B-156171, MAY 14, 1965

B-156171: May 14, 1965

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INC.: FURTHER REFERENCE IS MADE TO COPY OF YOUR LETTER OF FEBRUARY 12. THE INVITATION WAS ISSUED JANUARY 25. OR ITS SUBCONTRACTOR IF FLIGHT INSTRUCTIONS ARE FURNISHED THROUGH A SUBCONTRACTOR. YOU CONTEND THAT THE FIRST OF THE QUOTED PROVISIONS REQUIRES THE BIDDER TO HAVE FAA CERTIFICATION PRIOR TO SUBMISSION OF A BID WHILE THE SECOND ALLOWS THE BIDDER UNTIL MAY 1. THE TERM USED IS "SHALL BE. " AND THIS TERM AS RELATED TO THE PUBLIC LAWS IS A BEFORE-THE-FACT REQUIREMENT. * * * PART XII DOES NOT CLARIFY PART V. WHERE THIS HAS HAPPENED THE SPECIFICATIONS ARE IMPROPERLY DRAWN.'. THE QUESTIONS THUS RAISED BY YOUR PROTEST ARE WHETHER THE QUALIFICATIONS WHICH A CONTRACTOR MUST MEET IN ORDER TO PERFORM UNDER THE CONTRACT MUST BE MET PRIOR TO SUBMISSION OF A BID AND WHETHER THE TWO PROVISIONS CITED ARE IN FACT CONTRADICTORY.

B-156171, MAY 14, 1965

TO SIDEWINDER AVIATION SERVICES, INC.:

FURTHER REFERENCE IS MADE TO COPY OF YOUR LETTER OF FEBRUARY 12, 1965, ADDRESSED TO THE CONTRACTING OFFICER AND TO YOUR LETTER TO THIS OFFICE DATED MARCH 2, 1965, REGARDING YOUR PROTEST IN CONNECTION WITH AIR FORCE INVITATION FOR BIDS NO. 02-600-65-13.

THE INVITATION WAS ISSUED JANUARY 25, 1965, FOR FLIGHT TRAINING FOR UNDERGRADUATE PILOT TRAINING. PARAGRAPH 1.A OF PART V OF THE INVITATION, UNDER THE HEADING "CONTRACTOR PERFORMANCE," PROVIDES AS FOLLOWS:

"A. THE CONTRACTOR, OR ITS SUBCONTRACTOR IF FLIGHT INSTRUCTIONS ARE FURNISHED THROUGH A SUBCONTRACTOR, SHALL BE AN FAA CERTIFIED AIRMAN AGENCY AND SHALL POSSESS AND KEEP CURRENTLY IN EFFECT AT ALL TIMES DURING THE PERFORMANCE OF SERVICES UNDER THE CONTRACT, A MINIMUM RATING AS PRIMARY FLYING SCHOOL FOR AIRPLANES ISSUED UNDER PROVISIONS OF PART 141 OF THE FAA REGULATIONS.'

SUBPARAGRAPH 6.A.22 OF PART XII OF THE INVITATION REQUIRES THAT:

"EVIDENCE OF CERTIFICATION AS AN FAA CERTIFIED AIRMAN AGENCY WITH MINIMUM RATING AS PRIMARY FLYING SCHOOL FOR AIRPLANES OR EVIDENCE OF CAPABILITY TO ACHIEVE THIS CERTIFICATION AS AN FAA CERTIFIED AIRMAN AGENCY WITH MINIMUM RATING AS PRIMARY FLYING SCHOOL FOR AIRPLANES NO LATER THAN 1 MAY 1965.'

YOU CONTEND THAT THE FIRST OF THE QUOTED PROVISIONS REQUIRES THE BIDDER TO HAVE FAA CERTIFICATION PRIOR TO SUBMISSION OF A BID WHILE THE SECOND ALLOWS THE BIDDER UNTIL MAY 1, 1965, TO OBTAIN CERTIFICATION. YOU STATE IN YOUR FEBRUARY 12 LETTER, IN PERTINENT PART, AS FOLLOWS:

"* * * A READING OF PART V AS ONE COMES TO IT IN CONSECUTIVE ORDER SHOWS IT TO BE CLEAR AND CONCISE. THE TERM USED IS "SHALL BE; " AND THIS TERM AS RELATED TO THE PUBLIC LAWS IS A BEFORE-THE-FACT REQUIREMENT. * * * PART XII DOES NOT CLARIFY PART V; IT CONTRADICTS IT. WHERE THIS HAS HAPPENED THE SPECIFICATIONS ARE IMPROPERLY DRAWN.'

THE QUESTIONS THUS RAISED BY YOUR PROTEST ARE WHETHER THE QUALIFICATIONS WHICH A CONTRACTOR MUST MEET IN ORDER TO PERFORM UNDER THE CONTRACT MUST BE MET PRIOR TO SUBMISSION OF A BID AND WHETHER THE TWO PROVISIONS CITED ARE IN FACT CONTRADICTORY.

IT IS TO BE NOTED THAT THE LANGUAGE OF PART V, PARAGRAPH 1.A, REQUIRES ONLY THAT THE CONTRACTOR--- THE ONE TO WHOM THE CONTRACT IS AWARDED AND NOT A BIDDER--- MUST HAVE FAA CERTIFICATION IN ORDER TO PERFORM UNDER THE CONTRACT BUT DOES NOT REQUIRE CERTIFICATION PRIOR TO SUBMISSION OF THE BID. ON THE OTHER HAND, SUBPARAGRAPH 6.A.22 OF PART XII, ABOVE, REQUIRES THAT A BIDDER WHO IS FAVORABLY CONSIDERED FORAN AWARD MUST OBTAIN A CERTIFICATION AS AN FAA CERTIFIED AIRMAN AGENCY WITH MINIMUM RATING AS PRIMARY FLYING SCHOOL FOR AIRPLANES OR EVIDENCE OF CAPABILITY TO ACHIEVE THIS CERTIFICATION NO LATER THAN MAY 1, 1965. THUS, ONE PROVISION MERELY REQUIRES CERTIFICATION TO PERFORM AND THE OTHER PROVISION STATES WHEN THIS CERTIFICATION MUST BE OBTAINED. WE FIND NO INCONSISTENCY OR CONTRADICTION BETWEEN THE TWO PROVISIONS.

WE ARE AWARE OF NO PROVISION OF LAW OR OF THE PROCUREMENT REGULATION WHICH PROHIBITS A CONTRACTING OFFICER FROM PROVIDING IN AN INVITATION FOR BIDS FOR A PERIOD OF TIME AFTER BIDS ARE RECEIVED AND PRIOR TO COMMENCEMENT OF PERFORMANCE DURING WHICH THE SUCCESSFUL BIDDER CAN MEET LICENSING OR CERTIFICATION QUALIFICATIONS REQUIRED FOR PERFORMANCE OF THE CONTRACT. IN THESE CIRCUMSTANCES, THE REQUIREMENT FOR EVIDENCE OF SUCH LICENSING OR CERTIFICATION CAN BE INTERPRETED ONLY TO REQUIRE THAT THE EVIDENCE BE PROVIDED AT SOME TIME AFTER THE BIDS ARE OPENED. SUCH REQUIREMENT AS IN THIS CASE RELATES TO THE RESPONSIBILITY OF THE BIDDER AND NOT TO THE RESPONSIVENESS OF THE BID. WE HAVE CONSISTENTLY HELD THAT EVIDENCE OF A BIDDER'S RESPONSIBILITY MAY BE FURNISHED AFTER BID OPENING AND THAT THE CRITICAL TIME IS THE SCHEDULED TIME FOR COMMENCEMENT OF PERFORMANCE, PLUS ANY LEAD TIME WHICH MAY BE NECESSARY IN THE PARTICULAR CASE. 39 COMP. GEN. 655. IT IS REPORTED THAT THE SUCCESSFUL BIDDER IN THIS CASE HAS ALREADY OBTAINED THE REQUIRED FAA CERTIFICATION. IT IS FURTHER REPORTED THAT THE DEPARTMENT OF THE AIR FORCE DOES NOT PROCEED WITH AWARD TO A BIDDER WHO DOES NOT POSSESS THE REQUIRED CERTIFICATION UNLESS THE FACILITY CAPABILITY REPORT SHOWS THAT CERTIFICATION WILL BE OBTAINED BY THE DATE SPECIFIED IN THE INVITATION. THEREFORE, A BIDDER CAN STILL BE CONSIDERED AS RESPONSIVE AND AS ACTING IN GOOD FAITH IF HE HAS THE INTENTION AND CAPABILITY OF TIMELY MEETING THE REQUIREMENTS OF THE INVITATION IN THE EVENT HE IS THE SUCCESSFUL BIDDER. 36 COMP. GEN. 42; 39 COMP. GEN. 173.

RESPECTING YOUR ALLEGATIONS RELATIVE TO THE AWARD OF THE CONTRACT WHILE A DECISION ON YOUR PROTEST WAS PENDING, YOU ARE ADVISED THAT SUCH ACTION WAS TAKEN DUE TO THE EXTREME URGENCY OF THE REQUIREMENT FOR THE SERVICES COVERED BY THE INVITATION. IN ORDER THAT THE SUCCESSFUL BIDDER MIGHT COMMENCE PERFORMANCE ON JUNE 1, 1965, THE PROCURING ACTIVITY WAS AUTHORIZED ON MARCH 31, 1965, BY THE AIR FORCE HEADQUARTERS TO PROCEED WITH THE PROCUREMENT. THE ACTION WAS COORDINATED WITH THIS OFFICE UNDER THE PROVISIONS OF ARMED SERVICES PROCUREMENT REGULATION 2-407.9.

SINCE AWARD OF THE CONTRACT APPEARS TO HAVE BEEN PROPERLY MADE WE FIND NO LEGAL BASIS FOR OBJECTION THERETO AND YOUR PROTEST IS DENIED.