B-146384, OCT. 17, 1961

B-146384, OCT. 17, 1961

TO THE CHANNEL FLYING SERVICE:

REFERENCE IS MADE TO LETTER OF SEPTEMBER 20, 1961, AND PRIOR CORRESPONDENCE FROM YOUR ATTORNEY, PROTESTING ON YOUR BEHALF AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. SES- 1871, ISSUED BY THE SEATTLE, WASHINGTON OFFICE OF THE FEDERAL SUPPLY SERVICE, GENERAL SERVICES ADMINISTRATION. IT IS YOUR ATTORNEY'S CONTENTION THAT SINCE YOU WERE THE LOW BIDDER, BASED UPON A PARTICULAR CALCULATION OF THE PROPOSALS, THE PROCUREMENT OFFICIALS ERRED IN FAILING TO AWARD THE CONTRACT TO YOU.

THE SUBJECT INVITATION SOUGHT BIDS ON THE FURNISHING OF FLYING SERVICES FOR GOVERNMENT PERSONNEL ORIGINATING AT THE SEVERAL LOCATIONS LISTED IN THE SOLICITATION, UNDER THE EIGHT ITEMS OF AIRCRAFT OF VARIOUS SIZES AND EQUIPMENT. THE COMPLAINT OF YOUR ATTORNEY RELATES TO ITEMS F (1) AND (16), DESIGNATED AS SERVICES FOR FOREST SERVICE PERSONNEL AT JUNEAU AND SITKA-GLACIER BAY. AWARD ON THOSE ITEMS WAS MADE TO JUNEAU AIR TAXI SERVICE BASED ON ITS RATES OF $38.40 PER HOUR FLYING TIME AND $11.40 PER HOUR STAND-BY TIME. IT IS ALLEGED THAT WHILE YOUR HOURLY RATE OF $40 FOR FLYING TIME EXCEEDS THAT OF THE ABOVE NAMED CONTRACTOR, YOUR OFFER OF $10 PER HOUR STAND-BY TIME, WITH ONE HOUR OF FREE TIME, CONSTITUTES A MORE ADVANTAGEOUS RATE FOR THE USING AGENCY, COMPUTED ON A RATIO OF 43 PERCENT STAND-BY TIME. THE ESTIMATED SERVICE ANTICIPATED FOR THE TWO LOCATIONS IN QUESTION TOTALS 99 FLYING HOURS THROUGHOUT THE CONTRACT YEAR.

IN THAT CONNECTION THE INVITATION PROVIDED THAT "AWARD WILL BE MADE ON THE BASIS OF RATES ON EACH INDIVIDUAL ITEM. THE ESTIMATED FLYING TIME SPECIFIED IN THE ITEM DESCRIPTION MAY VARY AND NO GUARANTEE OF THE ACTUAL AMOUNT MAY BE MADE.' IT IS ACKNOWLEDGED THAT SOME MEASURE OF STAND-BY TIME IS INVOLVED IN THIS PROCUREMENT AND, FOR THAT REASON ALL BIDDERS WERE REQUIRED TO STIPULATE THEIR RESPECTIVE CHARGES THEREFOR. HOWEVER, IT WILL BE NOTED THAT THE QUOTED PROVISIONS OF THE INVITATION APPLICABLE TO THE CONTROVERSY MADE NO SPECIFIC REFERENCE TO STAND-BY TIME. THE POSITION TAKEN BY THE CONTRACTING OFFICER, AND CONFIRMED BY THE USING AGENCY, WAS THAT STAND-BY TIME COULD NOT BE ESTIMATED IN ADVANCE WITH ANY DEGREE OF RELIABILITY, AND THEREFORE IT WAS EXCLUDED FROM THE ADVERTISED CONDITIONS. WHILE WE AGREE WITH YOUR ATTORNEY THAT PAST PERFORMANCE RECORDS COULD FORM A PROPER BASIS FOR INCLUDING STAND-BY TIME IN EVALUATING THE OFFERS, TO BECOME A FACTOR IN ASCERTAINING THE LOW BIDDER SUCH ASPECT WOULD HAVE TO BE MADE A PART OF THE PRICING PROVISION OF THE INVITATION. IT IS REPORTED THAT CURRENT RECORDS IN THE ADMINISTRATIVE OFFICE AS TO STAND-BY TIME WERE NOT ADEQUATE FOR THE PURPOSE OF THIS PROCUREMENT, AND THEREFORE WERE OMITTED FROM THE TERMS OF THE SOLICITATION.

WE DO NOT FEEL THAT THE DETERMINATIONS MADE BY THE PROCUREMENT OFFICIALS WERE NECESSARILY INVALID UNDER THE CIRCUMSTANCES, AND THEREFORE THE AWARD OF THE CONTRACT WILL NOT BE DISTURBED.