B-156508, JUL. 7, 1965

B-156508, JUL. 7, 1965

TO HALLEY, CORNELL AND WOLLENBERG:

IN YOUR LETTER OF APRIL 6, 1965, AND SUBSEQUENT CORRESPONDENCE, YOU PROTEST, ON BEHALF OF LYNCH AND SONS VAN AND STORAGE COMPANY OF SAN FRANCISCO, CALIFORNIA, AWARD BY THE GENERAL SERVICES ADMINISTRATION (GSA) OF TWO CONTRACTS TO DEWITT VAN LINES OF LOS ANGELES, CALIFORNIA, FOR CERTAIN TRANSPORTATION SERVICES FOR THE PERIOD APRIL 1, 1965 THROUGH MARCH 31, 1966.

ON DECEMBER 21, 1964, THE TRANSPORTATION AND COMMUNICATIONS SERVICE OF GSA, AT SAN FRANCISCO, ISSUED INVITATION FOR BIDS NO. GS-09T-180 SOLICITING BIDS, ON A TOTAL SMALL BUSINESS SET-ASIDE BASIS, TO FURNISH CERTAIN MOVING AND RELATED SERVICES AS REQUIRED BY FEDERAL AGENCIES WITHIN A 50-AIRLINE MILE RADIUS OF THE CIVIC CENTER OF LOS ANGELES, AND A LIKE AREA IN SAN FRANCISCO, FOR THE PERIOD OF ONE YEAR COMMENCING APRIL 1, 1965. THE REQUIREMENTS FOR THE TWO AREAS WERE COMBINED IN ONE IFB TO REDUCE THE GSA WORKLOAD. THE EARLY ISSUANCE OF THE IFB WAS OCCASIONED BY A NEED TO KNOW THE IDENTITY OF THE CONTRACTOR FOR THE LOS ANGELES AREA TO ASSIST VARIOUS GOVERNMENT AGENCIES IN CONNECTION WITH MOVEMENT INTO THE NEW FEDERAL BUILDING IN LOS ANGELES, WHICH WAS SCHEDULED FOR OCCUPANCY ON OR ABOUT APRIL 1, 1965.

PARAGRAPH 8 (C), TERMS AND CONDITIONS OF THE INVITATION FOR BIDS (STANDARD FORM 33), PROVIDED THAT THE GOVERNMENT COULD ACCEPT ANY ITEM OR GROUP OF ITEMS OF ANY BID IN THE ABSENCE OF A QUALIFICATION IN THE BID.

PERTINENT PROVISIONS OF THE SPECIAL TERMS AND CONDITIONS OF THE IFB READ AS FOLLOWS:

"9. PERMITS AND LICENSES.

THE CONTRACTOR, AT HIS OWN EXPENSE, WILL OBTAIN AND MAINTAIN THE NECESSARY PERMITS, FRANCHISES, LICENSES OR OTHER AUTHORITIES REQUIRED FOR LAWFULLY EFFECTING THE MOVEMENTS, HANDLING AND OTHER SERVICES TO BE PERFORMED UNDER THIS CONTRACT.

"15. PRE-AWARD CONDITIONS

B. AWARD: WILL BE MADE TO THE LOWEST RESPONSIBLE BIDDER OFFERING TO SUPPLY ALL OR SUBSTANTIALLY ALL OF THE SERVICES DESCRIBED IN THE AREAS SPECIFIED. IN DETERMINING THE OFFER MOST ECONOMICAL AND ADVANTAGEOUS TO THE GOVERNMENT, SECTIONS AND SCHEDULES WILL BE WEIGHED BY THE CONTRACTING OFFICER IN ACCORDANCE WITH EXPERIENCE FROM PREVIOUS CONTRACTUAL SERVICE AND HIS BEST ESTIMATE AS TO THE NEEDS OF THE GOVERNMENT FOR THE PERIOD OF THE CONTRACT.

C. CONTRACTOR'S EQUIPMENT AND FACILITIES: MUST BE ADEQUATE FOR THE SATISFACTORY PERFORMANCE OF THE SERVICES TO BE REQUIRED UNDER THIS CONTRACT, AND BE ABLE TO COMMENCE PERFORMANCE IMMEDIATELY ON THE EFFECTIVE DATE, APRIL 1, 1965. SUCH EQUIPMENT AND FACILITIES SHALL BE SUBJECT TO INSPECTION BEFORE FINAL AWARD; THE PERSON OR COMPANY SUBMITTING THE MOST ACCEPTABLE BID WILL BE REQUIRED TO SUBMIT SUFFICIENT EVIDENCE THAT HE HAS IMMEDIATELY AVAILABLE OR WILL HAVE AVAILABLE AS NEEDED, SUFFICIENT RESOURCES TO PROVIDE THE NECESSARY EQUIPMENT AND PERSONNEL TO ENABLE HIM TO MEET THE REQUIREMENTS OF THE CONTRACT. THE CONTRACTING OFFICER'S DECISION IN THIS RESPECT WILL BE CONSIDERED AS FINAL.

"16. COMPLIANCE WITH APPLICABLE LAWS

IN THE PERFORMANCE OF THE CONTRACT, THE CONTRACTOR SHALL COMPLY WITH AND GIVE ALL STIPULATIONS AND REPRESENTATIONS REQUIRED BY ANY APPLICABLE FEDERAL, STATE, MUNICIPAL OR LOCAL LAW OR EXECUTIVE ORDER, OR ANY APPLICABLE RULES, ORDERS, REGULATIONS, OR REQUIREMENTS OF ANY GOVERNMENT DEPARTMENT OR BUREAU, BUT NOTHING HEREIN CONTAINED SHALL BE CONSIDERED AS PREVENTING THE CONTRACTOR FROM CONTESTING IN GOOD FAITH THE VALIDITY OF SUCH LAW, RULE, ORDER, REGULATIONS OR REQUIREMENT OR ANY CHARGE THAT THE CONTRACTOR HAS NOT COMPLIED THEREWITH.

SHIPMENTS UNDER THIS CONTRACT ARE THOSE MOVING IN INTRASTATE COMMERCE, THOSE WHICH ARE EXEMPT FROM THE PROVISION OF PART II OF THE INTERSTATE COMMERCE ACT, AND THOSE MOVING IN INTERSTATE COMMERCE. IT IS MUTUALLY UNDERSTOOD THAT IT SHALL BE THE RESPONSIBILITY OF THE CONTRACTOR THAT THE RATES QUOTED AND THE SERVICES OFFERED BY HIM ARE NOT IN VIOLATION OF ANY APPLICABLE FEDERAL OR STATE OF CALIFORNIA REGULATIONS PERTAINING TO THE SERVICES HEREIN DESCRIBED.'

SIXTEEN BIDS WERE RECEIVED AND OPENED ON JANUARY 13, 1965, AS SCHEDULED. FOLLOWING ARE THE RESULTS:

SCHEDULE

BOTH AREAS - 3 BIDS

LOS ANGELES AREA ONLY - 5 BIDS

SAN FRANCISCO AREA ONLY - 8 BIDS

DEWITT, WHO HAD ICC OPERATING AUTHORITY FOR THE LOS ANGELES AREA ONLY, WHERE IT HAD SATISFACTORILY PERFORMED SIMILAR SERVICES DURING THE PREVIOUS YEAR UNDER A GSA CONTRACT, WAS LOW BIDDER FOR BOTH AREAS. LYNCH, WHO BID ONLY ON THE SAN FRANCISCO AREA, BUT HAD NO ICC OPERATING AUTHORITY FOR EITHER AREA, WAS SECOND LOW BIDDER FOR THE SAN FRANCISCO AREA.

SUBSEQUENT TO BID OPENING, LYNCH AND ANOTHER SAN FRANCISCO AREA BIDDER PROTESTED THE ICC OPERATING AUTHORITY REQUIREMENT IN THE IFB. NO PROTEST WAS RECEIVED FROM ANY OF THE LOS ANGELES AREA BIDDERS. ACCORDINGLY,DEWITT BEING A FINANCIALLY RESPONSIBLE QUALIFIED CARRIER IN POSSESSION OF BOTH INTRA AND INTERSTATE OPERATING AUTHORITY FOR THE LOS ANGELES AREA, AND THERE BEING NO DOUBT THAT IN THE EVENT THE MATTER OF DEWITT'S RESPONSIBILITY SHOULD BE REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) A CERTIFICATE OF COMPETENCY WOULD BE ISSUED TO DEWITT, AND DEWITT'S BID BEING FAR LESS THAN THE COMPETING LOS ANGELES BIDS, THE CONTRACT FOR THE LOS ANGELES AREA WAS AWARDED TO DEWITT.

THE SAN FRANCISCO AREA NEEDS WERE RECONSIDERED IN THE LIGHT OF THE FACT THAT OVER 99 PERCENT OF THE SERVICE EXPECTED TO BE REQUIRED IN THE AREA WOULD CONSIST OF LOCAL OFFICE MOVES WHICH WOULD BE CLEARLY INTRASTATE TRANSPORTATION, AND THAT IN PREVIOUS YEARS LESS THAN 1 PERCENT OF THE SAN FRANCISCO AREA SERVICES WOULD HAVE COME WITHIN A CLASS OF TRANSPORTATION SUBJECT TO ICC REGULATION. THEREFORE, IT WAS DETERMINED THAT THE INTERSTATE TRANSPORTATION PROVISION IN THE IFB MIGHT HAVE INADVERTENTLY PRECLUDED COMPETITION FROM BIDDERS WHO, ALTHOUGH NOT IN POSSESSION OF INTERSTATE OPERATING AUTHORITY FOR THE SAN FRANCISCO AREA, WERE QUALIFIED TO BID ON THE INTRASTATE SERVICES COMPRISING NEARLY ALL THE EXPECTED CONTRACT WORK FOR THAT AREA. ACCORDINGLY, IT WAS FURTHER DETERMINED THAT ALL BIDS ON THE SAN FRANCISCO AREA SHOULD BE REJECTED AND THE REQUIREMENT READVERTISED WITHOUT REFERENCE TO INTERSTATE COMMERCE.

LYNCH PROTESTED THE ADMINISTRATIVE DETERMINATION ON THE BASIS THAT BOTH AREA REQUIREMENTS SHOULD BE IDENTICAL. HOWEVER, SINCE THE LOS ANGELES CONTRACT HAD BEEN AWARDED WITHOUT PROTEST TO DEWITT, NO FURTHER ACTION WAS TAKEN ON THAT PORTION OF THE PROCUREMENT, BUT THE SAN FRANCISCO REQUIREMENT WAS READVERTISED UNDER IFB NO. GS-09T-180A, ISSUED FEBRUARY 23, 1965, WITH THE WORDS ,AND THOSE MOVING IN INTERSTATE COMMERCE" OMITTED FROM THE SECOND PARAGRAPH OF ARTICLE 16 QUOTED ABOVE.

SEVEN BIDS WERE RECEIVED UNDER THE SECOND INVITATION AND OPENED ON MARCH 15. DEWITT WAS AGAIN THE LOW BIDDER FOR THE SAN FRANCISCO AREA. THEREFORE, AFTER GSA HAD ASCERTAINED THAT DEWITT HAD A STAFF OF PERSONNEL AND SEVERAL PIECES OF EQUIPMENT IN SAN FRANCISCO, AS REQUIRED BY THE PRE- AWARD CONDITIONS QUOTED ABOVE FROM PARAGRAPH 15 OF THE SPECIAL TERMS AND CONDITIONS OF THE IFB, THE CONTRACT FOR THE SAN FRANCISCO AREA WAS ALSO AWARDED TO DEWITT. IN THIS RESPECT, THERE WAS AGAIN NO QUESTION AS TO DEWITT'S QUALIFICATIONS AND FINANCIAL RESPONSIBILITY, AND THERE WAS NO DOUBT THAT DEWITT COULD OBTAIN, IF NECESSARY, A CERTIFICATE OF COMPETENCY FROM SBA FOR THIS PORTION OF THE PROCUREMENT.

YOUR POSITION THAT BOTH AWARDS TO DEWITT WERE IMPROPER IS SUMMARIZED IN YOUR LETTER OF APRIL 6, AS FOLLOWS:

"1. THE REQUIREMENT OF INTERSTATE COMMERCE COMMISSION AUTHORITY SHOULD NOT HAVE BEEN DELETED FROM THE SAN FRANCISCO CONTRACT.

"2. IF, ON THE OTHER HAND, THE SAN FRANCISCO CONTRACT WAS TO BE READVERTISED WITH SAID DELETION, IT WOULD APPEAR THAT SINCE THE LOS ANGELES CONTRACT WAS IDENTICAL, THAT IT SHOULD BE TREATED THE SAME AS THE SAN FRANCISCO CONTRACT AND THAT IF THE REASON FOR READVERTISING THE SAN FRANCISCO CONTRACT WAS TO PROVIDE THE OPPORTUNITY FOR MORE QUALIFIED BIDDERS TO, IN FACT, BID UPON THE SAN FRANCISCO CONTRACT, THEN CERTAINLY THE LOS ANGELES CONTRACT SHOULD HAVE BEEN TREATED IN THE SAME MANNER SO THAT MORE QUALIFIED BIDDERS, INCLUDING OUR CLIENT, LYNCH AND SONS VAN AND STORAGE COMPANY, WOULD BE ALLOWED TO BID UPON THE LOS ANGELES CONTRACT.

"HOWEVER, THIS WAS NOT ADHERED TO. THE LOS ANGELES CONTRACT WAS LEFT INTACT AND THE SAN FRANCISCO CONTRACT WAS CHANGED, DELETING THE REQUIREMENT OF INTERSTATE COMMERCE COMMISSION AUTHORITY, WHICH, IT APPEARS, IS AN ESSENTIAL REQUIREMENT IF ANY WORK SUCH AS HAS BEEN PERFORMED IN THE PAST EIGHT (8) YEARS UNDER SAID CONTRACT IS TO BE PERFORMED UNDER THE 1965 CONTRACT, DUE TO THE FACT THAT CERTAIN WORK WILL BE PERFORMED OUTSIDE OF THE SO-CALLED "FREE ZONE" AND WOULD BE UNDER INTERSTATE COMMERCE COMMISSION JURISDICTION.

"3. NEXT, WE COME TO THE FACT THAT THE DEWITT VAN LINES, WHO HAS BEEN AWARDED THE CONTRACT, IS A COMPANY WHOSE WHOLE BASIS OF OPERATION IS IN SOUTHERN CALIFORNIA, AND WHICH IS A COMPANY WHICH HAS NEVER TRANSACTED BUSINESS OF A LOCAL NATURE IN THE SAN FRANCISCO BAY AREA. THEREFORE, IT CERTAINLY DOES NOT APPEAR SAID COMPANY SHOULD HAVE BEEN CONSIDERED EITHER A RESPONSIBLE BIDDER, OR A COMPANY THAT HAD SATISFIED THE PRE-AWARD CONDITIONS UNDER THE TERMS OF SAID INVITATION FOR DS.'

ACCORDING TO THE STATEMENT OF THE COGNIZANT OFFICIALS OF GSA CONCERNING THE SERVICES TO BE PERFORMED IN THE SAN FRANCISCO AREA, IT IS APPARENT THAT NEARLY ALL OF THE SERVICES NEEDED BY THE GOVERNMENT WILL BE INTRASTATE. ACCORDINGLY, IT IS OUR VIEW THAT THERE WAS SUFFICIENT JUSTIFICATION FOR THE RESOLICITATION OF BIDS FOR THE SAN FRANCISCO AREA SERVICES WITHOUT INCLUDING REFERENCE TO SERVICES INVOLVING INTERSTATE COMMERCE. IN THIS CONNECTION, IT IS TO BE NOTED THAT BY THE TERMS OF PARAGRAPH 9 OF THE SPECIAL TERMS AND CONDITIONS OF THE IFB, THE CONTRACTOR IS OBLIGATED TO SECURE AT ITS OWN EXPENSE WHATEVER LICENSES OR AUTHORITY MAY BE NECESSARY TO PERFORM THE CONTRACT SERVICES, AND THE INVITATION DID NOT REQUIRE ANY SHOWING BY BIDDERS THAT THEY IN FACT POSSESSED ALL NECESSARY AUTHORITY AT THE TIME OF BID OPENING. THE GSA REPORT DOES NOT INDICATE THAT THE READVERTISING WAS CONDUCTED BECAUSE AWARD COULD NOT PROPERLY HAVE BEEN MADE TO DEWITT, BUT BECAUSE IT WAS FELT THAT OTHER PROSPECTIVE BIDDERS MIGHT HAVE REFRAINED FROM BIDDING BECAUSE OF THE INCLUSION OF THE REFERENCE TO INTERSTATE OPERATIONS.

AS TO YOUR CONTENTION THAT THE PROCUREMENT FOR BOTH AREAS SHOULD HAVE BEEN ON THE SAME BASIS, IN THE ABSENCE OF BREAKDOWN OF THE CLASSES OF SERVICES, INTRA AND INTERSTATE, IN THE LOS ANGELES AREA, WE ARE UNABLE TO STATE WHETHER THE ICC OPERATING AUTHORITY REQUIREMENT SHOULD HAVE BEEN DELETED FROM THE LOS ANGELES CONTRACT. HOWEVER, SINCE THE LOS ANGELES AREA CONTRACT AWARD WAS MADE TO DEWITT, THE LOW, RESPONSIVE, RESPONSIBLE BIDDER FOR THAT AREA, PRIOR TO THE RECEIPT OF ANY PROTEST REGARDING THE IFB REQUIREMENTS FOR THAT PORTION OF THE PROCUREMENT, AND IN VIEW OF THE URGENCY OF THE SITUATION NECESSITATING AN AWARD PRIOR TO APRIL 1 FOR THE LOS ANGELES AREA, WE ARE OF THE OPINION THAT THE BEST INTEREST OF THE GOVERNMENT WOULD NOT BE SERVED BY CANCELLATION OF THE LOS ANGELES AREA CONTRACT AND READVERTISEMENT OF THAT PORTION OF THE PROCUREMENT NEEDS, EVEN IF THE FACTS WERE THE SAME AS IN THE SAN FRANCISCO AREA.

CONCERNING YOUR STATEMENT THAT DEWITT IS NOT RESPONSIBLE AND HAS NOT SATISFIED THE IFB PRE-AWARD CONDITIONS, INSOFAR AS THE SAN FRANCISCO AREA IS CONCERNED, BECAUSE DEWITT'S WHOLE BASE OF OPERATION IS IN SOUTHERN CALIFORNIA, THE IFB DOES NOT REQUIRE THAT THE CONTRACTOR'S PRIOR EXPERIENCE BE IN A SPECIFIED AREA. MOREOVER, THE FACTS STATED SHOW THAT DEWITT HAS SATISFACTORILY PERFORMED SIMILAR SERVICES AND OTHERWISE MEETS THE PRE-AWARD CONDITIONS RELATING TO FACILITIES AND EQUIPMENT IN THE AREA OF CONTRACT PERFORMANCE.

FOR THE REASONS STATED, WE FIND NO LEGAL BASIS TO OBJECT TO THE AWARD OF EITHER CONTRACT. ACCORDINGLY, YOUR PROTEST IS DENIED.