B-159723, SEP. 28, 1966.

B-159723, SEP. 28, 1966.

TO HAYES, INC.:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM DATED JULY 20, 1966, PROTESTING AGAINST THE AWARD OF CONTRACT NO. AF 07/603/-3434 TO FAIRFAX FUNERAL HOME, INC., T/A COVINGTON-MARTIN, PURSUANT TO AN INVITATION FOR BIDS ISSUED BY THE DOVER AIR FORCE BASE ON MAY 13, 1966.

THE INVITATION REQUESTED BIDS FOR THE CARE OF REMAINS OF MILITARY PERSONNEL IN GOVERNMENT FACILITIES AT DOVER AIR FORCE BASE DURING THE PERIOD JULY 1, 1966, TO JUNE 30, 1967. THREE BIDS WERE RECEIVED AND OPENED ON JUNE 3, 1966. COVINGTON SUBMITTED THE LOWEST BID IN THE ESTIMATED AMOUNT OF $559,310. YOUR COMPANY BID $689,947 AND TOBERT FUNERAL CHAPEL BID $796,534. COVINGTON WAS DETERMINED TO BE A RESPONSIBLE BIDDER AND THE CONTRACT WAS AWARDED TO IT ON JUNE 16, 1966.

YOU PROTEST THE AWARD OF THE CONTRACT TO COVINGTON BECAUSE NEITHER COVINGTON NOR ANY MEMBERS OF THE FIRM ARE LICENSED TO PERFORM MORTUARY SERVICES IN THE STATE OF DELAWARE. THEREFORE, YOU CONTEND THAT SECTIONS 3107 THROUGH 3111, 3116 AND 3117 OF TITLE 24 OF THE DELAWARE CODE ARE BEING VIOLATED. YOU ALSO ALLEGE THAT SINCE THE CONTRACT INVOLVES THE TRANSPORTATION OF THE REMAINS OUTSIDE THE STATE OF DELAWARE THE TRANSPORTATION BY AN UNLICENSED DELAWARE FUNERAL DIRECTOR OR AN UNQUALIFIED COMMON CARRIER IS A VIOLATION OF INTERSTATE COMMERCE COMMISSION REGULATIONS.

ALTHOUGH COVINGTON DOES NOT POSSESS A LICENSE TO PERFORM MORTUARY SERVICES IN DELAWARE IT IS LICENSED TO PERFORM SUCH SERVICES IN THE STATE OF VIRGINIA. THE RECORD SHOWS THAT THE SERVICES REQUIRED BY THE CONTRACT ARE TO BE PERFORMED AT THE DOVER AIR FORCE BASE OVER WHICH THE FEDERAL GOVERNMENT HAS EXCLUSIVE JURISDICTION. IN VIEW THEREOF, WE DO NOT BELIEVE THAT THE DELAWARE LICENSING REQUIREMENTS ARE APPLICABLE. SEE THE CASE OF PACIFIC COAST DAIRY V. DEPARTMENT OF AGRICULTURE OF CALIFORNIA ET AL., 318 U.S. 285 (1943), WHEREIN THE SUPREME COURT HELD THAT CONTRACTS TO BE PERFORMED IN A FEDERAL ENCLAVE CANNOT BE REGULATED BY STATE LAW.

ALSO, IN THE CASE OF LESLIE MILLER, INC. V. ARKANSAS, 352U.S. 187 (1956), THE SUPREME COURT HELD THAT A STATE LICENSE REQUIREMENT WHICH CONFLICTED WITH FEDERAL REGULATIONS GOVERNING THE DETERMINATION OF THE RESPONSIBILITY OF A GOVERNMENT CONSTRUCTION CONTRACTOR WAS INVALID. IN HOLDING THE STATE OF ARKANSAS TO BE WITHOUT JURISDICTION TO ENFORCE ITS LAW AGAINST THE FEDERAL CONTRACTOR THE COURT STATED:

"* * * SUBJECTING A FEDERAL CONTRACTOR TO THE ARKANSAS CONTRACTOR LICENSE REQUIREMENTS WOULD GIVE TO THE STATE'S LICENSING BOARD A VIRTUAL POWER OF REVIEW OVER THE FEDERAL DETERMINATION OF ,RESPONSIBILITY" AND WOULD THUS FRUSTRATE THE EXPRESSED FEDERAL POLICY OF SELECTING THE LOWEST RESPONSIBLE BIDDER. * * *"

THE HOLDING OF THE SUPREME COURT IN THE ARKANSAS CASE IS EQUALLY APPLICABLE TO THE SITUATION HERE INVOLVED. IF COVINGTON WAS SUBJECTED TO THE DELAWARE LICENSING REQUIREMENTS IT WOULD GIVE THE STATE A POWER OF REVIEW OVER THE FEDERAL GOVERNMENT DETERMINATION OF "RESPONSIBILITY" AND WOULD FRUSTRATE THE EXPRESSED FEDERAL POLICY OF SELECTING THE LOWEST RESPONSIBLE BIDDER AS PRESCRIBED BY 10 U.S.C. 2305 (C).

THUS, WHILE WE DO NOT CONSIDER THE PROVISIONS OF THE DELAWARE STATUTES TO BE APPLICABLE, IT MIGHT BE POINTED OUT THAT EVEN IF THERE BE A QUESTION AS TO WHETHER THE CONTRACTOR PROPERLY COULD PERFORM THE CONTRACT WITHOUT BEING LICENSED TO DO BUSINESS IN DELAWARE IT IS ADMINISTRATIVELY REPORTED THAT A LICENSED MORTICIAN IN THE STATE OF DELAWARE HAS BEEN EMPLOYED BY THE CONTRACTOR AS MANAGER OF THE OPERATION AT DOVER AIR FORCE BASE. THINK THAT THIS FACT WOULD PRECLUDE OUR OFFICE FROM QUESTIONING THE LEGALITY OF THE CONTRACT AWARDED. IN THAT CONNECTION 24 DEL.C. SECTION 3116 PROVIDES THAT:

"NOTHING IN THIS CHAPTER SHALL PREVENT ANY PERSON PERFORMING ANY SERVICE OR WORK FOR ANY PERSON ENGAGED IN THE UNDERTAKING BUSINESS IN THIS STATE, WHERE SUCH WORK IS BEING DONE UNDER THE SUPERVISION OR CONTROL OF A PERSON WHO IS THE HOLDER OF A CERTIFICATE AS IS PROVIDED FOR IN THIS CHAPTER.'

YOUR CONTENTION THAT THE TRANSPORTATION OF REMAINS BY AN UNLICENSED DELAWARE FUNERAL DIRECTOR VIOLATES THE INTERSTATE COMMERCE COMMISSION REGULATIONS IS ALSO WITHOUT MERIT. IN DENNIS COMMON CARRIER APPLICATION, 63 M.C.C. 66, THE INTERSTATE COMMERCE COMMISSION RULED THAT NO OPERATING AUTHORITY IS REQUIRED FOR THE TRANSPORTATION OF HUMAN REMAINS SINCE HUMAN REMAINS ARE NOT CLASSIFIED AS EITHER PROPERTY OR PASSENGERS.

ACCORDINGLY, ON THE BASIS OF THE LAW AND THE FACTS OF RECORD WE DO NOT BELIEVE THAT ANY LEGAL BASIS EXISTS FOR QUESTIONING THE AWARD AS MADE.