B-115850, JUL 6, 1953

B-115850, JUL 6, 1953

PRECIS-UNAVAILABLE

THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO LETTER DATED JUNE 18, 1953, FROM THE DIRECTOR OF FINANCE, FORWARDING A LETTER DATED JUNE 15, WITH ENCLOSURES, FROM FIRST LIEUTENANT EDWIN R. LUGINBUHL, USAF, CONTRACTING OFFICER, MOODY AIR FORCE BASE, VALDOSTA, GEORGIA, AND REQUESTING THAT A DECISION BE RENDERED TO THE CONTRACTING OFFICER RELATIVE TO A PROTEST BY LIVINGSTON STORAGE & TRANSFER COMPANY AGAINST THE MAKING OF AN AWARD TO ACME TRANSFER & STORAGE COMPANY UNDER ITS BID OPENED ON JUNE 8, 1953.

THE CONTRACTING OFFICER IS NOT ENTITLED TO A DECISION IN THE INSTANT CASE. SEE IN THIS CONNECTION 28 COMP. GEN. 401. HOWEVER, SINCE A DECISION APPEARS NECESSARY, THE DECISION IS BEING ADDRESSED TO YOU.

THE PURCHASING AND CONTRACTING OFFICE, MOODY AIR FORCE BASE, VALDOSTA, GEORGIA, BY INVITATION NO. 09-607-53-16, REQUESTED BIDS FOR FURNISHING, DURING THE PERIOD JULY 1, 1953, TO JUNE 30, 1954, SERVICES IN CONNECTION WITH THE DRAYAGE, PACKING AND/OR CRATING OF HOUSEHOLD GOODS AT MOODY AIR FORCE BASE, AS FOLLOWS:

1. DRAYAGE OF HOUSEHOLD GOODS WITHIN ZONE NO. 1 (15 MILES RADIUS) AND ZONE NO. 2 (BEYOND 15 MILE RADIUS).

(A) FROM OWNERS RESIDENCE TO CONTRACTOR'S PLANT FOR PACKING AND CRATING.

(B) FROM DELIVERING FREIGHT CARRIERS WAREHOUSE AND/OR MOODY AIR FORCE BASE TO OWNER'S RESIDENCE.

(C) FROM CONTRACTOR'S PLANT TO MOODY AIR FORCE BASE AND/OR INITIAL FREIGHT CARRIER.

2. PACKING AND/OR CRATING OF HOUSEHOLD GOODS (EXCEPT FOOTLOCKERS AND TRUNKS) FOR SHIPMENT WITHIN ZONE OF INTERIOR.

3. PACKING AND/OR CRATING OF HOUSEHOLD GOODS FOR SHIPMENT OVERSEAS AND/OR TO PERMANENT STORAGE.

4. UNPACKING, UNCRATING AND SETTING-UP IN RESIDENCE OF INCOMING SHIPMENTS.

5. BANDING OF FOOTLOCKERS AND TRUNKS.

6. LOADING OF VAN-LIFT BOXES ON EQUIPMENT OF MOTOR FREIGHT CARRIER WHEN SHIPMENT IS FORWARDED BY MOTOR FREIGHT.

IN RESPONSE TO THE INVITATION, ACME TRANSFER & STORAGE COMPANY SUBMITTED A BID OFFERING TO PERFORM THE SERVICES FOR THE PRICES SPECIFIED THEREIN EXCEPT FOR ITEMS 4 AND 5. THE COMPANY OFFERED TO PERFORM FREE OF CHARGE THE SERVICES COVERED BY ITEM 4 IF ALLOWED TO RETAIN THE MATERIAL, AND BY ITEM 5 IF A PART OF OTHER CRATING. THE TOTAL OF THE COMPANY'S BID ON ALL ITEMS BASED UPON THE ESTIMATED QUANTITIES SPECIFIED IS $12,885.96, PLUS THE VALUE OF THE USED CRATES RETAINED UNDER ITEM 4. THE ONLY OTHER BID RECEIVED IN RESPONSE TO THE INVITATION IS FROM LIVINGSTON STORAGE & TRANSFER COMPANY. SAID COMPANY QUOTED PRICES FOR ALL ITEMS AND THE TOTAL BID BASED UPON THE ESTIMATED QUANTITIES SPECIFIED IS $17,158.

IN LETTER DATED JUNE 9, 1953, LIVINGSTON STORAGE & TRANSFER COMPANY STATES THAT ITS BID IS THE ONLY COMPLETE BID AND PROTESTS THE POSSIBLE AWARD OF A CONTRACT TO ACME TRANSFER & STORAGE COMPANY FOR THE FOLLOWING REASONS:

1. WITH RESPECT TO ITEM 1 (A) AND (B), THE ACME COMPANY DOES NOT HAVE AUTHORITY FROM THE GEORGIA PUBLIC SERVICE COMMISSION TO OPERATE ITS VANS FOR HIRE FOR ANY PURPOSE ON THE HIGHWAYS OF THE STATE OF GEORGIA.

2. ACME DOES NOT HAVE A HOUSEHOLD GOODS SERVICE TENDER AT MOODY AIR FORCE BASE.

3. ACME DID NOT SPECIFY AT THE TIME OF THE SUBMISSION OF ITS BID THAT IT INTENDED TO SUBLET THE HAULING TO ANOTHER TRANSFER COMPANY.

4. ACME DID NOT MAKE A BID ON ITEM 4 AND THAT NEITHER THE CONTRACTING OFFICER NOR ANYONE ELSE HAS AUTHORITY TO GIVE ANYTHING BELONGING TO THE GOVERNMENT TO ANYONE IN EXCHANGE FOR SERVICES RENDERED.

THE CONTRACTING OFFICER IN A REPORT DATED JUNE 12, STATE IN PART AS FOLLOWS:

"TRANSPORTATION FURNISHED BY THE CONTRACTOR UNDER THIS CONTRACT IS NOT A VAN MOVEMENT BUT IS DRAYAGE. ACME TRANSFER AND STORAGE COMPANY IS NOT AUTHORIZED BY THE GEORGIA PUBLIC SERVICE COMMISSION TO TRANSPORT PROPERTY WITHIN THE STATE OF GEORGIA, BUT OPERATE AS AN AGENT FOR BURNHAM'S VAN SERVICE USING BURNHAM'S AUTHORIZATION.

"I CALL ATTENTION TO CHAPTER 68-6, 'MOTOR CARRIERS', 'MOTOR CARRIER RULES AND SAFETY REGULATIONS' PUBLISHED BY THE GEORGIA PUBLIC SERVICE COMMISSION. PARAGRAPH 68-602 STATES THAT THE PROVISIONS OF THE CHAPTER, COVERING AMONG OTHER SUBJECT, CERTIFICATES OF PUBLIC CONVENIENCE, DO NOT APPLY TO DRAYS, TRUCKS AND OTHER VEHICLES WHICH GENERALLY OPERATE EXCLUSIVELY WITHIN THE CORPORATE OR POLICE LIMITS OF CITIES AND TOWNS AND ARE SUBJECT TO REGULATIONS OF SUCH CITIES AND TOWNS. IT FURTHER PROVIDES THAT THIS EXCEPTION APPLIES EVEN THOUGH IN THE PROSECUTION OF THEIR REGULAR BUSINESS THEY OCCASIONALLY GO BEYOND THE CORPORATE LIMITS OF SUCH CITIES OR TOWNS PROVIDED THEY DO NOT OPERATE FROM TERMINALS OUTSIDE THE CITY LIMITS.

"THE ACME TRANSFER AND STORAGE COMPANY IS LICENSED BY THE CITY OF VALDOSTA, GEORGIA, AND IS SUBJECT TO ITS REGULATIONS. THEIR TERMINAL IS WITHIN THE CITY LIMITS. THEIR OPERATIONS ARE NORMALLY WITHIN CITY LIMITS UNDER THIS CONTRACT AND ONLY WHEN TRANSFERRING BASE PERSONNEL MAKING THEIR HOMES OUTSIDE THE CITY LIMITS, WILL ACME PERFORM ANY PART OF THIS CONTRACT OUTSIDE VALDOSTA CITY OR POLICE LIMITS.

"ON THIS POINT AND IN CONNECTION WITH ACME'S RELATIONSHIP WITH BURNHAM'S VAN SERVICE, CONTRARY TO THE PROTESTOR'S CHARGE, ACME IS OPERATING LEGITIMATELY UNDER THE LAWS OF THE STATE OF GEORGIA AND ITS PUBLIC SERVICE COMMISSION.

"THE TRANSPORTATION OFFICER, IN THE ATTACHED LETTER, AGREES THAT ACME TRANSFER AND STORAGE COMPANY HAS NO HOUSEHOLD GOODS SERVICE TENDER AT THIS BASE AND EXPLAINS THAT ACME IS NOT REQUIRED TO HAVE ONE SINCE ACME DOES NO HAULING OF GOODS ON A GOVERNMENT BILL OF LADING.

"CLAUSE 28 OF THE INVITATION FOR BID 'ASSIGNMENT AND PERFORMANCE' IS QUOTED BY THE PROTESTOR DUE TO ACME TRANSFER AND STORAGE COMPANY'S OPERATING AS AN AGENT FOR BURNHAM'S VAN SERVICE. THE LANGUAGE OF THIS CLAUSE IS CLEAR-OUT. IT PROHIBITS TRANSFER OR ASSIGNMENT OF ANY PART OF THE CONTRACT WITH THE TWO (2) EXCEPTIONS STATED THEREIN. THE PROTESTOR IS BRINGING THIS IN DOES NOT RECOGNIZE THE CONTRACTING OFFICER'S AUTHORITY TO APPROVE SUCH TRANSFER OR ASSIGNMENT. THIS AUTHORITY IS CLEARLY STATED IN THE CLAUSE.

"THE PROTESTOR DEFINITELY STATES IN HIS LETTER IN REGARD TO ITEM 4, UNPACKING, UNCRATING AND SETTING-UP IN OWNER'S RESIDENCE, HOW THE GOVERNMENT WILL DISPOSE OF ITS SURPLUS PROPERTY. IN REGARD TO THIS I AM TOLD BY THE DISPOSAL OFFICE THAT UNPACKED CRATES COME UNDER THE HEADING OF SCRAP LUMBER.

"THE DISPOSAL OF SCRAP LUMBER IS COVERED BY AIR FORCE MANUAL 67-1, PART I, PARAGRAPH 387, 'LUMBER'. IT STATES IN PART:

'B. PREPARED SCRAP LUMBER WHICH CANOT BE UTILIZED WILL BE DISPOSED OF BY SALE. IF SALE CANNOT BE ACCOMPLISHED, SCRAP LUMBER MAY BE DONATED AS PROVIDED HEREIN. IF SCRAP LUMBER CANNOT BE UTILIZED OR SOLD, OR DONATED IT MAY BE GIVEN TO ANY PERSON WHO WILL TAKE IT AWAY AT NO EXPENSE TO THE GOVERNMENT. ALL EFFORTS WILL BE MADE TO DISPOSE OF SCRAP LUMBER WITHOUT RESORTING TO BURNING.'

"THE PROPOSED CONTRACTOR OFFERS IN EXCHANGE FOR THE SCRAP LUMBER RESULTING FROM UNPACKING AND UNCRATING, A SERVICE WHICH THE PROTESTOR PROPOSES TO SELL TO THE GOVERNMENT AT TOTAL OF $625.00 BASED ON ESTIMATED GROSS HUNDRED WEIGHT. IF THE PROPOSED BID OF THE CONTRACTOR WERE ACCEPTED, THE GOVERNMENT WOULD PAY HIM $1.25 CWT FOR THIS ITEM, PAY THE COST OF TRANSPORTATION OF THE SCRAP LUMBER FROM THE OWNER'S RESIDENT OR CONTRACTOR'S TERMINAL TO THE BASE, A DISTANCE OF APPROXIMATELY TWELVE MILES AND HAVING PUT IT IN THE DISPOSAL YARD WOULD SELL IT AT AN AVERAGE PRICE OF $1.00 PER TRUCKLOAD, UTILIZE IT FOR MISCELLANEOUS PROJECTS, DONATE IT, GIVE IT AWAY, OR, AS A LAST RESORT, BURN IT.

"IN ACCEPTING THE PROPOSAL OF ACME TRANSFER AND STORAGE COMPANY ON THIS ITEM, THE CONTRACTING OFFICER FEELS THAT HE IS ACTING IN THE BEST INTEREST OF THE GOVERNMENT BY EXCHANGING THE SCRAP LUMBER FOR PERFORMING A SERVICE WHICH OTHERWISE WOULD COST APPROXIMATELY $625.00.

"THE PARAGRAPH QUOTED FROM AFM 67-1 INDICATES THE AIR FORCE ATTITUDE IN THE UTILIZATION OF SCRAP LUMBER FOR THE BEST INTERESTS OF THE GOVERNMENT.

"DISREGARDING ITEM NUMBER 4, HOWEVER, THE DIFFERENCE IN BIDS AMOUNT TO $3,647.04. THEREFORE, ACME'S BID ON ITEM 4 WOULD HAVE HAD TO EQUAL THIS FIGURE PLUS OVER $625.00 (LIVINGSTON'S BID) TO LOSE THE CONTRACT. HAD ACME BID A FIGURE ON THIS ITEM, IT IS REASONABLE TO ASSUME IT WOULD NOT NEARLY HAVE EQUALED THIS FIGURE."

ON THE BASIS OF THE FACTS OF RECORD, THERE APPEARS SERIOUS DOUBT THAT ACME TRANSFER & STORAGE COMPANY IS REQUIRED TO HAVE A CERTIFICATE OF PUBLIC CONVENIENCE FROM THE GEORGIA PUBLIC SERVICE COMMISSION TO PERFORM THE REQUIRED DRAYAGE SERVICES, BUT IF IT DOES SUCH SERVICES WILL BE PERFORMED UNDER BURNHAM'S VAN SERVICE'S RIGHTS. PARAGRAPH 28 OF THE GENERAL CONDITIONS SPECIFICALLY PROVIDES THAT THE CONTRACTING OFFICER MAY APPROVE SUCH TRANSFER OR ASSIGNMENT. WITH RESPECT TO ACME RETAINING THE CRATES AND THE OTHER PACKING MATERIAL IN PAYMENT FOR THE SERVICES TO BE RENDERED UNDER ITEM 4, SINCE IT HAS BEEN DETERMINED THAT THE VALUE OF SUCH MATERIAL COULD NOT POSSIBLY MAKE UP THE DIFFERENCE BETWEEN THE TWO BIDS AND THAT DISPOSING OF THE MATERIAL IN THAT MANNER IS ACTUALLY AN ADVANTAGE TO THE GOVERNMENT, THIS OFFICE PERCEIVES NO OBJECTION THERETO. HENCE, THE BID OF ACME TRANSFER & STORAGE COMPANY MAY BE CONSIDERED FOR AWARD, IF DETERMINED TO BE OTHERWISE PROPER.

THE PAPERS SUBMITTED WITH THE LETTER OF JUNE 18, 1953, ARE FORWARDED HEREWITH.