B-171151, DEC. 16, 1970

B-171151: Dec 16, 1970

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WHERE LOW BIDDER DID NOT HAVE PROPER LICENSES TO PERFORM THE TRANSPORTATION PART OF THE CONTRACT BUT ENTERED AN AGENCY AGREEMENT WITH A FIRM THAT DID. EVEN THOUGH THE AGENCY AGREEMENT WAS CANCELLED AFTER THE AWARD. THE JUDGMENT OF THE CONTRACTING OFFICER WILL NOT BE QUESTIONED. TO MONTY SCHUMACHER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28. FIVE BIDS WERE RECEIVED AND OPENED AT THE APPOINTED TIME. ELECTRONIC WAS THE LOW BIDDER AT $12. 200 AND LANGLEY TRANSFER & STORAGE COMPANY WAS SECOND LOWEST AT $14. THE THREE OTHER BIDS WERE IN THE AMOUNTS OF $15. IT IS REPORTED THAT ALL BIDDERS WERE REPRESENTED AT THE BID OPENING. WANSLEY OF LANGLEY TRANSFER & STORAGE COMPANY ADVISED BY TELEPHONE THAT HE AND REPRESENTATIVES OF THE OTHER THREE BIDDERS WERE PROTESTING TO THE GEORGIA PUBLIC SERVICE COMMISSION CONCERNING THE QUALIFICATIONS AND PROPER CERTIFICATES OF THE LOW BIDDER (ELECTRONIC) TO PERFORM THE REQUIRED SERVICES.

B-171151, DEC. 16, 1970

BID PROTEST - BIDDER RESPONSIBILITY - CANCELLATION OF AGENCY AGREEMENT DENIAL OF PROTEST OF WANSLEY MOVING & STORAGE COMPANY AGAINST THE AWARD OF AN ADVERTISED CONTRACT FOR MOVING, TEMPORARY STORAGE AND HANDLING SERVICES FOR 42,000 CARTONS OF INCOME TAX PACKAGES BY THE IRS TO ELECTRONIC MOVING & STORAGE COMPANY, LOW BIDDER. WHERE LOW BIDDER DID NOT HAVE PROPER LICENSES TO PERFORM THE TRANSPORTATION PART OF THE CONTRACT BUT ENTERED AN AGENCY AGREEMENT WITH A FIRM THAT DID, SUCH AN ARRANGEMENT PROVIDES NO BASIS UPON WHICH TO QUESTION THE AWARD AS TO THE RESPONSIBILITY OF ELECTRONIC, AND, EVEN THOUGH THE AGENCY AGREEMENT WAS CANCELLED AFTER THE AWARD, IT APPARENTLY HAS NOT AFFECTED ELECTRONIC'S PERFORMANCE. THEREFORE, THE JUDGMENT OF THE CONTRACTING OFFICER WILL NOT BE QUESTIONED.

TO MONTY SCHUMACHER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 28, 1970, AND SUBSEQUENT CORRESPONDENCE, CONCERNING THE PROTEST BY WANSLEY MOVING & STORAGE COMPANY, AND/OR LANGLEY TRANSFER & STORAGE COMPANY, AGAINST THE CONTRACT AWARDED TO ELECTRONIC MOVING & STORAGE COMPANY (ELECTRONIC) BY INTERNAL REVENUE SERVICE, ATLANTA, GEORGIA, UNDER INVITATION FOR BIDS NO. SE-IFB-71-3.

THE INVITATION REQUESTED BIDS FOR MOVING, TEMPORARY STORAGE AND HANDLING SERVICES IN CONNECTION WITH APPROXIMATELY 42,000 CARTONS OF PRINTED MATTER (INCOME TAX PACKAGES) ORIGINATING IN THE INTERNAL REVENUE SERVICE, SOUTHEAST SERVICE CENTER, CHAMBLEE, GEORGIA. PARAGRAPH 2 OF THE SPECIAL TERMS AND CONDITIONS (PAGE 5) PROVIDED THAT THE CONTRACTOR SHOULD OBTAIN ALL LICENSES AND PERMITS NECESSARY TO PERFORM THE SERVICES REQUIRED, WITHOUT COST TO THE GOVERNMENT.

FIVE BIDS WERE RECEIVED AND OPENED AT THE APPOINTED TIME, 3:00 P.M., OCTOBER 12, 1970. ELECTRONIC WAS THE LOW BIDDER AT $12,200 AND LANGLEY TRANSFER & STORAGE COMPANY WAS SECOND LOWEST AT $14,350, LESS 1 PERCENT DISCOUNT FOR PAYMENT WITHIN TWENTY CALENDAR DAYS. THE THREE OTHER BIDS WERE IN THE AMOUNTS OF $15,875, $16,020 AND $21,000. IT IS REPORTED THAT ALL BIDDERS WERE REPRESENTED AT THE BID OPENING.

WITHIN ONE HOUR AFTER BID OPENING MR. R. N. WANSLEY OF LANGLEY TRANSFER & STORAGE COMPANY ADVISED BY TELEPHONE THAT HE AND REPRESENTATIVES OF THE OTHER THREE BIDDERS WERE PROTESTING TO THE GEORGIA PUBLIC SERVICE COMMISSION CONCERNING THE QUALIFICATIONS AND PROPER CERTIFICATES OF THE LOW BIDDER (ELECTRONIC) TO PERFORM THE REQUIRED SERVICES. THE CONTRACTING OFFICIALS INQUIRED OF MR. R. H. MEASE OF ELECTRONIC IF HE HAD THE PROPER LICENSES TO PERFORM THE CONTRACT IF IT WERE AWARDED TO HIM, AND HE ADVISED THAT HIS CERTIFICATES AND LICENSES WERE IN ORDER AND LEGAL TO PERFORM THE CONTRACT. IT WAS UNDERSTOOD THAT THE ACTUAL TRANSPORTATION PART OF THE WORK WOULD BE PERFORMED BY THE GEORGIA TRUCKING COMPANY.

ON OCTOBER 14,1970, A PRE-AWARD ON-SITE SURVEY WAS CONDUCTED, AND IT WAS DETERMINED THAT ELECTRONIC HAD HAD THE FINANCIAL RESOURCES, EXPERIENCE, TECHNICAL QUALIFICATIONS AND STORAGE FACILITIES TO PERFORM THE CONTRACT. ALSO, ON THAT DATE AGENCY OFFICIALS CONTACTED THE CHIEF LAW ENFORCEMENT OFFICER, GEORGIA PUBLIC SERVICE COMMISSION, FOR INFORMATION WHETHER ELECTRONIC HAD THE NECESSARY CERTIFICATES TO PERFORM THE CONTRACT. THEY WERE ADVISED THAT ELECTRONIC HAD A CLASS E CERTIFICATE TO HAUL XEROX MACHINES AND PARTS WHICH WOULD NOT COVER THE SERVICE REQUIRED UNDER THE INSTANT CONTRACT, BUT THAT THE GEORGIA TRUCKING COMPANY HAD THE NECESSARY CERTIFICATES AND LICENSES TO PERFORM THE SERVICES AND ELECTRONIC WOULD BE ABLE TO PERFORM THE SERVICES UNDER A SUBCONTRACT OR OTHER AGREEMENT WITH THE GEORGIA TRUCKING COMPANY.

BASED ON THE ABOVE FACTS, THE CONTRACTING OFFICER DETERMINED THAT ELECTRONIC WAS A RESPONSIBLE POTENTIAL CONTRACTOR WITHIN THE MEANING OF SECTION 1-1.310 OF THE FEDERAL PROCUREMENT REGULATIONS AND, THEREFORE, AN AWARD WAS MADE TO ELECTRONIC ON OCTOBER 15, 1970.

IN LETTER DATED OCTOBER 21, 1970, TO THE CONTRACTING OFFICER, MR. R. N. WANSLEY STATED THAT ELECTRONIC WAS NOT A CERTIFICATED MOVER AND WAS NOT QUALIFIED TO PERFORM THE WORK. THERE WAS ENCLOSED WITH SUCH LETTER A COPY OF LETTER DATED OCTOBER 20, 1970, FROM THE CHIEF LAW ENFORCEMENT OFFICER, TRANSPORTATION DIVISION, GEORGIA PUBLIC SERVICE COMMISSION, TO MR. R. N. WANSLEY, ADVISING THAT ELECTRONIC'S CLASS "E" CERTIFICATE NO. 4151 DOES NOT AUTHORIZE TRANSPORTATION OF THE COMMODITIES COVERED BY THE CONTRACT HERE-INVOLVED, BUT THAT ELECTRONIC "IS AN AUTHORIZED AGENT OF GEORGIA TRUCKING COMPANY AND, IN MY OPINION, WOULD BE PERMITTED TO PERFORM THIS SERVICE IN THE NAME OF GEORGIA TRUCKING COMPANY IF THE BID WAS MADE AND THE CONTRACT AWARDED IN THAT NAME."

ON OCTOBER 26, 1970, YOU, AS ATTORNEY FOR GEORGIA TRUCKING COMPANY, SENT A LETTER TO THE CHAIRMAN, GEORGIA PUBLIC SERVICE COMMISSION, ENCLOSING FORM AG-3, "NOTICE TO GEORGIA PUBLIC SERVICE COMMISSION OF TERMINATION OF AGENCY (10 DAY NOTICE)", TERMINATING THE AGENCY AGREEMENT BETWEEN GEORGIA TRUCKING COMPANY AND ELECTRONIC. IT WAS REQUESTED THAT THE TEN-DAY NOTICE REQUIREMENT BE WAIVED AND THAT THE CANCELLATION BE OFFICIALLY SHOWN AS OCTOBER 26, 1970. BY LETTER OF THE SAME DATE NOTICE OF THE CANCELLATION WAS GIVEN TO, AMONG OTHERS, THE INTERNAL REVENUE SERVICE, ATLANTA, GEORGIA. UPON RECEIPT OF THE NOTICE OF CANCELLATION, THE CONTRACTING OFFICER CONTACTED MR. MEASE OF ELECTRONIC AND ASKED WHETHER SUCH CANCELLATION WOULD AFFECT THE PERFORMANCE OF HIS CONTRACT. MR. MEASE ASSURED THE CONTRACTING OFFICER THAT GEORGIA TRUCKING COMPANY'S CANCELLATION OF THE AGENCY AGREEMENT WOULD NOT AFFECT HIS PERFORMANCE AND GILDER TRUCKING COMPANY WAS NAMED AS THE TENTATIVE SUBCONTRACTOR FOR THE TRANSPORTATION PART OF THE CONTRACT.

IN YOUR LETTER OF OCTOBER 28, 1970, TO THIS OFFICE, YOU CONTEND THAT ELECTRONIC, AS A CONTRACT CARRIER, DOES NOT HAVE APPROPRIATE AUTHORITY IN ITS OWN NAME TO PROVIDE THE TRANSPORTATION SERVICE REQUIRED UNDER THE CONTRACT AND THAT, PARTICULARLY IN VIEW OF THE CANCELLATION OF THE AGENCY AGREEMENT BETWEEN ELECTRONIC AND GEORGIA TRUCKING COMPANY, ELECTRONIC IS NOT IN A POSITION TO PERFORM THE CONTRACT. YOU, THEREFORE, URGE THAT THE AWARD MADE TO ELECTRONIC BE RESCINDED AND THAT THE BID OF WANSLEY MOVING & STORAGE COMPANY BE EVALUATED UPON THE BASIS THAT THE INITIAL LOW BIDDER (ELECTRONIC) IS UNQUALIFIED AND NOT IN A POSITION TO PERFORM THE WORK.

UNDER THE TERMS OF THE INVITATION FOR BIDS IT WAS THE OBLIGATION OF THE BIDDER TO OBTAIN ALL LICENSES AND PERMITS NECESSARY TO PERFORM THE SERVICES REQUIRED UNDER THE CONTRACT, WITHOUT COST TO THE GOVERNMENT. PRIOR TO THE AWARD OF THE CONTRACT ON OCTOBER 15, 1970, THE CONTRACTING OFFICER DETERMINED THAT ELECTRONIC WAS RESPONSIBLE AND THE FIRM INSISTED THAT IT WAS CAPABLE OF PERFORMING THE REQUIRED WORK, INCLUDING THE TRANSPORTATION PORTION THEREOF. UNDER SUCH CIRCUMSTANCES, THERE IS NO BASIS UPON WHICH WE COULD QUESTION THE AWARD.

WE DO NOT KNOW THE EFFECT OF THE CANCELLATION OF THE AGENCY AGREEMENT BY GEORGIA TRUCKING COMPANY AFTER THE AWARD OF THE CONTRACT, BUT IT APPARENTLY HAS NOT AFFECTED ELECTRONIC'S PERFORMANCE UNDER THE CONTRACT. THE DECISIONS OF THIS OFFICE HAVE CONSISTENTLY APPLIED THE RULE THAT THE COMPLIANCE BY BIDDERS ON GOVERNMENT CONTRACTS WITH THE PROVISIONS OF STATE OR LOCAL STATUTES AND 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 (1956); 35 ID. 411 (1956). ALSO SEE UNITED STATES V GEORGIA PUBLIC SERVICE COMMISSION, 371 U.S. 285 (1963).

ACCORDINGLY, THE PROTEST IS DENIED.