B-165274, MAY 8, 1969

B-165274, MAY 8, 1969

TO WAGNER MOVING AND STORAGE:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF SEPTEMBER 17, 1968, AND LETTER OF NOVEMBER 26, 1968, PROTESTING AGAINST THE AWARD OF A CONTRACT TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. GS-09T 287.

THE IFB IN QUESTION, WHICH WAS ISSUED ON AUGUST 22, 1968, CALLS FOR THE MOVEMENT OF OFFICE RECORDS, SUPPLIES, FURNITURE, AND LABORATORY EQUIPMENT OF A NUMBER OF FEDERAL AGENCIES FROM VARIOUS LOCATIONS IN SACRAMENTO, CALIFORNIA, TO A NEW FEDERAL BUILDING LOCATED AT 2800 COTTAGE WAY IN THAT CITY.

AMENDMENT NO. 2 TO THE IFB PROVIDES, IN PART, THAT:

"THE CONTRACTOR MUST BE PREPARED AND EQUIPPED TO RENDER THE SERVICES DESCRIBED HEREIN. THE TERM OF THE CONTRACT IS FOR TWENTY EIGHT (28) DAYS BEGINNING SEPTEMBER 23, 1968, AND ENDING OCTOBER 20, 1968. THE CALENDAR DATES HERETOFORE MENTIONED ARE ONLY TENTATIVE AND THE GOVERNMENT RESERVES THE RIGHT TO CHANGE THE CALENDAR PERIOD. * * *"

CLAUSES 9 AND 13 OF THE IFB PROVIDE, RESPECTIVELY, AS FOLLOWS:

"THE CONTRACTOR, AT HIS OWN EXPENSE, WILL OBTAIN AND MAINTAIN THE NECESSARY PERMITS, FRANCHISES, LICENSES OR OTHER AUTHORITIES REQUIRED FOR LAWFULLY EFFECTING THE MOVEMENTS, HANDLING, AND OTHER SERVICES TO BE PERFORMED UNDER THIS CONTRACT.

"IN THE PERFORMANCE OF THE CONTRACT, THE CONTRACTOR SHALL COMPLY WITH AND GIVE ALL STIPULATIONS AND REPRESENTATIONS REQUIRED BY ANY APPLICABLE FEDERAL, STATE, MUNICIPAL OR LOCAL LAW OR EXECUTIVE ORDER, OR ANY APPLICABLE RULES, ORDERS, REGULATIONS, OR REQUIREMENTS OF ANY GOVERNMENT DEPARTMENT OR BUREAU, BUT NOTHING HEREIN CONTAINED SHALL BE CONSIDERED AS PREVENTING THE CONTRACTOR FROM CONTESTING IN GOOD FAITH THE VALIDITY OF SUCH LAW, RULE, ORDER, REGULATIONS, OR REQUIREMENTS OR ANY CHARGE THAT THE CONTRACTOR HAS NOT COMPLIED THEREWITH.'

BIDS WERE OPENED AT 3:00 P.M. ON SEPTEMBER 12, 1968. WAGNER MOVING AND STORAGE WAS THE LOW BIDDER AT A PRICE OF $69,990. THE SECOND LOW BIDDER WAS BEKINS VAN AND STORAGE COMPANY AT A PRICE OF $69,995. THE CONTRACTING OFFICER CONSTRUED CLAUSES 9 AND 13 OF THE IFB AS REQUIRING THAT THE SUCCESSFUL BIDDER HAVE AUTHORITY FROM THE CALIFORNIA PUBLIC UTILITIES COMMISSION TO OPERATE AS A HOUSEHOLD GOODS CARRIER. ALSO, HE WAS OF THE VIEW THAT INSUFFICIENT TIME REMAINED FOR YOU TO SECURE THAT AUTHORITY PRIOR TO SEPTEMBER 23, 1968, THE SCHEDULED DATE FOR THE COMMENCEMENT OF THE WORK. HE THEREFORE INFORMED YOU BY LETTER DATED SEPTEMBER 17, 1968, THAT YOUR BID HAD BEEN REJECTED, AND ON THE SAME DATE MADE AWARD TO THE SECOND LOW BIDDER. THE CONTRACT HAS BEEN FULLY PERFORMED.

YOU ARGUE THAT YOU SHOULD HAVE BEEN AWARDED THE CONTRACT AND THAT IF THE CONTRACT HAD BEEN AWARDED TO YOU, INJUNCTIVE RELIEF WOULD HAVE BEEN SOUGHT AND PROBABLY OBTAINED AGAINST THE STATE OF CALIFORNIA IN A UNITED STATES DISTRICT COURT ON THE BASIS THAT THE STATE COULD NOT HAMPER THE MOVEMENT OF FEDERAL PROPERTY. YOU ALSO STATE THAT IN THE ALTERNATIVE, YOU WOULD HAVE PERFORMED THE CONTRACT BY HIRING VEHICLES BELONGING TO AUTHORIZED CALIFORNIA PUBLIC UTILITY COMMISSION CARRIERS. THE GENERAL COUNSEL OF THE GENERAL SERVICES ADMINISTRATION (GSA), CITING OUR DECISION B-125577, OCTOBER 11, 1955, CONCEDES THAT THE CONTRACTING OFFICER ERRED IN HIS INTERPRETATION OF THE RELEVANT IFB CLAUSES, BUT STATES THAT UNDER THE CIRCUMSTANCES THERE WAS NOT ENOUGH TIME FOR YOU TO HAVE SECURED JUDICIAL RELIEF OR TO HAVE MADE THE NECESSARY SUBCONTRACTS TO PERFORM THE WORK ON SCHEDULE, MAINTENANCE OF WHICH WAS ESSENTIAL BECAUSE OF THE NECESSITY OF CLOSE COORDINATION WITH THE WORK OF NUMEROUS OFFICES.

IT IS WELL ESTABLISHED THAT STATE AND LOCAL REQUIREMENTS MAY NOT BE REGARDED AS CONTROLLING THE ELIGIBILITY OF BIDDERS TO OBTAIN GOVERNMENT CONTRACTS. ANY ACTION ON THE PART OF A STATE PREVENTING COMPETITIVE BIDDING ON GOVERNMENT CONTRACTS (PAUL V UNITED STATES, 371 U.S. 245), OR PREVENTING A CONTRACTOR FROM CARRYING OUT GOVERNMENT WORK WOULD BE IN DEROGATION OF THE GOVERNMENT'S RIGHT TO SELECT CONTRACTORS OF ITS OWN CHOOSING AND UNDOUBTEDLY WOULD TEND TO DISCOURAGE BIDDING AND RESTRICT THE FREE AND OPEN COMPETITION TO WHICH THE GOVERNMENT IS ENTITLED AND WHICH UNDER THE FEDERAL STATUTES IS REQUIRED IN CONNECTION WITH THE AWARD OF CONTRACTS FOR SUPPLIES AND SERVICES. SEE UNITED STATES V GEORGIA PUBLIC SERVICE COMMISSION, 371 U.S. 285; 19 COMP. GEN. 735 AND THE COURT CASES CITED THEREIN, HOLDING THAT THE POLICE AND TAXING POWERS OF A STATE MAY NOT RIGHTFULLY BE SO EXERCISED AS TO IMPEDE, OBSTRUCT, BURDEN, OR INTERFERE WITH THE EXECUTION OF FEDERAL POWERS. FURTHERMORE, OUR DECISIONS HAVE BEEN CONSISTENT IN APPLYING THE RULE THAT THE COMPLIANCE BY BIDDERS ON GOVERNMENT CONTRACTS WITH THE PROVISIONS OF STATE AND LOCAL STATUTES OR REGULATIONS IS A MATTER BETWEEN THE BIDDERS AND THE LOCAL AUTHORITIES AND NOT ONE TO BE RESOLVED OR REQUIRED AS A PREREQUISITE TO THE CONSIDERATION OF BIDS. 36 COMP. GEN. 218; 35 ID. 411; 19 ID. 735; 16 ID. 97; 15 ID. 425.

ACCORDINGLY, WE CONCLUDE THAT GSA ACTED IMPROPERLY IN REJECTING YOUR LOW BID AND AWARDING THE CONTRACT TO THE NEXT LOW BIDDER. HOWEVER, INASMUCH AS YOU STATE THAT YOUR MAIN PURPOSE IN REQUESTING A DECISION IN THIS MATTER IS TO OBTAIN A PRECEDENT TO SERVE AS A GUIDE IN THE PROCUREMENT OF FUTURE SIMILAR SERVICES, AND THE RECORD SHOWS THAT THE CONTRACT UNDER STUDY HAS BEEN FULLY PERFORMED, NO ACTION APPEARS JUSTIFIED WITH RESPECT TO THE AWARD AT THIS TIME.

IN THIS CONNECTION, THE GENERAL COUNSEL OF GSA, RECOGNIZING THAT HIS AGENCY IMPROPERLY SCHEDULED THE DATE FOR STARTING WORK UNDER THE IFB, HAS MADE THE FOLLOWING STATEMENT:

"* * * IN AN EFFORT TO PREVENT ANY RECURRENCE OF A SITUATION SUCH AS THAT PRESENTED IN THIS CASE, GSA OFFICIALS HAVE BEEN INSTRUCTED TO ISSUE INVITATIONS FOR BIDS FOR TRANSPORTATION SERVICES, AND TO PROVIDE FOR THE OPENING OF SUCH BIDS, SUFFICIENTLY IN ADVANCE OF THE DESIRED DATE FOR COMMENCING PERFORMANCE UNDER ANY RESULTING CONTRACT SO THAT ANY LOW BIDDER WHO DOES NOT POSSESS OPERATING AUTHORITY WILL HAVE A REASONABLE TIME WITHIN WHICH TO BECOME LEGALLY CAPABLE OF PERFORMING THE REQUIRED SERVICES.'