B-181099, DEC 12, 1974

B-181099, DEC 12, 1974

WHERE SPECIFICATIONS FOR AERIAL PHOTOGRAPHY, MADE PART OF INVITATION, ADVISED THAT IN DETERMINATION OF SUCCESSFUL BIDDER GOVERNMENT WOULD CONSIDER THAT AIRCRAFT SHALL BE OPERATED IN ACCORDANCE WITH FAA REGULATIONS, THERE IS NO BASIS TO QUESTION DETERMINATION OF NONRESPONSIBILITY BY CONTRACTING OFFICER, PURSUANT TO PROVISIONS OF FPR SEC. 1.1-1203(1)(E) (1964 ED. AMEND. 95), WHICH WAS BASED UPON FACT THAT EXPERIMENTAL CERTIFICATE HAD BEEN ISSUED FOR AIRCRAFT TO BE USED IN PERFORMANCE OF CONTRACT AND THAT USE OF SUCH AIRCRAFT WITH EXPERIMENTAL CERTIFICATION FOR PERFORMANCE OF CONTRACT WOULD BE IN VIOLATION OF FAA REGULATIONS. 2. ALLEGATIONS OF UNSUCCESSFUL BIDDER THAT DETERMINATION OF NONRESPONSIBILITY WAS BASED UPON INCOMPLETE VERBAL INFORMATION RECEIVED FROM FAA CONCERNING TYPE OF CERTIFICATION OF AIRCRAFT AND HAD NO FACTUAL BASIS IS WITHOUT MERIT SINCE FPR CONTAINS NO PROHIBITION AGAINST USE OF VERBAL INFORMATION FOR THIS PURPOSE AND RECORD EVIDENCES THAT INFORMATION BEFORE CONTRACTING OFFICER SUPPORTS HIS DETERMINATION OF NONRESPONSIBILITY AND INFORMATION WAS CONFIRMED IN WRITING SUBSEQUENT TO AWARD.

MURRAY-MCCORMICK AERIAL SURVEYS, INC.:

INVITATION FOR BIDS (IFB) NO. 5449, ISSUED JANUARY 31, 1974, BY THE UNITED STATES GEOLOGICAL SURVEY (USGS) NATIONAL CENTER, DEPARTMENT OF THE INTERIOR, SOLICITED BIDS FOR THE PERFORMANCE OF HIGH ALTITUDE AERIAL PHOTOGRAPHY. TWO BIDS WERE RECEIVED. MURRAY-MCCORMICK AERIAL SURVEYS, INC. (MURRAY-MCCORMICK), THE LOW BIDDER, SUBMITTED A BID IN THE AMOUNT OF $132,355.60. MARK HURD AERIAL SURVEYS, INC. (MARK HURD), SUBMITTED A BID IN THE AMOUNT OF $136,866.75.

BY LETTER AND TELEGRAM DATED MARCH 8, 1974, MARK HURD PROTESTED THE FURTHER CONSIDERATION BY USGS OF MURRAY-MCCORMICK FOR CONTRACT AWARD. MARK HURD CONTENDED THAT THE FEDERAL AVIATION ADMINISTRATION (FAA) ISSUED AN EXPERIMENTAL CERTIFICATE FOR T-33 AIRCRAFT NO. 12414 TO MURRAY- MCCORMICK TO CONDUCT TESTING OF A CAMERA. MARK HURD MAINTAINED THAT THE USE OF AN AIRCRAFT WITH AN EXPERIMENTAL CERTIFICATE FOR THE PERFORMANCE OF THE CONTRACT UNDER THE ABOVE-REFERENCED SOLICITATION REQUIREMENTS VIOLATED SUBSECTION (A)(1) AND SECTION (C) OF PART 91.42 OF THE FAA REGULATIONS (14 C.F.R. SEC. 91.42), WHICH PROVIDE AS FOLLOWS:

"(A) NO PERSON MAY OPERATE AN AIRCRAFT THAT HAS AN EXPERIMENTAL CERTIFICATE:

"(1) FOR OTHER THAN THE PURPOSE FOR WHICH THE CERTIFICATE WAS ISSUED;

"(C) UNLESS OTHERWISE AUTHORIZED BY THE ADMINISTRATOR IN SPECIAL OPERATING LIMITATIONS, NO PERSON MAY OPERATE AN AIRCRAFT THAT HAS AN EXPERIMENTAL CERTIFICATE OVER A DENSELY POPULATED AREA OR IN A CONGESTED AIRWAY. THE ADMINISTRATOR MAY ISSUE SPECIAL OPERATING LIMITATIONS FOR PARTICULAR AIRCRAFT TO PERMIT TAKEOFFS AND LANFINGS TO BE CONDUCTED OVER A DENSELY POPULATED AREA OR IN A CONGESTED AIRWAY, IN ACCORDANCE WITH TERMS AND CONDITIONS SPECIFIED IN THE AUTHORIZATION IN THE INTEREST OF SAFETY IN COMMERCE."

AS REQUIRED IN THE INVITATION, MURRAY-MCCORMICK STATED IN ITS BID THAT IT WOULD USE A CANADAIR T-33 AIRCRAFT, NO. N12414.

IN ACCORDANCE WITH SECTION 1.2-407.8 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), USGS CONSIDERED THE PROTEST OF MARK HURD. USGS ASKED THE CHIEF, DEPARTMENT OF TRANSPORTATION (DOT), FAA, AIRCRAFT ENGINEERING DISTRICT OFFICE NO. 48, LONG BEACH, CALIFORNIA, TO VERIFY WHETHER AN EXPERIMENTAL CERTIFICATE HAD, IN FACT, BEEN ISSUED TO MURRAY MCCORMICK AND FOR HIS OPINION CONCERNING WHETHER MURRAY-MCCORMICK WOULD BE PERMITTED TO PERFORM THE CONTRACT IN QUESTION. HE STATED IN A TELEPHONE CONVERSATION, WHICH WAS LATER CONFIRMED BY LETTER FROM FAA TO THE USGS, THAT AN EXPERIMENTAL CERTIFICATE WAS ISSUED FOR CANADAIR MODEL T-33 REGISTRATION NO. N12414, OWNED BY MURRAY-MCCORMICK AND THAT THE USE OF THE EXPERIMENTALLY CERTIFICATED AIRCRAFT TO PERFORM AN AERIAL PHOTOGRAPH CONTRACT WAS IN VIOLATION OF FAA REGULATIONS. THIS POSITION WAS CONFIRMED BY FLIGHT STANDARDS SERVICE FAA, DOT.

THEREAFTER, IN RESPONSE TO A TELEGRAM DATED APRIL 2, 1974, FROM USGS REQUESTING CONFIRMATION "THAT THE CERTIFICATE ISSUED TO T-33 AIRPLANE, LICENSE NUMBER N12414, *** WOULD NOT BE ALLOWED TO PERFORM ANY CONTRACTS FOR AERIAL PHOTOGRAPHY FOR THE GOVERNMENT," THE OFFICE OF CHIEF COUNSEL, DOT, FAA STATED IN ITS RESPONSE OF MAY 8, 1974, THAT:

"AS NOTED ABOVE, THE PURPOSES FOR WHICH EXPERIMENTAL CERTIFICATES MAY BE ISSUED DO NOT INCLUDE THE TAKING OF AERIAL PHOTOGRAPHS. HOWEVER, AN EXPERIMENTAL CERTIFICATE ISSUED FOR THE PURPOSE OF RESEARCH AND DEVELOPMENT INVOLVING THE TESTING OF A NEW AERIAL CAMERA SYSTEM OR INSTALLATION WOULD OF NECESSITY INCLUDE THE TAKING OF AERIAL PHOTOGRAPHS NECESSARY TO THE TESTING. THUS, IF THE PURPOSE IN OPERATING SUCH AN AIRCRAFT IS TO PROVIDE AERIAL PHOTOGRAPHS FOR ANY USE OTHER THAN IN EVALUATING THE CAMERA INSTALLATION, THE OPERATOR WOULD BE IN VIOLATION OF SEC. 91.42 (A)(1). IN ADDITION, SEC. 91.42(A)(2) COVERS THE POSSIBILITY THAT AN AIRCRAFT COULD BE OPERATED FOR MORE THAN ONE PURPOSE AT THE SAME TIME, AND IN UNAMBIGUOUS TERMS THE SECTION PROHIBITS SUCH OPERATIONS IF ONE OF THE PURPOSES IS NOT ONE FOR WHICH THE EXPERIMENTAL CERTIFICATE WAS ISSUED.

"THEREFORE, ABSENT THE GRANT OF AN EXEMPTION FROM THE APPLICABLE PROVISIONS OF THE FEDERAL AVIATION REGULATIONS. SEE SEC. 601(C) OF THE FEDERAL AVIATION ACT OF 1958, 49 U.S.C. 1421(C), AND PART 11 OF THE FEDERAL AVIATION REGULATIONS, 14 CFR PAR 11.), AN AIRCRAFT OPERATION BY MURRAY MCCORMICK AERIAL SURVEYS, INC., USING THE CANADAIR MODEL T-33 MK 3 CIVIL AIRCRAFT AS PRESENTLY CERTIFICATED FOR THE PURPOSE OF ENGAGING IN THE BUSINESS OF TAKING AERIAL PHOTOGRAPHS UNDER A CONTRACT WITH THE U.S. GEOLOGICAL SURVEY WOULD CONSTITUTE A VIOLATION OF SEC. 91.42(A)(1) OF THE FEDERAL AVIATION REGULATIONS."

PARAGRAPHS 1 AND 8 OF THE FAA CERTIFICATION FOR THE T-33 AIRCRAFT PROVIDE:

"NO PERSON MAY OPERATE THIS AIRCRAFT FOR OTHER THAN THE PURPOSE FOR WHICH THE SPECIAL PURPOSE AIRWORTHINESS CERTIFICATE WAS ISSUED.

"NO PERSON MAY OPERATE THIS AIRCRAFT *** FOR COMPENSATION ***."

THE STANDARD SPECIFICATINS FOR AERIAL PHOTOGRAPHY, MADE PART OF THE INVITATION, ADVISED BIDDERS THAT THE GOVERNMENT WOULD CONSIDER, IN DETERMINING THE SUCCESSFUL BIDDER, THE AVAILABILITY OF EQUIPMENT; THAT AIRCRAFT SHALL BE OPERATED IN ACCORDANCE WITH FAA REGULATIONS; AND THAT BIDDERS SHALL GIVE EVIDENCE OF AVAILABILITY OF EQUIPMENT PROPOSED.

AFTER RECEIPT OF CONFIRMATION FROM THE FLIGHT STANDARDS SERVICE, FAA, THE CONTRACTING OFFICER DETERMINED THAT MURRAY-MCCORMICK WAS NONRESPONSIBLE. THIS DETERMINATION WAS BASED UPON THE FACT THAT MURRAY MCCORMICK'S USE OF THE T-33 AIRCRAFT FOR THE PERFORMANCE OF THE CONTRACT FOR AERIAL PHOTOGRAPHY WOULD BE IN VIOLATION OF FAA REGULATIONS. DUE TO THE URGENCY TO MAKE A PROMPT AWARD, STATED TO BE THE NECESSITY FOR TAKING PHOTOGRAPHS PRIOR TO THE APPEARANCE OF FOLIAGE ON THE TREES, AS REQUIRED BY THE SPECIFICATIONS, THE CONTRACT WAS AWARDED TO MARK HURD ON APRIL 2, 1974. PREVIOUSLY BY TELEGRAM DATED MARCH 28 1974, MARK HURD HAD WITHDRAWN ITS PROTEST. BY LETTER DATED APRIL 17, 1974, THE PROCURING ACTIVITY INFORMED MURRAY-MCCORMICK OF ITS FINDINGS OF NONRESPONSIBILITY, AND OF AWARD TO MARK HURD. BY LETTER OF THE SAME DATE, MURRAY-MCCORMICK PROTESTED TO OUR OFFICE THE AWARD TO MARK HURD. MURRAY-MCCORMICK CONTENDS THAT THE PROCURING ACTIVITY'S DETERMINATION ON NONRESPONSIBILITY IS PREDICATED UPON INCOMPLETE VERBAL INFORMATION RECEIVED FROM FAA AND IS WITHOUT FACTUAL BASIS.

THE POSSESSION OF NECESSARY PERMITS, OR OPERATING RIGHTS, WAS DETERMINED IN 34 COMP. GEN. 175 (1954) TO BE AN ESSENTIAL CONDITION TO A VALID AWARD OF A TRANSPORTAION-SERVICES CONTRACT. 47 COMP. GEN. 539 (1968); MATTER OF HARRY L. LOWE & ASSOCIATES, 53 COMP. GEN. 620 (1974). WE HAVE TAKEN THIS VIEW BECAUSE STATUTORY REQUIREMENTS PROHIBIT SUCH ACTIVITIES WITHOUT PROPER AUTHORIZATION FROM THE REGULATORY BODY. THE SAME PRINCIPLE IS APPLICABLE HERE. 49 U.S.C. SEC. 1430(A)(1) (1970) PROVIDES THAT IT SHALL BE UNLAWFUL FOR ANY PERSON TO OPERATE IN AIR COMMERCE ANY CIVIL AIRCRAFT "IN VIOLATION OF THE TERMS" OF AN AIRWORTHINESS CERTIFICATE. SEE, ALSO, SUBPARAGRAPH (A)(5).

IN RECOGNITION OF THIS PRINCIPLE FEDERAL PROCUREMENT REGULATIONS (FPR) SEC. 1.1-1203(1)(E) (1964 ED. AMEND. 95), PROVIDES THAT A PROSPECTIVE CONTRACTOR MUST BE OTHERWISE QUALIFIED AND ELIGIBLE TO RECEIVE AN AWARD UNDER APPLICABLE LAWS AND REGULATIONS. IN RELIANCE UPON THIS SUBSECTION, THE CONTRACTING OFFICER DETERMINED THAT MURRAY MCCORMICK WAS A NONRESPONSIBLE BIDDER. WE THEREFORE CONCLUDE THAT UNDER THE CIRCUMSTANCES THE DETERMINATION OF NONRESPONSIBILITY IS NOT SUBJECT TO QUESTION.

WHILE THE DETERMINATION OF NONRESPONSIBILITY WAS BASED UPON ORAL INFORMATION RECEIVED FROM THE FAA, WE ARE AWARE OF NO PROHIBITION AGAINST THE USE OF ORAL INFORMATION, WHEN THE EXIGENCY OF THE PROCUREMENT PRECLUDES WRITTEN CONFIRMATION PRIOR TO AWARD. FURTHER MORE, SUBSEQUENT TO AWARD, THE CONTENTS OF THE INFORMATION RECEIVED ORALLY WAS CONFIRMED IN WRITING BY THE FAA.

THE PROTEST IS DENIED.