B-128238, SEPTEMBER 18, 1956, 36 COMP. GEN. 218
Highlights
BIDS - DEVIATION FROM ADVERTISED SPECIFICATIONS - REJECTION A LOW BID FOR TRANSPORTATION AND ACCESSORIAL SERVICES RELATIVE TO THE STORAGE OF HOUSEHOLD EFFECTS WHICH QUOTED FIRM PRICES AS REQUIRED BY THE INVITATION BUT PROVIDED THAT QUOTATIONS ON INTRASTATE SHIPMENTS WERE CONDITIONED ON APPROVAL OF THE STATE PUBLIC SERVICE COMMISSION PROPERLY WAS REJECTED AS UNRESPONSIVE TO THE TERMS OF THE INVITATION. 1956: FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 13 AND 15. UNLESS AND UNTIL A CHANGE WAS AUTHORIZED IN THE PRESENT TARIFF PROVISIONS GOVERNING THE TRANSPORTATION OF HOUSEHOLD GOODS INTRASTATE IN GEORGIA. THE UNITED STATES HAS CONSISTENTLY MAINTAINED THAT ITS OFFICERS HAVE THE POWER TO MAKE SPECIAL ARRANGEMENTS FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY IN BOTH INTERSTATE AND INTRASTATE COMMERCE AND SINCE THE EARLIEST TIMES CONTRACTS FOR SUCH SHIPMENTS HAVE BEEN INDISCRIMINATELY MADE ON THE ASSUMPTION THAT STATE REGULATORY STATUTES REQUIRING THE PUBLISHING OF TARIFFS WITH RESPECT TO INTRASTATE SHIPMENTS HAD NO APPLICATION TO SHIPMENTS FOR THE UNITED STATES.
B-128238, SEPTEMBER 18, 1956, 36 COMP. GEN. 218
BIDS - DEVIATION FROM ADVERTISED SPECIFICATIONS - REJECTION A LOW BID FOR TRANSPORTATION AND ACCESSORIAL SERVICES RELATIVE TO THE STORAGE OF HOUSEHOLD EFFECTS WHICH QUOTED FIRM PRICES AS REQUIRED BY THE INVITATION BUT PROVIDED THAT QUOTATIONS ON INTRASTATE SHIPMENTS WERE CONDITIONED ON APPROVAL OF THE STATE PUBLIC SERVICE COMMISSION PROPERLY WAS REJECTED AS UNRESPONSIVE TO THE TERMS OF THE INVITATION.
TO WASHBURN STORAGE COMPANY, SEPTEMBER 18, 1956:
FURTHER REFERENCE IS MADE TO YOUR LETTERS OF JUNE 13 AND 15, 1956, PROTESTING THE FAILURE OF THE DEPARTMENT OF THE ARMY TO AWARD A CONTRACT TO YOU AS LOW BIDDER UNDER INVITATION FOR BIDS NO. 109-038-56 147 ISSUED BY FORT BENNING, GEORGIA.
THE INVITATION REQUESTED COMPETITIVE BIDS ON A FIRM PRICE BASIS FOR TRANSPORTATION AND ACCESSORIAL SERVICES RELATIVE TO THE STORAGE OF HOUSEHOLD GOODS IN ACCORDANCE WITH USUAL PRACTICE.
IT APPEARS THAT AFTER THE ISSUANCE OF THE INVITATION THE GEORGIA PUBLIC SERVICE COMMISSION ADVISED ALL MOTOR CARRIERS OF HOUSEHOLD GOODS OPERATING INTRASTATE IN THE STATE OF GEORGIA THAT THE INVITATION SOUGHT QUOTATIONS ON A BASIS OTHER THAN THAT AUTHORIZED BY THE COMMISSION; THAT THE LAW OF THE STATE OF GEORGIA PROVIDED THAT THE COMMISSION SHALL PRESCRIBE JUST AND REASONABLE RATES AND CHARGES FOR TRANSPORTATION BY MOTOR COMMON CARRIERS AND FOR ALL SERVICES RENDERED BY MOTOR COMMON CARRIERS IN CONNECTION THEREWITH; THAT THE TARIFFS THEREFOR SHALL BE IN SUCH FORM, FILED AND PUBLISHED IN SUCH MANNER AND ON SUCH NOTICE AS THE COMMISSION MAY PRESCRIBE; THAT NO COMMON CARRIER SHALL CHARGE A GREATER OR LESS OR DIFFERENT COMPENSATION FOR THE TRANSPORTATION OF PROPERTY OR FOR ANY SERVICE RENDERED IN CONNECTION THEREWITH THAN THE RATES AND CHARGES PRESCRIBED OR APPROVED BY ORDER OF THE COMMISSION; AND THAT, THEREFORE, UNLESS AND UNTIL A CHANGE WAS AUTHORIZED IN THE PRESENT TARIFF PROVISIONS GOVERNING THE TRANSPORTATION OF HOUSEHOLD GOODS INTRASTATE IN GEORGIA, IT WOULD NOT BE PROPER FOR ANY CARRIER TO QUOTE TO ANY GOVERNMENT INSTALLATION (OR ANY OTHER SHIPPER) RATES ON ANY BASIS OTHER THAN THAT PUBLISHED IN SUCH TARIFFS. THE SAME POSITION--- THE AUTHORITY TO REGULATE INTRASTATE SHIPMENTS OF THE UNITED STATES--- HAS BEEN ASSERTED BY SEVERAL STATE REGULATORY BODIES IN RECENT YEARS.
THE UNITED STATES HAS CONSISTENTLY MAINTAINED THAT ITS OFFICERS HAVE THE POWER TO MAKE SPECIAL ARRANGEMENTS FOR THE TRANSPORTATION OF GOVERNMENT PROPERTY IN BOTH INTERSTATE AND INTRASTATE COMMERCE AND SINCE THE EARLIEST TIMES CONTRACTS FOR SUCH SHIPMENTS HAVE BEEN INDISCRIMINATELY MADE ON THE ASSUMPTION THAT STATE REGULATORY STATUTES REQUIRING THE PUBLISHING OF TARIFFS WITH RESPECT TO INTRASTATE SHIPMENTS HAD NO APPLICATION TO SHIPMENTS FOR THE UNITED STATES. THE POSITION OF THE UNITED STATES IN THIS REGARD HAS BEEN SUSTAINED IN A CASE DECIDED APRIL 30, 1956, BY A THREE-JUDGE COURT CONVENED IN THE NORTHERN DISTRICT OF CALIFORNIA, UNITED STATES OF AMERICA V. PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA, CASE NO. 35101. ALSO, SEE KANSAS CITY SOUTHERN RAILWAY COMPANY V. LOUISIANA PUBLIC SERVICE COMMISSION, ET AL., 73 SO.1D 188, DECIDED APRIL 26, 1954, SUPREME COURT OF LOUISIANA. COMPARE HUGHES TRANSPORTATION, INC. V. UNITED STATES, 121 F.1SUPP. 212, UNITED STATES COURT OF CLAIMS, MAY 4, 1954. HOWEVER, THE COURT OF CLAIMS ON JULY 15, 1955, GRANTED A MOTION BY THE UNITED STATES TO REOPEN AND REHEAR THE CASE. ALSO, SECTIONS 201 AND 202 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 377, 40 U.S.C. 481, 483, WHICH IS THE PRESENT LAW FROM WHICH THE OFFICERS OF THE UNITED STATES DERIVE THEIR POWER TO NEGOTIATE RATES FOR TRANSPORTING PROPERTY FOR THE UNITED STATES MAKES NO DISTINCTION WITH REGARD TO INTERSTATE OR INTRASTATE SHIPMENTS.
IN RESPONSE TO THE INVITATION HERE INVOLVED, YOU SUBMITTED A BID QUOTING FIRM PRICES FOR THE VARIOUS ITEMS. HOWEVER, YOUR BID ON THE ITEMS CONSIDERED AS INVOLVING INTRASTATE SHIPMENTS IN GEORGIA WERE CONDITIONED ON THE APPROVAL OF THE GEORGIA PUBLIC SERVICE COMMISSION. ALSO, ALL THE OTHER BIDS RECEIVED, WITH THE EXCEPTION OF THE BID OF MAGNOLIA WAREHOUSES OF ALABAMA, INC., WERE SIMILARLY CONDITIONED AND WOULD HAVE RESULTED IN OTHER THAN A FIXED PRICE CONTRACT. SUCH BIDS WERE CONSIDERED CONDITIONAL AND NOT RESPONSIVE TO THE TERMS OF THE INVITATION AND WERE REJECTED. WAS CONSIDERED THAT THE PRICES QUOTED BY MAGNOLIA WAREHOUSES OF ALABAMA, INC., THE ONLY BIDDER WHO SUBMITTED AN UNQUALIFIED AND RESPONSIVE BID, WERE FAIR AND REASONABLE AND, THEREFORE, THE AWARD OF THE CONTRACT WAS MADE TO THAT CORPORATION ON JUNE 6, 1956.
IN VIEW OF THE FACTS SET FORTH ABOVE AND SINCE YOUR BID WAS CONDITIONAL AND NOT RESPONSIVE TO THE INVITATION, THERE IS NO LEGAL BASIS FOR US TO OBJECT TO THE ACTION TAKEN IN THE MATTER BY THE DEPARTMENT OF THE ARMY.