B-128282, JULY 16, 1956, 36 COMP. GEN. 42

B-128282, JULY 16, 1956, 36 COMP. GEN. 42

BIDDERS - QUALIFICATIONS - ADMINISTRATIVE DETERMINATIONS AN INVITATION WHICH REQUIRED BIDDERS TO ESTABLISH THEIR ABILITY OR LACK OF ABILITY TO PERFORM HELICOPTER OPERATIONS PLACED THE BURDEN ON THE BIDDERS TO SATISFY THE GOVERNMENT THAT THEY HAD THE PERSONNEL, EQUIPMENT, AND ABILITY TO PERFORM THE WORK, AND, IN THE ABSENCE OF EVIDENCE OF BAD FAITH OR LACK OF REASONABLE FACTUAL BASIS IN THE ADMINISTRATIVE DETERMINATION OF THE BIDDERS' QUALIFICATIONS, AN AWARD WILL NOT BE DISTURBED.

TO THE SECRETARY OF THE INTERIOR, JULY 16, 1956:

REFERENCE IS MADE TO LETTER OF JUNE 15, 1956, FROM THE ADMINISTRATIVE ASSISTANT SECRETARY, FORWARDING A LETTER DATED MAY 15, 1956, FROM POGUE AND NEAL, ATTORNEYS FOR ALASKA HELICOPTERS, NC., AND OTHER ENCLOSURES. THE ATTORNEYS PROTEST THE AWARD OF A CONTRACT BY THE GEOLOGICAL SURVEY TO ECONOMY PEST CONTROL FOR HELICOPTER SERVICES IN ALASKA AND REQUEST THAT YOU DEFER ANY ACTION UNDER THAT CONTRACT UNTIL YOU HAVE HAD AN OPPORTUNITY TO CONSIDER THE PROTEST. IT IS STATED IN THE LETTER OF JUNE 15, 1956, THAT IN VIEW OF THE URGENT REQUIREMENT THAT THE WORK COVERED BY THE CONTRACT BE PERFORMED ON SCHEDULE THE CONTRACTOR WAS AUTHORIZED TO PROCEED WITH THE FIELD WORK BEGINNING ON MAY 24, 1956. A DECISION IS REQUESTED AS TO THE PROPRIETY OF THE AWARD OF THE CONTRACT.

BY INVITATION NO. 2083, ISSUED JANUARY 17, 1956, THE PROCUREMENT OFFICER, UNITED STATES DEPARTMENT OF THE INTERIOR, GEOLOGICAL SURVEY, PURCHASING SECTION, ADVERTISED FOR BIDS TO BE OPENED FEBRUARY 13, 1956, FOR FURNISHING HELICOPTER OPERATION IN ALASKA IN ACCORDANCE WITH THE SPECIFICATIONS AND CONDITIONS STATED IN THE INVITATION. PROSPECTIVE BIDDERS WERE ADVISED ON PAGE 6 OF THE SPECIFICATIONS TO FURNISH WITH THEIR BIDS INFORMATION AS FOLLOWS:

NOTICE TO ALL BIDDERS: EACH BIDDER SHALL FURNISH WITH HIS BID THE INFORMATION LISTED BELOW. FAILURE TO FURNISH THE INFORMATION LISTED BELOW SHALL BE CONSIDERED SUFFICIENT REASON FOR THE REJECTION OF THE BID.

(A) CERTIFICATION FROM EACH PILOT AND MECHANIC TO THE EFFECT THAT THEY HAVE READ THE SPECIFICATIONS AND CONDITIONS, FULLY UNDERSTAND THE REQUIREMENTS THEREOF, HAVE AGREED TO FLY, OR WORK AS A MECHANIC, FOR THE BIDDER IN THE EVENT THE BIDDER IS AWARDED A CONTRACT, AND AGREE TO ABIDE BY ALL THE SPECIFICATIONS AND CONDITIONS THEREOF.

(B) EVIDENCE OF AVAILABILITY OF SUPPLIES, PARTS AND ABILITY TO MEET CURRENT PAYROLL NEEDS.

(C) PAST RECORD OF PERFORMANCE ON COMPARABLE CONTRACTS.

(D) PROOF OF OWNERSHIP AND/OR CONTROL OF THE HELICOPTERS THE BIDDER PROPOSES TO USE IF AWARDED A CONTRACT.

(E) LOCATION AT WHICH BIDDER'S EQUIPMENT (THE EQUIPMENT HE PROPOSES TO USE IF AWARDED A CONTRACT) MAY BE INSPECTED BY THE CONTRACTING OFFICER OR HIS AUTHORIZED REPRESENTATIVE.

(F) OCTANE RATING OF GASOLINE REQUIRED FOR HIS HELICOPTERS.

(G) CERTIFIED STATEMENT AS PER PARAGRAPH 22 OF THE SPECIFICATIONS.

AT THE BOTTOM OF PAGE 8 BIDDERS WERE ADVISED THAT, IN DETERMINING THE SUCCESSFUL BIDDER, THE GEOLOGICAL SURVEY WOULD CONSIDER, IN ADDITION TO THE BID PRICE, THE FOLLOWING FACTORS:

CHARACTERISTICS AND ADAPTABILITY OF EQUIPMENT AND PERSONNEL, THE BIDDER'S FINANCIAL RESPONSIBILITY, SKILL, EXPERIENCE, RECORD OF INTEGRITY IN BUSINESS, ABILITY TO FURNISH REPAIRS AND MAINTENANCE SERVICES, AND PAST RECORD OF PERFORMANCE ON COMPARABLE CONTRACTS. ANY OTHER FACTOR NOT SPECIFICALLY MENTIONED OR PROVIDED FOR HEREIN, IN ADDITION TO THAT OF THE BID PRICE, WHICH WILL AFFECT THE FINAL COST TO THE GOVERNMENT, WILL BE TAKEN INTO CONSIDERATION IN MAKING AWARD OF THE CONTRACT.

THE ABSTRACT OF BIDS SHOWS THAT 7 BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, OF WHICH THAT OF THE PROTESTING BIDDER WAS THE SECOND LOWEST.

IT IS REPORTED THAT THE FIRST, SECOND, THIRD AND FOURTH LOWEST BIDS WERE REJECTED PRIMARILY FOR THE REASON THAT THE PAST PERFORMANCE OF THOSE BIDDERS ON SIMILAR OPERATIONS WAS SUCH THAT IT WOULD NOT BE IN THE BEST INTEREST OF THE GOVERNMENT, EITHER FROM THE STANDPOINT OF THE WELFARE OF THE GOVERNMENT'S PERSONNEL TAKING PART IN THE OPERATION OR FROM THE STANDPOINT OF SUCCESSFUL COMPLETION OF THE PROJECT, TO AWARD TO THEM A CONTRACT OF THE MAGNITUDE AND IMPORTANCE HERE INVOLVED. IT WAS DETERMINED ALSO BY THE CONTRACTING OFFICER THAT THE FIFTH LOW BIDDER, ECONOMY PEST CONTROL, WAS A QUALIFIED BIDDER AND HAD OFFERED UNQUALIFIEDLY TO MEET FULLY THE REQUIREMENTS OF THE INVITATION FOR BIDS. CONTRACT NO. 14-08-001 -2610 WAS AWARDED TO THAT BIDDER ON OR ABOUT MARCH 27, 1956.

SPECIFICALLY, THE BID OF ALASKA HELICOPTERS, INC., WAS REJECTED ON THE BASES, (1) THAT THE BIDDER DID NOT FURNISH WITH ITS BID DATA SHOWING THE DATE THAT EACH HELICOPTER OFFERED HAD PASSED THE LAST PERIODIC INSPECTION REQUIRED BY THE CIVIL AERONAUTICS ADMINISTRATION; (2) THAT PAST PERFORMANCE OF THIS BIDDER--- OR OF OTHER COMPANIES CONTROLLED BY THE SAME INDIVIDUAL--- ON GEOLOGICAL SURVEY CONTRACTS IN ALASKA AND IN THE UNITED STATES HAD NOT BEEN SATISFACTORY; AND (3) THAT ONE PILOT OFFERED BY THIS BIDDER WAS NOT ACCEPTABLE TO THE GEOLOGICAL SURVEY, NOTWITHSTANDING THE FACT THAT HE HAD HAD CONSIDERABLE EXPERIENCE IN PILOTING HELICOPTERS IN ALASKA AND IN THE UNITED STATES, DUE TO NON-COOPERATION AND INADEQUATE PERFORMANCE ON A PRIOR GEOLOGICAL SURVEY CONTRACT IN ALASKA.

THE PROTEST OF POGUE AND NEAL AS SET FORTH IN THE LETTER OF MAY 15, 1956, TO YOU, STATES THAT ALTHOUGH ALASKA HELICOPTERS, INC., DID NOT FURNISH THE DATES OF THE LAST PERIODIC INSPECTION REQUIRED BY THE CIVIL AERONAUTICS ADMINISTRATION, IT STATED IN ITS BID THAT THE HELICOPTERS OFFERED WOULD BE INSPECTED BY THE CIVIL AERONAUTICS ADMINISTRATION DURING THE MONTH OF MAY PRIOR TO THE INAUGURATION OF SERVICE UNDER THE CONTRACT.

THE LETTER OF PROTEST DISPUTES THE SECOND REASON GIVEN FOR REJECTION OF THE BID OF ALASKA HELICOPTERS, INC., AND TENDERS A LETTER DATED OCTOBER 6, 1955, FROM THE COAST AND GEODETIC SURVEY WHEREIN APPRECIATION WAS EXPRESSED FOR THE EXCELLENT SERVICE AND SPLENDID COOPERATION RECEIVED FROM THAT CONCERN DURING THE PAST SEASON, AND OTHER TESTIMONIALS FROM THE ARMY MAP SERVICE, THE GEODETIC INSTITUTE OF DENMARK, ASSOCIATION OF PROFESSIONAL PHOTOGRAMMETRISTS, AND INTER AMERICAN GEODETIC SURVEY IN THE CANAL ZONE, TESTIFYING TO THE KNOW-HOW, COURAGE, EFFICIENCY, RELIABILITY AND EXPERIENCE OF THE EMPLOYEES OF OTHER COMPANIES OPERATED BY JAMES S. RICKLEFS, NAMELY RICK HELICOPTERS, INC., AND U.S. HELICOPTER SERVICE, INC. THESE TWO COMPANIES ARE CLAIMED TO HAVE PERFORMED APPROXIMATELY 80 PERCENT OF THE HELICOPTER MAPPING WORK PERFORMED IN ALASKA AND TO HAVE DONE 5 TIMES THE VOLUME OF WORK PERFORMED IN ALASKA BY THEIR NEAREST COMPETITOR.

THE PROTESTANTS ALSO CALL ATTENTION TO THE PARAGRAPH AT THE BOTTOM OF PAGE 10 AND AT THE TOP OF PAGE 11 OF THE ADVERTISED CONDITIONS WHICH PROVIDES THAT THE CONTRACTING OFFICER SHALL APPROVE PILOTS TO BE UTILIZED AND THAT IN THE EVENT HE FAILS TO APPROVE ANY SUCH PILOT THE CONTRACTOR SHALL SUBMIT NAMES OF OTHER PILOTS AND/OR MECHANICS UNTIL APPROVAL OF THE CONTRACTING OFFICER IS OBTAINED. FINALLY, IT IS CLAIMED THAT " ALASKA HELICOPTERS, INC., WAS NEVER GIVEN A NOTIFICATION OF A CHANCE TO REPLACE THE PARTICULAR PILOT TO WHOM OBJECTION HAD BEEN MADE.'

IT APPEARS FROM THE REPORT OF THE CONTRACTING OFFICER THAT THE HELICOPTER OPERATIONS COVERED BY THE INVITATION FOR BIDS IN THIS CASE ARE BEING REQUIRED TO SUPPORT FIELD SURVEY OPERATIONS TO ESTABLISH PHOTO CONTROL POINTS OF AN AREA OF ABOUT 125,000 SQUARE MILES CENTERED ON THE BROOKS RANGE IN ALASKA. THIS AREA, WHICH IS STATED TO BE NORTH OF THE ARCTIC CIRCLE, IS IN ONE OF THE MOST INACCESSIBLE WILDERNESS AREAS ON THE NORTH AMERICAN CONTINENT AND IS BEING MAPPED IN COMPLIANCE WITH AN URGENT REQUEST OF THE DEPARTMENT OF DEFENSE FOR COMPLETION OF THE MAPPING OF ALASKA. IN ORDER TO MEET A RIGID TIME SCHEDULE LAID DOWN BY THAT DEPARTMENT, IT IS STATED THAT IT IS ABSOLUTELY NECESSARY TO COMPLETE THE OPERATION DURING THIS SUMMER SEASON. BECAUSE OF THIS URGENT TIME REQUIREMENT AND BECAUSE OF THE DANGER TO THE GOVERNMENT'S HIGHLY TRAINED TECHNICAL PERSONNEL THAT COULD RESULT FROM INCOMPETENT HELICOPTER OPERATIONS IN THIS REMOTE AND INACCESSIBLE AREA, IT IS CONSIDERED OF PARAMOUNT IMPORTANCE THAT THE HELICOPTERS AND THEIR OPERATORS BE ABSOLUTELY DEPENDABLE.

IN SPECIFIC RESPONSE TO THAT PART OF THE PROTEST DISPUTING NO. (1) OF THE REASONS FOR REJECTING THE BID OF ALASKA HELICOPTERS, INC., THE CONTRACTING OFFICER REPORTS THAT THE HELICOPTER OPERATIONS WERE SCHEDULED TO START AND DID START ON MAY 24, 1956, AND THAT HAD THERE BEEN ANY DELAY BEYOND THAT DATE ON THE PART OF THE CIVIL AERONAUTICS ADMINISTRATION IN APPROVING THE HELICOPTERS OFFERED BY THIS BIDDER, SUCH DELAY WOULD HAVE SERIOUSLY INTERFERED WITH AND DELAYED THE OPERATIONS REQUIRED BY THE CONTRACT.

CONCERNING REASON NO. (2) FOR REJECTION OF THE BID, THE CONTRACTING OFFICER REFERS TO TWO CONTRACTS BETWEEN THE UNITED STATES GOVERNMENT AND THE RICKLEFS COMPANIES, NAMELY CONTRACT NO. 14-08-001-174 WITH U.S. HELICOPTERS, INC. (NAME CHANGED TO U.S. HELICOPTER SERVICE, INC., DURING THE CONTRACT PERIOD) FOR FURNISHING 6 HELICOPTERS FOR OPERATION IN UTAH, ARIZONA, AND NEW MEXICO, DURING THE FISCAL YEARS 1952 AND 1953, AND CONTRACT NO. 14-08-001-222 WITH RICK HELICOPTERS, INC., FOR FURNISHING 2 HELICOPTERS FOR OPERATION IN ALASKA DURING THE FISCAL YEARS 1953 AND 1954. ACCORDING TO THE MINUTELY DETAILED AND DOCUMENTED REPORTS FURNISHED BY THE GEOLOGICAL SURVEY OFFICERS HAVING COGNIZANCE OF THOSE OPERATIONS, THE SERVICES PERFORMED UNDER THESE TWO CONTRACTS WERE UNSATISFACTORY IN MANY RESPECTS. IN THE FIRST CONTRACT PERFORMANCE WAS NOT SATISFACTORY PRIMARILY BECAUSE OF INEFFICIENT OPERATION DUE TO CONSTANT FAILURE OF PLANES TO OPERATE AS A RESULT OF ENGINE FAILURES AND OTHER MECHANICAL TROUBLES, AND UNSATISFACTORY PROVISION FOR PROMPT REPAIRS AND MAINTENANCE. PERFORMANCE UNDER THE SECOND CONTRACT WAS NOT SATISFACTORY BECAUSE OF LACK OF COOPERATION AND AN EXCESSIVE RATIO OF FLYING TIME TO RESULTS ACCOMPLISHED.

IT IS OF COURSE FUNDAMENTAL IN THE AWARD OF GOVERNMENT CONTRACTS THAT THE FACT THAT AN AWARD MUST BE MADE AFTER ADVERTISING FOR BIDS DOES NOT REQUIRE THE ACCEPTANCE OF THE BID SUBMITTED BY ONE NOT QUALIFIED TO PERFORM THE NECESSARY SERVICES. O-BRIEN V. CARNEY, 6 F.1SUPP. 761, 762. IN MAKING AWARDS OF SUCH CONTRACTS THE PUBLIC INTEREST REQUIRES THAT THEY BE AWARDED ONLY TO THE LOWEST RESPONSIBLE BIDDER IN EACH CASE. HIBBS ET AL. V. ARENSBERG ET AL., 276 PA. 24, 119 A. 727. THIS REQUIREMENT IS SPECIFICALLY STATED IN SECTION 3 (B) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 21, 23, 41 U.S.C. 152, AND IN PARAGRAPH 8 (A) OF THE " TERMS AND CONDITIONS OF THE INVITATION FOR BIDS" AS FOLLOWS:

THE CONTRACT WILL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED. ( ITALICS SUPPLIED.)

THE MAGNITUDE AND IMPORTANCE OF THE OPERATION HERE INVOLVED APPEAR TO BE SUCH AS TO WARRANT THE REQUIREMENT INCLUDED IN THE INVITATION FOR BIDS THAT BIDDERS FURNISH WITH THEIR BIDS INFORMATION WHICH WOULD ENABLE THE GOVERNMENT TO ESTABLISH THEIR ABILITY OR LACK OF ABILITY TO PERFORM THE WORK AND THAT BIDS BE EVALUATED ON THE BASIS OF CERTAIN FACTORS WHICH WERE DESIGNED TO OBTAIN FOR THE GOVERNMENT MAXIMUM PROTECTION FOR ITS TECHNICAL PERSONNEL AND PERFORMANCE IN STRICT ACCORDANCE WITH THE REQUIREMENTS OF THE ADVERTISED CONDITIONS AND THE CONTRACT TO BE AWARDED. THE INCLUSION OF SUCH FACTORS IN THE INVITATION FOR BIDS PLACED THE BURDEN UPON BIDDERS TO SATISFY THE GOVERNMENT THAT THEY HAD THE PERSONNEL, EQUIPMENT, EXPERIENCE AND ABILITY TO PERFORM THE WORK COVERED BY THE INVITATION. DETERMINATION OF THE QUALIFICATIONS OF BIDDERS IS PRIMARILY THE FUNCTION OF THE ADMINISTRATIVE OFFICERS CONCERNED, AND IN THE ABSENCE OF ANY SHOWING OF BAD FAITH OR LACK OF REASONABLE FACTUAL BASIS FOR THE DETERMINATION MADE, WE ARE NOT REQUIRED TO OBJECT TO ACTION TAKEN THEREON. ON THE RECORD BEFORE US WE FIND NO BASIS FOR DISTURBING THE AWARD MADE.

EXHIBITS A, B AND C FURNISHED WITH THE SUBMISSION ARE RETURNED HEREWITH AS REQUESTED.