B-156484, SEP. 28, 1965

B-156484: Sep 28, 1965

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MCCUTCHEON: FURTHER REFERENCE IS MADE TO LETTERS DATED APRIL 1 AND 14. WHICH WERE MADE PURSUANT TO INVITATION FOR BIDS NO. TWO AWARDS WERE MADE FOR THE FURNISHING OF HELICOPTER SERVICES AND THREE AWARDS WERE MADE FOR FLYING SERVICES BY FIXED-WING AIRCRAFT. ONE OF THE LATTER CONTRACTS WAS AWARDED TO WILBURS FLIGHT OPERATIONS. THAT INFORMATION WAS FURNISHED AT PAGE 12 OF THE BIDDING FORM WHERE EACH BIDDER WAS REQUIRED TO STATE TYPE OF FIXED-WING AIRCRAFT TO BE FURNISHED. HOCK DOES NOT QUESTION THE BID EVALUATIONS BUT CONTENDS THAT THE BID OF WILBURS FLIGHT OPERATIONS SHOULD HAVE BEEN REJECTED AS NON RESPONSIVE BECAUSE THE MAULE AIRCRAFT APPARENTLY HAD NEVER BEEN TYPE CERTIFIED FOR USE WITH PONTOONS.

B-156484, SEP. 28, 1965

TO MR. STANLEY J. MCCUTCHEON:

FURTHER REFERENCE IS MADE TO LETTERS DATED APRIL 1 AND 14, 1965, FROM MR. GENE HOCK OF YOUR OFFICE, PROTESTING ON BEHALF OF ANCHORAGE HELICOPTER SERVICE, INCORPORATED, THE CONTRACT AWARDS FOR FLYING SERVICE IN ALASKA, WHICH WERE MADE PURSUANT TO INVITATION FOR BIDS NO. AL43-5-49, ISSUED ON JANUARY 13, 1965, BY THE ANCHORAGE, ALASKA, OFFICE OF THE FEDERAL AVIATION AGENCY.

THE INVITATION FOR BIDS PROVIDED ESTIMATES FOR BIDDING PURPOSES OF NUMBER OF ROUND TRIP FLIGHTS ORIGINATING AT SPECIFIED POINTS BY FIXED WING AIRCRAFT OF THREE CATEGORIES (1,3 AND 4), AND BY HELICOPTERS OF FOUR CATEGORIES. ANCHORAGE HELICOPTER SERVICE, INCORPORATED,SUBMITTED A BID ON AN "ALL OR NONE" BASIS. HOWEVER, THE AGGREGATE OF "ALL OR NONE" PRICES FOR THE ITEMS SELECTED FOR AWARD EXCEEDED THE AGGREGATE OF THE PRICES AVAILABLE TO THE GOVERNMENT UNDER OTHER BIDS ON AN ITEM BY-ITEM BASIS. TWO AWARDS WERE MADE FOR THE FURNISHING OF HELICOPTER SERVICES AND THREE AWARDS WERE MADE FOR FLYING SERVICES BY FIXED-WING AIRCRAFT. ONE OF THE LATTER CONTRACTS WAS AWARDED TO WILBURS FLIGHT OPERATIONS, ANCHORAGE, ALASKA, COVERING ITEMS OF SERVICE WHICH REQUIRED THE USE OF ONE-PASSENGER AND THREE-PASSENGER FIXED-WING AIRCRAFT (CATEGORIES 1 AND 3), HAVING ENGINES WITH MINIMUM RATINGS OF 120 AND 200 HORSEPOWER, AND EQUIPPED WITH "WHEELS, SKIS, OR PONTOONS, AS ORDERED.' WILBURS FLIGHT OPERATIONS INDICATED THAT IT WOULD USE MAULE AIRCRAFT (145 AND 210), WITH PAYLOAD CAPACITIES OF 600 POUNDS EACH AND AVERAGE CRUISING SPEEDS OF 130 AND 160 MILES PER HOUR. THAT INFORMATION WAS FURNISHED AT PAGE 12 OF THE BIDDING FORM WHERE EACH BIDDER WAS REQUIRED TO STATE TYPE OF FIXED-WING AIRCRAFT TO BE FURNISHED, WITH SPACES HAVING BEEN PROVIDED TO SHOW "MAKE, PAYLOAD CAPACITY" AND "AVERAGE CRUISING SPEED" FOR EACH LISTED AIRCRAFT.

MR. HOCK DOES NOT QUESTION THE BID EVALUATIONS BUT CONTENDS THAT THE BID OF WILBURS FLIGHT OPERATIONS SHOULD HAVE BEEN REJECTED AS NON RESPONSIVE BECAUSE THE MAULE AIRCRAFT APPARENTLY HAD NEVER BEEN TYPE CERTIFIED FOR USE WITH PONTOONS. IF THE BID OF WILBURS FLIGHT OPERATIONS HAD BEEN REJECTED, THE "ALL OR NONE" BID OF ANCHORAGE HELICOPTER SERVICE, INCORPORATED, APPARENTLY WOULD HAVE BEEN IN LINE FOR ACCEPTANCE AS OFFERING THE LOWEST TOTAL PRICE ON THE ITEMS OF SERVICE SELECTED FOR AWARD. MR. HOCK ALSO INDICATED THAT SOME OF THE SUCCESSFUL BIDDERS WERE NOT COMPLYING WITH THE PROVISIONS OF SECTION 10 OF THE INVITATION FOR BIDS WHICH REQUIRE ALL AIRCRAFT TO BE EQUIPPED WITH APPROVED SEATBELTS, LIFE PRESERVERS AND OTHER EMERGENCY OR SAFETY EQUIPMENT; AND THAT AN APPROVED CRASH SHOULDER HARNESS FOR THE FRONT-SEAT PASSENGER BE AVAILABLE FOR USE ,WHEN REQUIRED BY TYPE OF FLIGHT.'

INVESTIGATION BY THE FEDERAL AVIATION AGENCY AFTER THE CONTRACTS WERE AWARDED DISCLOSED THAT THE MAULE AIRCRAFT HAD NOT BEEN TYPE CERTIFIED FOR USE WITH PONTOONS. HOWEVER, MR. WILBUR REPORTEDLY STATED THAT THE MANUFACTURER HAS BEEN IN THE PROCESS OF CONDUCTING THE NECESSARY FLIGHT TESTS FOR APPROVAL OF THE USE OF PONTOONS WITH SUCH AIRCRAFT; THAT HE HAS TWO MAULE FLOAT AIRCRAFT ON ORDER; AND THAT, UNTIL RECEIPT OF THOSE PLANES, HE WOULD BE ABLE TO PROVIDE A COMPARABLE FLOAT AIRCRAFT SHOULD THE NEED ARISE. THE INVESTIGATION OTHERWISE DISCLOSED THAT SOME OF THE FIVE CONTRACTORS HAVE FAILED TO INSTALL OR HAVE ON HAND ONE OR MORE OF THE REQUIRED ITEMS OF SAFETY AND EMERGENCY EQUIPMENT LISTED IN SECTION 10 OF THE INVITATION FOR BIDS. THE FEDERAL AVIATION AGENCY HAS TAKEN WHAT APPEARS TO BE APPROPRIATE ACTION TO OBTAIN COMPLIANCE WITH THE PARTICULAR REQUIREMENTS.

THE CONTRACTING OFFICER HAS TAKEN EXCEPTION TO THE STATEMENT MADE IN MR. HOCK'S LETTER OF APRIL 1, 1965, THAT IT IS QUITE OBVIOUS THAT EACH REQUIREMENT OF THE INVITATION FOR BIDS "CALLS FOR A SPECIFIC STATEMENT AS TO QUALITY, QUANTITY, EQUIPMENT, EXPERIENCE AND SO ON AND IS NOT SET OUR IN GENERAL TERMS NOR IS A REPLY IN GENERAL TERMS REQUESTED.' THE CONTRACTING OFFICER STATES, AND THE RECORD SHOWS, THAT THE INVITATION DID NOT REQUIRE A BIDDER TO MAKE SPECIFIC STATEMENTS CONCERNING ITS EXPERIENCE OR CONCERNING THE QUALITY OR QUANTITY OF AIRCRAFT WHICH WOULD BE USED IN THE PERFORMANCE OF THE REQUIRED FLYING SERVICES. ALSO, THE CONTRACTING OFFICER HAS INDICATED THAT THE REQUIREMENT FOR THE LISTING OF THE MAKE, PAYLOAD CAPACITY AND AVERAGE CRUISING SPEED OF THE FIXED-WING AIRCRAFT WAS DESIGNED PRIMARILY FOR GENERAL INFORMATION PURPOSES AS OPPOSED TO ANY SUPPOSITION THAT SUCH LIMITED DESCRIPTIONS WERE TO BE CONSIDERED AS A FACTOR IN THE MAKING OF THE CONTRACT AWARDS. HIS REPORT IN THE MATTER REFERS TO THE PROVISION IN THE INVITATION THAT "AWARD WILL BE MADE ON THE LOWEST COST TO THE GOVERNMENT, BY INDIVIDUAL H.P., OR THE LOWEST TOTAL COST OF THE COMBINED H.P. PER SITE; " AND TO THE STATEMENT CONTAINED IN SECTION 4 OF THE INVITATION THAT "IN THE EVENT THE CONTRACTOR DOES NOT HAVE A PLANE AVAILABLE WHEN A REQUEST IS RECEIVED FOR SERVICE, IT WILL BE HIS RESPONSIBILITY TO SECURE AN ADEQUATE REPLACEMENT PLANE TO MEET THE FEDERAL AVIATION AGENCY'S NEEDS, AT NO ADDITIONAL COST TO THE GOVERNMENT.'

IT IS THE CONTRACTING OFFICER'S POSITION THAT WILBURS FLIGHT OPERATIONS DID NOT QUALIFY ITS BID WHEN IT LISTED A TYPE OF AIRCRAFT WHICH MAY NOT BE ABLE TO BE USED WITH PONTOONS, AND THAT THE FIRM IS OBLIGATED BY THE TERMS OF ITS ACCEPTED BID TO COMPLY FULLY WITH THE REQUIREMENTS OF THE INVITATION REGARDLESS OF WHETHER THE MAULE AIRCRAFT COULD BE USED WITH ALL OF THE THREE SPECIFIED TYPES OF LANDING GEAR. IN THAT CONNECTION, IT IS STATED IN THE CONTRACTING OFFICER'S REPORT THAT, ON THE BASIS OF THE CITED REQUIREMENT OF SECTION 4 OF THE INVITATION FOR BIDS,"IT IS THE RESPONSIBILITY OF WILBURS FLIGHT OPERATIONS TO OBTAIN BY RENTING, PURCHASE, OR OTHERWISE, AN AIRCRAFT THAT IS TYPE CERTIFIED FOR PONTOONS WHEN ORDERED BY THE FAA IN ORDER TO MEET THEIR EDS.'

IT APPEARS THAT THE CONTRACTING OFFICER'S CONCLUSION RESPECTING THE OBLIGATIONS ASSUMED BY WILBURS FLIGHT OPERATIONS IN THE MATTER IS CORRECT, SINCE THERE IS NOTHING ON THE FACE OF THAT FIRM'S BID TO INDICATE THAT IT WAS NOT PROPOSED TO MEET ALL OF THE REQUIREMENTS OF THE INVITATION, AND THE RECORD INDICATES THAT THE CONTRACTING OFFICER WAS UNAWARE OF THE FACT THAT THE MAULE AIRCRAFT WAS NOT TYPE CERTIFIED FOR USE WITH PONTOONS BEFORE AWARD OF THE CONTRACT TO WILBURS FLIGHT OPERATIONS. SEE, GENERALLY, 41 COMP. GEN. 620. EVEN IF THE CONTRACTING OFFICER HAD KNOWN THAT THE MAULE AIRCRAFT OWNED BY THE BIDDER COULD NOT BE USED WITH PONTOONS, THERE WOULD NEVERTHELESS HAVE REMAINED A SUBSTANTIAL QUESTION AS TO WHETHER THE BID WAS SUBJECT TO REJECTION AS NONRESPONSIVE, INASMUCH AS IT APPEARS THAT MOST OF THE REQUIRED FLIGHTS WOULD HAVE CALLED FOR THE USE OF PLANES EQUIPPED WITH EITHER WHEELS OR SKIS AND THAT THE BIDDER MIGHT WELL HAVE CONSIDERED THAT IT WOULD NOT BE DIFFICULT TO ACQUIRE A PLANE EQUIPPED WITH PONTOONS WITHIN SUFFICIENT TIME TO COMPLY WITH ANY FLIGHT REQUEST PROVIDING FOR THE USE OF A PLANE EQUIPPED WITH PONTOONS.

IN THE CIRCUMSTANCES, AND SINCE IT APPEARS THAT THE CONTRACT AWARDS UNDER INVITATION NO. AL43-5-49 WERE MADE IN GOOD FAITH, YOUR PROTEST IS DENIED.