B-182159, APR 10, 1975

B-182159, APR 10, 1975

WHERE EVIDENCE OF RECORD FAILS TO SUBSTANTIATE PROTESTER'S CONTENTION OF EXISTENCE OF ORAL AGREEMENT TO NEGOTIATE A SOLE-SOURCE CONCESSION CONTRACT FOR CONTINUATION OF TAXICAB SERVICES AT NATIONAL AIRPORT, GOVERNMENT'S ACTION IN LETTING CONTRACT FOR SUCH SERVICES PURSUANT TO A REQUEST FOR PROPOSALS DID NOT BREACH ANY CONTRACTUAL RIGHT OF THE PROTESTER.

GREYHOUND AIRPORT SERVICE, INCORPORATED:

GREYHOUND AIRPORT SERVICE, INC. (GREYHOUND), CONTENDS THAT THE ISSUANCE OF REQUEST FOR PROPOSALS (RFP) DOT-FA-NA-74-1 (RFP 74-1) ON JUNE 11, 1974, BY THE FEDERAL AVIATION ADMINISTRATION (FAA), FOR PROPOSALS TO MANAGE AND OPERATE A COMPLETE "OPEN" TAXICAB TRANSPORTATION SYSTEM AT WASHINGTON NATIONAL AIRPORT (NATIONAL) CONSTITUTES A BREACH OF A PRIOR ORAL AGREEMENT BETWEEN FAA AND GREYHOUND.

CONCESSION CONTRACTS FOR GROUND TRANSPORTATION SERVICES AT NATIONAL AND DULLES INTERNATIONAL AIRPORT (DULLES) ARE ENTERED INTO PURSUANT TO THE TERMS OF THE ADMINISTRATION OF WASHINGTON NATIONAL AIRPORT ACT, 54 STAT. 686 (1940), AS SUPPLEMENTED BY THE SUPPLEMENTAL APPROPRIATIONS ACT OF 1940, 54 STAT. 1039, AND THE SECOND WASHINGTON AIRPORT ACT, 64 STAT. 770 (1950). THESE STATUTES GENERALLY EMPOWER THE SECRETARY OF TRANSPORTATION TO ENTER INTO CONTRACTS AND LEASES FOR THE FURNISHING OF SERVICES AT THE AIRPORTS ON SUCH TERMS AS HE CONSIDERS APPROPRIATE FOR PERIODS OF UP TO FIVE YEARS WITHOUT REGARD TO THE REQUIREMENTS OF FORMAL ADVERTISING.

GROUND TRANSPORTATION SERVICES, INCLUDING BUS, LIMOUSINE AND TAXI SERVICES AT NATIONAL AND DULLES WERE PROVIDED BY GREYHOUND UNDER CONTRACT NO. DOT-FA-BNCA-4071 (CONTRACT 4071), FROM 1968 THROUGH DECEMBER 31, 1973. ON JULY 30, 1973, IN ANTICIPATION OF THE EXPIRATION OF CONTRACT 4071, FAA ISSUED RFP NO. DOT-FA-NCA-73-4 (RFP 73-4), FOR THE OPERATION OF GROUND TRANSPORTATION SERVICES AT BOTH AIRPORTS. RFP 73-4 REQUIRED, AMONG OTHER THINGS, A CONCESSION FEE OF 10 PERCENT OF GROSS REVENUES TO BE PAID FAA, EXCEPT ON "OPEN" CAB REVENUES. GREYHOUND DID NOT SUBMIT A PROPOSAL IN RESPONSE TO RFP 73-4. INSTEAD IT SUBMITTED A LETTER DATED OCTOBER 1, 1973, EXPLAINING THAT IT COULD NOT SUBMIT A PROPOSAL PRIMARILY BECAUSE OF ALLEGED SUBSTANTIAL LOSSES INCURRED AS A RESULT OF THE 10 PERCENT FEE REQUIREMENT OF THE PRIOR CONTRACT. HOWEVER, GREYHOUND DID EXPRESS ITS INTEREST IN PERFORMING THE TRANSPORTATION SERVICES IF TERMS MORE AGREEABLE TO IT COULD BE WORKED OUT. ONE PROPOSAL, THAT OF HUDSON GENERAL CORPORATION (HUDSON), WAS RECEIVED IN RESPONSE TO RFP 73-4. FAA REPORTS THAT, HUDSON'S PROPOSAL DID NOT MEET THE MANDATORY CONCESSION FEE REQUIREMENT OF THE SOLICITATION. ACCORDINGLY, AN AMENDMENT WAS ISSUED OCTOBER 1, 1973, CHANGING THE FEE ARRANGEMENT TO PERMIT A FEE OF LESS THAN 10 PERCENT OF GROSS REVENUE AND EXTENDING THE DATE FOR SUBMISSION OF OFFERS TO DECEMBER 3, 1973. SINCE A CONTRACT COULD NOT BE NEGOTIATED BY DECEMBER 31 A FURTHER AMENDMENT WAS ISSUED REVISING THE PROPOSED STARTING DATE OF THE CONTRACT TO JULY 1, 1974.

FAA REQUESTED GREYHOUND TO EXTEND CONTRACT 4071 THROUGH JUNE 30, 1974. BY LETTER OF NOVEMBER 5, 1973, GREYHOUND INFORMED FAA THAT IT WOULD NOT CONSIDER A SHORT-TERM EXTENSION OF THE CONTRACT, AND THAT IT WOULD CONSIDER CONTINUING TO PROVIDE THE TRANSPORTATION SERVICES ONLY IF CERTAIN CONDITIONS WERE MET, INCLUDING A MINIMUM FIVE-YEAR EXTENSION PERIOD FOR ALL SERVICES.

AS A RESULT OF GREYHOUND'S RESPONSE, FAA CONCLUDED THAT IT HAD NO CHOICE BUT TO ATTEMPT TO NEGOTIATE A CONTRACT FOR THE SIX MONTH INTERIM PERIOD WITH HUDSON. THE CONTRACT NEGOTIATED WITH HUDSON WAS NOT AWARDED UNDER RFP 73-4, BUT WAS AN INTERIM CONTRACT TO ASSURE CONTINUATION OF GROUND TRANSPORTATION SERVICES PENDING AWARD OF A CONTRACT UNDER RFP 73-4. THE INTERIM CONTRACT CALLED FOR THE ESTABLISHMENT OF AN "OPEN" TAXICAB SYSTEM AT NATIONAL, AS OPPOSED TO THE FLEET SYSTEM PREVIOUSLY EMPLOYED. UNDER THE OPEN SYSTEM, ANY TAXI OPERATOR WOULD BE AUTHORIZED TO PICK UP PASSENGERS AT THE AIRPORT UPON PAYMENT OF 50 CENTS TO HUDSON FOR EACH MOVEMENT. THE CONTRACT REQUIRED HUDSON TO OBTAIN A CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY FROM THE WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION (WMATC), AUTHORIZING IT TO PROVIDE BUS AND LIMOUSINE SERVICES. HUDSON WAS TO BEGIN PERFORMANCE UNDER THE INTERIM CONTRACT ON JANUARY 1, 1974. BY ORDER NO. 1293, DATED DECEMBER 28, 1973, WMATC DENIED HUDSON'S APPLICATION. THE PRINCIPAL REASON FOR THE DENIAL WAS WMATC'S FINDING THAT GREYHOUND WAS FIT, WILLING, AND ABLE TO PROVIDE THE BUS AND LIMOUSINE SERVICES WHICH, IN WMATC'S VIEW PRECLUDED THE CERTIFICATION OF A SECOND CARRIER.

SINCE HUDSON WAS UNABLE TO OBTAIN THE REQUIRED WMATC CERTIFICATION, THE FAA CONCLUDED THAT IT WAS EFFECTIVELY FORECLOSED FROM OBTAINING BUS OR LIMOUSINE SERVICES FROM ANY SOURCE OTHER THAN GREYHOUND. ACCORDINGLY, ON DECEMBER 31, 1973, A MEETING WAS HELD BETWEEN REPRESENTATIVES OF GREYHOUND AND FAA. THE EFFECT OF WHAT TRANSPIRED DURING THE COURSE OF THIS MEETING IS DISPUTED. GREYHOUND INSISTS THAT AN ORAL AGREEMENT WAS REACHED THAT FAA AND GREYHOUND WOULD EVENTUALLY ENTER INTO A THREE TO FIVE YEAR CONTRACT COVERING ALL GROUND TRANSPORTATION SERVICES AT NATIONAL AND DULLES, INCLUDING TAXI SERVICE AT NATIONAL, ON A SOLE-SOURCE BASIS. FAA DENIES THAT IT MADE ANY COMMITMENT TO CONTRACT WITH GREYHOUND FOR ALL THESE SERVICES FOR THREE TO FIVE YEARS.

IN ANY EVENT, GREYHOUND AND FAA ENTERED INTO A LETTER CONTRACT ON JANUARY 10, 1974, WHICH EXTENDED THE TERMS OF GREYHOUND'S PRIOR CONTRACT, WITH THE EXCEPTION THAT GREYHOUND WAS NOT OBLIGATED TO PAY FAA ANY CONCESSION FEES AND GREYHOUND AGREED TO OPERATE AN "OPEN" TAXI SYSTEM UNTIL JANUARY 31, 1974. THIS CONTRACT WAS SUBSEQUENTLY EXTENDED TO FEBRUARY 28, 1974. THEREAFTER ON APRIL 22, 1974, A SIX MONTH CONTRACT, DOT-FA-NCA-5094 (CONTRACT 5094) WAS EXECUTED TO BE EFFECTIVE FROM FEBRUARY 1, 1974. THIS AGREEMENT SET FORTH NEW CONCESSION FEE PROVISIONS AND WAS SUBSEQUENTLY MODIFIED TO EXCLUDE THE OPERATION OF THE TAXI SYSTEM AT DULLES.

ON JUNE 11, 1974, FAA PRESENTED GREYHOUND WITH A COPY OF RFP 74-1, COVERING THE OPERATION OF THE "OPEN" TAXI SYSTEM AT NATIONAL. GREYHOUND PROTESTED THE ACTION FIRST TO FAA AND LATER TO THIS OFFICE. ALTHOUGH THE FAA EXERCISED ITS OPTION TO EXTEND GREYHOUND'S PERFORMANCE OF THE BUS AND LIMOUSINE SERVICES, IT DID NOT EXTEND GREYHOUND'S OPERATION OF TAXI SERVICES BEYOND NOVEMBER 3, 1974. ON OCTOBER 23, 1974, NOTWITHSTANDING THE PENDING PROTEST, FAA AWARDED A CONTRACT EFFECTIVE NOVEMBER 3, 1974, FOR THE OPERATION OF THE "OPEN" CAB SYSTEM TO AIRPORT MANAGEMENT SYSTEM, INCORPORATED (MANAGEMENT).

IT IS GREYHOUND'S POSITION THAT BY ISSUING RFP 74-1, FAA BREACHED AN ORAL AGREEMENT MADE BETWEEN REPRESENTATIVES OF FAA AND GREYHOUND AT THE "EMERGENCY" MEETING HELD AT FAA'S OFFICE ON DECEMBER 31, 1973. GREYHOUND CONTENDS THAT IN CONSIDERATION OF ITS PROVIDING GROUND TRANSPORTATION SERVICES ON A SHORT TERM BASIS, FAA AGREED TO NEGOTIATE A SOLE-SOURCE CONTRACT FOR CONTINUATION OF ALL THE SERVICES, INCLUDING THE OPERATION OF THE TAXI SERVICE AT NATIONAL, FOR A PERIOD OF BETWEEN THREE TO FIVE YEARS. FAA REPLIES THAT IT DID NOT OBLIGATE ITSELF TO NEGOTIATE WITH GREYHOUND ON A SOLE-SOURCE BASIS FOR THE OPERATION OF THE TAXI SYSTEM AT NATIONAL, ALTHOUGH IT ACKNOWLEDGES THAT THERE WAS GENERAL AGREEMENT THAT THERE WOULD BE SOLE-SOURCE NEGOTIATIONS WITH GREYHOUND FOR THE CERTIFICATED LIMOUSINE AND BUS SERVICES.

GREYHOUND'S POSITION THAT IT HAS A BINDING ORAL AGREEMENT WITH FAA REGARDING ALL GROUND TRANSPORTATION SERVICES AT NATIONAL IS BASED ON A SWORN AFFIDAVIT EXECUTED BY MR. JACK COHEN, GREYHOUND'S REPRESENTATIVE AT THE DECEMBER 31 MEETING WITH FAA. THE PERTINENT PORTIONS OF MR. COHEN'S VERSION OF THE DECEMBER 31 MEETING AS SET FORTH IN HIS AFFIDAVIT ARE AS FOLLOWS:

"13. I ATTENDED THE MEETING ON BEHALF OF AIRPORT SERVICE. FAA'S REPRESENTATIVES WERE MR. CHARLES ANDERSON, DEPUTY GENERAL COUNSEL, MR. JAMES MURPHY AND MR. CLYDE PACE. MR. ANDERSON STATED THAT HE WAS EMPOWERED TO CONCLUDE AN ARRANGEMENT WITH AIRPORT SERVICE ON BEHALF OF THE ADMINISTRATOR. HE REQUESTED AIRPORT SERVICE TO CONTINUE TO MANAGE AND OPERATE THE GROUND TRANSPORTATION SYSTEM ON TERMS SIMILAR TO THOSE CONTAINED IN THE 1968 CONTRACT EXCEPT THAT THE TERMS WERE TO BE MODIFIED TO PROVIDE FOR THE KIND OF 'OPEN CAB' SYSTEM AT WASHINGTON NATIONAL WHICH HAD BEEN AGREED UPON BY HUDSON AND NO FRANCHISE FEES OR RENTALS WERE TO BE PAID DURING THE MONTH OF JANUARY 1974. IT WAS FURTHER PROPOSED BY FAA THAT THE CONTINUING SERVICES BE PERFORMED IN THE IMMEDIATE FUTURE ON THE BASIS OF AN ORAL UNDERSTANDING AND THAT THE PARTIES WOULD PROMPTLY NEGOTIATE AN INTERIM ARRANGEMENT FOR SIX MONTHS. THE TIME PROVIDED BY THE INTERIM ARRANGEMENT WAS TO BE UTILIZED BY FAA TO DECIDE WHETHER THE 'OPEN CAB' SYSTEM WAS SUCCESSFUL ENOUGH TO CONTINUE AND FOR NEGOTIATIONS LEADING TO A THREE-TO-FIVE-YEAR CONTRACT.

"14. AT FIRST I PROPOSED ASSIGNMENT OF THE HUDSON GENERAL CONTRACT TO GREYHOUND. THE FAA REPRESENTATIVES REFUSED. I THEN STATED THAT AIRPORT SERVICE WAS AGREEABLE TO THE FAA PROPOSALS PROVIDED IT WAS UNDERSTOOD THAT A LONG TERM SOLE-SOURCE CONTRACT WOULD BE NEGOTIATED COVERING ALL GROUND TRANSPORTATION SERVICES, INCLUDING THE 'OPEN CAB' OPERATION. SPECIFICALLY DISCUSSED THE FACT THAT THE BUS AND LIMOUSINE SERVICES HAD BEEN FINANCIALLY MARGINAL AND THAT ALL THREE TYPES OF SERVICE HAD ALWAYS BEEN OPERATED AS AN INTEGRATED WHOLE. I ADDED THAT UNDER THESE CIRCUMSTANCES WE COULD ONLY AGREE TO CONTINUE SERVICES IF IT WERE UNDERSTOOD THAT A LONG TERM CONTRACT WOULD BE NEGOTIATED THAT WOULD INCLUDE THE OPEN CAB AS WELL AS THE BUS AND LIMOUSINE OPERATIONS. THE FAA REPRESENTATIVES AGREED TO THESE CONDITIONS."

IN ITS ADMINISTRATIVE REPORT FAA ADVISES THAT ITS REPRESENTATIVES AT THE DECEMBER 31 MEETING DO NOT RECALL ANY AGREEMENT AS SPECIFIC AS THAT CITED IN PARAGRAPH 14 OF MR. COHEN'S AFFIDAVIT. IT IS STATED THAT MR. PACE AND MR. MURPHY OF FAA RECALL THAT BECAUSE OF THE WMATC DECISION CONCERNING THE BUS AND LIMOUSINE SERVICES, THERE WAS A GENERAL AGREEMENT THAT GREYHOUND WOULD BE THE SOLE-SOURCE OF THESE CERTIFICATED SERVICES FOR THREE TO FIVE YEARS, BUT THAT THE OPEN TAXI SYSTEM WAS NOT INCLUDED IN THIS UNDERSTANDING AS GREYHOUND WAS RELUCTANT TO OPERATE SUCH A SYSTEM. HOWEVER, IT IS ALSO REPORTED THAT MR. ANDERSON OF FAA, IN ESSENCE, AGREES WITH MR. COHEN AS HE RECALLS A CONSENSUS THAT THE PARTIES WOULD NEGOTIATE ON A SOLE-SOURCE BASIS FOR A THREE TO FIVE YEAR CONTRACT FOR ALL GROUND TRANSPORTATION SERVICES AT NATIONAL AND DULLES, WITH THE QUESTION OF THE MANNER IN WHICH THE TAXI SERVICE WOULD BE FURNISHED AT NATIONAL TO BE DETERMINED OVER A PERIOD OF SIX MONTHS WITH 30 DAY REVIEW PERIODS.

FAA ALSO POINTS TO THE WRITTEN AGREEMENTS EXECUTED SUBSEQUENT TO THE DECEMBER 31, 1973, MEETING IN SUPPORT OF ITS POSITION THAT IT IS NOT OBLIGATED TO NEGOTIATE ON A SOLE-SOURCE BASIS WITH GREYHOUND FOR OPERATION OF THE TAXICAB SYSTEM AT NATIONAL. THE FIRST SUCH AGREEMENT IS THE LETTER CONTRACT EXECUTED ON JANUARY 10, 1974, TO EXPIRE ON JANUARY 31, 1974, SUBSEQUENTLY EXTENDED TO FEBRUARY 28, 1974. AS MENTIONED BEFORE, IT PROVIDED THAT GREYHOUND WAS TO OPERATE ALL GROUND SERVICES AT NATIONAL AND DULLES IN ACCORDANCE WITH THE TERMS OF THE 1968 CONTRACT, WITH THE EXCEPTION THAT GREYHOUND WAS NOT OBLIGATED TO PAY A CONCESSION FEE AND THAT IT WOULD OPERATE AN OPEN TAXICAB SYSTEM. FAA POINTS OUT THAT THE AGREEMENT PROVIDES THAT IF EXTENDED, "THE GOVERNMENT MAY, AT ITS SOLE OPTION AND WITHOUT ANY LIABILITY, TERMINATE THIS CONTRACT FOR ITS CONVENIENCE UPON (30) DAYS WRITTEN NOTICE TO GREYHOUND." NEXT, FAA REFERS TO THE APRIL 22, 1974, SIX-MONTH AGREEMENT, WHICH, AS MODIFIED, PROVIDED FOR GREYHOUND'S OPERATION OF ALL GROUND TRANSPORTATION SERVICES EXCEPT THE CABS AT DULLES. FAA REFERS TO THE FOLLOWING TERMINATION FOR CONVENIENCE PROVISION INCLUDED IN THE CONTRACT:

"IN ADDITION TO ALL ITS OTHER RIGHTS HEREUNDER, THE GOVERNMENT MAY, AT ITS OPTION, AND WITHOUT LIABILITY TO THE CONTRACTOR EXCEPT AS SPECIFICALLY PROVIDED IN THE CONTRACT, TERMINATE GREYHOUND'S RIGHT TO PERFORM THE GROUND TRANSPORTATION SERVICES CALLED FOR BY THIS CONTRACT, IN WHOLE OR IN PART, FOR ITS CONVENIENCE UPON SIXTY (60) DAYS WRITTEN NOTICE TO THE CONTRACTOR. THE CONTRACTOR AGREES TO COOPERATE WITH THE GOVERNMENT AND ANY SUCCESSOR CONTRACTOR TO ASSUME AN ORDERLY TRANSITION OF THE PERFORMANCE OF THESE SERVICES."

THE FAA ALSO POINTS TO THE FOLLOWING "BUY OUT" PROVISION CONCERNING THE OPERATION OF THE OPEN TAXI SYSTEM:

"IN THE EVENT THE CONTRACTOR IS NOT GRANTED A CONTRACT FOR A TERM BEYOND JULY 31, 1974, FOR A PERIOD LONG ENOUGH TO AMORTIZE THE COST OF THE COIN COLLECTION DEVICES AND ASSOCIATED EQUIPMENT AND INSTALLATION COSTS, THE GOVERNMENT AGREES THAT THE SUCCESSOR CONTRACTOR OR THE GOVERNMENT SHALL REIMBURSE THE CONTRACTOR FOR THE UNAMORTIZED COSTS OF ANY SUCH COLLECTION DEVICES, INCLUDING THE COSTS OF ASSOCIATED EQUIPMENT AND INSTALLATION. THE PARTIES HERETO AGREE THAT THESE COSTS SHALL BE AMORTIZED ON A STRAIGHT LINE BASIS OVER A PERIOD OF TWO YEARS FROM THE DATE OF INSTALLATION."

FAA ARGUES THAT SINCE BOTH CONTRACTS ARE (1) FOR A DEFINITE PERIOD OF PERFORMANCE, (2) PROVIDE FOR TERMINATION BY THE GOVERNMENT WITHOUT LIABILITY AND FOR GREYHOUND'S COOPERATION WITH ANY SUCCESSOR CONTRACTOR, (3) ARE SILENT REGARDING A LONG TERM AGREEMENT, AND (4) SINCE THE APRIL 22 CONTRACT HAS A "BUY-OUT" PROVISION IN THE EVENT THE PARTIES FAIL TO ENTER INTO A LONG TERM AGREEMENT, THE EXPRESS TERMS OF THE CONTRACTS ARE INCONSISTENT WITH THE EXISTENCE OF AN ALLEGED ORAL AGREEMENT URGED BY GREYHOUND. IN THIS REGARD, FAA ARGUES THAT MATTERS DISCUSSED DURING THE ORAL NEGOTIATIONS OF DECEMBER 31 DID NOT SURVIVE THE DEFINITIZATION OF THE AGREEMENT AS REPRESENTED BY THE CONTRACTS OF JANUARY 10 AND APRIL 22, AND THESE CONTRACTS SUPERSEDE ALL PRIOR NEGOTIATED AGREEMENTS, THE TERMS OF WHICH ARE MERGED THEREIN. FAA ARGUES, CITING CARDEN V. UNITED STATES, 87 CT. CL. 198 (1938), THAT GREYHOUND MAY NOT USE PAROL EVIDENCE TO ALTER OR VARY THE EXPRESS TERMS OF THE WRITTEN CONTRACTS. GREYHOUND, ON THE OTHER HAND, ENVISIONS THE ALLEGED ORAL AGREEMENT AS ENCOMPASSING THE FOLLOWING THREE SEPARATE AND DISTINCT TASKS.

"(1) THE 1968 AGREEMENT WOULD BE EXTENDED AS ORALLY MODIFIED ON AN EMERGENCY BASIS FOR 30 DAYS. THE PARTIES WOULD SIGN A LETTER AGREEMENT TO THAT EFFECT WITHIN THE NEXT SEVERAL DAYS, ALTHOUGH AIRPORT SERVICE WOULD PROVIDE THE SERVICES EVEN BEFORE THE 30-DAY AGREEMENT WAS SIGNED.

"(2) DURING THE 30-DAY EXTENSION OF THE 1968 AGREEMENT, THE PARTIES WOULD NEGOTIATE AND EXECUTE A SIX-MONTH AGREEMENT FOR THE TOTAL GROUND TRANSPORTATION REQUIREMENT AT NATIONAL AND DULLES.

"(3) DURING THAT SIX-MONTH PERIOD, THE PARTIES WOULD NEGOTIATE AND EXECUTE A THREE-TO-FIVE YEAR AGREEMENT FOR THE SAME GROUND TRANSPORTATION PACKAGE."

GREYHOUND STATES THAT THE PARTIES ACCOMPLISHED ONLY THE FIRST TWO STAGES WHEN FAA SEPARATED THE CAB SYSTEM AT NATIONAL FROM THE OTHER SERVICES. IS GREYHOUND'S POSITION THAT THE FACT THAT IN THE EXECUTION OF THE FIRST TWO STAGES NO REFERENCE WAS MADE TO THE LONG TERM AGREEMENT DOES NOT CONSTITUTE A WAIVER OF FAA'S OBLIGATION TO PROCEED WITH THE THIRD STAGE. FURTHER, GREYHOUND INSISTS THAT THERE IS NOTHING INCONSISTENT WITH THE LONG TERM ARRANGEMENT CONTEMPLATED BY THE THIRD STAGE AND THE JANUARY 10 AND APRIL 22 CONTRACTS.

GREYHOUND INSISTS THAT THE "IMPRECISE" LANGUAGE OF THE "BUY-OUT" CLAUSE CONTAINED IN THE APRIL 22 CONTRACT IS NOT INCONSISTENT WITH THE EXISTENCE OF THE ORAL AGREEMENT. GREYHOUND EXPLAINS THAT AT THE TIME THE COIN BOXES WERE TO BE ORDERED FAA HAD YET TO MAKE THE OPEN TAXI SYSTEM PERMANENT. SINCE GREYHOUND DID NOT WANT TO MAKE THE REQUIRED INVESTMENT IN A SYSTEM WHICH COULD BE RENDERED USELESS AND SINCE THE SIX-MONTH AGREEMENT HAD NOT BEEN EXECUTED, THE PROVISION WAS INCLUDED. GREYHOUND SUBMITS THAT IT WAS A POSSIBILITY THAT THE COIN BOXES WOULD NOT BE IMMEDIATELY INSTALLED, BUT THAT INSTALLATION MIGHT BE DELAYED UNTIL LESS THAN TWO YEARS REMAINED ON THE LONG-TERM CONTRACT.

BASED ON THE RECORD, WE ARE NOT CONVINCED THAT THE MEETING OF DECEMBER 31, 1973, RESULTED IN AN AGREEMENT TO THE EFFECT THAT THE PARTIES WOULD NEGOTIATE A LONG-TERM CONTRACT FOR ALL GROUND TRANSPORTATION SERVICES, INCLUDING THE OPEN TAXICAB SERVICE. WHILE GREYHOUND'S POSITION IN THIS REGARD IS SUPPORTED BY THE AFFIDAVIT OF ITS EMPLOYEE AND BY ONE FAA EMPLOYEE, TWO OTHER FAA EMPLOYEES HAVE STATED THAT IT WAS THEIR RECOLLECTION THAT ANY UNDERSTANDING CONCERNING A LONG-TERM CONTRACT RELATED ONLY TO THE CERTIFICATED SERVICES. EVEN THOUGH WE DO NOT HAVE AFFIDAVITS FROM THOSE TWO EMPLOYEES, WE DO NOT BELIEVE THAT WE SHOULD IGNORE THEIR STATEMENTS. SEE B-177397, JUNE 27, 1973. THEREFORE, THE EVIDENCE ADDUCED BY THE PARTIES AS TO THE SUBSTANCE AND UNDERSTANDING REACHED AT THE MEETING IS CONFLICTING. FURTHERMORE, WE BELIEVE THAT THE TWO CONTRACTS, AND THE TERMS THEREOF, EXECUTED SUBSEQUENT TO THE MEETING TEND TO SUPPORT FAA'S POSITION. MOREOVER,SINCE THE CONTRACT OF APRIL 22, 1974, WAS CLEAR INSOFAR AS THE GOVERNMENT'S RIGHT OF TERMINATION IS CONCERNED, WE BELIEVE THAT FAA HAS CORRECTLY POINTED OUT THAT THE PAROL EVIDENCE RULE PRECLUDES CONSIDERATION OF EXTRANEOUS EVIDENCE TO VARY THE TERMS THEREOF. IN VIEW THEREOF, WE FIND NO BASIS FOR CONCLUDING THAT THE AWARD OF A CONTRACT FOR THE OPEN TAXICAB SERVICES TO OTHER THAN GREYHOUND BREACHED ANY CONTRACTUAL RIGHT OF THE LATTER.

FINALLY, THE AWARD DURING THE PENDENCY OF THE PROTEST WAS NOT INAPPROPRIATE. IT SHOULD BE NOTED THAT FAA DID COMPLY WITH THE NOTICE REQUIREMENT OF FPR 1-2.407-8(B)(3) (1970 ED.) AND THAT GREYHOUND'S RIGHTS WERE NOT COMPROMISED AS THE CONTRACT WITH MANAGEMENT INCLUDES A CLAUSE WHICH AUTHORIZES TERMINATION BY THE FAA IN THE EVENT SUCH ACTION IS RECOMMENDED.

ACCORDINGLY, THE PROTEST IS DENIED.