW YORK, AND NEW YORK CITY.

SPECIAL PROVISION 7 OF THE INVITATION STIPULATED THAT THE CONTRACTOR SHALL POSSESS THE NECESSARY LICENSES REQUIRED BY THE INTERSTATE COMMERCE COMMISSION, NEW YORK STATE AND NEW JERSEY TO PERFORM TNE CONTRACT SERVICES. WHILE WASHINGTON HAD AN I.C.C. PERMIT COVERING SERVICE FROM THE BROOKLYN TERMINAL TO THE NEW JERSEY COUNTIES, IT HAD ONLY NEW YORK STATE AUTHORITY TO OPERATE IN THE NEW YORK COUNTIES.

IN OUR DECISION OF APRIL 8, 1966, WE HELD THAT WASHINGTON DID NOT NEED I.C.C. CERTIFICATION TO SATISFY THE LICENSING REQUIREMENTS OF SPECIAL PROVISION 7, SAYING:

"* * * IN VIEW OF THE LONG STANDING ADMINISTRATIVE PRACTICE TO REQUIRE ONLY INTRASTATE AUTHORITY TO PERFORM CONTRACTS OF THIS NATURE WE MUST AGREE WITH THE POSITION OF THE AGENCY UNTIL SUCH TIME AS THE COMMISSION, WITH ITS POWER TO CONDUCT FACTUAL HEARINGS AND ITS STATUTORY DUTY TO REGULATE COMMERCE, RULES TO THE CONTRARY. * * *"

THE REFERENCE TO "LONG STANDING ADMINISTRATIVE PRACTICE" ABOVE STEMS FROM OUR UNDERSTANDING THAT IT HAS NOT BEEN THE PRACTICE IN THE PAST TO REQUIRE A CONTRACTOR TO POSSESS INTERSTATE CERTIFICATION FOR DELIVERIES FROM BROOKLYN TO NASSAU AND WESTCHESTER COUNTIES. YOUR LETTER OF JUNE 1, 1966, RAISES THE QUESTION WHETHER SUCH FAILURE IN THE INSTANT PROCUREMENT CONFORMS TO BASIC MTMTS POLICY, WHICH YOU CONTEND DOES REQUIRE I.C.C. OPERATING AUTHORITY FOR DELIVERIES TO POINTS IN THOSE COUNTIES. AS PROOF OF YOUR CONTENTION YOU HAVE SUBMITTED A COPY OF A MARCH 24, 1964, MEMORANDUM WHICH IS SIGNED BY COLONEL JAMES E. BRANIGIN, DIRECTOR OF HOUSEHOLD GOODS OPERATIONS, HEADQUARTERS, DEFENSE TRAFFIC MANAGEMENT SERVICE (PREDECESSOR TO MTMTS) AND WHICH DIRECTS THE TRANSPORTATION SECTIONS OF THE ARMED SERVICES TO REQUIRE PACK AND CRATE CONTRACTORS TO HAVE I.C.C. AUTHORITY EXCEPT FOR THOSE SHIPMENTS WITHIN A COMMERCIAL ZONE OR ENTIRELY WITHIN A SINGLE STATE. YOU HAVE ALSO SUBMITTED A COPY OF A LETTER DATED MAY 26, 1966, FROM COLONEL A. S. ARMSTRONG, DIRECTOR OF HOUSEHOLD GOODS, HEADQUARTERS, MTMTS, WHICH IS ADDRESSED TO YOU AND WHICH CONCLUDES:

"THEREFORE, IT CAN BE STATED THAT SINCE 1964 IT HAS BEEN THE POSITION OF THIS HEADQUARTERS (AND ITS PREDECESSOR, DTMS) THAT I.C.C. AUTHORITY IS REQUIRED FOR PACK AND CRATE CONTRACTS OF MILITARY HOUSEHOLD GOODS SHIPPED IN INTERSTATE OR FOREIGN COMMERCE.'

THIS POLICY POSITION APPEARS TO BE AN IMPLEMENTATION OF AN INFORMAL OPINION BY HERBERT QUALLS, MOTOR CARRIER BUREAU, INTERSTATE COMMERCE COMMISSION, OF FEBRUARY 24, 1964, WHICH ADVISED THE DEFENSE TRAFFIC MANAGEMENT SERVICE THAT:

"WHEN THE ENTIRE MOVEMENT, SHORT HAUL OR LONG HAUL, IS WITHIN ONE STATE, THIS COMMISSION HAS NO JURISDICTION. HOWEVER, WHERE THE INTENTIS THAT THE GOODS WILL MOVE FROM THE DWELLING OR OTHER PLACE WHERE THEY ARE FIRST PICKED UP TO A POINT IN ANOTHER STATE OR FOREIGN COUNTRY, OR THE REVERSE, AND THIS INTENT IS CARRED OUT, ALL SEGMENTS OF THIS MOVEMENT PERFORMED IN THE UNITED STATES ARE IN INTERSTATE OR FOREIGN COMMERCE, WITHIN THE MEANING OF THE ACT. * * *"

IT IS OUR CONCLUSION, BASED UPON A REVIEW OF THE POLICY STATEMENT AS SET OUT IN COLONEL BRANIGIN'S MEMO OF MARCH 24, 1964, THE VARIOUS DOCUMENTS WHICH YOU AND THE DEPARTMENT OF THE ARMY HAVE SUBMITTED AS EVIDENCING INTERPRETATIONS OF SUCH POLICY, AND THE ADVICE SET OUT IN ARMY'S REPORT DATED JULY 26, 1966, FROM THE DIRECTOR OF PROCUREMENT TO THIS OFFICE, THAT THE POLICY IS INTENDED TO REQUIRE CONTRACTORS THROUGHOUT THE COUNTRY TO POSSESS I.C.C. AUTHORITY WHENEVER CONTRACTS OF THE NATURE HERE INVOLVED REQUIRE THE CONTRACTOR TO TRANSPORT AND DELIVER GOODS TO POINTS OUTSIDE OF THE COMMERCIAL ZONE IN WHICH THE GOODS WERE DELIVERED TO THE CONTRACTOR.

ON THE BASIS OF THE RECORD BEFORE US WE CAN FIND NO CIRCUMSTANCE WHICH WOULD DISTINGUISH DELIVERIES FROM BROOKLYN TO NASSAU AND WESTCHESTER COUNTIES UNDER THE INSTANT CONTRACT FROM DELIVERIES OUTSIDE THE COMMERCIAL ZONE UNDER SIMILAR CONTRACTS THROUGHOUT THE COUNTRY. WE MUST THEREFORE CONCLUDE THAT THE FAILURE TO REQUIRE I.C.C. OPERATING AUTHORITY FOR DELIVERIES FROM BROOKLYN TO NASSAU AND WESTCHESTER COUNTIES REPRESENTS A DEPARTURE FROM ESTABLISHED POLICY FOR WHICH THERE IS NO ADEQUATE JUSTIFICATION OF RECORD. HOWEVER, SINCE THE CONTRACT APPEARS TO HAVE BEEN FULLY PERFORMED, IT WOULD SERVE NO USEFUL PURPOSE TO QUESTION THE AWARD TO WASHINGTON MOVING AND STORAGE, INCORPORATED, AT THIS TIME.

IN THIS CONNECTION, SINCE IT WOULD APPEAR TO BE DESIRABLE THAT CONTRACTING OFFICERS SHOULD ACT IN ACCORDANCE WITH ESTABLISHED POLICIES WHICH ARE NOT IN DEROGATION OF LAW, WE ARE RECOMMENDING TO THE SECRETARY OF THE ARMY THAT, IN DRAFTING FUTURE INVITATIONS SOLICITING BIDS FOR THE LOCAL DELIVERY OF SERVICE MEMBER'S HOUSEHOLD GOODS RECEIVED FROM OVERSEAS POINTS, CONSIDERATION SHOULD BE GIVEN TO ADVISING BIDDERS THEY WILL BE REQUIRED TO POSSESS I.C.C. OPERATING AUTHORITY FOR DELIVERIES TO ALL POINTS COVERED BY THE CONTRACT WHICH ARE OUTSIDE OF THE COMMERCIAL ZONE IN WHICH THE GOODS ARE TO BE TURNED OVER TO THE CONTRACTOR.