B-125546, NOV. 2, 1955

B-125546, NOV. 2, 1955

TO WASHBURN STORAGE COMPANY:

REFERENCE IS MADE TO YOUR PROTESTS AGAINST THE AWARDS OF CONTRACTS NOS. DA-09-177-AIII-1589 AND AFO9/608/-233 TO THE RICHMOND TRANSFER AND STORAGE COMPANY, RICHMOND, CALIFORNIA, AND THE HAYNES MOVING AND STORAGE COMPANY, ALBANY, GEORGIA, AS THE LOWEST QUALIFIED BIDDERS UNDER INVITATION FOR BIDS NO. DA-09-177-56-1, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, FORT MCPHERSON, GEORGIA, AND UNDER INVITATION FOR BIDS NO. 09-608-56-8, ISSUED BY THE PURCHASING AND CONTRACTING OFFICE, TURNER AIR FORCE BASE, ALBANY, GEORGIA.

THE TWO INVITATIONS REQUESTED BIDS FOR PACKING AND CRATING OF HOUSEHOLD GOODS AND FOR THE FURNISHING OF TRANSPORTATION AND OTHER SERVICES INCIDENT TO SUCH WORK. THE PROPOSED WORK UNDER INVITATION NO. DA-09-177-56-1 INCLUDED DRAYAGE SERVICES TO BE PERFORMED WITHIN A RADIUS OF 20 MILES FROM THE MAIN POST OFFICE AT ATLANTA, GEORGIA, BUT PROVISION WAS ALSO MADE FOR THE HAULING OF THE HOUSEHOLD GOODS FOR GREATER DISTANCES WHEN SO REQUIRED. THE PROPOSED WORK UNDER INVITATION NO. 09-608-56-8 INCLUDED DRAYAGE SERVICES TO BE PERFORMED IN FIVE ZONES, THE SHORTEST HAUL BEING IN A ZONE WITHIN A RADIUS OF FIVE MILES FROM THE CENTER OF ALBANY, GEORGIA, AND THE LONGEST HAUL BEING WITHIN A RADIUS OF FROM 50 TO 100 MILES FROM THE CENTER OF THAT CITY.

AS THE THIRD LOWEST BIDDER UNDER INVITATION NO. DA-09-177-56-1, AND AS THE SECOND LOWEST BIDDER UNDER INVITATION NO. 09-608-56-8, YOU CONTENDED THAT NEITHER THE RICHMOND TRANSFER AND STORAGE COMPANY, HOUSE, INC., ATLANTA, GEORGIA, NOR THE HAYNES MOVING AND STORAGE COMPANY COULD BE CONSIDERED AS RESPONSIBLE BIDDERS. IT WAS ALLEGED THAT THE FORMER COMPANY HELD INTERSTATE COMMERCE COMMISSION AUTHORITY TO OPERATE ONLY WITHIN A LIMITED AREA BETWEEN POINTS AND PLACES WITHIN 30 MILES FROM RICHMOND, CALIFORNIA; THAT HOUSE, INC., THE SECOND LOWEST BIDDER UNDER INVITATION NO. DA-09-177-56-1, HAD NO INTERSTATE OPERATING AUTHORITY; AND THAT THE HAYNES MOVING AND STORAGE COMPANY'S AUTHORITY TO ENGAGE IN THE TRANSPORTATION OF HOUSEHOLD GOODS IS CONFINED TO THE TRANSPORTATION OF SHIPMENTS WITHIN THE STATE OF GEORGIA WHICH ORIGINATE IN THOMASVILLE, GEORGIA, OR WITHIN TEN MILES OF THAT CITY.

ATTENTION WAS INVITED TO CERTAIN DEPARTMENTAL REGULATIONS RELATING TO THE TRANSPORTATION OF HOUSEHOLD GOODS BY MOTOR VAN CARRIERS AND TO A DECISION OF OUR OFFICE TO THE SECRETARY OF THE TREASURY ON OCTOBER 13, 1954, 34 COMP. GEN. 175.

THE CITED DEPARTMENTAL REGULATIONS PROVIDE, IN PERTINENT PART, THAT "SHIPMENTS WILL BE TENDERED ONLY TO CARRIERS WHO ARE QUALIFIED," AND THAT "CARRIERS TO WHICH SHIPMENTS ARE TENDERED MUST HAVE PROPER OPERATING RIGHTS FROM ORIGIN TO DESTINATION OR MUST HAVE MADE SATISFACTORY ARRANGEMENTS FOR JOINT CARRIAGE WITH OTHER CARRIERS PROPERLY QUALIFIED UNDER PART II OF THE INTERSTATE COMMERCE ACT, AS AMENDED, OR THE LAWS OF THE STATE HAVING JURISDICTION OF THE CARRIAGE.'

IN VIEW OF THE PROVISION FOR JOINT CARRIAGE, IT IS APPARENT THAT THE REGULATIONS WOULD NOT HAVE PROHIBITED THE MAKING OF THE AWARD UNDER INVITATION NO. DA-09-177-56-1 TO HOUSE, INC., BECAUSE IT MAY HAVE HAD NO INTERSTATE OPERATING AUTHORITY. THE SITUATIONS ARE, HOWEVER, SOMEWHAT DIFFERENT IN THE CASES OF THE RICHMOND TRANSFER AND STORAGE COMPANY AND THE HAYNES MOVING AND STORAGE COMPANY, THE SUCCESSFUL BIDDERS UNDER THE TWO INVITATIONS FOR BIDS, SINCE NEITHER COMPANY APPEARS TO HAVE ANY AUTHORITY TO OPERATE AS A CARRIER OF HOUSEHOLD GOODS ON SHIPMENTS ORIGINATING IN THE VICINITY OF ALBANY OR ATLANTA, GEORGIA.

WHEN IT WAS DETERMINED THAT THE RICHMOND TRANSFER AND STORAGE COMPANY WAS THE LOW BIDDER UNDER INVITATION NO. DA-09-177-56-1, THAT COMPANY WAS REQUESTED TO SUBMIT PRE-AWARD INFORMATION. IT DEVELOPED THAT THIS COMPANY HAD ARRANGED FOR THE USE OF A WAREHOUSE IN THE STATE OF GEORGIA AND, WITH RESPECT TO HAULING AND PRELIMINARY PACKING SERVICES, THE BIDDER SUBMITTED LETTERS FROM NORTH AMERICAN VAN LINES, INC., AND HI-WAY TRANSPORT, INC., STATING THAT THESE TWO COMPANIES WOULD PERFORM ANY HAULING INTERSTATE OR INTRASTATE REQUIRED IN CONNECTION WITH THE PERFORMANCE OF THE CONTRACT. THE ARMY CONTRACTING OFFICER CONSIDERED THAT, SINCE THE BULK OF THE PROPOSED CONTRACT WORK CONSISTED OF PACKING AND CRATING SERVICES, THERE SHOULD BE NO OBJECTION TO THE FACT THAT THE RICHMOND TRANSFER AND STORAGE COMPANY PROPOSED TO FURNISH THE INDICATED TRANSPORTATION SERVICES THROUGH SUBCONTRACT ARRANGEMENTS WITH A COMPANY AUTHORIZED TO HANDLE INTERSTATE SHIPMENTS AND WITH ANOTHER COMPANY AUTHORIZED TO HANDLE INTRASTATE SHIPMENTS IN THE STATE OF GEORGIA.

PRACTICALLY THE SAME SITUATION AROSE IN CONNECTION WITH THE AWARD OF THE AIR FORCE CONTRACT, ALTHOUGH THE AGENCY AGREEMENTS ORIGINALLY SUBMITTED BY THE HAYNES MOVING AND STORAGE COMPANY WERE QUESTIONED ON THE BASIS THAT EACH OF THE AGREEMENTS WAS SUBJECT TO TERMINATION UPON THIRTY-DAY WRITTEN NOTICE BY EITHER PARTY. SUBSEQUENTLY, THE HAYNES MOVING AND STORAGE COMPANY SUBMITTED WRITTEN AGREEMENTS WITH LICENSED TRANSPORTATION COMPANIES WHICH EXTENDED FOR THE DURATION OF THE PROPOSED GOVERNMENT CONTRACT.

HENCE, THE GOVERNMENT CONTRACTING OFFICERS WERE ASSURED THAT THE REQUIREMENTS OF THE DEPARTMENTAL REGULATIONS WOULD BE SUBSTANTIALLY COMPLIED WITH IN THAT THE HOUSEHOLD GOODS WOULD IN NO EVENT BE TENDERED TO UNAUTHORIZED CARRIERS FOR SHIPMENT. MOREOVER, IT DOES NOT APPEAR THAT THE REGULATIONS WERE INTENDED TO REQUIRE THAT ALL NECESSARY PACKING AND CRATING OF HOUSEHOLD GOODS SHOULD BE PERFORMED ONLY BY QUALIFIED CARRIERS OF SUCH GOODS. AND IT WOULD SEEM REASONABLE THAT WHERE THE PRIMARY CONSIDERATION OF A PROPOSED CONTRACT IS THE PERFORMANCE OF PACKING AND CRATING SERVICES, THE GOVERNMENT SHOULD BE ENTITLED TO RECEIVE THE FULL BENEFIT OF FREE AND OPEN COMPETITION AMONG FIRMS EQUIPPED TO PERFORM SUCH WORK WHETHER OR NOT QUALIFIED TO PERFORM ANY INCIDENTAL TRANSPORTATION SERVICES.

IN REGARD TO THE QUESTION AS TO THE ADVISABILITY OF PERMITTING SUBCONTRACTING IN ANY CASE, THAT IS PRIMARILY A MATTER OF ADMINISTRATIVE CONCERN. BUT IT IS POSSIBLE THAT A COMPANY MAY BE CONSIDERED TO BE A RESPONSIBLE BIDDER UNDER A GOVERNMENT INVITATION FOR BIDS EVEN IF IT PROPOSED TO PERFORM ALL OF THE SPECIFIED WORK THROUGH SUBCONTRACTUAL ARRANGEMENTS WITH OTHER COMPANIES.

IN THE DECISION OF OCTOBER 13, 1954, THERE WAS INVOLVED THE MATTER OF SHIPMENT OF COINS BY ARMORED CAR SERVICE AND NO QUESTION WAS RAISED AS TO THE POSSIBILITY THAT SUBCONTRACTING MIGHT BE PERMITTED IN INSTANCES WHERE CARRIERS OFFERING SUCH SERVICE WERE NOT AUTHORIZED TO HANDLE INTERSTATE SHIPMENTS. FURTHER, FOR OBVIOUS REASONS, IT WAS ASSUMED THAT THE TREASURY DEPARTMENT CONSIDERED THAT IT WOULD BE IN THE INTERESTS OF THE UNITED STATES FOR ONLY ONE CARRIER TO HANDLE EACH SHIPMENT. CONSEQUENTLY, WHAT WAS SAID IN THE DECISION RESPECTING THE QUESTION AS TO THE VALIDITY OF CONTRACTS WITH CARRIERS WHICH OFFERED TO MAKE SHIPMENTS BETWEEN DIFFERENT STATES, BUT WHICH HAD NO INTERSTATE OPERATING AUTHORITY, CANNOT PROPERLY BE SAID TO BE APPLICABLE TO THE FACTS OF THE PRESENT CASES.

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS PERCEIVED NO LEGAL BASIS UPON WHICH WE WOULD BE WARRANTED IN TAKING EXCEPTION TO THE AWARDS MADE TO THE RICHMOND TRANSFER AND STORAGE COMPANY AND THE HAYNES MOVING AND STORAGE COMPANY.