B-171926, APR 22, 1971

B-171926: Apr 22, 1971

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WHILE SUCCESSFUL LOW BIDDER DID NOT HAVE ICC AUTHORITY TO PERFORM THE SERVICES INVOLVED IN ITS OWN NAME IT DID HAVE SUCH AUTHORITY AS AN AGENT OF ALLIED VAN LINES. THIS QUESTION RELATES TO BIDDER'S RESPONSIBILITY WHICH IS FOR DETERMINATION AT THE TIME OF AWARD. THE PROTEST IS DENIED. TO MARSHALL AND MARSHALL: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 2. WHICH IS THE CONTRACT PREVIOUSLY AWARDED TO IT IN JULY 1970. IT IS PRESUMED THAT THE PROTEST RELATES TO THE CURRENT PROCUREMENT CITED ABOVE UNDER WHICH AN AWARD IS PRESENTLY PENDING. THE SOLICITATION WAS ISSUED DECEMBER 10. FOR BIDDING PURPOSES THE TOTAL AREA WAS BROKEN DOWN INTO 6 AREAS (AREAS THROUGH VI). TO BE AWARDED WILL BE ISSUED BY THE TRANSPORTATION OFFICER.

B-171926, APR 22, 1971

BID PROTEST - BIDDER RESPONSIBILITY - ICC AUTHORITY DECISION DENYING PROTEST AGAINST PROPOSED AWARD OF A CONTRACT TO LOW BIDDER, VOGEL VAN & STORAGE, INC., UNDER AN IFB ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PA., FOR THE PREPARATION OF PERSONAL PROPERTY FOR SHIPMENT AND STORAGE. WHILE SUCCESSFUL LOW BIDDER DID NOT HAVE ICC AUTHORITY TO PERFORM THE SERVICES INVOLVED IN ITS OWN NAME IT DID HAVE SUCH AUTHORITY AS AN AGENT OF ALLIED VAN LINES, INC. FURTHER, THIS QUESTION RELATES TO BIDDER'S RESPONSIBILITY WHICH IS FOR DETERMINATION AT THE TIME OF AWARD, NOT BID OPENING. THEREFORE, THE PROTEST IS DENIED.

TO MARSHALL AND MARSHALL:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1971, WITH ENCLOSURE, PROTESTING ON BEHALF OF MULLEN BROTHERS, INCORPORATED, AGAINST AN AWARD TO VOGEL VAN & STORAGE, INCORPORATED, UNDER INVITATION FOR BIDS (IFB) NO. N00140-71-B-0641, ISSUED BY THE NAVAL REGIONAL PROCUREMENT OFFICE, PHILADELPHIA, PENNSYLVANIA. WHILE THE CORRESPONDENCE FROM MULLEN BROTHERS REFERS TO IFB NO. N00140-71-B-0127, WHICH IS THE CONTRACT PREVIOUSLY AWARDED TO IT IN JULY 1970, IT IS PRESUMED THAT THE PROTEST RELATES TO THE CURRENT PROCUREMENT CITED ABOVE UNDER WHICH AN AWARD IS PRESENTLY PENDING.

THE SOLICITATION WAS ISSUED DECEMBER 10, 1970, FOR THE PREPARATION OF PERSONAL PROPERTY OF MEMBERS OF THE ARMED FORCES FOR SHIPMENT AND STORAGE IN SEVERAL COUNTIES IN THE STATES OF NEW YORK, MASSACHUSETTS AND VERMONT. FOR BIDDING PURPOSES THE TOTAL AREA WAS BROKEN DOWN INTO 6 AREAS (AREAS THROUGH VI), AND TWO SCHEDULES, SCHEDULE I COVERING INBOUND SERVICES AND SCHEDULE II COVERING OUTBOUND SERVICES. ORDERS FOR THE SERVICES TO BE RENDERED UNDER THE CONTRACT, OR CONTRACTS, TO BE AWARDED WILL BE ISSUED BY THE TRANSPORTATION OFFICER, NAVAL CORRESPONDENCE COURSE CENTER, SCOTIA, NEW YORK.

THREE BIDS WERE RECEIVED BY THE DEADLINE, JANUARY 4, 1971. WILSON FAST FREIGHT COMPANY SUBMITTED A BID ONLY ON AREA VI (VERMONT), UNDER SCHEDULES I AND II. VOGEL VAN & STORAGE AND MULLEN BROTHERS SUBMITTED BIDS ON ALL 6 AREAS UNDER BOTH SCHEDULES. BASED UPON THE ESTIMATED QUANTITIES SPECIFIED AND EXCLUDING AREA VI, THE BID OF VOGEL VAN & STORAGE IS $68,610.90 AND MULLEN BROTHERS' BID IS $98,241.

IN RESPONSE TO A REQUEST FOR INFORMATION CONCERNING ITS ICC AUTHORITY TO PERFORM THE SERVICES INVOLVED, VOGEL VAN & STORAGE BY LETTER DATED FEBRUARY 19, 1971, ADVISED THE CONTRACTING AGENCY THAT IT IS AUTHORIZED AS AN AGENT TO USE THE ICC AUTHORITY UNDER MC 15735 (SUB. 5) OF ALLIED VAN LINES, INCORPORATED. VOGEL FURTHER ADVISED THAT IT HAD FILED AN APPLICATION WITH THE ICC FOR SUCH AUTHORITY IN ITS OWN NAME AND THAT ITS ATTORNEY FELT THE APPLICATION SHOULD BE ACTED ON FAVORABLY WITHIN THE NEXT TEN DAYS, BUT IN THE MEANTIME IT WOULD USE ALLIED'S AUTHORITY. VOGEL SUBSEQUENTLY ADVISED THE PURCHASING ACTIVITY THAT IT WAS GRANTED ICC PERMIT MC 13526TA IN ITS OWN NAME ON MARCH 10, 1971.

YOU CONTEND THAT A SUCCESSFUL BIDDER SHOULD BE REQUIRED TO PROVE THAT IT HAS THE NECESSARY ICC OPERATING AUTHORITY AT THE TIME THE BID IS MADE. YOU SUBMITTED WITH YOUR LETTER OF MARCH 2, 1971, A COPY OF A PROTEST TO THE ICC ON BEHALF OF MULLEN BROTHERS AND SEVERAL OTHER HOUSEHOLD GOODS CARRIERS AGAINST THE APPLICATION OF VOGEL FOR COMMON CARRIER AUTHORITY UNDER MC 13526TA. YOU STATE THAT CARRIERS WHOM YOU REPRESENT STRONGLY OPPOSE THE ACTION OF THE GOVERNMENT IN PERMITTING UNAUTHORIZED CARRIERS TO SUBMIT BIDS FOR TRANSPORTATION SERVICES.

WE HAVE HELD THAT THE POSSESSION OF NECESSARY PERMITS OR OPERATING RIGHTS, IS AN ESSENTIAL CONDITION TO A VALID AWARD OF A TRANSPORTATION SERVICES CONTRACT. HOWEVER, WE ALSO HAVE HELD THAT THE QUESTION WHETHER A BIDDER POSSESSES THE NECESSARY PERMITS OR LICENSES RELATES TO A BIDDER'S RESPONSIBILITY WHICH IS FOR DETERMINATION AS OF THE TIME OF AWARD AND THERE IS NO REQUIREMENT THAT THE BIDDER POSSESS SUCH PERMITS OR LICENSES PRIOR TO THE BID OPENING. SEE 34 COMP. GEN. 175 (1954), 46 ID. 326 (1966) AND 47 ID. 539 (1968). THE QUESTION WHETHER VOGEL SHOULD HAVE BEEN GRANTED THE AUTHORITY REQUESTED UNDER ITS APPLICATION, MC 13526TA, IS A MATTER ENTIRELY WITHIN THE JURISDICTION OF THE ICC.

SINCE IT APPEARS THAT VOGEL HAS THE OPERATING AUTHORITY, EITHER IN ITS OWN NAME OR AS AN AGENT FOR ALLIED, TO PERFORM THE REQUIRED SERVICES, THERE IS NO BASIS TO QUESTION THE PROPOSED AWARD TO VOGEL, AS THE LOW RESPONSIVE AND RESPONSIBLE BIDDER FOR AREAS I THROUGH V UNDER BOTH SCHEDULES.