B-130391, MARCH 13, 1957, 36 COMP. GEN. 649

B-130391, MARCH 13, 1957, 36 COMP. GEN. 649

BIDDERS - QUALIFICATION - LICENSE REQUIREMENTS - ADMINISTRATIVE DISCRETION THE REJECTION OF A LOW BID FOR PACKING, CRATING AND HAULING HOUSEHOLD EFFECTS OF NAVY DEPARTMENT PERSONNEL ON THE BASIS THAT THE MOTOR CARRIER DID NOT POSSESS CERTIFICATES FROM THE INTERSTATE COMMERCE COMMISSION OR THE STATE REGULATORY AGENCIES AS REQUIRED BY THE NAVY SHIPPING GUIDE RATHER THAN AS REQUIRED BY THE INVITATION IS PROPER, AND, ALTHOUGH IT WOULD HAVE BEEN DESIRABLE TO ADVISE BIDDERS OF THE CERTIFICATION REQUIREMENT IN THE INVITATION, IT IS A REQUIREMENT WHICH APPLIES TO THE BIDDER'S QUALIFICATIONS AND IN WHICH THE CONTRACTING AGENCY HAS A WIDE DEGREE OF ADMINISTRATIVE DISCRETION.

TO SELLWOOD TRANSFER COMPANY, MARCH 13, 1957:

YOUR LETTER OF JANUARY 15, 1957, AND ACCOMPANYING PAPERS, PROTESTS THE AWARD OF A CONTRACT FOR PACKING, CRATING, ETC., OF HOUSEHOLD GOODS OF NAVY PERSONNEL AND TRANSPORTATION AND INCIDENTAL SERVICES IN CONNECTION THEREWITH BY THE NAVY SUPPLY DEPOT, SEATTLE, WASHINGTON, TO THE HUNT TRANSFER COMPANY PURSUANT TO INVITATION FOR BIDS NO. 406-120 57.

THE ADMINISTRATIVE REPORT RECEIVED FROM THE DEPARTMENT OF THE NAVY INDICATES THAT CONTRACT N406-39099 WAS AWARDED ON DECEMBER 27, 1956, TO THE HUNT TRANSFER COMPANY ALTHOUGH YOU WERE THE LOW BIDDER. YOUR BID WAS REJECTED ON THE BASIS OF ARTICLE 1815-2 (J) OF THE NAVY SHIPPING GUIDE WHICH PROVIDES, IN PERTINENT PART, THAT " CARE WILL BE TAKEN TO USE ONLY MOTOR COMMON CARRIERS THAT ARE AUTHORIZED BY THE INTERSTATE COMMERCE COMMISSION OR A STATE REGULATORY BODY TO PERFORM THE RVICE.'

AS INDICATED IN YOUR LETTER, YOU HAVE AUTHORITY FROM THE INTERSTATE COMMERCE COMMISSION UNDER DOCKET NO. MC-39653 TO TRANSPORT HOUSEHOLD GOODS BETWEEN THE PORTLAND, OREGON, AREA AND POINTS IN WASHINGTON. YOUR LETTER ALSO INDICATES THAT YOU HOLD A PERMIT FROM THE ORGEON PUBLIC UTILITIES COMMISSION TO HAUL FROM ANY PLACE WITHIN A RADIUS OF 65 MILES OF PORTLAND, OREGON, TO ANY POINT WITHIN 65 MILES OF PORTLAND. SECTION C OF THE INVITATION REQUIRES SERVICES TO BE PERFORMED IN SIX ZONES RANGING FROM RADII OF 5 TO 30 MILES OF NAVAL RESERVE ACTIVITIES, SWAN ISLAND, PORTLAND, OREGON. IT APPEARS, THEREFORE, THAT YOUR COMPANY DOES NOT HAVE IN ITS OWN NAME AUTHORITY TO CARRY GOODS IN INTERSTATE COMMERCE FROM A POINT WITHIN OREGON BEYOND THE COMMERCIAL ZONE OF PORTLAND, WHICH IS GENERALLY DEFINED AS AN AREA WITHIN A LINE OF 5 MILES BEYOND THE CORPORATE LIMITS OF PORTLAND INCLUDING THE WHOLE OF ANY MUNICIPALITY ANY PART OF WHICH IS WITHIN THAT LINE. YOUR LETTER INDICATES THAT, ON THE BASIS OF YOUR EXPERIENCE WITH SIMILAR ARMY AND AIR FORCE CONTRACTS, 90 PERCENT OF THE WORK CAN BE HANDLED BY SELLWOOD UNDER ITS OWN AUTHORITIES. APPARENTLY, YOU INTENDED, IF AWARDED THE CONTRACT, TO PERFORM ALL PACKING UNDER THE CONTRACT AND TO ENGAGE THE SERVICES OF A CERTIFIED CARRIER FOR ANY TRANSPORTATION WHICH SELLWOOD DOES NOT HAVE THE REQUISITE AUTHORITY TO PERFORM.

THE REQUIREMENT IN THE NAVY SHIPPING GUIDE DOES NOT APPEAR IN THE INVITATION. WHILE WE FEEL THAT IT WOULD HAVE BEEN DESIRABLE TO ADVISE BIDDERS OF THE LIMITATION BY THE ADDITION OF A FURTHER PROVISION IN THE INVITATION, THE REQUIREMENT THAT BIDDERS HAVE ALL NECESSARY CERTIFICATES AND PERMITS IN THEIR OWN NAMES GOES TO THE QUALIFICATION OF BIDDERS AND IN SUCH MATTERS IT IS WELL RECOGNIZED THAT THE CONTRACTING AGENCY IS INVESTED WITH A LARGE DEGREE OF ADMINISTRATIVE DISCRETION. B-125247, SEPTEMBER 20, 1955.

FURTHER, IN A PROTEST AGAINST THE AWARD OF A CONTRACT BY THE DEPARTMENT OF THE NAVY UNDER SIMILAR CIRCUMSTANCES WHERE THE PROTESTING CARRIER DID NOT HOLD IN ITS OWN NAME NECESSARY PERMITS OR CERTIFICATES FROM A STATE PUBLIC UTILITIES COMMISSION, WE HELD IN B-124862, JANUARY 25, 1956 (COPY ENCLOSED), THAT, IN VIEW OF THE ABOVE-QUOTED PROVISION OF THE NAVY SHIPPING GUIDE, THE REQUIRED CERTIFICATE WAS AN ESSENTIAL PREREQUISITE TO OBTAINING THE CONTRACT. THE ACTION OF THE DEPARTMENT OF THE NAVY IN REJECTING YOUR BID APPEARS TO BE ENTIRELY CONSISTENT WITH OUR HOLDING IN THAT DECISION AND THERE APPEARS TO BE NO LEGAL BASIS UPON WHICH WE MAY DIRECT CANCELLATION OF THE AWARD OF CONTRACT TO THE HUNT TRANSFER COMPANY.

YOU NOTE IN YOUR LETTER THAT CONTRACTS FOR SIMILAR SERVICES HAVE BEEN AWARDED TO YOU BY THE DEPARTMENTS OF THE ARMY AND AIR FORCE NOTWITHSTANDING YOUR LACK OF CERTIFICATION TO PERFORM ALL THE SERVICES REQUIRED UNDER THE CONTRACT. AWARDS MADE BY THOSE DEPARTMENTS TO CARRIERS NOT HOLDING ALL OF THE REQUISITE AUTHORITIES BUT WHO HAVE AGREEMENTS WITH OTHER CARRIERS HAVING THE NECESSARY CERTIFICATION AND PERMITS TO PERFORM THE WORK FOR WHICH THE BIDDER IS NOT LICENSED HAVE BEEN HELD BY THIS OFFICE TO BE VALID. SEE B-120556, NOVEMBER 2, 1955. WHILE THE DIFFERENCE IN THE POLICIES OF THE DEPARTMENT OF THE NAVY AND THE OTHER TWO MILITARY SERVICES IS A MATTER OF ADMINISTRATIVE DISCRETION, WE ARE CALLING THE ATTENTION OF THE SECRETARY OF DEFENSE THERETO.