B-154243, JUN. 1, 1964

B-154243: Jun 1, 1964

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R-9: REFERENCE IS MADE TO YOUR LETTER OF MAY 18. OF FOREST SERVICE PERSONNEL AUTHORIZED TO INITIATE A FLIGHT OR FLIGHTS UNDER THE CONTRACT WILL BE FURNISHED THE CONTRACTOR.'. THE PILOTS MUST HAVE: A. THE BIDDER MUST HAVE HAD AT LEAST TWO (2) FULL SEASONS OF HELICOPTER INDUSTRIAL SPRAYING OR DUSTING. MUST HAVE DEMONSTRATED HIS ABILITY TO PERFORM SAFELY AND EFFICIENTLY IN SUCH OPERATIONS. MUST PROVIDE THE CERTIFIED STATEMENTS DESCRIBED IN SECTION 10.'" YOU STATE THAT IFB 1-64-154 WAS SENT TO 46 PROSPECTIVE BIDDERS. OMNIFLIGHT'S BID WAS $45. UEDING'S BID WAS $43. IT WAS YOUR INTENT THAT "BIDDER" MEANT THE PILOTS RATHER THAN THE COMPANY ITSELF. AS THEY CONTEND THAT "THERE IS MORE TO A SUCCESSFUL HELICOPTER OPERATION THAN THE FLYING.'.

B-154243, JUN. 1, 1964

TO MR. H. F. STAMMER, CONTRACTING OFFICER, FOREST SERVICE, R-9:

REFERENCE IS MADE TO YOUR LETTER OF MAY 18, 1964, FILE 6320, REQUESTING A DECISION AS TO WHETHER IT WOULD BE PERMISSIBLE TO MAKE AWARD OF CONTRACT TO UEDING FLYING SERVICE, THE LOW BIDDER UNDER INVITATION FOR BID NO. 1-64 -154, ISSUED ON APRIL 20, 1964, IN THE CIRCUMSTANCES STATED.

THE INVITATION HERE INVOLVED REQUESTS BIDS ON HELICOPTER RENTAL WITH QUALIFIED PILOTS AND MAINTENANCE CREWS, TO BE USED IN REGION 9 OF THE U.S. FOREST SERVICE FOR AERIAL SPRAYING OF INSECTICIDES AND HERBICIDES, FIGHTING FOREST FIRES, RECONNAISSANCE, SURVEYS AND SUCH OTHER RELATED AUTHORIZED FLYING FOR ADMINISTRATIVE USE IN CONNECTION WITH THE GENERAL ADMINISTRATION AND PROTECTION OF THE NATIONAL FORESTS.

THE TERMS AND CONDITIONS OF THE INVITATION PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"SECTION 3--- SERVICE REQUIREMENTS

3.1 AIRCRAFT

A. THE FOREST SERVICE REQUIRES THE SERVICES OF ONE OR MORE HELICOPTERS TO BE USED PRIMARILY IN CONNECTION WITH AERIAL SPRAYING BUT MAY BE USED FOR SUCH OTHER WORK AS MAY BE REQUIRED IN CONNECTION WITH THE GENERAL ADMINISTRATION AND PROTECTION OF THE NATIONAL FOREST.

B. AVAILABILITY OF HELICOPTER

UNLESS RELEASED FOR SPECIFIC PERIODS BY THE CONTRACTING OFFICER OR HIS DESIGNATED REPRESENTATIVE, THE HELICOPTER SHALL BE AVAILABLE WITH OPERATING PERSONNEL AND SERVICE FACILITIES AT A DESIGNATED BASE POINT FROM JUNE 1, 1964, TO SEPTEMBER 30, 1964, UNLESS EXTENDED AS PROVIDED IN BID SCHEDULE, DEPENDING UPON THE AMOUNT OF AERIAL SPRAYING AND THE FOREST FIRE HAZARD. THE HELICOPTER SHALL BE AVAILABLE FOR TAKE-OFF WITHIN TWENTY-FOUR (24) HOURS AFTER NOTIFICATION BY AUTHORIZED FOREST SERVICE PERSONNEL. ACCREDITED LIST, BY NAME, OF FOREST SERVICE PERSONNEL AUTHORIZED TO INITIATE A FLIGHT OR FLIGHTS UNDER THE CONTRACT WILL BE FURNISHED THE CONTRACTOR.'

WITH REGARD TO PERSONNEL REQUIREMENTS, SECTION 5 OF THE INVITATION PROVIDES AS FOLLOWS:

"SECTION 5--- PERSONNEL REQUIREMENTS

5.1 SPRAY PILOT REQUIREMENTS

THE SUCCESSFUL BIDDER SHALL PROVIDE QUALIFIED PILOTS FOR THE OPERATION OF THE HELICOPTERS BEING USED. TO QUALIFY, THE PILOTS MUST HAVE:

A. CURRENTLY VALID COMMERCIAL PILOT'S CERTIFICATE.

B. VALID HELICOPTER OPERATOR'S LICENSE.

C. PERMIT FOR SPRAYING OR CROP DUSTING.

D. NOT LESS THAN 1000 HOURS OF FLYING ALL AIRCRAFT.

E. AT LEAST 10 HOURS OF NIGHT FLYING.

F. AT LEAST 50 HOURS OF FLYING IN TYPICAL TERRAIN.

G. AT LEAST 100 HOURS IN WEIGHT CLASS TO BE FLOWN.

H. AT LEAST 10 HOURS IN MODEL TO BE FLOWN PRECEDING 60 DAYS.

I. AT LEAST 20 HELICOPTER LANDINGS AND TAKE-OFFS AT TYPICAL ALTITUDE AND TYPE OF HELICOPTER TO BE USED.

J. A MINIMUM TOTAL OF 250 HOURS OF ALL TYPE OF HELICOPTER PILOTING.

K. A MINIMUM OF 50 HOURS OF SPRAYING OR DUSTING WITH A HELICOPTER.

5.2 MECHANICS

ADEQUATE AND QUALIFIED PERSONNEL FOR INSPECTING, SERVICING AND MAKING MINOR REPAIRS TO THE HELICOPTER.

5.3 GROUND PERSONNEL

ADEQUATE AND QUALIFIED GROUND PERSONNEL FOR LOADING HELICOPTER WITH GASOLINE AND INSECTICIDE, FOR ASSISTANCE IN THE SERVICING AND REPAIR OF AIRCRAFT AND FOR AERIAL TRAFFIC CONTROL.'

BY WAY OF EXPERIENCE, SECTION 6 OF THE INVITATION, AS AMENDED, PROVIDES AS FOLLOWS:

"2. SECTION 6--- BIDDERS EXPERIENCE.

" "TO QUALIFY, THE BIDDER MUST HAVE HAD AT LEAST TWO (2) FULL SEASONS OF HELICOPTER INDUSTRIAL SPRAYING OR DUSTING; MUST HAVE DEMONSTRATED HIS ABILITY TO PERFORM SAFELY AND EFFICIENTLY IN SUCH OPERATIONS, AND MUST PROVIDE THE CERTIFIED STATEMENTS DESCRIBED IN SECTION 10.'"

YOU STATE THAT IFB 1-64-154 WAS SENT TO 46 PROSPECTIVE BIDDERS, BUT ONLY OMNIFLIGHT HELICOPTERS, INC., AND UEDING FLYING SERVICE RESPONDED. OMNIFLIGHT'S BID WAS $45,801, AND UEDING'S BID WAS $43,432.50. YOU ALSO INDICATE THAT WITH RESPECT TO SECTION 6, CITED ABOVE, IT WAS YOUR INTENT THAT "BIDDER" MEANT THE PILOTS RATHER THAN THE COMPANY ITSELF. ALSO, YOU SAY THAT OMNIFLIGHT HAS VERBALLY STATED THAT UEDING DOES NOT MEET THE QUALIFICATIONS OF THE INVITATION FOR BIDS, AS THEY CONTEND THAT "THERE IS MORE TO A SUCCESSFUL HELICOPTER OPERATION THAN THE FLYING.' YOU POINT OUT THAT UEDING HAS SPECIFIED THAT ALL HIS PILOTS HAVE HAD TWO OR MORE FULL SEASONS OF HELICOPTER INDUSTRIAL SPRAYING, AND ALSO, THAT YOU HAVE USED UEDING FOR FIXED WING AERIAL SPRAYING FOR SEVERAL YEARS AND ON THIS TYPE OF SPRAYING HAVE HAD EXCELLENT RELATIONS. IN VIEW OF THE FOREGOING, YOU ASK WHETHER IT WOULD BE PERMISSIBLE TO MAKE AWARD TO THE LOW BIDDER, UEDING FLYING SERVICE.

THE QUESTION YOU HAVE PRESENTED HERE RESOLVED ITSELF INTO THE ISSUE OF RESPONSIBILITY OF A BIDDER. IN A SOMEWHAT ANALOGOUS SITUATION INVOLVING HELICOPTER OPERATIONS, WE HELD IN 36 COMP. GEN. 42, AS FOLLOWS (QUOTING THE SYLLABUS):

"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.'

IN 39 COMP. GEN. 173, WE INDICATED THAT OUR OFFICE DOES NOT CONDONE THE REJECTION OF BIDS OF RESPONSIBLE BIDDERS BECAUSE AS A TECHNICAL MATTER THEY DO NOT MEET PRESCRIBED EXPERIENCE QUALIFICATIONS. IN THAT CONNECTION, IT WAS SAID AT PAGE 178 THAT "THE STATEMENT OF SUCH QUALIFICATIONS SHOULD NOT BE CONSIDERED AS HAVING THE EFFECT OF TRANSFORMING THE PURELY FACTUAL QUESTION OF RESPONSIBILITY INTO A LEGAL QUESTION OF CONFORMITY TO THE INVITATION.'

THEREFORE, IF YOU AS CONTRACTING OFFICER, MAKE A VALID DETERMINATION THAT THE LOW BIDDER, UEDING FLYING SERVICE, IS A RESPONSIBLE BIDDER, OUR OFFICE SEES NO BASIS FOR OBJECTING TO AN AWARD ..END :