B-179605, FEB 7, 1974

B-179605: Feb 7, 1974

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IT WAS NOT IMPOSSIBLE AS CONTENDED TO DETERMINE WHETHER APPARENTLY LOW UNIT PRICE WAS IN FACT LOW BID SINCE NUMBER OF BUSES AND NUMBER OF ROUND TRIPS PER DAY ARE SET BY BUS SCHEDULE IN SPECIFICATIONS AND NOT BY SEATING CAPACITY OF BUSES. ALLEGED INABILITY OF SUCCESSFUL BIDDER TO COMPLY WITH STATE SAFETY REQUIREMENTS AND REGULATIONS IS A MATTER TO BE SETTLED BETWEEN CONTRACTOR AND STATE AUTHORITIES. ON THE GROUNDS THAT IT WAS IMPOSSIBLE TO DETERMINE WHETHER WILLINGHAM'S PRICE WAS IN FACT LOW AND. THAT WILLINGHAM WAS UNABLE TO COMPLY WITH VARIOUS CALIFORNIA STATE LAWS AND STANDARD 17 OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION (DOT) HIGHWAY SAFETY PROGRAM STANDARDS. SINCE THE NUMBER OF ROUND TRIPS WAS FIXED BY THE BUS SCHEDULE.

B-179605, FEB 7, 1974

WHERE SOLICITATION FOR SCHOOL BUS TRANSPORTATION SERVICES REQUESTED BIDDERS TO STATE A UNIT PRICE PER BUS PER ROUND TRIP PER DAY, IT WAS NOT IMPOSSIBLE AS CONTENDED TO DETERMINE WHETHER APPARENTLY LOW UNIT PRICE WAS IN FACT LOW BID SINCE NUMBER OF BUSES AND NUMBER OF ROUND TRIPS PER DAY ARE SET BY BUS SCHEDULE IN SPECIFICATIONS AND NOT BY SEATING CAPACITY OF BUSES. THEREFORE, LOW BID CAN BE DETERMINED ON BASIS OF INFORMATION IN SCHEDULE. FURTHER, ALLEGED INABILITY OF SUCCESSFUL BIDDER TO COMPLY WITH STATE SAFETY REQUIREMENTS AND REGULATIONS IS A MATTER TO BE SETTLED BETWEEN CONTRACTOR AND STATE AUTHORITIES, AND MAY NOT BE REGARDED AS CONTROLLING ELIGIBILITY OF BIDDER TO RECEIVE A GOVERNMENT CONTRACT. 51 COMP. GEN. 377 (1971).

TO PAUL'S LINE, INCORPORATED:

PAUL'S LINE, INCORPORATED, AND GOODALL'S CHARTER BUS SERVICE, INCORPORATED, A JOINT VENTURE, THE HIGHER OF TWO BIDDERS UNDER SOLICITATION NO. N62474-73-C-3202, ISSUED BY THE OFFICER IN CHARGE OF CONSTRUCTION (OICC), NAVY PUBLIC WORKS CENTER, NAVAL STATION, SAN DIEGO, CALIFORNIA, HAS PROTESTED THE AWARD OF A CONTRACT TO THE LOW BIDDER, WILLINGHAM BUS LINES, INCORPORATED, D/B/A AZTEC BUS LINES, ON THE GROUNDS THAT IT WAS IMPOSSIBLE TO DETERMINE WHETHER WILLINGHAM'S PRICE WAS IN FACT LOW AND, MOREOVER, THAT WILLINGHAM WAS UNABLE TO COMPLY WITH VARIOUS CALIFORNIA STATE LAWS AND STANDARD 17 OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION (DOT) HIGHWAY SAFETY PROGRAM STANDARDS.

THE SUBJECT SOLICITATION REQUESTED BIDS TO FURNISH SCHEDULED BUS SERVICE FOR THE TRANSPORTATION OF STUDENTS FROM THE MURPHY CANYON HEIGHTS HOUSING AREA TO SAN DIEGO CITY SCHOOLS AND RETURN, BEGINNING SEPTEMBER 11, 1973 AND ENDING ON OR ABOUT JUNE 14, 1974. THE SPECIFICATIONS INCLUDED AN ENUMERATION OF THE SCHOOLS TO BE SERVICED, THE APPROXIMATE NUMBER OF STUDENTS TO BE TRANSPORTED TO EACH SCHOOL, THE NUMBER OF BUSES TO BE UTILIZED FOR EACH SCHOOL DELIVERY POINT, THE TIME SCHEDULE FOR EACH BUS TO DEPART FROM VARIOUS BUS STOPS ALONG THE RESPECTIVE ROUTES, AND THE TIME SCHEDULE FOR LEAVING EACH SCHOOL AND RETURNING TO MURPHY CANYON HEIGHTS. SINCE THE NUMBER OF ROUND TRIPS WAS FIXED BY THE BUS SCHEDULE, BIDDERS WERE INSTRUCTED TO SUBMIT BIDS ON THE BASIS OF UNIT PRICE PER BUS PER ROUND TRIP PER DAY. WILLINGHAM SUBMITTED A UNIT PRICE OF $28.48, WHILE THE JOINT VENTURE BID A UNIT PRICE OF $30.00. FOLLOWING THE CONDUCT OF A PREAWARD SURVEY, FROM WHICH IT WAS CONCLUDED THAT WILLINGHAM HAD THE REQUISITE EXPERIENCE AND CAPABILITY TO PERFORM THE CONTRACT ACCORDING TO THE SPECIFICATIONS, CONTRACT NO. N62474-73-C-3202 WAS AWARDED ON AUGUST 29, 1973.

THE PROTESTING BIDDER CONTENDS THAT:

(1) SINCE THE SEATING CAPACITY OF WILLINGHAM'S BUSES WAS NOT SPECIFIED, THE CONTRACTING AGENCY IS UNABLE TO DETERMINE WHETHER WILLINGHAM'S PRICE WAS IN FACT LOW;

(2) THE BUSES TO BE UTILIZED BY WILLINGHAM CANNOT COMPLY WITH VARIOUS SAFETY REQUIREMENTS OF THE CALIFORNIA VEHICLE CODE, THE CALIFORNIA EDUCATION CODE, AND THE U.S. DOT HIGHWAY SAFETY PROGRAM STANDARD 17 RELATING TO PUPIL TRANSPORTATION SAFETY;

(3) THAT BY VIRTUE OF CALIFORNIA VEHICLE CODE SECTIONS 545, 660, 2800, 2802, 2807, 2808, AND OTHER CITED AUTHORITY, ONLY A TRANSIT COMPANY OPERATING UNDER THE AUTHORITY OF THE PUBLIC UTILITIES COMMISSION ON REGULARLY SCHEDULED RUNS MAY USE TRANSIT BUSES FOR THE TRANSPORTATION OF SCHOOL CHILDREN, AND WILLINGHAM DOES NOT SO QUALIFY;

(4) THAT THE SPECIFICATION REQUIREMENTS PERTAINING TO MANDATORY STATE AND FEDERAL LAW WERE RELAXED AFTER AWARD OF THE CONTRACT;

(5) THAT SINCE WILLINGHAM'S BID FAILED TO SPECIFY THE SEATING CAPACITY OF ITS BUSES, IT IS OBVIOUS THAT CHILDREN WILL BE FORCED TO STAND IN THE AISLES DURING THE COURSE OF TRANSPORTATION IN FLAGRANT VIOLATION OF STATE AND FEDERAL SAFETY STANDARDS.

WITH REGARD TO THE FIRST CONTENTION, WE CONCUR WITH THE POSITION OF THE PROCURING ACTIVITY THAT SINCE THE NUMBER OF ROUND TRIPS PER DAY IS FIXED BY THE BUS SCHEDULE AND IS NOT DEPENDENT UPON THE CAPACITY OF THE BUSES, IT IS POSSIBLE, BASED EXCLUSIVELY ON INFORMATION PROVIDED IN THE SPECIFICATIONS, TO DETERMINE THAT WILLINGHAM'S UNIT PRICE IS IN FACT LOW. SINCE THE SUCCESSFUL BIDDER WILL BE REQUIRED BY THE SPECIFICATION TO USE A SPECIFIED NUMBER OF BUSES ON EACH ROUTE, AND TO MAKE THE SAME NUMBER OF ROUND TRIPS PER DAY, THE LOWEST UNIT PRICE QUOTED PER BUS PER ROUND TRIP PER DAY NECESSARILY CONSTITUTES THE LOW BID.

CONCERNING THE CONTENTION THAT WILLINGHAM CANNOT COMPLY WITH VARIOUS SAFETY REQUIREMENTS OF CALIFORNIA STATE LAWS AND DOT STANDARD 17, THE SPECIFICATIONS INCLUDE THE FOLLOWING PERTINENT REQUIREMENTS:

1A.15 THE CONTRACTOR IS REQUIRED TO OBTAIN ALL LICENSES AND PERMITS REQUIRED FOR THE PROSECUTION OF THE WORK.

2A.2 BUSES

BUSES MAY BE OF THE TRANSIT, COACH, OR SCHOOL BUS TYPE, PROVIDING THAT THEY COMPLY WITH ALL STATE OF CALIFORNIA LAWS, REGULATIONS, RULES AND REQUIREMENTS PERTAINING TO THE OPERATION OF SCHOOL BUSES. ALL DRIVERS AND EQUIPMENT SHALL STRICTLY COMPLY WITH THE RULES AND REGULATIONS OF THE CALIFORNIA MOTOR VEHICLE CODE.

2A.5 OBSERVANCE OF LAWS

THE CONTRACTOR IS COMPELLED TO COMPLY WITH ALL REQUIREMENTS SET FORTH BY THE:

A.) CALIFORNIA EDUCATION CODE.

B.) CALIFORNIA STATE DEPARTMENT OF EDUCATION, RULES AND LAWS RELATING TO PUPIL TRANSPORTATION IN CALIFORNIA, 1973 EDITION.

C.) CALIFORNIA VEHICLE CODE.

D.) BOARD OF EDUCATION OF THE SAN DIEGO UNIFIED SCHOOL DISTRICT.

E.) CALIFORNIA HIGHWAY PATROL.

THE CONTRACTOR SHALL PROMPTLY COMPLY WITH ALL SUGGESTIONS, ORDERS OR DEMANDS OF THE DEPARTMENT OF CALIFORNIA HIGHWAY PATROL.

THE EFFECT OF THESE PROVISIONS IS TO PLACE THE BURDEN UPON THE CONTRACTOR TO MEET APPLICABLE STATE AND LOCAL REGULATORY REQUIREMENTS. AS SUCH, IT IS THE POSITION OF OUR OFFICE THAT A FEDERAL AGENCY SHOULD NOT BE COMPELLED TO DETERMINE WHAT THOSE REQUIREMENTS MAY BE, OR TO INTERPRET THEM. B-174634, B-174811, B-174822, B-175014, B-175203, JULY 30, 1973, 53 COMP. GEN. 51. THIS POSITION IS DICTATED BY THE FACT THAT STATE AND MUNICIPAL REQUIREMENTS VARY INFINITELY IN THEIR DETAILS AND LEGAL EFFECT, AND THE VALIDITY OF A PARTICULAR STATE REQUIREMENT AS APPLIED TO THE ACTIVITIES OF A FEDERAL CONTRACTOR OFTEN CANNOT BE DETERMINED EXCEPT BY COURTS OF COMPETENT JURISDICTION, THUS RENDERING IT IMPOSSIBLE FOR CONTRACTING AGENCIES OF THE FEDERAL GOVERNMENT TO MAKE SUCH DETERMINATIONS WITH ANY ASSURANCE THAT THEY ARE CORRECT. THEREFORE, THE BURDEN OF DETERMINING THE EXISTENCE OF, AND COMPLIANCE WITH APPLICABLE STATE AND LOCAL REQUIREMENTS IS IMPOSED UPON THE CONTRACTOR, AND COMPLIANCE WITH SUCH REQUIREMENTS IS A MATTER TO BE SETTLED BETWEEN LOCAL AUTHORITIES AND CONTRACTORS BY AGREEMENT OR JUDICIAL DETERMINATION. SEE 51 COMP. GEN. 377 (1971). ACCORDINGLY, THE APPLICABILITY OF THE CALIFORNIA STATE LAWS CITED BY THE PROTESTER MAY NOT BE REGARDED AS AFFECTING THE ELIGIBILITY OF WILLINGHAM TO RECEIVE AWARD OF THE SUBJECT CONTRACT. 51 COMP. GEN. 377, SUPRA.

NOR DO WE DISCERN ANY DEPARTURE FROM THIS PRINCIPLE WITH REGARD TO STANDARD 17 OF THE DOT HIGHWAY SAFETY PROGRAM STANDARDS. THAT STANDARD REQUIRES THAT EACH STATE SHALL HAVE A COMPREHENSIVE PUPIL TRANSPORTATION SAFETY PROGRAM TO ASSURE THAT SCHOOL VEHICLES ARE OPERATED AND MAINTAINED AT THE HIGHEST POSSIBLE LEVEL OF SAFETY. A STATE AGENCY IS CHARGED WITH THE DEVELOPMENT AND ADMINISTRATION OF SUCH A PROGRAM. WE ARE ADVISED THAT THE STANDARD WAS PROMULGATED IN JULY OF 1973, BUT THAT THE STATE OF CALIFORNIA HAD YET TO IMPLEMENT THE PLAN THROUGH STATE LAW OR REGULATION AT THE TIME OF AWARD. HOWEVER, AS SOON AS THE STATE IMPLEMENTS SUCH A PLAN, IT WOULD APPEAR THAT SECTIONS 2A.2 AND 2A.5 OF THE CONTRACT WOULD LIKEWISE COMPEL WILLINGHAM TO COMPLY WITH ANY IMPLEMENTING STATE REGULATIONS OR ORDERS.

NEVERTHELESS, IT WAS CONCLUDED AS THE RESULT OF A PREAWARD SURVEY THAT WILLINGHAM WAS, INTER ALIA, QUALIFIED AND ELIGIBLE TO RECEIVE AN AWARD UNDER APPLICABLE LAWS AND REGULATIONS. FURTHERMORE, THE RECORD SHOWS THAT WILLINGHAM COMPLETED CONTRACT N62474-73-C-3107 FOR SCHEDULED SCHOOL BUS SERVICE FROM MURPHY CANYON HEIGHTS HOUSING AREA, FOR OICC, IN JUNE 1973, AND THAT PERFORMANCE WAS SATISFACTORY, AND THAT ITS PERFORMANCE OF 4 OTHER SCHOOL BUSING CONTRACTS FOR THE STATE WAS SATISFACTORY. FINALLY, CONTRARY TO THE PROTESTER'S CONTENTION, IT WAS DETERMINED THAT THE CAPACITY OF THE PROPOSED BUSES WAS SUFFICIENT TO PRECLUDE THE NECESSITY OF CHILDREN STANDING. WHERE A DETERMINATION OF A FIRM'S RESPONSIBILITY HAS BEEN MADE ON THE BASIS OF A FAVORABLE PREAWARD SURVEY, WE WILL NOT SUBSTITUTE OUR JUDGMENT FOR THAT OF THE CONTRACTING OFFICER IN THE ABSENCE OF CONVINCING EVIDENCE THAT THE DETERMINATION WAS ARBITRARY, CAPRICIOUS, OR NOT BASED UPON SUBSTANTIAL EVIDENCE. 51 COMP. GEN. 703, 708-709 (1972). SINCE WE FIND NO SUCH EVIDENCE IN THE INSTANT CASE, WE MUST ACCEPT THE AFFIRMATIVE DETERMINATION OF WILLINGHAM'S RESPONSIBILITY.

FINALLY, THE RECORD DOES NOT SUPPORT THE CONTENTION CONCERNING WAIVER AFTER AWARD OF THE REQUIREMENT THAT WILLINGHAM COMPLY WITH ALL APPLICABLE STATE AND FEDERAL SAFETY REQUIREMENTS.

ACCORDINGLY, THE PROTEST IS DENIED.