B-174735(1), JUN 7, 1972

B-174735(1): Jun 7, 1972

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IS AUTHORIZED BY PARAGRAPH 105001. OPERATING AUTHORITY REQUIREMENT RELATES TO BIDDER RESPONSIBILITY AND IS PROPERLY FOR DETERMINATION PRIOR TO AWARD. 50 COMP. THE INVITATION WAS ISSUED ON SEPTEMBER 14. (A) BIDS WILL BE EVALUATED ON THE BASIS OF TOTAL AGGREGATE PRICE OF ALL ITEMS WITHIN AN AREA OF PERFORMANCE UNDER A GIVEN SCHEDULE *** 2. NON-RESPONSIVENESS: (D) FAILURE TO FURNISH ICC CERTIFICATE BEFORE AWARD WILL CAUSE REJECTION OF BID.". SIX BIDS WERE RECEIVED AND OPENED ON OCTOBER 1. TODD DID NOT HAVE THE AUTHORITY REFERRED TO IN THE MTMTS MESSAGE ALTHOUGH A PREAWARD SURVEY SHOWED THAT IT WAS QUALIFIED IN ALL OTHER RESPECTS. THE MOTOR CARRIER BOARD OF THE ICC FOUND THAT TODD HAD NOT ESTABLISHED THAT THERE WAS AN IMMEDIATE AND URGENT NEED FOR ANY OF THE SERVICE PROPOSED AND DENIED THE APPLICATION OF TODD FOR EMERGENCY TEMPORARY AUTHORITY.

B-174735(1), JUN 7, 1972

BID PROTEST - ICC OPERATING AUTHORITY - ALLEGED IMPROPER GOVERNMENT INTERVENTION - BIDDER RESPONSIBILITY DECISION DENYING THE PROTEST OF COLUMBIA VAN LINES MOVING AND STORAGE COMPANY, INC; ARROW TRANSFER COMPANY, INC; AND MERCHANTS STORAGE COMPANY OF VIRGINIA, AGAINST ARMY INTERVENTION ON BEHALF OF TODD NORTH AMERICAN UNDER AN IFB ISSUED BY THE MDW PROCURING ACTIVITY AT CAMERON STATION, VA. THE PROTEST MUST BE DENIED SINCE ARMY SUPPORT OF A CONTRACTOR'S APPLICATIONS TO THE I.C.C. IS AUTHORIZED BY PARAGRAPH 105001, CHAPTER 105, MILITARY TRAFFIC MANAGEMENT REGULATION, ARMY REGULATIONS 55-355, DATED SEPTEMBER 1, 1971. HOWEVER, THE COMP. GEN. HAS RECOMMENDED THAT, FOR THE SAKE OF UNIFORMITY, THE AFOREMENTIONED REGULATIONS BE MORE CONCISELY DEFINED. FURTHER, IT CONTINUES TO BE THE VIEW OF THE COMP. GEN. THAT AN I.C.C. OPERATING AUTHORITY REQUIREMENT RELATES TO BIDDER RESPONSIBILITY AND IS PROPERLY FOR DETERMINATION PRIOR TO AWARD. 50 COMP. GEN. 753 (1971).

TO DENNING & WOHLSTETTER:

WE REFER TO YOUR LETTER OF DECEMBER 13, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING ON BEHALF OF COLUMBIA VAN LINES MOVING AND STORAGE COMPANY, INC; ARROW TRANSFER COMPANY, INC; AND MERCHANTS STORAGE COMPANY OF VIRGINIA THE ACTIONS OF THE DEPARTMENT OF THE ARMY UNDER IFB DAHC30-72-B-0024, ISSUED BY THE MDW PROCURING ACTIVITY AT CAMERON STATION, VIRGINIA.

THE INVITATION WAS ISSUED ON SEPTEMBER 14, 1971, FOR PACKING, CRATING AND TRANSPORTATION OF HOUSEHOLD GOODS AND PERSONAL EFFECTS BETWEEN POINTS IN WASHINGTON, D.C. AND CERTAIN COUNTIES IN VIRGINIA AND MARYLAND DURING THE PERIOD FROM JANUARY 1, 1972 TO DECEMBER 31, 1972. THE INVITATION CONTAINED THE FOLLOWING PROVISIONS:

"SECTION B

EACH BIDDER MUST SUBMIT TO THE CONTRACTING OFFICER, PRIOR TO AWARD, VALID EVIDENCE OF AN ICC OPERATING AUTHORITY.

"SECTION D

1. EVALUATION OF BIDS (1970 MAY) (ASPR 22-600.3).

(A) BIDS WILL BE EVALUATED ON THE BASIS OF TOTAL AGGREGATE PRICE OF ALL ITEMS WITHIN AN AREA OF PERFORMANCE UNDER A GIVEN SCHEDULE ***

2. AWARD (1970 MAY) (ASPR 22-600.4).

AWARD SHALL BE MADE TO THE QUALIFIED LOW BIDDER BY AREA UNDER EACH OF THE SPECIFIED SCHEDULES ***

3. NON-RESPONSIVENESS:

(D) FAILURE TO FURNISH ICC CERTIFICATE BEFORE AWARD WILL CAUSE REJECTION OF BID."

SIX BIDS WERE RECEIVED AND OPENED ON OCTOBER 1, 1971, AS FOLLOWS:

(WITH DISCOUNT)

TODD NORTH AMERICAN 301,495.00 299,987.53

COLUMBIA VAN LINES 325,175.00 325,175.00

VICTORY VAN CORP. 375,562.50 374,623.50

MERCHANTS STORAGE CO. OF VA. 386,575.00 378,843.50

DISTRICT MOVING & STORAGE 382,575.00 380,662.13

ARROW TRANSFER 581,081.50 522,973.35

ON OCTOBER 23, 1971, THE MILITARY TRANSPORTATION MANAGEMENT AND TERMINAL SERVICE (MTMTS), AT THE REQUEST OF THE INTERSTATE COMMERCE COMMISSION, NOTIFIED THE MDW PROCUREMENT DIVISION OF THE NECESSITY FOR CONTRACTORS INVOLVED IN GOVERNMENT PACKING AND CONTAINERIZATION CONTRACTS TO HOLD APPROPRIATE AUTHORITY FROM THE ICC, EITHER THEIR OWN OPERATING AUTHORITY AS A CARRIER OR PROPER LICENSING AS A BROKER OF TRANSPORTATION. TODD DID NOT HAVE THE AUTHORITY REFERRED TO IN THE MTMTS MESSAGE ALTHOUGH A PREAWARD SURVEY SHOWED THAT IT WAS QUALIFIED IN ALL OTHER RESPECTS.

TODD THEREUPON FILED AN APPLICATION WITH THE ICC FOR EMERGENCY TEMPORARY AUTHORITY, TOGETHER WITH A SUPPORTING STATEMENT FROM THE COMMANDER OF MTMTS. IN AN ORDER DATED DECEMBER 29, 1971, THE MOTOR CARRIER BOARD OF THE ICC FOUND THAT TODD HAD NOT ESTABLISHED THAT THERE WAS AN IMMEDIATE AND URGENT NEED FOR ANY OF THE SERVICE PROPOSED AND DENIED THE APPLICATION OF TODD FOR EMERGENCY TEMPORARY AUTHORITY.

TODD WAS THEREFORE NOT QUALIFIED TO RECEIVE AWARD OF A CONTRACT AT THE BEGINNING OF THE CONTRACT PERIOD, SET FORTH IN THE INVITATION AS THE CALENDAR YEAR 1972, SINCE IT LACKED THE REQUIRED ICC OPERATING AUTHORITY. HOWEVER, IN VIEW OF THE PROTEST FILED WITH OUR OFFICE, THE ARMY WITHHELD AWARD AND NEGOTIATED A SUPPLEMENTAL AGREEMENT WITH YOUR CLIENT, COLUMBIA VAN LINES, TO CONTINUE SERVICE ON THE SAME TERMS AND CONDITIONS AS THOSE IN COLUMBIA'S CONTRACT WHICH EXPIRED ON DECEMBER 31, 1971.

IN ADDITION TO THE APPLICATION FOR EMERGENCY TEMPORARY AUTHORITY, TODD ALSO FILED AN APPLICATION FOR TEMPORARY AUTHORITY WHICH WAS LIKEWISE DENIED BY THE ICC. AFTER THE LATTER DENIAL, TODD FILED PETITION SEEKING A FINDING THAT AN ISSUE OF GENERAL TRANSPORTATION IMPORTANCE IS INVOLVED, WHICH PETITION WAS ALSO DENIED. IN EACH INSTANCE, THE ARMY SUPPORTED TODD'S APPLICATIONS AND YOU OPPOSED THEM ON BEHALF OF COLUMBIA AND YOUR OTHER CLIENTS WHO HAD BID IN RESPONSE TO THE INVITATION.

IN YOUR RESPONSE TO THE ARMY'S REPORT IN THIS MATTER, A COPY OF WHICH WAS FURNISHED TO YOU, YOU STATE THAT THE SOLE ISSUE RAISED BY YOUR PROTEST IS THE PROPRIETY OF THE DEPARTMENT OF THE ARMY SUPPORTING THE APPLICATIONS OF TODD FOR THE ICC AUTHORITY REQUIRED FOR AWARD UNDER THE INVITATION. IT IS YOUR CONTENTION THAT THE INTEGRITY OF THE COMPETITIVE BIDDING SYSTEM IS IMPAIRED BY THE ASSISTANCE GIVEN TO TODD IN ITS ATTEMPT TO BECOME QUALIFIED FOR AWARD. YOU ALSO ASK THAT OUR OFFICE MAKE A DETERMINATION THAT SINCE ICC AUTHORITY IS REQUIRED FOR AWARD OF PACKING AND CONTAINERIZATION CONTRACTS, ALL BIDDERS SHOULD POSSESS SUCH AUTHORITY AT THE TIME OF BID OPENING, TO AVOID RECURRENCE OF THE PRESENT PROBLEM IN FUTURE PROCUREMENTS.

IN 47 COMP. GEN. 539 (1968), A CASE INVOLVING PACKING AND MOVING OF HOUSEHOLD GOODS IN WHICH THE INVITATION REQUIRED BIDDERS TO CERTIFY THAT THEY HAD VALID PERMITS AND TO STATE THEIR ICC OPERATING AUTHORITY NUMBERS, WE STATED:

"REGARDLESS OF WHETHER PARTICULAR BIDDERS HAVE VALID PERMITS AT THE TIME OF OPENING, THE ESSENTIAL PROBLEM INVOLVED IN THE SOLICITATION OF SERVICES OF THIS NATURE IS THAT 'THE ONLY RESPONSIBLE BIDDERS WOULD BE PERMIT HOLDERS' AND THEY MUST CONTINUE TO BE SO. 34 COMP. GEN. 175, 179. IN THIS REGARD, WE HAVE STATED THAT THE PRIMARY PURPOSE OF A LICENSE REQUIREMENT IS TO DETERMINE A BIDDER'S LEGAL AUTHORIZATION TO PERFORM THE CONTRACT, WHICH IS A MATTER OF RESPONSIBILITY AND IS NOT RELATED TO AN EVALUATION OF THE BID. 46 COMP. GEN. 326, 329."

WE FURTHER STATED OUR POSITION THAT WHEN QUESTIONS OF A POTENTIAL CONTRACTOR'S RESPONSIBILITY ARE INVOLVED, SPECIFIC ADVICE IN AN INVITATION THAT NONCOMPLIANCE WITH A QUALIFICATION REQUIREMENT MAY RESULT IN REJECTION OF THE BID IS NOT NECESSARILY DETERMINATIVE OF THE QUESTION OF RESPONSIBILITY.

IN B-171926, APRIL 22, 1971, WE REJECTED A REQUEST FROM COUNSEL FOR A NUMBER OF HOUSEHOLD GOODS CARRIERS, THAT THE GOVERNMENT REQUIRE BIDDERS FOR SUCH SERVICES TO SUBMIT PROOF OF ICC OPERATING AUTHORITY AT THE TIME THE BID IS MADE. YOUR REQUEST IN THE PRESENT CASE IS ALMOST IDENTICAL AND, WHILE WE HAVE CAREFULLY CONSIDERED YOUR SUBMISSION, WE FIND NOTHING THEREIN TO PERSUADE US THAT WE SHOULD NOW TAKE A DIFFERENT VIEW. CONTINUES TO BE OUR OPINION THAT AN OPERATING AUTHORITY REQUIREMENT RELATES TO THE RESPONSIBILITY OF A BIDDER AND NOT TO THE RESPONSIVENESS OF HIS BID. TO RESTRICT BIDDING IN SUCH CASES TO HOLDERS OF OPERATING AUTHORITY AT THE TIME OF BID OPENING WOULD BE UNDULY RESTRICTIVE OF COMPETITION AS TO ANY PROSPECTIVE BIDDER WHO DID NOT HAVE THE AUTHORITY AT BID OPENING, BUT COULD OBTAIN IT PRIOR TO AWARD. SEE 50 COMP. GEN. 753 (1971).

WITH RESPECT TO THE PROPRIETY OF THE DEPARTMENT OF THE ARMY'S ACTION IN SUPPORTING THE APPLICATION OF THE LOW RESPONSIVE BIDDER FOR THE NECESSARY ICC OPERATING AUTHORITY, THE CONDITIONS UNDER WHICH THE DEPARTMENT OF THE ARMY MAY PARTICIPATE IN ICC PROCEEDINGS ARE SET FORTH IN THE MILITARY TRAFFIC MANAGEMENT REGULATION, ARMY REGULATIONS 55-355, DATED SEPTEMBER 1, 1971. CHAPTER 105, PARAGRAPH 105001, PROVIDES THAT THE COMMANDER, MTMTS, IS RESPONSIBLE FOR DETERMINING THE DOD INTEREST AND THE ACTION REQUIRED IN PROCEEDINGS INVOLVING CARRIERS' OPERATING AUTHORITIES BEFORE THE ICC. PARAGRAPH 105002(3) PROVIDES THAT PARTICIPATION IN SUCH PROCEEDINGS WILL BE UNDERTAKEN WHEN (AMONG OTHER ENUMERATED CIRCUMSTANCES) THE COMMANDER, MTMTS, DETERMINES THAT APPRECIABLY GREATER ECONOMY, FREQUENCY OR SPEED OF SERVICE TO THE DOD WILL RESULT (SUBPARAGRAPH C) OR THE PROPOSED INAGURATION OR EXPANSION OF AN OPERATING AUTHORITY WOULD BE BENEFICIAL TO THE DOD (SUBPARAGRAPH E). IT IS OUR UNDERSTANDING THAT IN THE PAST, THE ARMY HAS ROUTINELY SUPPORTED ANY OTHERWISE RESPONSIBLE LOW BIDDER, WHO LACKED OPERATING AUTHORITY AT THE TIME OF BID OPENING, IN SUCH A BIDDER'S SUBSEQUENT APPLICATION TO THE ICC FOR OPERATING AUTHORITY.

THE ARMY'S SUPPORT OF TODD'S APPLICATIONS IN THE INSTANT CASE APPEARS TO BE AUTHORIZED BY REGULATION AND IN LINE WITH THE ARMY'S PRACTICE OF SUPPORTING ALL APPLICATIONS BY LOW BIDDERS FOR THE NECESSARY OPERATING AUTHORITY. IN VIEW THEREOF, WE ARE NOT REQUIRED TO OFFER LEGAL OBJECTION TO THE ARMY'S ACTIONS IN THIS INSTANCE. HOWEVER, IT ALSO APPEARS THAT THE ARMY'S ACTIVE SUPPORT OF TODD IN THESE PROCEEDINGS GOES BEYOND THE MERE FURNISHING OF A SHIPPER'S LETTER OF SUPPORT TO A CARRIER. IT IS OUR VIEW THAT ALTHOUGH PARAGRAPH 105002(3)(E) OF THE MILITARY TRAFFIC MANAGEMENT REGULATION ALLOWS PARTICIPATION IN ICC PROCEEDINGS WHEN THE GRANTING OF AN OPERATING AUTHORITY WOULD BE BENEFICIAL TO THE DOD, IT WOULD BE PREFERABLE TO CONSTRUE THIS PROVISION IN CONJUNCTION WITH SUBPARAGRAPH (C) AND TO MAKE A DETERMINATION TO PARTICIPATE IN REGULATORY PROCEEDINGS ONLY WHEN APPRECIABLY GREATER ECONOMY, FREQUENCY OR SPEED OF SERVICE MAY BE EXPECTED TO RESULT. IN A SEPARATE LETTER OF TODAY TO THE SECRETARY OF THE ARMY WE HAVE EXPRESSED THE OPINION THAT ISSUANCE OF A LETTER OF SUPPORT SHOULD BE CONSTRUED AS CONSTITUTING PARTICIPATION IN THE REGULATORY PROCEEDINGS, AND WE HAVE ALSO RECOMMENDED THAT CONSIDERATION BE GIVEN TO DEFINING THE TERM "APPRECIABLY GREATER" IN A MORE CONCISE MANNER TO INSURE UNIFORMITY IN ADMINISTERING THE PROVISIONS OF THE REGULATION.

FOR THE REASONS STATED, YOUR PROTEST IS DENIED, AND YOUR REQUEST THAT BIDDING IN FUTURE PROCUREMENTS OF PACKING AND CRATING SERVICES BE LIMITED TO HOLDERS OF ICC OPERATING AUTHORITY IS ..END :