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B-140995, MAY 19, 1965

B-140995 May 19, 1965
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UNITED STATES CUSTOMS COURT: REFERENCE IS MADE TO YOUR LETTERS OF APRIL 15. BECAUSE THE COMPANY HAS NOW ADVISED THAT IT WILL BE ABLE NO LONGER TO PUBLISH THE DIGESTS FOR THE SUM OF $9. THE CONTRACT PRICE WILL BE $15. THE UNITED STATES CUSTOMS COURT IS STILL OF THE OPINION THAT IT WOULD BE FUTILE TO SOLICIT BIDS FROM COMPETITIVE PRINTING COMPANIES FOR THE PUBLICATION OF THE 1965 CUMULATIVE DIGEST. FOR IT IS CERTAIN THAT NO COMPETITIVE BIDDER COULD RESEARCH THE ESSENTIAL MATERIAL. WHEN ONLY ONE SOURCE OF SUPPLY IS AVAILABLE AND THE GOVERNMENT PURCHASING OR CONTRACTING OFFICER SHALL SO CERTIFY. SINCE THE DIGESTS HAVE BEEN COPYRIGHTED.

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B-140995, MAY 19, 1965

TO THE HONORABLE DAVID J. WILSON, UNITED STATES CUSTOMS COURT:

REFERENCE IS MADE TO YOUR LETTERS OF APRIL 15, AND MAY 13, 1965, REQUESTING A DECISION AS TO WHETHER UNDER THE FACTS AND CIRCUMSTANCES SET FORTH IN YOUR LETTERS THE UNITED STATES CUSTOMS COURT MAY NEGOTIATE DIRECTLY WITH THE BOBBS-MERRILL COMPANY, INC., FOR THE PUBLICATION OF THE 1965 CUMULATIVE CUSTOMS LAW DIGEST POCKET SUPPLEMENT OR WHETHER COMPETITIVE BIDS MUST BE SOLICITED BY INVITATION OR ADVERTISING.

YOU STATE THAT PREVIOUSLY BY LETTER DATED MARCH 26, 1963, THE UNITED STATES CUSTOMS COURT REQUESTED FROM OUR OFFICE AUTHORITY TO NEGOTIATE A CONTRACT FOR THE PURCHASE OF THE 1963 AND OTHER FUTURE CUMULATIVE DIGESTS WITH THE BOBBS-MERRILL COMPANY WITHOUT SOLICITING COMPETITIVE BIDS BY INVITATION OR ADVERTISING AND THAT IN A DECISION DATED APRIL 23, 1963, B- 140995, TO YOU, WE CONCLUDED THAT CONTRACTS FOR THE PURCHASE OF THE 1963 AND OTHER FUTURE CUMULATIVE DIGESTS MAY BE NEGOTIATED WITH THE BOBBS- MERRILL COMPANY, IN THE ABSENCE OF ANY CHANGE IN THE FACTS AND CIRCUMSTANCES WHICH WOULD MAKE IT PRACTICAL TO SOLICIT COMPETITIVE BIDS.

YOU REQUEST OUR APPROVAL FOR NEGOTIATING WITH THE BOBBS-MERRILL COMPANY FOR THE PUBLICATION OF THE 1965 DIGEST UNDER THE AUTHORITY GRANTED THE DECISION OF APRIL 23, 1963, BECAUSE THE COMPANY HAS NOW ADVISED THAT IT WILL BE ABLE NO LONGER TO PUBLISH THE DIGESTS FOR THE SUM OF $9,600 BUT THAT EFFECTIVE THIS YEAR, THE CONTRACT PRICE WILL BE $15,000. YOU STATE THAT IN VIEW OF THE REASONS SET FORTH IN YOUR LETTER OF MARCH 26, 1963, THE UNITED STATES CUSTOMS COURT IS STILL OF THE OPINION THAT IT WOULD BE FUTILE TO SOLICIT BIDS FROM COMPETITIVE PRINTING COMPANIES FOR THE PUBLICATION OF THE 1965 CUMULATIVE DIGEST, EVEN THOUGH THE AMOUNT REQUESTED BY THE BOBBS-MERRILL COMPANY HAS BEEN VERY MATERIALLY INCREASED, FOR IT IS CERTAIN THAT NO COMPETITIVE BIDDER COULD RESEARCH THE ESSENTIAL MATERIAL, EDIT, AND PUBLISH IT FOR $15,000.

PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES FOR THE GOVERNMENT UNDER THE PROVISIONS OF 41 U.S.C. 5 INVOLVING MORE THAN $2,500 MAY BE MADE OR ENTERED INTO ONLY AFTER ADVERTISING, EXCEPT, AMONG OTHER THINGS, WHEN ONLY ONE SOURCE OF SUPPLY IS AVAILABLE AND THE GOVERNMENT PURCHASING OR CONTRACTING OFFICER SHALL SO CERTIFY. IN THE RECORD IT HAS BEEN SHOWN ON TWO OCCASIONS THAT, FOR ALL PRACTICAL PURPOSES, ADVERTISING FOR YEARLY DIGEST POCKET SUPPLEMENTS SERVED NO USEFUL PURPOSE, NOT ONLY BECAUSE THE DIGEST FOR A PARTICULAR YEAR HAS TO BE INTEGRATED WITH THE WORK DONE BY THE BOBBS-MERRILL COMPANY FOR PRIOR YEARS BUT ALSO BECAUSE OF THE COPYRIGHT INTERESTS WHICH THE BOBBS MERRILL COMPANY HAS ACQUIRED IN THE ENTIRE MATERIAL CONTAINED IN THE DIGESTS FOR THE YEARS 1960, 1961, 1962, 1963, AND 1964, SINCE THE DIGESTS HAVE BEEN COPYRIGHTED.

ACCORDINGLY, SINCE IT APPEARS THAT NO OTHER FIRM COULD PUBLISH THE 1965 CUMULATIVE DIGEST FOR $15,000, THE AMOUNT REQUESTED BY THE BOBBS' MERRILL COMPANY, A CONTRACT FOR THE PURCHASE OF THE 1965 CUMULATIVE DIGEST MAY BE NEGOTIATED WITH THE BOBBS-MERRILL COMPANY.

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