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B-188200, MAY 27, 1977

B-188200 May 27, 1977
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WILL CONSIDER IF BIDDER HAS "NECESSARY" PERMITS AND LICENSES. IT IS FOR CONTRACTING OFFICER TO DETERMINE WHAT LICENSES ARE NECESSARY AND IF BIDDER HAS THEM. WHILE LITERALLY APPLYING TO CONTRACTORS WHICH ARE MOTOR CARRIERS. FOUR BIDDERS WERE TO RECEIVE AWARD. AWARDEES WERE TO SUBMIT INFORMATION ON INSURANCE COVERAGE AND "C. PERMITS . . . " THREE AWARDS HAVE BEEN MADE. IS NOT A MOTOR CARRIER. IT IS. DISTRICT'S POSITION IS THAT FREIGHT FORWARDER AUTHORITY DOES NOT SATISFY THE IFB REQUIREMENT FOR MOTOR CARRIER AUTHORITY. A SOLICITATION REQUIREMENT THAT A BIDDER HAVE A SPECIFIC LICENSE AS A PRECONDITION OF AWARD IS REGARDED AS A MATTER BEARING ON THE RESPONSIBILITY OF THE BIDDER AS A PROSPECTIVE CONTRACTOR.

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B-188200, MAY 27, 1977

WHERE SOLICITATION REQUIRES AWARDEE, PRIOR TO START OF PERFORMANCE, TO FURNISH EVIDENCE OF I.C.C. AUTHORITY TO OPERATE AS A MOTOR CARRIER, BUT OTHERWISE STATES ONLY THAT CONTRACTING OFFICER, IN DETERMINING BIDDER'S RESPONSIBILITY, WILL CONSIDER IF BIDDER HAS "NECESSARY" PERMITS AND LICENSES, IT IS FOR CONTRACTING OFFICER TO DETERMINE WHAT LICENSES ARE NECESSARY AND IF BIDDER HAS THEM. PROVISION REGARDING MOTOR CARRIER AUTHORITY, WHILE LITERALLY APPLYING TO CONTRACTORS WHICH ARE MOTOR CARRIERS, DID NOT UNDER CIRCUMSTANCES OF CASE LIMIT COMPETITION SOLELY TO SUCH FIRMS.

DISTRICT MOVING & STORAGE, INC.:

DISTRICT MOVING & STORAGE, INC. (DISTRICT) HAS PROTESTED AWARD UNDER DEPARTMENT OF STATE INVITATION FOR BIDS (IFB) NO. ST-77-7 TO ANY BIDDER WHICH DOES NOT POSSESS, IN ITS OWN NAME, INTERSTATE COMMERCE COMMISSION (I.C.C.) AUTHORITY TO OPERATE AS A MOTOR CARRIER.

THE IFB, ISSUED NOVEMBER 17, 1976, FOR SERVICES COVERING THE PERIOD FROM FEBRUARY 1, 1977 TO JANUARY 31, 1978, DESCRIBED THE SCOPE OF THE CONTRACT AS FOLLOWS:

"THE CONTRACTORS) SHALL BE REQUIRED TO PROVIDE ALL NECESSARY LABOR, MATERIALS AND FACILITIES FOR THE PICKUP, RECEIPT, STORAGE, PREPARATION OF HOUSEHOLD AND PERSONAL EFFECTS FOR OVERSEAS SHIPMENT AND ALL RELATED SERVICES, INCLUDING SERVICING APPLICANCES, FOR CERTAIN U.S. GOVERNMENT EMPLOYEES IN THE WASHINGTON, D.C. AREA."

THE IFB STATED THAT IN DETERMINING RESPONSIBILITY, THE CONTRACTING OFFICER WOULD CONSIDER ADEQUACY OF FACILITIES AND "WHETHER THE BIDDER HAS THE NECESSARY PERMITS, LICENSES, EQUIPMENT AND FINANCIAL CAPABILITY TO PERFORM THE SERVICES OUTLINED".

FOUR BIDDERS WERE TO RECEIVE AWARD. BEFORE COMMENCING PERFORMANCE, AWARDEES WERE TO SUBMIT INFORMATION ON INSURANCE COVERAGE AND

"C. EVIDENCE OF CONTRACTOR'S AUTHORITY UNDER APPLICABLE FEDERAL, STATE, AND LOCAL LAWS TO OPERATE AS A MOTOR CARRIER.

1. ICC PERMIT NO. . . . 2. AREA COVERED . . . 3. LOCAL PERMIT NO. . . . 4. AREA COVERED . . . 5. PERMITS . . . "

THREE AWARDS HAVE BEEN MADE. DISTRICT, THE SEVENTH-LOW BIDDER, OBJECTS TO AWARD OF ANY OF THE REMAINING LOW BIDDERS ON THE GROUND THAT THEY LACK I.C.C. MOTOR CARRIER CERTIFICATES IN THEIR OWN NAMES. DISTRICT CITES THE I.C.C.'S RECENT DECISION IN BUD'S MOVING & STORAGE, INC., PETITION FOR DECLARATORY ORDER, 126 M.C.C. 56 (1977), AS REQUIRING SUCH CERTIFICATION.

INTERNATIONAL EXPORT PACKERS, INC. (INTERNATIONAL), THE THIRD-LOW BIDDER AND THE FIRM NEXT IN LINE FOR AWARD, IS NOT A MOTOR CARRIER. IT IS, HOWEVER, AN I.C.C. LICENSED FREIGHT FORWARDER, AND IT INCLUDED ITS I.C.C. PERMIT NUMBER IN ITS BID. DISTRICT'S POSITION IS THAT FREIGHT FORWARDER AUTHORITY DOES NOT SATISFY THE IFB REQUIREMENT FOR MOTOR CARRIER AUTHORITY.

A SOLICITATION REQUIREMENT THAT A BIDDER HAVE A SPECIFIC LICENSE AS A PRECONDITION OF AWARD IS REGARDED AS A MATTER BEARING ON THE RESPONSIBILITY OF THE BIDDER AS A PROSPECTIVE CONTRACTOR. VICTORY VAN CORPORATION ET AL., 53 COMP.GEN. 750 (1974), 74-1 CPD 178; 53 COMP.GEN. 51 (1973). HOWEVER, WE DO NOT READ THE SOLICITATION AS REQUIRING A BIDDER TO HAVE AS A PRECONDITION OF AWARD A MOTOR CARRIER CERTIFICATE IN ITS OWN NAME. THE IFB PROVIDES THAT EVIDENCE OF THE CONTRACTOR'S AUTHORITY TO OPERATE AS A MOTOR CARRIER SHALL BE PROVIDED BY THE CONTRACTOR AFTER RECEIPT OF AWARD. THE ONLY PROVISION DEALING WITH A PRE-AWARD REQUIREMENT FOR LICENSES STATES THAT THE CONTRACTING OFFICER, IN DETERMINING RESPONSIBILITY, WILL CONSIDER WHETHER THE BIDDER HAS THE "NECESSARY" PERMITS AND LICENSES TO PERFORM THE CONTRACT SERVICES. THUS, IT IS FOR THE CONTRACTING OFFICER TO REASONABLY DETERMINE WHAT KIND OF LICENSES OR PERMITS THE BIDDERS IN LINE FOR AWARD MUST HAVE IN ORDER TO PERFORM AND IF THOSE BIDDERS HAVE OR WILL HAVE THE NECESSARY LICENSES BY TIME OF PERFORMANCE. IN OTHER WORDS, THE IFB PROVIDES ONLY THAT THE CONTRACTING OFFICER WILL DETERMINE, PRIOR TO AWARD, IF A BIDDER HAS THE "NECESSARY" LICENSES OR PERMITS-- IT DOES NOT PROVIDE THAT ANY PARTICULAR TYPE OF LICENSE IS NEEDED.

WITH REGARD TO THE IFB LANGUAGE REFERRING TO AUTHORITY "TO OPERATE AS A MOTOR CARRIER," WE ARE ADVISED BY THE STATE DEPARTMENT THAT THOSE WORDS WERE NOT MEANT TO EXCLUDE FROM COMPETITION FREIGHT FORWARDING FIRMS SUCH AS INTERNATIONAL, WHICH HAS SATISFACTORILY PERFORMED SIMILAR CONTRACTS FOR THE DEPARTMENT IN THE PAST AND WHICH WAS SOLICITED FOR THIS PROCUREMENT. ACCORDINGLY, SINCE THE IFB PROVISIONS DEALING WITH RESPONSIBILITY DID NOT ESTABLISH A REQUIREMENT FOR A SPECIFIC LICENSE, AND IN LIGHT OF THE DEPARTMENT'S ADVICE, WE THINK IT REASONABLE TO READ THE "OPERATE AS A MOTOR CARRIER" PROVISION AS APPLYING LITERALLY ONLY TO CONTRACTS WHICH ARE IN FACT AWARDED TO MOTOR CARRIERS. SHOULD AWARD BE MADE TO A FREIGHT FORWARDER, WE THINK THE PROVISION WOULD MEAN NO MORE THAN THAT THE FORWARDER WILL BE REQUIRED TO SHOW EVIDENCE OF ITS AUTHORITY TO PERFORM THE CONTRACT (SUCH AS THE CONTRACTOR'S I.C.C. PERMIT AND/OR THE OPERATING AUTHORITY OF WHATEVER CARRIERS THE CONTRACTOR WOULD PLAN TO USE TO PERFORM THAT PORTION OF THE CONTRACT NECESSITATING THE USE OF I.C.C. CERTIFIED MOTOR CARRIERS).

WE RECOGNIZE THAT THE PROVISION COULD HAVE BEEN MISLEADING TO THE EXTENT THAT IT COULD BE READ AS LIMITING COMPETITION TO MOTOR CARRIERS ONLY. SINCE IT APPEARS THAT THE DEPARTMENT IN FACT DID SOLICIT BIDS FROM FREIGHT FORWARDERS, WE SEE NO NEED TO RECOMMEND A RESOLUTION UNDER REVISED SPECIFICATIONS. WE ARE, HOWEVER, ADVISING THE SECRETARY OF STATE OF THE NEED FOR MORE CAREFUL DRAFTING OF SOLICITATION PROVISIONS TO PRECLUDE POSSIBLE IMPROPER RESTRICTIONS ON COMPETITION IN THE FUTURE.

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