B-144061, MAY 12, 1961

B-144061: May 12, 1961

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YOU HAVE PROTESTED AS UNDULY RESTRICTIVE OF COMPETITION THE PROCEDURES EMPLOYED BY THE GENERAL SERVICES ADMINISTRATION IN AWARDING CONTRACT NO. SES-1697 WAS ISSUED APRIL 20. OR DATE OF AWARD (WHICHEVER WAS LATER) THROUGH JUNE 30. THE USE OF THE CONTRACT WAS MADE MANDATORY ON THE 62D TROOP CARRIER WING. BIDS WERE TO BE EXPRESSED IN TERMS OF A CHARGE PER HOUR OF DIRECT LABOR. THE COST OF DIRECT MATERIALS WAS MADE REIMBURSABLE BY THE GOVERNMENT AT COST. THE INVITATION PROVIDED AT PAGE 5: "SOURCES: ANY SOURCE SELECTED MUST HAVE A FAA CERTIFICATE FOR THE WORK TO BE ACCOMPLISHED. "THE CONTRACTOR MUST HAVE IN PLACE. AT PAGE 9 OF THE INVITATION APPEARED THE FOLLOWING: "FAA CERTIFICATION: IT IS MUTUALLY AGREED THAT AWARD OF THIS CONTRACT WILL BE BASED ON THE TECHNICAL QUALIFICATIONS OF THE CONTRACTOR AS SPECIFIED IN FAA CERTIFICATE OF APPROVAL NUMBER .

B-144061, MAY 12, 1961

TO AIRLINE SERVICES, INC.:

BY LETTER OF SEPTEMBER 19, 1960, WITH ENCLOSURES, YOU HAVE PROTESTED AS UNDULY RESTRICTIVE OF COMPETITION THE PROCEDURES EMPLOYED BY THE GENERAL SERVICES ADMINISTRATION IN AWARDING CONTRACT NO. GS-10S-14611 FOR THE REPAIR OF AIRCRAFT SPARES FROM JULY 18, 1960, THROUGH JUNE 30, 1961.

INVITATION FOR BIDS NO. SES-1697 WAS ISSUED APRIL 20, 1960, BY THE FEDERAL SUPPLY SERVICE, GSA, FOR PLANT LABOR, MATERIAL AND EQUIPMENT TO FUNCTIONALLY TEST, REPAIR, RECONDITION AND/OR OVERHAUL, AS REQUIRED, VARIOUS TYPES OF AIRCRAFT ACCESSORIES AND ASSEMBLIES FOR THE PERIOD OF JULY 1, 1960, OR DATE OF AWARD (WHICHEVER WAS LATER) THROUGH JUNE 30, 1961, WITH A GOVERNMENT OPTION OF ANNUAL RENEWAL FOR A MAXIMUM OF TWO ADDITIONAL YEARS. BY THE TERMS OF THE INVITATION, THE USE OF THE CONTRACT WAS MADE MANDATORY ON THE 62D TROOP CARRIER WING, MATS, AND OPTIONAL FOR OTHER GOVERNMENT AGENCIES. BIDS WERE TO BE EXPRESSED IN TERMS OF A CHARGE PER HOUR OF DIRECT LABOR, FOR REGULAR WORK SCHEDULES AND OVERTIME. THE COST OF DIRECT MATERIALS WAS MADE REIMBURSABLE BY THE GOVERNMENT AT COST.

THE INVITATION PROVIDED AT PAGE 5:

"SOURCES: ANY SOURCE SELECTED MUST HAVE A FAA CERTIFICATE FOR THE WORK TO BE ACCOMPLISHED. THE CLASS CERTIFICATE MUST COVER THE SCOPE OF WORK TO BE ACCOMPLISHED. IN LIEU OF FAA CERTIFICATION CONTRACTOR MUST BE PRESENTLY ACCOMPLISHING SIMILAR WORK UNDER GOVERNMENT CONTRACT.

"THE CONTRACTOR MUST HAVE IN PLACE, TEST EQUIPMENT OF THE KIND AND CAPACITY NECESSARY TO MEET PRESENT REQUIREMENTS.'

AT PAGE 9 OF THE INVITATION APPEARED THE FOLLOWING:

"FAA CERTIFICATION: IT IS MUTUALLY AGREED THAT AWARD OF THIS CONTRACT WILL BE BASED ON THE TECHNICAL QUALIFICATIONS OF THE CONTRACTOR AS SPECIFIED IN FAA CERTIFICATE OF APPROVAL NUMBER -------- ---------, DATED ------------------------, AND IN THE EVENT SUCH CERTIFICATION IS WITHDRAWN BY FAA THE GOVERNMENT HAS THE RIGHT TO TERMINATE THIS CONTRACT PURSUANT TO THE DEFAULT PROVISIONS OF THE TERMINATION CLAUSE 11 OF THE GENERAL PROVISIONS.'

IN YOUR BID, THE BLANKS WERE FILLED IN WITH "4114" AND "24 FEB. 1954.'

FINALLY, THERE WAS APPENDED TO THE BID FORM A PLANT FACILITY CHECK LIST CONTAINING A NUMBER OF QUESTIONS TO BE ANSWERED BY THE BIDDER. THE FIRST OF THESE QUESTIONS, WHICH IN YOUR BID WAS ANSWERED IN THE AFFIRMATIVE, READS:

"1. WILL THE CONTRACTOR'S APPLICATION FOR AND CERTIFICATE NUMBER BY FAA COVER WORK BEING PERFORMED?

BIDS WERE SCHEDULED FOR OPENING ON MAY 31, 1960. YOUR BID WAS LOW. WAS FOUND, HOWEVER, THAT YOUR FAA CERTIFICATE COVERED CLASS II AIRCRAFT SPARES WHILE THE INVITATION REQUIRED WORK UNDER CLASS IV FOR WHICH, CONCEDEDLY, YOU DID NOT HOLD AN FAA CERTIFICATE. ACCORDINGLY, AWARD WAS MADE TO THE NEXT LOW BIDDER ON JULY 18, 1960. BY LETTER OF JULY 25, 1960, YOU WERE ADVISED BY THE CONTRACTING AGENCY THAT YOUR BID WAS REGARDED AS NON-RESPONSIVE TO THE TERMS OF THE INVITATION QUOTED ABOVE BECAUSE OF YOUR LACK OF THE PROPER FAA CERTIFICATION. IT IS NOTED IN THIS CONNECTION THAT YOUR FIRM HAD BEEN ISSUED CERTIFICATE OF COMPETENCY XIII-12 ON JUNE 23, 1960, BY THE SMALL BUSINESS ADMINISTRATION, CERTIFYING YOUR CAPACITY AND CREDIT TO PERFORM THE WORK REQUIRED UNDER THE TERMS OF THE INVITATION.

BY LETTER OF JULY 22, 1960, TO THE CONTRACTING AGENCY, YOU PROTESTED THE REJECTION OF YOUR LOW BID. YOU POINTED OUT THAT ON JULY 15, 1960, YOU APPLIED TO THE FAA FOR THE REQUIRED CERTIFICATION. YOU STATED:

"* * * F.A.A. HAS INDICATED TO US THAT APPROVAL WILL BE FORTHCOMING WHEN OUR PAPER WORK IS IN ORDER AND WHEN OUR METAL SHOP IS CLEARED OF ITEMS NOT ESSENTIAL TO METAL WORK. * * *"

IN ADDITION, HOWEVER, YOU POINTED OUT THAT YOUR FIRM LACKED THE NOSE DOCK AND SHOP FACILITIES TO QUALIFY FOR THE FAA RATING. THEREFORE, YOU REQUESTED IN THE LETTER THAT THE REQUIREMENT FOR THE CERTIFICATE BE INTERPRETED IN THE SENSE OF THE FAA CERTIFICATION NECESSARY TO PERFORM THE WORK; FURTHER, YOU REQUESTED THAT THE CERTIFICATION BE REQUIRED AS A CONDITION OF THE CONTRACT RATHER THAN OF RESPONSIVENESS TO THE INVITATION.

WE HAVE BEEN INFORMALLY ADVISED THAT YOUR APPLICATION FOR CLASS IV CERTIFICATION WAS DENIED BY FAA ON OCTOBER 17, 1960, FOR LACK OF ADEQUATE HANGAR SPACE. IT IS CLEAR FROM YOUR LETTER OF JULY 22 THAT YOU WERE AWARE OF THE PROBABILITY OF SUCH OUTCOME. IT IS CLEAR ALSO THAT THE CERTIFICATION REQUIREMENT WAS NOT UNREASONABLE AND COULD BE, AND WAS, PROPERLY IMPOSED AT LEAST AS A MEASURE OF RESPONSIBILITY. CF. 38 COMP. GEN. 423, 426. THEREFORE, YOUR INABILITY TO OBTAIN THE REQUIRED CERTIFICATION PRIOR TO THE TIME OF AWARD WOULD CLEARLY CONSTITUTE A SUFFICIENT BASIS FOR THE REJECTION OF YOUR BID BUT FOR THE FACT THAT YOU HAD BEEN AWARDED A CERTIFICATE OF COMPETENCY (COC) BY THE SMALL BUSINESS ADMINISTRATION FOR THE WORK CONTEMPLATED.

WE HAVE BEEN ADVISED THAT IT IS THE CUSTOM OF THE SBA, IN INSTANCES WHERE CERTIFICATIONS OF THE KIND IN QUESTION ARE REQUIRED AS A CONDITION OF ELIGIBILITY FOR AWARD, TO ASCERTAIN, IN ADVANCE OF THE ISSUANCE OF A COC, THAT THE FIRM HAS BEEN OR WILL BE GRANTED SUCH CERTIFICATION. SBA HAS FURNISHED US WITH A COPY OF YOUR LETTER OF JUNE 13, 1960, IN SUPPORT OF YOUR APPLICATION FOR A COC, IN WHICH YOU STATED:

"WHILE OUR PRESENT CERTIFICATE DOES NOT COVER THE ITEMS LISTED, THERE IS HARDLY A CONTRACTOR THAT DOES UNLESS HE HAS HAD PREVIOUS AIR FORCES' C-124 ACCESSORY CONTRACTS. THIS IS BECAUSE F.A.A. ADDS SPECIFIC ITEMS OF EQUIPMENT TO ONE'S AIR AGENCY LICENSE WHEN THE EQUIPMENT TO OVERHAUL AND TEST THAT EQUIPMENT IS INSTALLED. AIRLINE SERVICES, INC. WILL ADD THE APPROPRIATE F.A.A. RATINGS TO ITS ACCESSORY LICENSE AS THE CONTRACTS ARE SIGNED AND THE WORK MADE AVAILABLE. THIS HAS ALREADY BEEN DISCUSSED WITH F.A.A. SOME ITEMS OF EQUIPMENT TO BE OVERHAULED ARE PECULIAR TO THE C-124 AND MUST OCCASION INSTALLATION OF THE NON-COMMERCIAL EQUIPMENT AFTER THE CONTRACT IS SECURED.'

THE QUOTED INFORMATION WAS MISLEADING SINCE, AS YOU STATED IN YOUR LETTER OF JULY 22 TO THE CONTRACTING AGENCY, YOU WERE AWARE THAT YOU LACKED THE FACILITIES NECESSARY TO QUALIFY FOR THIS TYPE OF CERTIFICATION. WE HAVE BEEN ADVISED FURTHER THAT WHEN IT WAS LEARNED THAT, CONTRARY TO THE IMPRESSION CONVEYED BY YOU, YOUR FAA CERTIFICATION WAS NOT AMENDED, THE SBA REGIONAL OFFICE REQUESTED THAT THE COC BE CANCELLED. NO ACTION WAS TAKEN IN WASHINGTON ON THAT REQUEST BECAUSE OF INFORMATION RECEIVED FROM THE CONTRACTING AGENCY THAT YOUR BID WAS BEING REJECTED AS NON- RESPONSIVE.

THUS, IT IS CLEAR THAT SBA WAS LED BY YOU TO BELIEVE THAT AT THE TIME OF OR PRIOR TO AWARD YOUR FIRM WOULD BE CERTIFICATED BY THE FAA IN ACCORDANCE WITH THE REQUIREMENTS OF THE INVITATION AND, FURTHER, THAT NO ACTION WAS TAKEN WITH RESPECT TO THE REQUEST TO CANCEL THE COC BECAUSE THE SBA HAD BEEN ADVISED THAT THE CONTRACTING AGENCY WAS REJECTING YOUR BID AS NON- RESPONSIVE. ACCORDINGLY, REGARDLESS OF THE PROPRIETY OF IGNORING THE COC IN MAKING AWARD, WE ARE OF THE VIEW THAT THE RESULT OBTAINED WAS NOT IMPROPER AND THAT THE CONTRACT AWARDED SHOULD NOT BE REGARDED AS INVALID.