B-142350, MARCH 30, 1960, 39 COMP. GEN. 655

B-142350: Mar 30, 1960

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OF AIRCRAFT EQUALLY ACCEPTABLE UNDER THE SPECIFICATIONS FOR AIRCRAFT ORIGINALLY PROPOSED IN THE BID IS A SUBSTITUTION OF INFORMATION NECESSARY TO A DETERMINATION OF THE BIDDER'S RESPONSIBILITY AND DOES NOT CONSTITUTE A FATAL VARIATION REQUIRING REJECTION OF THE BID SO LONG AS THE EVALUATION OF THE BID IS NOT AFFECTED. THE TIME FOR SUBMISSION OF EVIDENCE OF A BIDDER'S AUTHORITY TO OPERATE THE TYPE OF AIRCRAFT PROPOSED TO BE USED IN ORDER TO BE CONSIDERED A RESPONSIBLE BIDDER IS GOVERNED BY THE TIME WHEN PERFORMANCE IS REQUIRED. A BIDDER WHO PRIOR TO BID OPENING WAS AUTHORIZED TO OPERATE THE TYPE OF AIRCRAFT SPECIFIED IN HIS BID BUT WHO. WAS DETERMINED TO BE CAPABLE OF OPERATING ANOTHER TYPE OF AIRCRAFT WHICH MET THE SPECIFICATIONS AND TO HAVE THE QUALIFICATIONS TO ACQUIRE THE NECESSARY OPERATING AUTHORITY BEFORE PERFORMANCE TIME MAY BE REGARDED AS A RESPONSIBLE BIDDER UNDER THE AWARD.

B-142350, MARCH 30, 1960, 39 COMP. GEN. 655

BIDDERS - QUALIFICATIONS - TIME FOR SUBMISSION - DEVIATIONS - AIRCRAFT OPERATING CERTIFICATION THE SUBSTITUTION, AFTER BID OPENING, OF AIRCRAFT EQUALLY ACCEPTABLE UNDER THE SPECIFICATIONS FOR AIRCRAFT ORIGINALLY PROPOSED IN THE BID IS A SUBSTITUTION OF INFORMATION NECESSARY TO A DETERMINATION OF THE BIDDER'S RESPONSIBILITY AND DOES NOT CONSTITUTE A FATAL VARIATION REQUIRING REJECTION OF THE BID SO LONG AS THE EVALUATION OF THE BID IS NOT AFFECTED. THE TIME FOR SUBMISSION OF EVIDENCE OF A BIDDER'S AUTHORITY TO OPERATE THE TYPE OF AIRCRAFT PROPOSED TO BE USED IN ORDER TO BE CONSIDERED A RESPONSIBLE BIDDER IS GOVERNED BY THE TIME WHEN PERFORMANCE IS REQUIRED; THEREFORE, A BIDDER WHO PRIOR TO BID OPENING WAS AUTHORIZED TO OPERATE THE TYPE OF AIRCRAFT SPECIFIED IN HIS BID BUT WHO, AFTER CONTRACTING AGENCY'S SURVEY TEAM MADE ITS REPORT, WAS DETERMINED TO BE CAPABLE OF OPERATING ANOTHER TYPE OF AIRCRAFT WHICH MET THE SPECIFICATIONS AND TO HAVE THE QUALIFICATIONS TO ACQUIRE THE NECESSARY OPERATING AUTHORITY BEFORE PERFORMANCE TIME MAY BE REGARDED AS A RESPONSIBLE BIDDER UNDER THE AWARD.

TO THE SECRETARY OF THE AIR FORCE, MARCH 30, 1960:

WE REFER TO A LETTER OF MARCH 21, 1960, WITH ENCLOSURES, SIGNED BY THE ASSISTANT SECRETARY, REQUESTING OUR DECISION WITH RESPECT TO THE LEGALITY OF THE AWARD MADE TO TWENTIETH CENTURY AIRLINES, INC., UNDER ITEMS 1, 2, 11, 15, AND 28 OF INVITATION FOR BIDS NO. 11-626-60-4 ISSUED BY THE MILITARY AIR TRANSPORT SERVICE FOR THE AIRLIFT OF CARGO AND PASSENGERS IN THE EUROPEAN AND FAR EAST AREAS COVERING THE PERIOD APRIL 1 TO JUNE 30, 1960.

THE INVITATION WAS ISSUED ON JANUARY 9, 1960, AND BIDS WERE OPENED ON FEBRUARY 1, 1960. THE TWENTIETH CENTURY BID BY ITS TERMS WOULD REMAIN IN FORCE FOR 60 CALENDAR DAYS AFTER OPENING (UNTIL APRIL 1, 1960). FOR EACH ITEM OF THE INVITATION, THE BIDDER WAS REQUIRED TO SHOW THE MINIMUM NUMBER OF PASSENGERS IT GUARANTEED TO TRANSPORT PER MONTH, THE ROUND-TRIP PRICE PER PASSENGER, THE TYPE OF AIRCRAFT TO BE USED, AND THE MINIMUM AND MAXIMUM ACCEPTABLE LOADS.

FOR EACH OF THE ITEMS IN QUESTION TWENTIETH CENTURY INDICATED ITS INTENTION TO USE DC-6B AIRCRAFT. THE RECORD INDICATES THAT BIDS ON THIS TYPE OF PROCUREMENT ARE EVALUATED ON THE BASIS OF THE PER PASSENGER ROUND- TRIP PRICE. ON THIS BASIS TWENTIETH CENTURY WAS THE LOW BIDDER ON EACH OF THE ITEMS LISTED ABOVE. AS OF FEBRUARY 4, 1960, TWENTIETH CENTURY HAD IN ITS POSSESSION TWO DC-6B AIRCRAFT AND WAS CERTIFICATED BY THE FEDERAL AVIATION AGENCY TO OPERATE THIS TYPE OF EQUIPMENT. TWENTIETH CENTURY WAS NOT, AT THE TIME OF BID OPENING, CERTIFICATED BY THE FAA TO OPERATE L-1049 AIRCRAFT.

ON FEBRUARY 5, 1960, TWENTIETH CENTURY REQUESTED THAT THE TYPE OF AIRCRAFT OFFERED FOR PERFORMANCE IN ITS BID FOR ITEMS 11, 15, AND 28, BE CHANGED TO L-1049. UNIT PRICES WERE TO REMAIN THE SAME, HOWEVER, MINIMUM LOADS WERE INCREASED FROM 90 TO 98.

THE CONTRACTING OFFICER, AFTER CONSIDERING THE MATTER, CONCLUDED THAT THE CHANGE COULD BE MADE AFTER OPENING SINCE THE SUBSTITUTE AIRCRAFT MET CONTRACT SPECIFICATIONS, BID EVALUATION WAS NOT AFFECTED BECAUSE THE UNIT PRICES WERE NOT CHANGED, AND THE CHANGE COULD NOT BE PREJUDICIAL EITHER TO THE GOVERNMENT OR TO ANY OF THE OTHER BIDDERS. ACCORDINGLY, AWARD WAS MADE TO TWENTIETH CENTURY ON FEBRUARY 17, 1960, AFTER THE MATS CAPABILITY SURVEY COMMITTEE HAD FAVORABLY EVALUATED THE BIDDER'S TECHNICAL AND FINANCIAL CAPABILITY BASED IN PART ON THE USE OF L-1049 AIRCRAFT LEASED BY THE BIDDER FROM LOCKHEED ON OR ABOUT FEBRUARY 5, 1960. WHILE TWENTIETH CENTURY HAD NOT AT DATE OF AWARD BEEN AUTHORIZED BY THE FAA TO OPERATE L- 1049'S AND WHILE THE L-1049'S LEASED FROM LOCKHEED HAD TO BE MODIFIED TO MEET MATS REQUIREMENTS, THE SURVEY TEAM CONCLUDED THAT THE AIRCRAFT WOULD BE AVAILABLE AND CERTIFICATED FOR PERFORMANCE BY FAA BEFORE THE DATE OPERATIONS WERE SCHEDULED TO BEGIN UNDER THE CONTRACT.

THE AWARD WAS PROTESTED BY OVERSEAS NATIONAL AIRWAYS, INC., IN A TELEGRAM OF MARCH 1, 1960. THE BASIS FOR THE PROTEST IS THAT TWENTIETH CENTURY FAILED TO MEET THE REQUIREMENTS OF PARAGRAPH 12 OF THE TERMS AND CONDITIONS OF THE INVITATION WHICH READS IN PERTINENT PART AS FOLLOWS:

12. FINANCIAL AND TECHNICAL ABILITY. BIDDERS ARE CAUTIONED TO SUBMIT WITH THEIR BIDS FULL INFORMATION CONCERNING THE FINANCIAL ABILITY OF THE BIDDER TO PERFORM AND THE ARRANGEMENTS MADE BY THE BIDDER TO ASSURE THAT AIRCRAFT MEETING THE GOVERNMENT'S REQUIREMENTS WILL BE AVAILABLE TO BIDDER FOR USE ON ANY RESULTING CONTRACT. IF, ON THE BASIS OF THIS INFORMATION, THE BID OR PROPOSAL SUBMITTED IN RESPONSE TO THIS INVITATION IS FAVORABLY CONSIDERED, A SURVEY TEAM MAY CONTACT BIDDER'S FACILITY FOR THE PURPOSE OF DETERMINING BIDDER'S TECHNICAL AND FINANCIAL ABILITY TO PERFORM. DATA PERTINENT TO THIS PURPOSE SHOULD BE AVAILABLE AT THE TIME, IF NOT ALREADY ON FILE WITH HEADQUARTERS, MILITARY AIR TRANSPORT SERVICE. THE TEAM WILL ALSO EVALUATE BIDDERS SYSTEM FOR DETERMINING THE FINANCIAL AND TECHNICAL ABILITY OF BIDDER'S PROPOSED SUB-CONTRACT OR PROCUREMENT SOURCES TO PERFORM. BIDDER WILL BE REQUIRED TO FURNISH EVIDENCE OF ITS ABILITY TO ASSURE THAT THE TYPES AND QUANTITIES OF AIRCRAFT REQUIRED TO PERFORM IN ACCORDANCE WITH ITS BID WILL BE AVAILABLE TO IT IN AN ACCEPTABLE CONFIGURATION IN SUFFICIENT TIME TO COMMENCE PERFORMANCE. THE ADEQUACY OF BIDDER'S ARRANGEMENTS TO ASSURE THAT IT WILL BE ABLE TO PERFORM ANY RESULTING CONTRACT WILL BE CONSIDERED BY THE CONTRACTING OFFICER IN DETERMINING THE RESPONSIBILITY OF THE BIDDER FOR PURPOSES OF AWARD. ADDITION, BIDDER MUST PROVIDE TO THE SURVEY TEAM SATISFACTORY EVIDENCE THAT IT IS CURRENTLY AUTHORIZED BY THE FEDERAL AERONAUTICS AUTHORITY TO OPERATE THE TYPE OF AIRCRAFT (E.G., DC-6, L-1049) SPECIFIED IN ITS BID. ONLY BIDDERS SO AUTHORIZED WILL BE CONSIDERED FOR AWARD. EXAMPLES OF OTHER TYPES OF TECHNICAL, FINANCIAL AND OTHER CAPABILITY MATTERS THE SURVEY TEAM VISITING BIDDER'S FACILITY WILL EVALUATE ARE GIVEN BELOW: * *

IT IS THE CONTENTION OF OVERSEAS NATIONAL AIRWAYS, REITERATED IN A LETTER OF MARCH 21, 1960, FROM ITS ATTORNEYS, THAT UNDER PARAGRAPH 12, THE BIDDER MUST BE AUTHORIZED BY FAA TO OPERATE THE TYPE OF AIRCRAFT SPECIFIED IN ITS BID EITHER AT TIME OF BID OPENING OR, AT LEAST, AT THE TIME OF THE VISIT BY THE SURVEY TEAM.

BEFORE CONSIDERING THE ONA PROTEST THERE SHOULD BE POINTED OUT PARAGRAPH 19 OF THE TERMS AND CONDITIONS WHICH PROVIDES IN PERTINENT PART:

19. DATA TO BE FURNISHED WITH BID

A. ALL BIDDERS UNDER IFB ARE REQUIRED TO SUBMIT TO THE GOVERNMENT WITH BID THE DATA LISTED BELOW:

"2. PLAN DRAWING OF AIRCRAFT. BIDDER WILL SUBMIT PLAN DRAWING IN DUPLICATE OF EACH AIRCRAFT, SETTING FORTH LOADING ARRANGEMENT FOR CARGO AND SEATING FOR PASSENGERS IN COMPLIANCE WITH THE REQUIREMENTS OF ATTACHMENT A OF THIS CONTRACT. IN THE REPORTING OF USABLE CARGO SPACE OF AIRCRAFT TO BE USED FOR CONVERTIBLE TRAFFIC, SATISFACTORY STOWAGE AREA MUST BE INDICATED ON THE PLAN DRAWING.

TWENTIETH CENTURY DID NOT SUBMIT WITH ITS BID A PLAN DRAWING OF THE L- 1049 AIRCRAFT PURSUANT TO PARAGRAPH 19A.2.

IT IS OUR VIEW BASED ON THE LANGUAGE OF PARAGRAPH 12 QUOTED ABOVE, THAT THE REQUIREMENT FOR THE POSSESSION OF THE FAA OPERATING AUTHORITY NEED BE EVIDENCED TO THE SURVEY TEAM ONLY IF AND WHEN THE OPTION RESERVED TO PERFORM THE SURVEY/IS ACTED UPON. SINCE THE OPTION FOR SUCH SURVEY WOULD BE INVOKED ONLY AFTER BIDS WERE MADE KNOWN, THE PROVISION CAN BE INTERPRETED ONLY TO REQUIRE THAT THE EVIDENCE BY PROVIDED AT SOME TIME AFTER BIDS ARE OPENED. THE AVAILABILITY OF THE EVIDENCE OF AUTHORIZATION, THEREFORE, CANNOT GO TO THE RESPONSIVENESS OF THE BID; RESPONSIVENESS MUST BE DECIDED ON THE BASIS OF THE MATERIAL SUBMITTED PRIOR TO OR AT BID OPENING.

THE PURPOSE OF THE REQUIREMENT, IT IS CLEAR IS TO ENABLE THE CONTRACTING AGENCY TO DETERMINE THE RESPONSIBILITY OF THE BIDDER; THAT IS, HIS ABILITY, FINANCIALLY AND TECHNICALLY TO CONFORM TO THE REQUIREMENTS OF THE CONTRACT. THEREFORE, WITH RESPECT TO RESPONSIBILITY, THE CRITICAL TIME IS THE SCHEDULED TIME FOR PERFORMANCE PLUS ANY LEAD TIME WHICH MAY BE NECESSARY IN THE PARTICULAR CASE. WHILE BY THE TERMS OF PARAGRAPH 12 THE EVIDENCE AS TO AUTHORITY TO OPERATE THE TYPE OF AIRCRAFT SPECIFIED MUST BE PROVIDED TO THE SURVEY TEAM, IF THE BIDDER IS TO BE CONSIDERED FOR AWARD, WE SEE NO MORE BASIS FOR CONCLUDING THAT THE EVIDENCE MUST BE PROVIDED AT THE TIME OF THE SURVEY TEAM'S VISIT THAN THAT IT MAY FOLLOW SUBSEQUENTLY. IN FACT, THE TWO PRECEDING SENTENCES WHICH ARE CONCERNED WITH THE SCHEDULE WOULD TEND TO INDICATE THAT THAT IS ALSO THE CRITICAL TIME WITH RESPECT TO THE FAA AUTHORIZATION REQUIREMENT. IN ANY CASE, WHERE THE REQUIREMENT IS ONE IMPOSED FOR THE PURPOSE OF DETERMINING THE RESPONSIBILITY OF THE BIDDER WE ARE AWARE OF NO PRINCIPLE OF LAW WHICH WOULD PREVENT THE CONTRACTING AGENCY FROM WAIVING ANY TIME LIMIT WITH RESPECT THERETO PROVIDED THAT THE SERVICE CONTRACTED FOR BY THE GOVERNMENT WAS NOT THEREBY REDUCED OR IMPAIRED. IN THIS CONNECTION, IT SHOULD BE NOTED THAT TWENTIETH CENTURY WAS CERTIFICATED TO OPERATE DC-6B AIRPLANES PRIOR TO BID OPENING; THAT IT DID EVIDENCE ITS INTENTION TO USE DC-6B AIRPLANES IN THE PERFORMANCE OF SERVICES UNDER ALL ITEMS 1, 2, 11, 15, AND 28 BY FURNISHING EVIDENCE TO THE SURVEY TEAM THAT IT HAD OR COULD PROCURE ADDITIONAL DC-6B AIRPLANES PRIOR TO THE START OF PERFORMANCE.

WE ARE NOT UNAWARE THAT BOTH THE FIRST SENTENCE OF PARAGRAPH 12 AND PARAGRAPH 19A.2 REQUIRE THE SUBMISSION WITH EACH BID OF DATA WITH RESPECT TO THE AIRCRAFT TO BE UTILIZED BY THE BIDDER IN THE PERFORMANCE OF THE CONTRACT. WE HAVE BEEN ADVISED THAT NO DATA WAS SUBMITTED BY TWENTIETH CENTURY ON THE L-1049'S UNTIL AFTER OPENING. HOWEVER, IT IS AND HAS BEEN OUR VIEW WITH RESPECT TO SUCH SITUATIONS, EVEN IN CASES WHERE BIDDERS ARE WARNED THAT FAILURE TO CONFORM MAY RESULT IN THE REJECTION OF THEIR BIDS, THAT THE INFORMATION, IF CALLED FOR TO DETERMINE THE RESPONSIBILITY OF THE BIDDER RATHER THAN THE RESPONSIVENESS OF THE BID, MAY BE CHANGED OR PROVIDED SUBSEQUENT TO BID OPENING WITHOUT PREJUDICE TO CONSIDERATION OF THE BID. 39 COMP. GEN. 247; B-138322, JANUARY 20, 1959. SEE, ALSO, 38 COMP. GEN. 423.

IN SUMMARY, IT IS OUR VIEW THAT THE SUBSTITUTION, AFTER OPENING, OF AIRCRAFT EQUALLY ACCEPTABLE UNDER THE SPECIFICATIONS FOR THOSE ORIGINALLY INDICATED IN THE BID DOES NOT CONSTITUTE A FATAL VARIATION SO LONG AS THE EVALUATION OF THE BID IS NOT AFFECTED. FURTHER, WHERE AN AUTHORIZATION MUST BE OBTAINED IN ORDER TO MEET THE RESPONSIBILITY REQUIREMENT, THE TIME WHICH IS SIGNIFICANT WITH RESPECT THERETO IS THAT AT WHICH PERFORMANCE IS SCHEDULED TO BEGIN. SINCE THE AWARD, AND CONSEQUENTLY THE DETERMINATION OF RESPONSIBILITY, MUST BE MADE PRIOR TO THAT TIME, WE THINK THAT THE BIDDER MAY BE REGARDED AS RESPONSIBLE IF IN THE VIEW OF THE CONTRACTING AGENCY THE BIDDER WILL BE CAPABLE OF PERFORMING (AND WILL HAVE ALL NECESSARY AUTHORITY TO PERFORM) AT THE REQUIRED TIME. IN THIS CONNECTION IT SHOULD BE NOTED THAT THE DETERMINATION OF MATTERS OF RESPONSIBILITY IS PRIMARILY WITHIN THE JURISDICTION OF THE CONTRACTING AGENCY.

IN ACCORDANCE WITH THE FOREGOING, WE SEE NO LEGAL BASIS FOR OBJECTING TO THE AWARD MADE.