B-139296, MAY 29, 1959, 38 COMP. GEN. 812

B-139296, MAY 29, 1959, 38 COMP. GEN. 812

CONTRACT - SMALL BUSINESS AWARDS - STATUTORY CONSTRUCTION - GENERAL AND SPECIAL WORDS IN THE ABSENCE OF ANY EVIDENCE OF A CONGRESSIONAL INTENT THAT THE DEFINITIONS "AIR TRANSPORTATION" AND "AIR CARRIER" IN THE FEDERAL AVIATION ACT OF 1958 ARE FOR APPLICATION TO SIMILAR WORDS IN SECTION 634 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1959, WHICH LIMITS FUNDS OF THE MILITARY AIR TRANSPORT SERVICE FOR PROCUREMENT OF COMMERCIAL AIR TRANSPORTATION SERVICE AND REQUIRES THE UTILIZATION OF CIVIL AIR CARRIERS WHICH QUALIFY AS SMALL BUSINESS CONCERNS, THE TERMS SHOULD BE GIVEN THEIR USUAL MEANING; THEREFORE, AN AWARD OF AN AIR SERVICE CONTRACT BY MILITARY AIR TRANSPORT SERVICE TO AN AIR CARRIER WHICH QUALIFIES AS A SMALL BUSINESS CONCERN WOULD NOT BE INVALID EVEN THOUGH THE CARRIER DOES COME WITHIN THE LIMITED DEFINITIONS IN THE FEDERAL AVIATION ACT OF 1958.

TO SHAW, PITTMAN, POTTS AND MAECHLING, MAY 29, 1959:

WE REFER AGAIN TO YOUR LETTER OF APRIL 9, 1959, WITH ENCLOSURE, PROTESTING ON BEHALF OF OVERSEAS NATIONAL AIRWAYS, INC., AN AWARD OF A CONTRACT BY THE MILITARY AIR TRANSPORT SERVICE TO AMERICAN INTERNATIONAL AIRWAYS UNDER SERVICE ORDER NO. 1 PURSUANT TO ITEM NO. 15 OF MATS REQUEST FOR PROPOSALS MAMPC-10-C-2.

A LETTER REPORT DATED MAY 4, 1959, FROM THE OFFICE OF THE SECRETARY OF THE AIR FORCE, STATES THAT THE PROCUREMENT IN QUESTION EMBRACED A CALL FOR 233 TONS OF CARGO AIRLIFT PER MONTH, ONE WAY FROM TRAVIS AIR FORCE BASE, CALIFORNIA, TO TACHIKAWA, JAPAN, FOR APRIL, MAY, AND JUNE 1959. THE ITEM WAS TOTALLY SET ASIDE FOR SMALL BUSINESS IN ACCORDANCE WITH A JOINT DETERMINATION PURSUANT TO ASPR PROVISIONS 1-706.1 AND 1 706.5.

NINETEEN PROPOSALS WERE RECEIVED IN RESPONSE TO THE REQUEST. AWARD UNDER ITEM NO. 15 WAS MADE MARCH 23, 1959, TO THE THREE LOWEST RESPONSIBLE OFFERORS TO THE MAXIMUM EXTENT OF SERVICE CAPABILITY OFFERED AS FOLLOWS:

CHART

PRICE

CARRIER TONNAGE PER TON OVERSEAS NATIONAL ------------------------ 525 $1,510.00 AMERICAN INTERNATIONAL- ------------------

56 1,862.00 ALASKA AIRLINES--------------------------- 96.25 1,878.26

THE CONTRACTING OFFICER DETERMINED THAT THE PRICES LISTED ABOVE WERE FAIR AND REASONABLE AND THAT THE CARRIERS WERE RESPONSIBLE CONTRACTORS.

THE FIRST BASIS FOR PROTEST PRESENTED IS THAT AWARD TO AMERICAN IS IN VIOLATION OF SECTION 634 OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1959, 72 STAT. 729 WHICH PROVIDES:

OF THE FUNDS MADE AVAILABLE BY THE ACT FOR THE SERVICES OF THE MILITARY AIR TRANSPORT SERVICE, $80,000,000 SHALL BE AVAILABLE ONLY FOR PROCUREMENT OF COMMERCIAL AIR TRANSPORTATION SERVICE; AND THE SECRETARY OF DEFENSE SHALL UTILIZE THE SERVICES OF CIVIL AIR CARRIERS WHICH QUALIFY AS SMALL BUSINESSES TO THE FULLEST EXTENT FOUND PRACTICABLE. ( ITALICS SUPPLIED.)

THE FEDERAL AVIATION ACT OF 1958, 72 STAT. 737, 49 U.S.C. 1301, CONTAINS THE FOLLOWING DEFINITIONS:

SECTION 101 (3) "AIR CARRIER" MEANS ANY CITIZEN OF THE UNITED STATES WHO UNDERTAKES, WHETHER DIRECTLY OR INDIRECTLY OR BY A LEASE OR ANY OTHER ARRANGEMENT, TO ENGAGE IN AIR TRANSPORTATION * *

SECTION 101 (10) "AIR TRANSPORTATION" MEANS INTERSTATE, OVERSEAS, OR FOREIGN AIR TRANSPORTATION OR THE TRANSPORTATION OF MAIL BY AIRCRAFT.

SECTION 101 (21) "INTERSTATE AIR TRANSPORTATION," "OVERSEAS AIR TRANSPORTATION," AND "FOREIGN AIR TRANSPORTATION," RESPECTIVELY, MEANS THE CARRIAGE BY AIRCRAFT OF PERSONS OR PROPERTY AS A COMMON CARRIER FOR COMPENSATION OR HIRE OR THE CARRIAGE OF MAIL BY AIRCRAFT * * *

YOU CONTEND THAT THE DEFINITIONS IN THE FEDERAL AVIATION ACT APPLY TO THE TERMS "AIR TRANSPORTATION" AND "AIR CARRIERS" IN SECTION 634 OF THE APPROPRIATION ACT, AND, SINCE AMERICAN IS A " PART 45" CARRIER NOT WITHIN THOSE DEFINITIONS, IT IS NOT ELIGIBLE FOR A CONTRACT UTILIZING FUNDS AUTHORIZED WITH THE LIMITATION STATED IN SECTION 634.

THE FACT THAT A WORD IS GIVEN A LEGISLATIVE DEFINITION IN A STATUTE DOES NOT MEAN THAT THE WORK SHOULD BE GIVEN THAT MEANING IN ANOTHER STATUTE; RATHER, IN CONSTRUING STATUTES, WORDS AND PHRASES SHOULD BE GIVEN THEIR PLAIN, ORDINARY AND USUAL MEANING UNLESS A DIFFERENT PURPOSE IS CLEARLY MANIFEST BY THE STATUTE ITSELF. CHAMPA V. CONSOLIDATED FINANCE CORP., 110 NE2D 289, 36 ALRZD 185. SEE ALSO, WARNER V. GOLTRA, 293 U.S. 155, AND LEGUM V. CARLIN, 177 A, 287. ACCORDINGLY, UNLESS THE LANGUAGE OR THE LEGISLATIVE HISTORY OF THE DEPARTMENT OF DEFENSE APPROPRIATION ACT, 1959, PROVIDES SOME AFFIRMATIVE INDICATION OF A LEGISLATIVE INTENT TO APPLY TO SECTION 634 THE DEFINITIONS ENACTED AS PART OF THE FEDERAL AVIATION ACT OF 1958, WE MUST CONCLUDE THAT THE LANGUAGE OF THE FORMER ACT WAS INTENDED IN ITS ORDINARY SIGNIFICANCE.

WE DO NOT BELIEVE THAT THE LANGUAGE OF THE APPROPRIATION ACT INDICATES THE INTENTION FOR WHICH YOU CONTEND. THE LEGISLATIVE HISTORY OF THE APPROPRIATION ACT SHOWS THAT SECTION 634 WAS ENACTED INTO LAW TO EMPHASIZE THE CONGRESSIONAL REAFFIRMANCE OF A POLICY PREVIOUSLY STATED IN REPORTS TO ACCOMPANY PROPOSED DEPARTMENT OF DEFENSE APPROPRIATIONS FOR PRIOR YEARS. SEE HEARINGS BEFORE THE SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, 85TH CONGRESS, 2D SESSION, ON DEPARTMENT OF DEFENSE APPROPRIATIONS FOR 1959, PAGES 826-829, 886 918. THAT POLICY WAS STATED AT PAGE 14 OF SENATE REPORT NO. 543, 85TH CONGRESS, TO ACCOMPANY H.R. 7665, AS FOLLOWS:

IT IS THE DESIRE OF THE COMMITTEE THAT ALL COMMERCIAL CARRIERS BE GIVEN A FAIR AND EQUAL OPPORTUNITY TO OFFER THEIR FACILITIES ON A BID BASIS TO THE DEPARTMENT OF DEFENSE, AND BE PROVIDED TO THE EXTENT PRACTICAL WITH EQUAL ACCESS TO INFORMATION REGARDING COMMERCIAL MOVEMENTS OF CARGO AND PERSONNEL. ( ITALICS SUPPLIED.)

IT IS POINTED OUT ON PAGE 13 OF THE SENATE REPORT THAT THE COMMITTEE'S STATES POSITION IS A REAFFIRMATION OF ITS PRIOR YEAR'S POSITION. THE LANGUAGE ABOVE QUOTED CERTAINLY TENDS TO REFUTE THE EXISTENCE OF ANY CONGRESSIONAL INTENT TO DISTINGUISH BETWEEN " PART 45" AND COMMON CARRIERS IN SECTION 634.

FURTHER, WE NOTE THAT MATS HAS IN THE PAST CONSIDERED BIDS FROM " PART 45" CARRIERS FOR AWARD ON THE SAME BASIS AS BIDS FROM COMMON CARRIERS. INDICATED PREVIOUSLY, THE EXTENT OF MATS UTILIZATION OF COMMERCIAL AIR CARRIERS WAS THOROUGHLY CONSIDERED IN THE COURSE OF HEARINGS ON THE DEPARTMENT OF DEFENSE APPROPRIATIONS FOR 1959. IN ADDITION, THE MATS OPERATIONS HAD BEEN UNDER STUDY BY THE SUBCOMMITTEE ON MILITARY OPERATIONS OF THE HOUSE COMMITTEE ON GOVERNMENT OPERATIONS DURING THE EARLY PART OF 1958, AND THE REPORT OF THAT COMMITTEE ( HOUSE REPORT NO. 2011, 85TH CONGRESS) CONTAINS NO INDICATION THAT THERE HAD EVER BEEN ANY SUGGESTION THAT MATS PRACTICES IN THIS RESPECT WERE CONTRARY TO CONGRESSIONAL INTENT. HAD THE CONGRESS INTENDED THAT MATS DEPART FROM ITS POLICY OF CONSIDERING BIDS FROM BOTH " PART 45" AND COMMON CARRIERS, IT IS INCONCEIVABLE THAT SUCH INTENTION WOULD NOT HAVE BEEN SPECIFICALLY STATED EITHER IN THE LEGISLATION ITSELF, IN CONGRESSIONAL REPORTS, IN THE COURSE OF HEARINGS, OR IN DEBATE ON THE FLOOR OF EITHER HOUSE.

YOU ALSO CONTEND THAT THE AWARD TO AMERICAN PROVIDES FOR DIFFERENT RATES IN DIFFERENT MONTHS, CONTRARY TO WHAT YOU HAD BEEN ADVISED WAS MATS POLICY. THE DEPARTMENT OF THE AIR FORCE STATES THAT MATS MESSAGE MAMPC-23 -K-1, INCORPORATED BY REFERENCE IN TELEGRAPHIC REQUEST FOR PROPOSAL MAMPC- 10-C-2, STATES THE POLICY OF MATS THAT RATES QUOTED PURSUANT TO CALLS MUST BE UNIFORM FOR THE SAME SERVICE FOR ALL MONTHS INVOLVED IF THE SAME TYPE OF AIRCRAFT IS TO BE USED. AMERICAN HAD NOT BEEN PROVIDED WITH THIS INFORMATION PRIOR TO THE TIME ITS PROPOSAL WAS SUBMITTED, AND ITS ORIGINAL PROPOSAL SPECIFIED DIFFERENT RATES FOR APRIL, MAY AND JUNE. THE CONTRACTING OFFICER CONTRACTED AMERICAN ON MARCH 23, 1959, PRIOR TO AWARD, AND ADVISED THE CARRIER OF THE MATS POLICY. BY PHONE CALL, CONFIRMED BY TELEGRAM, AMERICAN WITHDREW ITS OFFER FOR JUNE AND CHANGED ITS OFFER FOR MAY TO CONFORM WITH THE RATE SPECIFIED IN ITS ORIGINAL PROPOSAL FOR APRIL. ACCORDINGLY, YOUR ALLEGATION THAT THE AWARD TO AMERICAN PROVIDES FOR DIFFERENT RATES FOR APRIL AND MAY FOR THE SAME SERVICE IS NOT CORRECT.

IN ACCORDANCE WITH THE FOREGOING, WE ARE AWARE OF NO BASIS UPON WHICH WE MIGHT LEGALLY QUESTION THE VALIDITY OF THE AWARD TO AMERICAN OR OF THE USE OF APPROPRIATED FUNDS WITHIN THE LIMITATION PRESCRIBED IN SECTION 634 OR PAYMENT THEREUNDER.