B-124862, JAN. 25, 1956

B-124862, JAN. 25, 1956

TO AUSLEY AND AUSLEY, ATTORNEYS AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 25, 1955, WITH ENCLOSURES, AND TO SUBSEQUENT CORRESPONDENCE RELATIVE TO YOUR PROTEST IN BEHALF OF THE ATWELL TRANSFER COMPANY, CANNON MOVING AND STORAGE COMPANY, INC., AND W. L. ELLIS, JR., D/B/A AERO FLORIDA VAN SERVICE, ALL OF PENSACOLA, FLORIDA, AGAINST THE REJECTION OF THEIR BIDS BY THE DEPARTMENT OF THE NAVY INCIDENT TO THE PROCUREMENT OF SERVICES FOR THE HANDLING OF HOUSEHOLD GOODS IN THE STATE OF FLORIDA DURING THE FISCAL YEAR 1956.

IN YOUR LETTER OF JULY 25, 1955, YOU STATED THAT YOUR CLIENTS, THE ABOVE BIDDERS, HAD BEEN ADVISED BY THE DEPARTMENT OF THE NAVY THAT THEY DID NOT RECEIVE AWARDS OF CONTRACTS BECAUSE THERE WAS NO EVIDENCE THAT THEY HELD INTRASTATE CARRIER'S RIGHTS IN FLORIDA AND BECAUSE THE COMPTROLLER GENERAL HAD RULED IN DECISION OF OCTOBER 13, 1952 (34 COMP. GEN. 175) THAT NO CONTRACT, SUCH AS HERE INVOLVED, MAY BE AWARDED TO ANY BIDDER UNTIL THAT BIDDER OBTAINS ALL REQUIRED PERMITS. YOU NOT ONLY REQUESTED THAT YOU BE FURNISHED WITH A COPY OF THE DECISION BUT THAT PROMPT CONSIDERATION BE GIVEN TO AN AMENDMENT TO THE DECISION AS AS TO AVOID EVENTS SUCH AS THOSE STATED IN YOUR LETTER DATED JULY 16, 1955, TO THE DEPARTMENT OF THE NAVY, A COPY OF WHICH WAS ENCLOSED WITH YOUR LETTER OF JULY 25, 1955.

IT APPEARS FROM THE RECORD FURNISHED BY THE DEPARTMENT OF THE NAVY THAT THE U.S. NAVAL AIR STATION, PENSACOLA, FLORIDA, REQUESTED BIDS FOR PACKING, CRATING, ETC., OF HOUSEHOLD GOODS AND FOR THE FURNISHING OF TRANSPORTATION, STORAGE AND OTHER SERVICES INCIDENT TO SUCH WORK. THE SERVICES COVERED BY THE INVITATION WERE TO BE RENDERED PURSUANT TO ORDERS ISSUED BY THE CONTRACTING OFFICER, U.S. NAVAL AIR STATION, PENSACOLA, FLORIDA, AND THE COMMANDING OFFICER, U.S. MARINE CORPS, U.S. NAVAL AIR STATION, PENSACOLA, FLORIDA, OR THEIR DULY AUTHORIZED REPRESENTATIVES WITHIN LIMITS DEFINED IN ZONES I THROUGH VI. THE OVERALL AREA WAS DESCRIBED AS INCLUDING "THE CITY OF PENSACOLA AND A RADIUS OF 8 MILES; RADIUS OF MORE THAN 8 MILES FROM CITY OF PENSACOLA, AND NOT MORE THAN 20 MILES THEREOF; RADIUS OF 8 MILES FROM CITY OF FOLEY, ALABAMA; AND NOT MORE THAN 20 MILES THEREOF; AND A RADIUS OF 10 MILES FROM NAAS WHITING FIELD, NEAR MILTON, FLORIDA, AND NOT MORE THAN 50 MILES THEREOF.'

THE DEPARTMENT OF THE NAVY REPORTS THAT THE THREE BIDS SUBMITTED BY THE BIDDERS IN WHOSE BEHALF YOU PROTESTED WERE REJECTED BY THE CONTRACTING OFFICER ON THE BASIS OF ORAL ADVICE FROM THE FLORIDA RAILROAD AND PUBLIC UTILITIES COMMISSION THAT THE BIDDERS DID NOT HOLD CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY REQUIRED FOR THE PERFORMANCE OF THE INTRASTATE TRANSPORTATION SERVICES WHICH WOULD BE COVERED BY THE CONTRACTS TO BE AWARDED TO THE SUCCESSFUL BIDDERS. THE DEPARTMENT REPORTS ALSO THAT THE ACTION OF THE CONTRACTING OFFICER IN REJECTING THE BIDS WAS IN LINE WITH THE ESTABLISHED POLICY OF THE NAVY TO AWARD CONTRACTS FOR TRANSPORTATION SERVICES ONLY TO AUTHORIZED CARRIERS AND THAT AWARDS WERE MADE ON JUNE 30, 1955, TO BIDDERS WHO WERE REPORTED BY THE FLORIDA COMMISSION TO HOLD THE NECESSARY AUTHORIZATION.

IN LETTER DATED DECEMBER 5, 1955, THE DEPARTMENT OF THE NAVY STATES THAT A REPRESENTATIVE OF THE DEPARTMENT OF DEFENSE ATTENDED THE HEARINGS BEFORE THE FLORIDA RAILROAD AND PUBLIC UTILITIES COMMISSION ON NOVEMBER 8 AND 9, 1955, CONCERNING THE GENERAL PROBLEM OF INTRASTATE TRANSPORTATION OF HOUSEHOLD EFFECTS FOR THE MILITARY DEPARTMENTS AND THAT THE COMMISSION HAS TAKEN THE ENTIRE MATTER UNDER CONSIDERATION.

IN THE DECISION OF OCTOBER 13, 1954, A COPY OF WHICH IS ENCLOSED, THERE WAS INVOLVED THE MATTER OF SHIPMENT OF COINS BY ARMORED CAR SERVICE BETWEEN DIFFERENT STATES SO AS TO CONSTITUTE INTERSTATE OR FOREIGN COMMERCE WITHIN THE MEANING OF SECTIONS 309 AND 310A OF 49 U.S.C. AS STATED IN THE DECISION, THESE SECTIONS PROVIDE GENERALLY THAT NO PERSON SHALL ENGAGE IN THE BUSINESS OF A CONTRACT CARRIER BY MOTOR VEHICLE IN INTERSTATE OR FOREIGN COMMERCE UNLESS THERE IS IN FORCE A PERMIT OR TEMPORARY AUTHORITY ISSUED BY THE INTERSTATE COMMERCE COMMISSION AUTHORIZING SUCH PERSON TO ENGAGE IN SUCH BUSINESS. ON THE BASIS OF SUCH STATUTORY PROVISIONS, IT WAS HELD IN THAT DECISION THAT THERE WAS A SUBSTANTIAL BASIS FOR THE VIEW THAT THE ONLY RESPONSIBLE BIDDERS WOULD BE HOLDERS OF OPERATOR PERMITS FROM THE INTERSTATE COMMERCE COMMISSION AND THAT WE WOULD NOT BE REQUIRED TO OBJECT TO PAYMENTS DUE UNDER CONTRACTS RESULTING FROM SOLICITATION OF OFFERS ONLY FROM SUCH PERMIT HOLDERS. EVEN IF IT WERE PROPER TO RECONSIDER THE DECISION AT YOUR REQUEST--- THE DECISION WAS ADDRESSED TO THE SECRETARY OF THE TREASURY AND PROPERLY MAY NOT BE RECONSIDERED AT THE REQUEST OF ANY OTHER PARTY--- THERE WOULD NOT BE ANY LEGAL BASIS ON THE RECORD NOW BEFORE US FOR CHANGING THE CONCLUSION REACHED THEREIN.

IN THE PRESENT MATTER THE THREE BIDS WERE REJECTED BECAUSE THE BIDDERS DID NOT HOLD CERTIFICATES OF PUBLIC CONVENIENCE AND NECESSITY FROM THE FLORIDA RAILROAD AND PUBLIC UTILITIES COMMISSION, A STATE INSTRUMENTALITY AS DISTINGUISHED FROM A FEDERAL ONE, SUCH AS INVOLVED IN THE DECISION OF OCTOBER 13, 1954. HOWEVER, PARAGRAPH (J) OF ARTICLE 1815, PART I OF THE NAVY SHIPPING GUIDE, ISSUED BY THE DEPARTMENT OF THE NAVY FOR INFORMATION AND GUIDANCE OF ALL PERSONS IN THE NAVAL ESTABLISHMENT, PROVIDES THAT CARE WILL BE TAKEN TO USE ONLY MOTOR COMMON CARRIERS THAT ARE AUTHORIZED NOT ONLY BY THE INTERSTATE COMMERCE COMMISSION BUT ALSO BY A STATE REGULATORY BODY TO PERFORM THE TRANSPORTATION SERVICE. THEREFORE, AS A PREREQUISITE TO OBTAINING A CONTRACT FOR THE TRANSPORTATION SERVICE, IT WAS NECESSARY FOR EACH BIDDER TO OBTAIN THE REQUIRED CERTIFICATE FROM THE FLORIDA COMMISSION.

IF YOU ARE NOT SATISFIED WITH THE CONCLUSION OF THE FLORIDA RAILROAD AND PUBLIC UTILITIES COMMISSION WHEN MADE, AND WITH THE ACTION OF THE DEPARTMENT OF THE NAVY FOLLOWING THAT CONCLUSION, THE MATTER MAY AGAIN BE BROUGHT TO OUR ATTENTION WITH A FULL DISCLOSURE OF ALL THE FACTS AND THE BASIS FOR YOUR COMPLAINT AT THAT TIME. FOR THE TIME BEING, THE MATTER WILL BE CONSIDERED CLOSED SO FAR AS WE ARE CONCERNED.