B-170849, JAN 29, 1971

B-170849, JAN 29, 1971

BID PROTEST - PROPRIETY OF TREATMENT DENIAL OF PROTEST BY CLARK'S AERIAL SERVICE, INC., AGAINST AWARD OF CONTRACTS FOR AERIAL APPLICATION OF INSECTICIDE ISSUED BY THE DEPARTMENT OF AGRICULTURE RESEARCH SERVICE TO OTHER FIRMS. CONSIDERING PROTESTANT'S THREE COMPLAINTS SEPARATELY; FIRST - NO DELAYS WERE ALLOWED THE CHARLOTTE AIRCRAFT COMPANY, RATHER THEY WERE DECLARED IN DEFAULT 11 DAYS AFTER REPORTING DATE, AND THE CONTRACT WAS SUBSEQUENTLY AWARDED TO PROTESTANT; SECOND - THE DELAYED STARTING DATE ON A CONTRACT WITH CHARLOTTE AIRCRAFT CO., WAS DUE TO DIFFICULTY EXPERIENCED BY THE GUIDANCE SYSTEM CONTRACTOR AND NO SPECIAL FAVORS WERE GRANTED THE AIRLINE COMPANY; THIRD - THE DELAYED STARTING DATE ON A CONTRACT WITH CHRISTLER FLYING SERVICE, LOW BIDDER, WAS DUE TO DIFFICULTIES EXPERIENCED BY THE GUIDANCE SYSTEM COMPANY IN OBTAINING A PROPER GUIDANCE SIGNAL, AND THERE WAS NO FAULT ON THE PART OF CHRISTLER. FURTHER, THE AMENDMENT TO THE SOLICITATION WAS REQUIRED BECAUSE OF AN AMBIGUITY RESULTING FROM THE REQUIREMENT IN ONE SECTION THAT ALL TESTING BY FAA BE COMPLETED BEFORE STARTING DATE AND THE DIRECTION ELSEWHERE IN THE SOLICITATION THAT THE GOVERNMENT REPRESENTATIVE REJECT AIRCRAFT THAT HAS NOT COMPLETED SUCH TESTS PRIOR TO THE REPORTING DATE. THE CHANGE INURED TO THE BENEFIT OF ALL PROSPECTIVE APPLICATORS AND THERE WERE NO IMPROPRIETIES ON THE PART OF THE CONTRACTING OFFICER. THE PROTEST IS THEREFORE DENIED.

TO CLARK'S AERIAL SERVICE, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 19, 1970, WITH ENCLOSURES, AND YOUR TELEFAX DATED SEPTEMBER 22, 1970, PROTESTING THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER INVITATION FOR BIDS NO. 34-R ARS -71, ISSUED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE RESEARCH SERVICE, MINNEAPOLIS, MINNESOTA. YOU ALSO PROTEST THE PROCEDURES EMPLOYED BY THE CONTRACTING OFFICER IN THE PROCUREMENT AND ADMINISTRATION OF CONTRACTS FOR AERIAL APPLICATION OF INSECTICIDE. YOU CONTEND THAT REPEATED DIGRESSIONS HAVE BEEN MADE FROM THE TERMS OF THE PROSPECTUSES WHICH PROSPECTIVE BIDDERS ASSUME WILL BE ADHERED TO. IN THIS CONNECTION, YOU ALSO REFER TO THE CONTRACT AWARDED UNDER INVITATION FOR BIDS NO. 52-R- ARS-71. THE CONTRACT RESULTING FROM INVITATION FOR BIDS NO. 34-R-ARS-71 WILL BE REFERRED TO AS THE "SHREVEPORT" CONTRACT AND THE CONTRACT RESULTING FROM INVITATION FOR BIDS NO. 52-R-ARS-71 WILL BE REFERRED TO AS THE "TUPELO" CONTRACT. THE SHREVEPORT CONTRACT WAS FOR SERVICES IN THE STATE OF MISSISSIPPI AND THE TUPELO CONTRACT FOR SERVICES IN LOUISIANA AND TEXAS. PARTICULAR OBJECTION IS MADE TO THE ALLEGED PRACTICE OF THE GOVERNMENT CONTRACTING OFFICERS IN PROVIDING EXTENSIONS OF TIME TO SUCCESSFUL LOW BIDDERS TO QUALIFY THEIR AIRPLANES NOTWITHSTANDING PROVISIONS IN THE PROSPECTUSES STATING THAT A GOVERNMENT REPRESENTATIVE WOULD REJECT ANY AIRCRAFT THAT HAD NOT COMPLETED CERTAIN TESTS, CONCERNING CAPABILITY OF PERFORMING THE SERVICES REQUIRED, PRIOR TO THE REPORTING DATE.

ONE INSTANCE IS CITED IN THE CASE OF THE SPRING CONTRACT AT SHREVEPORT. IT IS STATED THAT IN MAY, 1970, CHARLOTTE AVIATION WAS AWARDED A CONTRACT AND THE GOVERNMENT PERMITTED CHARLOTTE AVIATION IN EXCESS OF THREE WEEKS OF THE REPORTING DATE TO QUALIFY AND THAT IN SPITE OF THE TIME EXTENSION CHARLOTTE AVIATION WAS UNABLE TO QUALIFY. A SECOND COMPLAINT, IN THE CASE OF THE SHREVEPORT CONTRACT, IS THAT, ALTHOUGH THE REPORTING DATE WAS SEPTEMBER 8TH, THE DEPARTMENT OF AGRICULTURE ISSUED AN AMENDMENT DATED SEPTEMBER 9TH, TO THE PROSPECTUS TO THE EFFECT THAT QUALIFYING REQUIREMENTS WOULD HAVE TO BE MET PRIOR TO OFFICIAL STARTING DATE OF OPERATIONS (SEPTEMBER 14) RATHER THAN THE REPORTING DATE.

THE THIRD COMPLAINT CONCERNS THE TUPELO CONTRACT. IT IS STATED THAT THE CIRCUMSTANCES ARE SIMILAR TO THOSE OBTAINING IN THE SHREVEPORT CONTRACT. IT IS ALLEGED THAT SEVERAL DAYS AFTER BID OPENING, THE LOW BIDDER FINDING ITS OWN AIRPLANES UNPREPARED DECIDED TO USE THE AIRPLANES OF ANOTHER COMPANY; THAT THESE LATTER AIRPLANES HAD NOT BEEN FAA APPROVED FOR USE IN A CONGESTED AREA; THAT TESTS WERE CONDUCTED FOR THREE DAYS AFTER THE REPORTING DATE OF SEPTEMBER 8, 1970; THAT FAA TESTS FOR APPROVAL WERE CONDUCTED ON SEPTEMBER 12TH; THAT UNDER THE PROSPECTUS FAA APPROVAL WAS REQUIRED PRIOR TO THE REPORTING DATE.

THE THREE SPECIFIC COMPLAINTS WILL BE CONSIDERED SEPARATELY. THE SPRING 1970 CONTRACT

IT IS ADMINISTRATIVELY REPORTED AS FOLLOWS:

MR. CLARK " *** REFERS TO A CONTRACT AWARDED TO CHARLOTTE AIRCRAFT COMPANY AND ALSO STATES THAT WE ALLOWED THEM 3 WEEKS TO QUALIFY. THIS IS AN EXAGGERATION. OUR RESPONSE TO THIS IS:

1. THE FIRST AIRCRAFT WAS DUE IN SHREVEPORT MAY 17. IT ARRIVED ON TIME.

2. THE SECOND AIRCRAFT WAS DUE MAY 18; IT ARRIVED MAY 20.

3. SWATH CHECKS DETERMINED THE DISPERSAL APPARATUS UNACCEPTABLE.

4. CHARLOTTE AIRCRAFT COMPANY WAS DECLARED IN DEFAULT MAY 28, 11 DAYS AFTER THE REPORTING DATE.

MR. CLARK FAILED TO MENTION THAT THE CHARLOTTE AIRCRAFT COMPANY WAS DECLARED IN DEFAULT, THAT THE CONTRACT WAS THEN AWARDED TO CLARK'S AERIAL SERVICE, AND THAT IT THEN TOOK HIM MORE THAN 2 WEEKS TO GET INTO OPERATION EVEN THOUGH HE TOLD *** OTHERS THAT HE WAS PREPARED TO BEGIN IMMEDIATELY."

IT THUS APPEARS THAT THE RECORD DOES NOT SUPPORT YOUR CONTENTION THAT CHARLOTTE AVIATION WAS PERMITTED IN EXCESS OF THREE WEEKS TO QUALIFY OR THAT THE CONTRACTING OFFICER DID NOT ACT PROMPTLY UNDER THE CIRCUMSTANCES. THE SHREVEPORT CONTRACT

THE RECORD SHOWS THAT THE INVITATION FOR THIS CONTRACT WAS ISSUED ON AUGUST 14, 1970, AND WAS SENT TO 17 PROSPECTIVE BIDDERS. THE BIDS WERE OPENED ON THE EXTENDED BID OPENING DATE, SEPTEMBER 8, 1970, WITH THREE BIDS RECEIVED. BROWNFIELD AERO WAS THE APPARENT LOW BIDDER. UPON BEING ADVISED THAT BROWNFIELD AERO DID NOT HAVE THE NECESSARY AIRPLANES, A TELEPHONE CALL WAS MADE TO BROWNFIELD AERO ON SEPTEMBER 9, 1970, AND INQUIRY MADE WHETHER THEY ACTUALLY HAD THE AIRPLANES. MR. HICKS OF BROWNFIELD AERO REPLIED THAT HE THOUGHT HE HAD THE NECESSARY AIRPLANES BUT THAT A LIEN HAD BEEN PLACED AGAINST THEM AND THEY WERE NOT AVAILABLE. BROWNFIELD AERO WAS ALLOWED AN EXTRA DAY TO SEE IF IT COULD OBTAIN THE AIRPLANES. ON SEPTEMBER 10, 1970, BROWNFIELD AERO ADVISED THAT IT HAD NO AIRPLANES, WHEREUPON BROWNFIELD AERO WAS ADVISED THAT UNDER THE CIRCUMSTANCES ITS BID WOULD HAVE TO BE DECLARED "UNRESPONSIVE". WE MUST NOTE HERE THAT THE BID SHOULD NOT HAVE BEEN DECLARED "UNRESPONSIVE" BUT THAT IT SHOULD HAVE BEEN REJECTED ON THE BASIS OF NONRESPONSIBILITY OF THE PROPOSER.

THE CONTRACT WAS THEN AWARDED TO CHARLOTTE AIRCRAFT CORPORATION ON SEPTEMBER 11, 1970. THEY WERE REQUIRED TO REPORT SEPTEMBER 14, 1970, TO TUPELO, MISSISSIPPI, FOR INSTALLATION OF THE GUIDANCE SYSTEM AND FOR FEDERAL AVIATION ADMINISTRATION (FAA) INSPECTION PRIOR TO BEGINNING THE SPRAY WORK, SEPTEMBER 21, 1970, AT SHREVEPORT, LOUISIANA.

THE STARTING DATE WAS DELAYED TO SEPTEMBER 25, 1970, THROUGH NO FAULT OF THE CONTRACTOR BUT DUE TO A REQUEST FOR DELAY PRIMARILY FROM THE FAA AND ALSO FROM THE GUIDANCE SYSTEM CONTRACTOR. ALL PARTIES CONCERNED AGREED TO THE EXTENSION OF TIME. ALTHOUGH FAA INSPECTION WAS COMPLETED BY SEPTEMBER 25, 1970, THE GUIDANCE SYSTEM CONTRACTOR WAS EXPERIENCING DIFFICULTY IN MAKING THE ELECTRONIC SIGNAL SYSTEM WORK SATISFACTORILY. FULL SCALE SPRAYING OF INSECTICIDE BEGAN ON OCTOBER 2, 1970.

IT THUS APPEARS THAT THE AIRPLANES MET ALL REQUIREMENTS PRIOR TO THE STARTING DATES AND DELAYS IN STARTING WERE NOT OF THE CONTRACTOR'S MAKING.

WE FIND NO EVIDENCE OF ANY IMPROPRIETIES ON THE PART OF THE CONTRACTING OFFICER OR THAT SPECIAL FAVORS WERE GRANTED. THE TUPELO CONTRACT

THE SOLICITATION FOR THIS CONTRACT WAS ISSUED ON AUGUST 17, 1970, TO COVER AERIAL APPLICATION OF INSECTICIDE FOR FIRE ANT CONTROL OVER A CERTAIN AREA IN THE STATE OF MISSISSIPPI. FIVE BIDS WERE OPENED ON SEPTEMBER 3, 1970, AND CHRISTLER FLYING SERVICE WAS THE LOW BIDDER. WAS LEARNED THAT CHRISTLER'S OWN PLANES COULD NOT BE MADE READY FOR WORK ON THE CONTRACT IN TIME FOR THE STARTING DATE, BUT THAT CHRISTLER HAD ARRANGED TO LEASE APPROPRIATE AIRPLANES FROM ANOTHER COMPANY. ALTHOUGH THE ESTIMATED STARTING DATE IN THE SOLICITATION WAS ORIGINALLY SEPTEMBER 8, 1970, THE ACTUAL STARTING DATE WAS SET AT SEPTEMBER 14, 1970, BY AMENDMENT TO THE SOLICITATION WHICH WAS ACKNOWLEDGED BY EACH OF THE BIDDERS. CHRISTLER WAS NOTIFIED OF THE AWARD TO IT ON SEPTEMBER 4, 1970. THIS NOTICE INCLUDED INSTRUCTIONS TO REPORT BY MIDNIGHT, SEPTEMBER 8, 1970, AT THE TUPELO, MISSISSIPPI AIRPORT TO BE READY TO START AERIAL APPLICATION OF INSECTICIDE NOT LATER THAN SEPTEMBER 14, 1970. THE GUIDANCE SYSTEM EQUIPMENT INSTALLER WAS REQUIRED TO BE AT TUPELO AIRPORT AT THE SAME TIME TO BEGIN WORK INSTALLING THE ELECTRONIC GUIDANCE EQUIPMENT WHICH WAS TO BE USED FOR GUIDING THE AIRCRAFT IN THE APPLICATION WORK. THE PLANES WERE APPROVED BY FAA AND READY FOR APPLICATION WORK ON SEPTEMBER 12, 1970 (A SATURDAY). UNDER NORMAL CIRCUMSTANCES, NO APPLICATION WORK IS DONE ON SATURDAY OR SUNDAY AND THE AIRPLANES WERE HELD OVER FOR STARTING ON SEPTEMBER 14, 1970. HOWEVER, DUE TO DIFFICULTIES EXPERIENCED BY THE GUIDANCE SYSTEM INSTALLING COMPANY IN OBTAINING A PROPER GUIDANCE SIGNAL, THE APPLICATION OF THE INSECTICIDE WAS DELAYED. THIS DIFFICULTY ACTUALLY PREVENTED APPLICATION FROM SEPTEMBER 14, 1970, THROUGH SEPTEMBER 22, 1970. APPLICATION WORK STARTED SEPTEMBER 23, 1970.

HENCE, IT CAN BE SEEN THAT THERE WAS NO FAULT ON THE PART OF CHRISTLER AND NO EXTENSIONS GIVEN OR PARTIALITY SHOWN TO CHRISTLER.

CONCERNING THE CHANGE IN THE PROSPECTUS RELATIVE TO THE REPORTING AND STARTING DATES, THE CONTRACTING OFFICER STATES AS FOLLOWS:

"ON TUESDAY, AUGUST 25, 1970, AT A MEETING HELD IN ATLANTA, GEORGIA, AN AMBIGUITY IN PROSPECTUS 27-R-ARS (ON WHICH THIS CONTRACT IS BASED) WAS CALLED TO OUR ATTENTION. SECTION II, PAGE 11, PARAGRAPH C 1 A STATES, 'THE CONTRACTOR SHALL, PRIOR TO THE STARTING DATE, COMPLETE ALL FLIGHT TESTS REQUIRED BY FAA TO OPERATE HIS AIRCRAFT OVER CONGESTED AREAS'. PARAGRAPH C 1 B STATES, 'A GOVERNMENT REPRESENTATIVE WILL REJECT ANY AIRCRAFT THAT HAS NOT COMPLETED SUCH TESTS PRIOR TO THE REPORTING DATE'. IT IS OBVIOUS THAT 'REPORTING DATE' AND 'STARTING DATE' ARE NOT THE SAME. PARAGRAPH C 1 B WAS CORRECTED SEPTEMBER 9, 1970, BY ADDENDUM NO. 1 TO PROSPECTUS 27-R-ARS TO INDICATE THAT THE WORD 'REPORTING' SHOULD NOT HAVE BEEN USED AND WAS CORRECTED TO READ 'STARTING'. A SIMILAR CORRECTION WAS MADE TO LINE 4, PARAGRAPH G-2, PAGE 9. ACTUAL MAILING OF THIS ADDENDUM WAS MADE THE AFTERNOON OF SEPTEMBER 10, 1970, TO BETWEEN 275 AND 300 AERIAL APPLICATORS WHO HAD RECEIVED THE ORIGINAL PROSPECTUS. FAA TESTS MUST BE PASSED BEFORE THE APPLICATOR CAN START THE WORK. THE PURPOSE IN SPECIFYING A REPORTING DATE IS SOLELY TO PROVIDE TIME IN WHICH THE APPLICATOR CAN GET HIS PLANES READY, PASS ANY REQUIRED TESTS OR CHECKS IMPOSED BY ARS OR FAA AND START THE ACTUAL APPLICATION JOB BY THE SET STARTING DATE."

IT IS OUR OPINION THAT THIS CHANGE INURES TO THE BENEFIT OF ALL PROSPECTIVE APPLICATORS AND NOT TO ANY INDIVIDUAL COMPANY. THE CHANGE WAS OBVIOUSLY MADE AT THE REQUEST OF THE CONCERNED AIRPLANE OWNERS. IN THE PARTICULAR INSTANCE CITED, NO PARTIALITY WAS SHOWN TO CHARLOTTE AVIATION.

WE HAVE REVIEWED THE MATTER CAREFULLY AND CONCLUDE THAT NO IMPROPRIETIES OCCURRED ON THE PART OF THE CONTRACTING OFFICER.