B-179880, MAR 4, 1974

B-179880, MAR 4, 1974

1. PAST SATISFACTORY PERFORMANCE OF TIE BIDDER IS NOT "OTHER FACTOR" WITHIN MEANING OF FPR 1-2.407-6(A) SUFFICIENT TO RESOLVE TIE IN FAVOR OF BIDDER. 2. FACT THAT TIE BIDDER'S OUTBOUND SHIPMENT FACILITY IS CLOSER TO AIRPORT FACILITIES THAN OTHER TIE BID IS NOT A BASIS FOR RESOLVING TIE SINCE BOTH BIDDERS WERE FOUND BY PROCUREMENT OFFICE TO HAVE ACCEPTABLE OUTBOUND SHIPMENT FACILITIES. 3. FACTORS OF SHIPMENT SECURITY, A BIDDER'S RELATIONSHIP TO OVERSEAS U.S. TRADE CENTERS, AND EXPERIENCE OF ITS PERSONNEL - NONE OF WHICH WERE FOR EVALUATION - MAY NOT BE USED TO RESOLVE A TIE BETWEEN TWO BIDDERS.

TO BERKLAY AIR SERVICES CORPORATION; RANDY INTERN'L, LTD.:

BY LETTER OF JANUARY 17, 1974, THE BERKLAY AIR SERVICES CORPORATION REQUESTED OUR OFFICE TO RECONSIDER OUR DECISION OF JANUARY 15, 1974, WHEREIN WE RECOMMENDED THAT THE DEPARTMENT OF COMMERCE REVIEW THE CIRCUMSTANCES OF THE AWARD MADE TO BERKLAY - A TIE BIDDER - UNDER SOLICITATION NO. 4-36202 AND COMPLY WITH THE APPLICABLE PROVISION OF FEDERAL PROCUREMENT REGULATIONS (FPR) 1-2.407-6.

IN OUR JANUARY 15, 1974, DECISION, WE STATED THAT:

"IN OUR OPINION, 'OTHER FACTORS' AS USED IN THIS REGULATION MEAN THOSE CRITERIA WHICH ARE INHERENT IN THE SOLICITATION BUT NOT THOSE EXTRANEOUS CIRCUMSTANCES WHICH MAY BECOME SIGNIFICANTLY ATTRACTIVE TO THE PROCUREMENT ACTIVITY ONLY BECAUSE TIE BIDS HAVE BEEN RECEIVED. WITH REGARD TO THE INSTANT PROCUREMENT, WE FEEL THAT THE INCUMBENT CONTRACTOR'S PAST PERFORMANCE CANNOT BE CONSIDERED IN FINDING THAT THESE TWO SIMILARLY PRICED BIDS WERE UNEQUAL SINCE PAST PERFORMANCE ALONE IS AN EXTRANEOUS MATTER INSOFAR AS THE BIDDING DOCUMENTS ARE CONCERNED. TO THE EXTENT THAT 37 COMP. GEN. 330 (1957) IS INCONSISTENT WITH THIS POSITION, IT NO LONGER WILL BE FOLLOWED."

BERKLAY ARGUES THAT THERE DO EXIST OTHER FACTORS INHERENT IN THE SOLICITATION WHICH WOULD SUBSTANTIATE THE AGENCY'S DETERMINATION THAT EQUAL BIDS WERE NOT IN FACT RECEIVED. IN THIS REGARD, BERKLAY CITES THE FOLLOWING FACTORS:

1. LOCATION OF BERKLAY'S FACILITIES AT JOHN F. KENNEDY (JFK) AIRPORT

2. SHIPMENT SECURITY

3. BERKLAY'S RELATIONSHIP TO OVERSEAS U.S. TRADE CENTERS

4. BERKLAY'S TRAINED AND EXPERIENCED PERSONNEL FOR THIS SENSITIVE JOB.

AS TO LOCATION, ARTICLE I, SECTION "C," STATES:

"*** HE (THE SUCCESSFUL BIDDER) MUST ALSO HAVE ESTABLISHED PERSONNEL AND FACILITIES IN OR ADJACENT TO JOHN F. KENNEDY INTERNATIONAL AIRPORT, JAMAICA, NEW YORK. BIDDER SHALL STATE BELOW WHETHER OR NOT HE HAS FACILITIES FOR HANDLING OUTBOUND SHIPMENTS AT THE JOHN F. KENNEDY INTERNATIONAL AIRPORT, NEW YORK

YES NO "

WE THEREFORE BELIEVE, AS CONTENDED, THAT GENERAL LOCATION IS A FACTOR INHERENT IN THE SOLICITATION.

BERKLAY ARGUES THAT SINCE ITS HEADQUARTERS, PERSONNEL AND WAREHOUSING ARE LOCATED WITHIN JFK AIRPORT, WHILE RANDY'S ARE NOT, ON THIS BASIS ALONE THE BIDS ARE UNEQUAL.

IT SHOULD BE NOTED, HOWEVER, THAT BOTH RANDY AND BERKLAY INDICATED AFFIRMATIVE ANSWERS ON THEIR RESPECTIVE BIDS ON THE QUESTION OF HAVING FACILITIES AT JFK. MOREOVER, THE AGENCY APPEARS TO HAVE ACCEPTED BOTH STATEMENTS IN THAT IT DID NOT FIND EITHER BIDDER TO BE UNACCEPTABLE. BELIEVE THAT THE AGENCY CONSTRUED THE SOLICITATION PROVISION AS ASKING BIDDERS TO STATE WHETHER THEY HAD THE CAPABILITY TO HANDLE OUTBOUND SHIPMENTS AT JFK AND AS ACTUALLY REQUIRING THE SUCCESSFUL BIDDER TO HAVE FACILITIES EITHER IN OR ADJACENT TO JFK.

SINCE BOTH RANDY AND BERKLAY HAVE INDICATED TO THE AGENCY'S SATISFACTION AN ABILITY TO HANDLE OUTBOUND SHIPMENTS AT JFK AND SINCE BOTH HAVE BEEN FOUND BY THE AGENCY TO HAVE FACILITIES EITHER "IN OR ADJACENT TO" THE AIRPORT, WE BELIEVE THAT WITH REGARD TO THIS FACTOR OF LOCATION THE BIDS ARE EQUAL. FOR THE REASONS NOTED IN OUR JANUARY 15, 1974, DECISION, THE FACT THAT BERKLAY'S ACCEPTABLE LOCATION IS CLOSER TO THE AIRPORT'S INTERNATIONAL CARGO SHIPMENT AND CUSTOMS FACILITIES THAN IS RANDY'S IS NOT A BASIS FOR DECIDING BETWEEN TIE BIDS.

SIMILARLY, WE DO NOT BELIEVE THAT FACTORS OF SHIPMENT SECURITY, A BIDDER'S RELATIONSHIP TO OVERSEAS U.S. TRADE CENTERS AND THE EXPERIENCE OF A BIDDER'S PERSONNEL, WHICH WERE NOT STATED AS EVALUATION FACTORS, CAN BE USED TO BREAK AN APPARENT TIE. RATHER, THE DRAWING BY LOT PROVISIONS OF FPR 1-2.407-6(B) SHOULD BE FOLLOWED TO DETERMINE THE SUCCESSFUL BIDDER.

FOR THESE REASONS, OUR DECISION OF JANUARY 15, 1974, IS AFFIRMED.