B-171534, JUL 20, 1971

B-171534: Jul 20, 1971

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WHILE THERE IS CERTAIN MERIT IN THE CONTENTION THAT THE LANGUAGE OF THE IFB IMPLIED THAT THE CONTRACTOR MUST HAVE A PLANT FACILITY CONTAINING A RAIL SIDING. THAT THE DRIVING OF MILITARY AND PRIVATELY OWNED VEHICLES ON PUBLIC STREETS WAS NOT INDICATED THEREIN. THESE ARE MATTERS OF RESPONSIBILITY. THE CONTRACTING OFFICER'S DETERMINATION WILL NOT BE QUESTIONED IN THE ABSENCE OF EVIDENCE THAT IT WAS ARBITRARY. THE REASONS FOR YOUR PROTEST ARE OUTLINED IN YOUR LETTER TO THE COMMANDER. WHICH WAS ISSUED ON OCTOBER 20. THREE BIDS WERE RECEIVED BY THE DIRECTORATE OF PROCUREMENT ON NOVEMBER 5. YOU SAY THAT THE SIGNIFICANT PRICES INVOLVED IN YOUR PROTEST ARE THE UNIT PRICES BID ON THE PROCESSING OF AN ESTIMATED 3.

B-171534, JUL 20, 1971

BID PROTEST - BIDDER RESPONSIBILITY VERSUS BID RESPONSIVENESS DECISION DENYING PROTEST AGAINST THE AWARD OF A CONTRACT TO AUTO WAREHOUSE COMPANY UNDER AN IFB ISSUED BY MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE, OAKLAND ARMY BASE FOR THE RECEIVING, DELIVERY AND PROCESSING OF PRIVATELY OWNED VEHICLES AND MILITARY VEHICLES IN THE SEATTLE AREA. WHILE THERE IS CERTAIN MERIT IN THE CONTENTION THAT THE LANGUAGE OF THE IFB IMPLIED THAT THE CONTRACTOR MUST HAVE A PLANT FACILITY CONTAINING A RAIL SIDING, AND THAT THE DRIVING OF MILITARY AND PRIVATELY OWNED VEHICLES ON PUBLIC STREETS WAS NOT INDICATED THEREIN, THESE ARE MATTERS OF RESPONSIBILITY, NOT RESPONSIVENESS, AND, AS SUCH, THE CONTRACTING OFFICER'S DETERMINATION WILL NOT BE QUESTIONED IN THE ABSENCE OF EVIDENCE THAT IT WAS ARBITRARY, CAPRICIOUS, OR NOT BASED ON SUBSTANTIAL EVIDENCE.

TO TRANSPORT STORAGE & DISTRIBUTING CO.:

WE REFER TO YOUR LETTER OF DECEMBER 10, 1970, PROTESTING THE AWARD OF CONTRACT NO. DAHC23-71-D-0040 TO AUTO WAREHOUSE COMPANY (AUTO), UNDER INVITATION FOR BIDS NO. DAHC23-71-B-0017. THE REASONS FOR YOUR PROTEST ARE OUTLINED IN YOUR LETTER TO THE COMMANDER, MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE (MTMTS), WASHINGTON, D. C., A COPY OF WHICH YOU ENCLOSED WITH YOUR LETTER TO THIS OFFICE.

THE INVITATION, WHICH WAS ISSUED ON OCTOBER 20, 1970, BY THE DIRECTORATE OF PROCUREMENT, WESTERN AREA MTMTS, OAKLAND ARMY BASE, OAKLAND, CALIFORNIA, REQUESTED THE SUBMISSION OF BIDS TO COVER THE RECEIVING, DELIVERY, AND PROCESSING OF PRIVATELY OWNED VEHICLES AND MILITARY VEHICLES IN THE SEATTLE AREA FOR THE MILITARY TRAFFIC MANAGEMENT AND TERMINAL SERVICE TERMINAL UNIT, PACIFIC NORTHWEST. THREE BIDS WERE RECEIVED BY THE DIRECTORATE OF PROCUREMENT ON NOVEMBER 5, 1970. YOU SAY THAT THE SIGNIFICANT PRICES INVOLVED IN YOUR PROTEST ARE THE UNIT PRICES BID ON THE PROCESSING OF AN ESTIMATED 3,000 PRIVATELY OWNED VEHICLES UNDER ITEMS 5 AND 6. THESE BIDS ARE AS FOLLOWS:

ITEM 5 EXPORT ITEM 6 IMPORT

AUTO WAREHOUSE COMPANY $20.00 $20.00

TRANSPORT STORAGE & DISTRIBUTING CO. 49.03 49.03

INDUSTRIAL CRATING & PACKING CO. 50.60 47.60 THE GOVERNMENT'S ESTIMATE WAS $25.00 FOR ITEM 5 AND $22.00 FOR ITEM 6. BECAUSE OF THE PRICING VARIANCE BETWEEN AUTO'S LOW BID AND THE OTHER BIDS, THE CONTRACTING OFFICER ASKED FOR A CONFIRMATION BY AUTO OF ITS BID. AUTO PROVIDED SUCH CONFIRMATION BY ITS LETTER OF NOVEMBER 9, 1970.

UPON LEARNING OF THE PRICE VARIANCE IN THE BIDS, YOU CONCLUDED THAT AUTO WOULD BE UNABLE TO COMPLY WITH VARIOUS MATERIAL ASPECTS OF THE CONTRACT SPECIFICATIONS. YOU BASED THIS CONCLUSION UPON YOUR FAMILIARITY WITH THE OPERATIONS OF AUTO, SINCE YOU HAVE HAD PAST BUSINESS DEALINGS WITH AUTO. ACCORDINGLY, YOU EXPRESSED YOUR POSITION ON THIS MATTER TO THE DIRECTOR OF PROCUREMENT IN YOUR LETTER OF NOVEMBER 6, 1970. IN THIS LETTER YOU ALSO REQUESTED THAT AUTO'S BID BE DECLARED NONRESPONSIVE. THE CONTRACTING OFFICER REQUESTED A PREAWARD SURVEY OF AUTO BY THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION (DCASR), AND HE WAS ADVISED ON NOVEMBER 20 THAT THE SURVEY FOUND AUTO RESPONSIBLE AND RECOMMENDED COMPLETE AWARD TO THAT FIRM. THE BOARD OF AWARDS, WHICH HAD CONVENED ON NOVEMBER 20, 1970, ALSO RECOMMENDED THAT AWARD BE MADE TO AUTO. FURTHER, THE RECORD INDICATES THAT THERE WAS AN URGENT NEED TO MAKE AWARD OF THE CONTRACT, AND ON DECEMBER 2, 1970, AWARD WAS MADE TO AUTO AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER.

BECAUSE YOU HAD RECEIVED NO REPLY TO YOUR NOVEMBER 6 LETTER, YOU TELEPHONED THE CONTRACTING OFFICER ON DECEMBER 3, 1970, AND REQUESTED A REPLY TO THAT LETTER. HE INFORMED YOU THAT AWARD HAD BEEN MADE ON DECEMBER 2 AND THAT HE WAS IN THE PROCESS OF PREPARING A RESPONSE TO YOUR LETTER. THIS RESPONSE WAS DATED DECEMBER 3 AND RECEIVED BY YOU ON DECEMBER 7. DURING THE TELEPHONE CONVERSATION YOU ALSO REQUESTED A COPY OF THE DCASR PREAWARD SURVEY REPORT ON AUTO AND COPIES OF PAGES 1, 10 AND 11 OF AUTO'S BID, AND A COPY OF ITS REPLY TO PAGE 3, PARAGRAPH 11 OF THE SOLICITATION, WHICH REQUIRED THAT BIDDERS STATE THE ADDRESS FROM WHERE THE SERVICES WOULD BE PERFORMED. THE CONTRACTING OFFICER TOLD YOU THAT YOUR REQUEST WOULD HAVE TO BE MADE TO HIM IN WRITING. CONSEQUENTLY, YOU REQUESTED SUCH INFORMATION BY YOUR TELEGRAM OF DECEMBER 3, WHICH WAS RECEIVED ON DECEMBER 4 BY THE OFFICE OF PROCUREMENT, OAKLAND ARMY TERMINAL. AS NO RESPONSE TO YOUR TELEGRAM HAD BEEN RECEIVED BY DECEMBER 7, YOU SENT ANOTHER REQUEST BY TELEGRAM ON THAT DAY. THIS TELEGRAM WAS RECEIVED BY THE OFFICE OF PROCUREMENT ON DECEMBER 7. THE CONTRACTING OFFICER'S REPLY, DATED DECEMBER 8, 1970, WAS RECEIVED BY YOU ON DECEMBER 11. THIS REPLY INFORMED YOU THAT BECAUSE OF ARMED SERVICES PROCUREMENT REGULATION (ASPR) 1-907, WHICH PROVIDES THAT "DATA, INCLUDING INFORMATION OBTAINED FROM A PREAWARD SURVEY, ACCUMULATED FOR PURPOSES OF DETERMINING THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR SHALL NOT BE RELEASED OUTSIDE THE GOVERNMENT *** ," A COPY OF THE PREAWARD SURVEY COULD NOT BE FURNISHED YOU. A COPY OF THE REPLY TO PAGE 3, PARAGRAPH 11, WHICH HAD BEEN MADE A PART OF THE PREAWARD SURVEY, WAS DENIED YOU FOR THE SAME REASON. COPIES OF PAGES 1, 10 AND 11 OF AUTO'S BID WERE SENT YOU.

BY YOUR LETTERS OF DECEMBER 10, 1970, TO THE COMMANDER MTMTS, WASHINGTON, D. C., AND TO THIS OFFICE, YOU PROTEST THE AWARD TO AUTO AND THE DETERMINATIONS OF THE CONTRACTING OFFICER. THE CONTRACTING OFFICER REPORTS THAT HE WAS IN ERROR IN DENYING YOU A COPY OF AUTO'S REPLY TO PAGE 3, PARAGRAPH 11 OF THE SOLICITATION AND SINCE PAGE 1, WHICH HE FURNISHED YOU, SHOWED AUTO'S PLACE OF BUSINESS, HE NEGLECTED TO ADVISE YOU OF THIS FACT.

YOU BASE YOUR PROTEST OF THE AWARD TO AUTO ON TWO MAJOR BASES, BOTH OF WHICH CONTEND THAT AUTO'S BID DID NOT COMPLY WITH MATERIAL ASPECTS OF THE SPECIFICATIONS AND WAS THEREFORE NOT RESPONSIVE. FIRST, YOU CONTEND THAT AUTO'S BID DID NOT COMPLY WITH SECTION F, TECHNICAL PROVISIONS, PARAGRAPH TP-3E. THE PERTINENT PART OF THIS PARAGRAPH READS AS FOLLOWS:

"TP-3. PLANT FACILITY. THE CONTRACTOR SHALL PROVIDE AND MAINTAIN A PLANT FACILITY TO INCLUDE THE FOLLOWING:

E. ADEQUATE RAIL SIDING TO PERMIT UNLOADING OF MILITARY VEHICLES FROM OPEN RAIL CARS UP TO 93 FEET AND MULTILEVEL CAR CARRIERS." YOU SAY THAT THE WORDING OF THIS PARAGRAPH IS EXPLICIT AND CAN BE INTERPRETED IN NO WAY OTHER THAN TO MEAN A SINGLE FACILITY WHICH SHALL INCLUDE THE REQUIRED RAIL SIDING. NOT ONLY IS THE WORDING EXPLICIT IN THIS REGARD, YOU BELIEVE, BUT, WITH THE AVAILABILITY FOR PUBLIC USE OF RAILROAD TEAM TRACKS AT VARIOUS LOCATIONS THROUGHOUT THE SEATTLE AREA, IT IS REASONABLE TO ASSUME THAT THE SPECIFICATIONS WOULD NOT HAVE EVEN SPECIFIED THE NEED FOR A RAIL SIDING IF IT HAD NOT BEEN INTENDED THAT A RAIL SIDING SHOULD BE INCLUDED IN THE PLANT FACILITY. IN YOUR VIEW, HAD IT BEEN THE INTENT TO PERMIT USE OF PUBLIC TEAM TRACKS OR OFF FACILITY TRACKAGE, THE SPECIFICATIONS WOULD HAVE BEEN SILENT AS TO PARAGRAPH TP-3E AND WOULD CERTAINLY HAVE NOT USED THE TERMINOLOGY "PROVIDE" AND "MAINTAIN."

SECONDLY, YOU CONTEND THAT AUTO'S BID WAS NOT RESPONSIVE TO SECTION F, PARAGRAPH TP-5G, WHICH READS AS FOLLOWS:

"TP-5. CONTRACTOR'S DUTIES - ROUTINE. THE CONTRACTOR SHALL PERFORM THE FOLLOWING DUTIES IN A MANNER SATISFACTORY TO THE CONTRACTING OFFICER *** :

G. DRAYAGE. (1) THE CONTRACTOR WILL PICK UP POVS AND MILITARY VEHICLES FROM VEHICLE PROCESSING AREAS OR TERMINALS AND DELIVER TO VEHICLE PROCESSING AREAS OR TERMINALS.

(2) THE GOVERNMENT RETAINS THE OPTION TO PERFORM DRAYAGE OR DIRECT DRAYAGE BY COMMON CARRIER OR UNDER GOVERNMENT TENDERS, OR DIRECT DRAYAGE BY OTHER THAN CONTRACTOR." YOU STATE THAT AUTO HOLDS NO ICC OPERATING AUTHORITY TO HAUL MOTOR VEHICLES, AND, CONSEQUENTLY, YOU BELIEVE AUTO INTENDS TO DRIVE, RATHER THAN DRAY, THE PRIVATELY OWNED VEHICLES OVER PUBLIC STREETS BETWEEN AUTO'S PROPOSED PROCESSING CENTER AND THE VARIOUS PIERS AND TERMINALS.

WHILE WE RECOGNIZE CERTAIN MERIT IN YOUR CONTENTION THAT THE LANGUAGE OF THE INVITATION FOR BIDS IMPLIED THAT THE CONTRACTOR MUST HAVE A PLANT FACILITY CONTAINING A RAIL SIDING, AND THAT THE DRIVING OF MILITARY AND PRIVATELY OWNED VEHICLES ON PUBLIC STREETS BY THE CONTRACTOR WAS NOT INDICATED THEREIN, WE CANNOT CONCUR WITH YOUR POSITION THAT THE CONTRACTING OFFICER SHOULD HAVE REJECTED THE BID OF AUTO AS NONRESPONSIVE. THE TWO BASES OF YOUR ARGUMENT GO TO THE QUESTION OF THE BIDDER'S RESPONSIBILITY AND NOT TO THE QUESTION OF THE RESPONSIVENESS OF THE BID. WE HAVE SPECIFICALLY HELD THAT A LICENSE REQUIREMENT IS A MATTER OF RESPONSIBILITY AND IS NOT RELATED TO AN EVALUATION OF THE BID TO DETERMINE ITS RESPONSIVENESS. 46 COMP. GEN. 326, 329 (1966). ADDITIONALLY THE CONTRACT IS NOT TRANSPORTATION ORIENTATED. ON THE CONTRARY, ANY DRAYAGE OR TRANSPORTATION OF VEHICLES THAT MIGHT BE REQUIRED OF THE CONTRACTOR IS ONLY A MINOR, INCIDENTAL ASPECT OF A CONTRACT WHICH, INSTEAD, HAS AS ITS PRIMARY PURPOSE THE ACQUIRING OF RECEIVING, DELIVERY, AND PROCESSING SERVICES. SEE B 164170, JUNE 11, 1968. SINCE RESPONSIBILITY OF A BIDDER HAS BEEN DEFINED AS INCLUDING, AMONG OTHER THINGS, ORGANIZATION, TECHNICAL KNOWLEDGE, EXPERIENCE, SKILLS, KNOW-HOW, TECHNICAL EQUIPMENT, AND FACILITIES, 38 COMP. GEN. 864, 866 (1959), THE AVAILABILITY AND LOCATION OF THE RAIL SIDING WHICH AUTO PROPOSED TO USE INVOLVES AUTO'S RESPONSIBILITY (I.E., ITS ABILITY TO PERFORM THE CONTRACT), RATHER THAN THE RESPONSIVENESS OF ITS BID.

THE DISTINCTION BETWEEN "RESPONSIBILITY" AND "RESPONSIVENESS" IS AN IMPORTANT ONE. THERE IS NO REQUIREMENT THAT BIDS FAILING TO MEET LITERAL RESPONSIBILITY REQUIREMENTS OF ADVERTISED INVITATIONS FOR BIDS BE REJECTED, AS WOULD BE THE CASE WITH BIDS DETERMINED TO BE NONRESPONSIVE TO MATERIAL INVITATION REQUIREMENTS, SO LONG AS THE CONTRACTING OFFICER IS SATISFIED THAT THE BIDDER IN QUESTION IS IN FACT CAPABLE OF PERFORMING THE CONTRACT. 45 COMP. GEN. 4, 7 (1965). AND IT IS A WELL-ESTABLISHED RULE THAT THE QUESTION OF A BIDDER'S RESPONSIBILITY IS PURELY A QUESTION OF FACT WHICH IS COMMITTED TO ADMINISTRATIVE DETERMINATION, AND SUCH DETERMINATION WILL NOT BE DISTURBED BY THIS OFFICE UNLESS IT IS SHOWN BY CONVINCING EVIDENCE THAT THE DETERMINATION WAS ARBITRARY, CAPRICIOUS, OR NOT BASED ON SUBSTANTIAL EVIDENCE. 38 COMP. GEN. 778, 781 (1959); 43 COMP. GEN. 257, 262 (1963).

ACCORDINGLY, SINCE WE CANNOT CONCLUDE FROM THE INFORMATION BEFORE US THAT THE CONTRACTING OFFICER'S DETERMINATION, THAT AUTO IS A RESPONSIBLE BIDDER, WAS ARBITRARY, CAPRICIOUS, OR NOT BASED ON SUBSTANTIAL EVIDENCE, WE MUST DENY YOUR PROTEST.