B-148760, MAY 7, 1962

B-148760, MAY 7, 1962

TO CONTRACTING OFFICER, DEFENSE PETROLEUM SUPPLY CENTER:

YOUR LETTER OF APRIL 24, 1962, WITH ENCLOSURES, REQUESTS OUR DECISION AS TO WHETHER THE LOW BID OF CARPENTER ASSOCIATES--- TERMINAL DIVISION IS RESPONSIVE TO THE ADVERTISED REQUIREMENTS OF INVITATION FOR BIDS NO. DSA6- 62-109 DATED FEBRUARY 20, 1962. THE INVITATION REQUESTED BIDS FROM SMALL BUSINESS CONCERNS ONLY--- TO BE OPENED ON APRIL 5, 1962--- FOR THE OPERATION OF A GOVERNMENT PETROLEUM TERMINAL AT CINCINNATI, OHIO, DURING THE PERIOD JUNE 1, 1962, TO FEBRUARY 28, 1963.

PARAGRAPH 22 OF THE TERMS AND CONDITIONS OF THE INVITATION PRESCRIBED BIDDERS' QUALIFICATIONS AS FOLLOWS:

"A. THIS AIR FORCE POL RETAIL DISTRIBUTION STATION, THE OPERATION OF WHICH THE GOVERNMENT SEEKS TO SECURE ON AN ANNUAL BASIS, IS A VALUABLE AND IMPORTANT GOVERNMENT FUEL TERMINAL, VITAL TO AND AN INTEGRAL PART OF THE NATIONAL DEFENSE EFFORT. IT IS NECESSARY THAT THIS TERMINAL BE OPERATED AND MAINTAINED IN A HIGH DEGREE OF EFFICIENCY AND READINESS, AND THAT THE MAXIMUM CONSIDERATION TO SAFETY AND SECURITY BE FOLLOWED AT ALL TIMES. THEREFORE, IT IS THE DECLARED AND ACKNOWLEDGED INTENT AND MEANING OF THIS INVITATION FOR BIDS TO SECURE ON AN ANNUAL BASIS, FOR THE OPERATION OF THE STORAGE STATION DESCRIBED IN THIS INVITATION FOR BIDS, THE SERVICES OF A COMPETENT AND RESPONSIBLE CONTRACTOR, WHO HAS HAD EXPERIENCE IN THE SATISFACTORY OPERATION OF A GOVERNMENT OR COMMERCIAL-OWNED FUEL STORAGE TERMINAL COMPARABLE TO THAT DESCRIBED IN THIS INVITATION FOR BIDS. SUCH EXPERIENCE WILL BE ESSENTIAL QUALIFICATION OF A BIDDER AND WILL BE CONSIDERED IN THE EVALUATION OF BIDS.

"B. PERFORMANCE OF THE SERVICES CALLED FOR IN THIS INVITATION FOR BIDS IS EXTREMELY IMPORTANT AND FAILURE OF THE CONTRACTOR TO PERFORM THESE SERVICES MAY RESULT IN SERIOUS IMPAIRMENT OF VITAL USAF MISSIONS. THEREFORE, IT IS NECESSARY THAT BIDDERS CLEARLY AND CONVINCINGLY AND WITH NO ROOM FOR DOUBT DEMONSTRATE THEIR COMPLETE FAMILIARITY WITH ALL REQUIRED SERVICES AND THEIR COMPETENCE TO PERFORM ALL SERVICES NECESSARY IN THE OPERATION OF THIS TERMINAL TO ITS MAXIMUM CAPACITY CONCERNING EMERGENCY MEASURES, BY PROVIDING A DETAILED OPERATING PLAN OF PROCEDURES, ORGANIZATION, MANNING, PERSONNEL ASSIGNMENTS AND SUPERVISORY QUALIFICATION. FIVE (5) COPIES OF THIS PLAN, WHICH SHALL BE CONSIDERED AS A BASIS FOR SIMILAR INFORMATION TO BE INCLUDED IN THE SUCCESSFUL BIDDER'S STANDING OPERATING PROCEDURE, SHALL BE SUBMITTED WITH THE BID * * *.

"SUBMISSION OF THE ABOVE DATA IS OF THE UTMOST IMPORTANCE TO THE GOVERNMENT IN EVALUATION OF BIDS. IF THE BIDDER FAILS TO SUBMIT SATISFACTORY DATA WITH HIS BID, SUCH BID MAY BE REJECTED.'

SIX BIDS WERE RECEIVED AND OPENED ON THE DATA SCHEDULED AND IT APPEARS FROM THE BID ABSTRACT THAT CARPENTER ASSOCIATES SUBMITTED THE LOWEST BID AND THAT THE TRESLER OIL COMPANY SUBMITTED THE NEXT LOWEST BID. THE ONLY INFORMATION FURNISHED BY CARPENTER ASSOCIATES WITH ITS BID CONCERNING ITS QUALIFICATIONS WAS A "PROPOSED OPERATING STATEMENT" DATED APRIL 3, 1962. THIS STATEMENT, WHICH APPARENTLY FELL SHORT OF THE INVITATION REQUIREMENTS, WAS SUBMITTED ON THE LETTERHEAD OF ,CARPENTER TOURS" AND MERELY SHOWED THE NUMBER OF EMPLOYEES PERWORK SHIFT TO BE USED IN CONTRACT PERFORMANCE AND THE COST THEREOF.

WHILE YOU AFFORDED CARPENTER ASSOCIATES ANOTHER OPPORTUNITY ON APRIL 10, 1962, TO FURNISH THE NECESSARY INFORMATION, THEY AGAIN FAILED TO COMPLY WITH THE INVITATION PROVISIONS. YOU POINT OUT THAT CARPENTER ASSOCIATES NEITHER HAVE EVIDENCED ANY UNDERSTANDING OF THE JOB INVOLVED NOR GIVEN YOU ANY BASIS TO DETERMINE THEIR COMPETENCY OR RESPONSIBILITY. IN THIS LATTER CONNECTION, YOU ENCLOSE A COPY OF A LETTER DATED APRIL 23, 1962, TO THE NAVY SMALL BUSINESS ADMINISTRATION REPRESENTATIVE REQUESTING A DECISION AS TO THE COMPETENCY OF CARPENTER ASSOCIATES PURSUANT TO SECTION 1-705.6, ASPR.

YOU APPEAR TO BE IN DOUBT AS TO WHETHER THE PROVISIONS OF PARAGRAPH 22 RESPECTING THE ,EXPERIENCE" OF COMPETING BIDDERS RELATE TO MATTERS OF A BIDDER'S RESPONSIBILITY OR TO THE RESPONSIVENESS OF A BID TO THE TERMS OF THE INVITATION.

IT IS OUR VIEW THAT THE EXPERIENCE REQUIREMENTS OF PARAGRAPH 22 OF THE INVITATION CLEARLY GO TO MATTERS OF RESPONSIBILITY. WE HAVE HELD THAT A STATEMENT OF SUCH EXPERIENCE QUALIFICATIONS SHOULD NOT BE CONSIDERED AS HAVING THE EFFECT OF TRANSFORMING THE PURELY FACTUAL QUESTION OF RESPONSIBILITY INTO A LEGAL QUESTION OF CONFORMITY TO THE INVITATION. COMP. GEN. 173; 40 ID. 106.