B-162766, JAN. 29, 1968

B-162766, JAN. 29, 1968

BIDDERS - RESPONSIBILITY - PERFORMANCE CAPABILITY DECISION DENYING PROTEST OF AIRWAYS CHARTER AGAINST AWARD OF EMERGENCY SERVICE CONTRACT FOR TRANSPORTATION OF MAIL TO PRIORITY AIR TRANSPORT BY P.O. DEPT. WHERE P.O. REPORT INDICATES THAT AIR TAXI CONTRACT WAS AWARDED TO AIR CARRIER HAVING CAPACITY TO PERFORM AND THERE IS AUTHORITY UNDER 49 U.S.C. 1375 (H) FOR AWARD OF EMERGENCY SERVICE CONTRACTS WITHOUT ADVERTISING, NO OBJECTION TO AWARD MAY BE MADE. ALSO P.O. IS IN PROCESS OF DRAFTING REGULATIONS CONCERNING USE OF AIR TAXIS.

TO MR. WILLIAM A. JENNINGS:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 18 AND NOVEMBER 20, 1967, PROTESTING, ON BEHALF OF AIRWAYS CHARTER, THAT AIR TAXI OPERATORS WHO DID NOT MEET REQUEST FOR PROPOSALS REQUIREMENTS FOR THE TRANSPORTATION OF MAIL ARE BEING SELECTED BY THE POST OFFICE DEPARTMENT TO SERVICE CERTAIN ROUTES IN CALIFORNIA.

AS A PRIME EXAMPLE, YOU CITE THE CASE OF PRIORITY AIR TRANSPORT SYSTEM, WHICH CARRIER YOU CONTEND DID NOT MEET THE REQUEST FOR PROPOSAL SPECIFICATIONS IN SEVERAL RESPECTS. YOU FURTHER PROTEST THE AWARDS OF EMERGENCY SERVICE CONTRACTS FOR THE SAME SERVICE WITHOUT PUBLIC SOLICITATION.

THE POST OFFICE DEPARTMENT HAS ADVISED THAT PRIORITY AIR TRANSPORT WAS AWARDED AN EMERGENCY MAIL SERVICE CONTRACT ON THE BASIS THAT IT WAS READY, WILLING AND ABLE TO PROVIDE THE EMERGENCY SERVICE AT ECONOMICAL RATES. THE EMERGENCY MAIL SERVICE CONTRACT IS A STOP-GAP MEASURE UNTIL THE CIVIL AERONAUTICS BOARD UNDER PART 298 REGULATIONS (14 CFR 298) AUTHORIZES AN AIR TAXI OPERATOR TO TRANSPORT THE MAIL OVER THE ROUTE INVOLVED. THE POST OFFICE HAS ADVISED THAT PRIORITY AIR TRANSPORT SUBMITTED THE LOWEST RATE UNDER THE REQUEST FOR PROPOSALS AND HAS BEEN SELECTED BY THE DEPARTMENT TO PROVIDE SERVICE OVER THE ROUTE INVOLVED, AND THAT UNDER PART 298 PROCEDURES THE CIVIL AERONAUTICS BOARD WILL DETERMINE WHETHER PRIORITY AIR TRANSPORT SHOULD BE AUTHORIZED TO TRANSPORT MAIL AND WHAT THE RATE SHALL BE FOR THE CARRIAGE OF MAIL.

YOU HAVE ALLEGED THAT PRIORITY AIR TRANSPORT DID NOT MEET THE REQUEST FOR PROPOSALS SPECIFICATION REQUIREMENTS IN THE FOLLOWING RESPECTS:

1. IT DID NOT HAVE AN AIR TAXI OPERATORS CERTIFICATE FOR 6 MONTHS.

2. IT DID NOT MEET FEDERAL AVIATION ADMINISTRATION (FAA) REQUIREMENTS IN THAT IT LISTS TWO AIRCRAFT, ONE OF WHICH IS MORE SOPHISTICATED THAN THE ONE FOR WHICH THE PILOT HAS BEEN GRANTED A CERTIFICATE OF COMPETENCY BY THE FAA.

3. THE AIRCRAFTS IT LISTED DO NOT HAVE A CARGO CAPACITY OF 200 CUBIC FEET AND 2,000 POUNDS.

4. THE AIRCRAFTS DO NOT HAVE ADEQUATE DEICING EQUIPMENT.

5. IT DOES NOT HAVE ADEQUATE BACKUP AIRCRAFT AND PILOTS.

HOWEVER, THE POST OFFICE DEPARTMENT HAS ADVISED AS FOLLOWS:

1. A NOTICE STAPLED TO THE FRONT OF THE REQUEST FOR PROPOSALS AUTHORIZED AN EXPERIENCE RESUME TO BE FURNISHED BY FIRMS WHICH DID NOT HAVE AN AIR TAXI CERTIFICATE FOR 6 MONTHS AND PRIORITY AIR TRANSPORT FURNISHED THE RESUME.

2. IT HAS NO BASIS FOR ACCEPTING THE ALLEGATION THAT THE PRIORITY AIR TRANSPORT PILOT IS NOT TYPE-RATED FOR THE AIRCRAFT IN WHICH THE MAIL IS TO BE TRANSPORTED.

3. THE FEDERAL AVIATION AUTHORITY ADVISED POSTAL OFFICIALS THAT THE AIRCRAFT OFFERED BY PRIORITY AIR TRANSPORT FOR THE TRANSPORTATION OF MAIL WOULD PROVIDE THE REQUIRED CAPACITIES.

4. THE AIRCRAFT TO BE UTILIZED IS EQUIPPED WITH WING BOOTS AND PROPELLER DEICING EQUIPMENT.

5. A TAXI OPERATOR IS NOT REQUIRED TO OWN BACKUP EQUIPMENT NOR TO HAVE BACKUP PILOTS ON THE PERMANENT PAYROLL AND ONLY IS REQUIRED TO HAVE AN ARRANGEMENT WHICH WILL ENABLE HIM TO HAVE THEM IF NECESSARY.

WITH REGARD TO YOUR PROTEST OF AWARDS OF EMERGENCY SERVICE CONTRACTS WITHOUT PUBLIC SOLICITATIONS, 49 U.S.C. 1375 (H) AUTHORIZES THE POSTMASTER GENERAL TO CONTRACT "WITHOUT ADVERTISING" FOR THE EMERGENCY TRANSPORTATION OF MAIL BY AIRCRAFT.

FURTHER, THE POST OFFICE HAS ADVISED THAT THE USE OF AIR TAXIS FOR THE CARRIAGE OF MAIL IS A RECENT INNOVATION AND FINAL PROCEDURES, INCLUDING DETAILED POSTAL REGULATIONS SPECIFICALLY RELATED TO THE TRANSPORTATION OF MAIL BY AIR TAXI, ARE BEING DRAFTED BY THE POST OFFICE DEPARTMENT AND WILL BE PUBLISHED UPON COMPLETION.