B-146251, AUG. 15, 1961

B-146251, AUG. 15, 1961

TO FUEL SERVICE OF ENTERPRISE, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 24, 1961, PROTESTING THE AWARD OF A CONTRACT TO NEW ENGLAND TANK CLEANING COMPANY UNDER INVITATION FOR BIDS NO. 61-157 ISSUED BY THE MILITARY PETROLEUM SUPPLY AGENCY, WASHINGTON, D.C., FOR FURNISHING AIRCRAFT FUEL DELIVERY SERVICES AT THE NAVAL AIR STATION, ANACOSTIA, D.C., DURING THE PERIOD FROM JULY 1, 1961, TO SEPTEMBER 30, 1962.

BIDS IN THIS CASE WERE SOLICITED FROM SMALL BUSINESS CONCERNS ONLY. THREE BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. THE LOW BID WAS SUBMITTED BY NEW ENGLAND TANK CLEANING COMPANY, AND AWARD WAS MADE TO THIS BIDDER ON MAY 18, 1961.

ACCOMPANYING YOUR LETTER OF JUNE 24, 1961, TO OUR OFFICE, WAS A COPY OF A LETTER OF THE SAME DATE TO THE CONTRACTING OFFICER IN WHICH YOU SET FORTH YOUR REASONS AS TO WHY YOU CONSIDERED THAT THE AWARD TO NEW ENGLAND WAS IMPROPER. SINCE OUR OFFICE DOES NOT HAVE ANY FIRSTHAND KNOWLEDGE OF THE FACTS WE REQUESTED A REPORT OF THE FACTS AND CIRCUMSTANCES SURROUNDING THE AWARD.

BY WAY OF GENERAL INFORMATION THE MILITARY PETROLEUM SUPPLY AGENCY (MPSA) STATES THAT IT HAS CONTRACTED WITH THE NEW ENGLAND TANK CLEANING COMPANY, NEW ENGLAND TANK INDUSTRIES, INC., AND NEW ENGLAND TANK INDUSTRIES, INC., OF NEW HAMPSHIRE. ALL COMPANIES AE LOCATED AT THE SAME ADDRESS IN CAMBRIDGE, MASSACHUSETTS, AND HAVE THE SAME MEN AS THEIR PRINCIPAL OFFICERS. UNDER CONTRACTS WITH MPSA THESE COMPANIES HAVE OPERATED GOVERNMENT-OWNED PETROLEUM STORAGE TERMINALS THROUGHOUT THE UNITED STATES AND HAVE PROVIDED PETROLEUM TERMINAL SERVICES IN NEWINGTON, NEW HAMPSHIRE. PERFORMANCE UNDER THESE CONTRACTS HAS BEEN SATISFACTORY.

AS TO YOUR VARIOUS ALLEGATIONS IN THIS MATTER, MPSA HAS FURNISHED US DATA ON EACH ALLEGATION. AS TO YOUR STATEMENT IN PARAGRAPH 1 (A) OF YOUR LETTER TO THE CONTRACTING OFFICER THAT NEW ENGLAND WAS DEFAULTED BY THE NAVY PURCHASING OFFICE ON AN AIRCRAFT REFUELING CONTRACT AT BRUNSWICK, MAINE, MPSA REPORTS THAT THIS INFORMATION WAS KNOWN BY IT AT TIME OF AWARD AND CONSIDERED BEFORE AWARD WAS MADE. AT THAT TIME CONSIDERATION WAS ALSO GIVEN TO INFORMAL ADVICE THAT THE AIR FORCE HAD, IN THE PAST, TAKEN DEFAULT ACTION AGAINST ONE OF THE NEW ENGLAND TANK COMPANIES. HOWEVER, THE FACT THAT A CONTRACTOR HAS BEEN DECLARED IN DEFAULT ON ONE OR MORE CONTRACTS WITH THE GOVERNMENT DOES NOT, IN AND OF ITSELF, DISQUALIFY THAT CONTRACTOR FROM THEREAFTER RECEIVING ANOTHER CONTRACT. THE DETERMINATION AS TO WHETHER THE DEFAULTED CONTRACTOR SHOULD BE DENIED A CONTRACT IS A MATTER PRIMARILY FOR THE CONTRACTING AGENCY AND MUST OF NECESSITY TAKE INTO ACCOUNT NUMEROUS FACTORS SUCH AS WHETHER THE CONTRACTOR HAD AN EXCUSABLE CAUSE FOR FAILURE TO PERFORM AND WHETHER THE CONTRACTOR'S LACK OF PROPER EQUIPMENT OR PERSONNEL HAS BEEN CORRECTED.

WITH REGARD TO YOUR STATEMENT THAT NEW ENGLAND WAS DISQUALIFIED IN MARCH 1961 BY MPSA ON TWO DIFFERENT OCCASIONS FOR TWO DIFFERENT INVITATIONS FOR NAVY AIRCRAFT REFUELING CONTRACTS, MPSA REPORTS THAT THIS ALLEGATION IS NOT CORRECT. IT STATES THAT NEW ENGLAND RESPONDED TO FIVE AIRCRAFT REFUELING INVITATIONS ISSUED BY MPSA, INCLUDING THE INSTANT ONE. IT WAS LOW BIDDER UNDER THREE INVITATIONS, ANACOSTIA (THE ONE HERE INVOLVED); PT. MUGU, CALIFORNIA; AND LOS ALAMITOS, CALIFORNIA. ITS BID UNDER THE PT. MUGU INVITATION WAS NONRESPONSIVE AND THEREFORE, NOT CONSIDERED. ITS BIDS UNDER THE ANACOSTIA AND LOS ALAMITOS INVITATIONS WERE ACCEPTED. UNDER THE OTHER TWO INVITATIONS (OLATHE, KANSAS, AND QUONSET POINT, RHODE ISLAND) IT WAS NOT THE LOW BIDDER.

WITH REGARD TO THE LOSS OF GOVERNMENT-OWNED FUELS AT MACDILL FIELD, TAMPA, FLORIDA, ON APRIL 23 AND 25, 1961, UNDER A CONTRACT WITH NEW ENGLAND TANK INDUSTRIES, INC., THE MATTER IS STILL UNDER INVESTIGATION TO DETERMINE WHETHER AND TO WHAT EXTENT THE CONTRACTOR IS LIABLE.

IN YOUR LETTER OF JUNE 24, 1961, TO THE CONTRACTING OFFICER, YOU INVITED ATTENTION TO THE FACT THAT ONE VIC PELLIS, WHO HAD ASSISTED IN THE PREAWARD SURVEY OF NEW ENGLAND'S EQUIPMENT WHILE IN THE EMPLOY OF THE GOVERNMENT, RESIGNED FROM HIS POSITION AFTER THE AWARD OF THE CONTRACT AND WAS EMPLOYED BY NEW ENGLAND AS A FIELD MANAGER FOR THE INSTANT CONTRACT. YOU STATE, HOWEVER, THAT YOU HAVE NO DEFINITE FACTS TO SUBSTANTIATE ANY CHARGE OF COLLUSION. IN ADDITION, YOU STATE THAT MR. PELLIS IS NOT QUALIFIED AS A MANAGER FOR AIRCRAFT REFUELING OPERATIONS. THE PREAWARD SURVEY TO WHICH YOU REFER WAS NOT MADE SOLELY BY MR. PELLIS BUT THE SURVEY WAS CONDUCTED BY MR. J. P. TRAVERS, THE PETROLEUM INSPECTOR AT ANACOSTIA, WITH THE HELP OF MR. PELLIS. THE RESULT OF THE SURVEY LISTED A NUMBER OF DEFICIENCIES AND NEW ENGLAND WAS REQUESTED ON MAY 16, 1961, TO STATE WHETHER THESE DEFICIENCIES WERE BEING CORRECTED OR WOULD BE CORRECTED BY JUNE 23, 1961, IF IT WAS AWARDED THE CONTRACT. UPON ITS REPLY THAT CORRECTIVE ACTION WOULD BE TAKEN, THE CONTRACT WAS AWARDED ON MAY 18, 1961. ON JUNE 23, 1961, THE NAVAL AIR STATION, ANACOSTIA, MADE AN ON STATION INSPECTION OF NEW ENGLAND'S REFUELING EQUIPMENT. THE REPORT OF THIS INSPECTION DATED JUNE 30, 1961, INDICATED THAT ALL VEHICLES WERE FOUND TO BE IN SATISFACTORY CONDITION AND THAT THERE WERE NO MAJOR DISCREPANCIES. ALSO, THE CONTRACTING AGENCY'S REPORT OF JULY 26, 1961, STATES THAT NEW ENGLAND'S PERFORMANCE UNDER THE CONTRACT HAS BEEN SATISFACTORY. INSOFAR AS THE EMPLOYMENT OF MR. PELLIS BY NEW ENGLAND IS CONCERNED, THE DATA ORIGINALLY SUBMITTED BY NEW ENGLAND WITH ITS BID INCLUDED A STATEMENT THAT IT CONTEMPLATED USING ONE DANIEL CARD IN AS SUPERINTENDENT SHIFT LEADER BUT AFTER AWARD IT ADVISED THAT MR. PELLIS WOULD BE THE BASE MANAGER. IT IS REPORTED THAT SUBSTITUTION OF A QUALIFIED BASE MANAGER IS AN ACCEPTABLE PRACTICE AND THAT MR. PELLIS MEETS THE QUALIFICATIONS SPECIFIED FOR A BASE MANAGER ON PAGE 14 OF GENERAL DELIVERY CONDITIONS.

IN VIEW OF THE FACTS DISCLOSED BY THE RECORD, AND IN PARTICULAR THE FACT THAT THE PERFORMANCE ON THE INSTANT CONTRACT BY NEW ENGLAND HAS BEEN SATISFACTORY, WE FIND NO BASIS FOR HOLDING THAT THE AWARD OF THE CONTRACT TO NEW ENGLAND WAS IMPROPER.