B-204842, OCT 7, 1981

B-204842, OCT 7, 1981

DIGEST: 1. AGENCY MUST EVALUATE OFFEROR'S PROPOSED RATE OF "$7.50 MAXIMUM" PER PAGE FOR A COPY OF A TRANSCRIPT REQUESTED BY THE AGENCY OR THE PUBLIC AT THE RATE OF $7.50 PER PAGE. 2. GAO RECOMMENDS THAT AGENCY REJECT A PROPOSAL, WHICH INCLUDES UNREASONABLY HIGH RATE OF UP TO $7.50 PER PAGE FOR A COPY OF A TRANSCRIPT REQUESTED BY THE PUBLIC, SINCE UNDER THE FEDERAL ADVISORY COMMITTEE ACT AN AGENCY IS OBLIGATED TO MAKE COPIES OF TRANSCRIPTS AVAILABLE TO THE PUBLIC AT REASONABLE PRICES.

NATIONAL MEDIATION BOARD - REQUEST FOR ADVANCE DECISION:

THE NATIONAL MEDIATION BOARD (BOARD), THROUGH A CERTIFYING OFFICER, REQUESTS OUR ADVANCE DECISION ON THE PROPRIETY OF MAKING A CONTRACT AWARD TO ALDERSON REPORTING COMPANY (ALDERSON) UNDER REQUEST FOR PROPOSALS (RFP) NO. 81/01 FOR CERTAIN REPORTING SERVICES. THE BOARD'S REQUEST WAS PROMPTED IN PART BY A PROTEST FILED WITH THE BOARD BY THE ACME REPORTING COMPANY, INC. (ACME). ACME CONTENDS THAT ALDERSON'S PROPOSAL IS UNACCEPTABLE BECAUSE (1) ALDERSON DID NOT SUBMIT A FIXED PRICE FOR ADDITIONAL TRANSCRIPT COPIES REQUESTED BY THE BOARD OR THE PUBLIC AND (2) ALDERSON'S PROPOSED MAXIMUM PRICE FOR SUCH ADDITIONAL COPIES VIOLATES THE FEDERAL ADVISORY COMMITTEE ACT (FACA), 5 U.S.C. APPENDIX (1976).

WE CONCLUDE THAT (1) ALDERSON'S PROPOSED PRICE FOR ADDITIONAL TRANSCRIPT COPIES MUST BE EVALUATED AT $7.50 PER PAGE AND (2) ALDERSON'S PROPOSAL IS UNACCEPTABLE BECAUSE THE $7.50 PER PAGE PRICE FOR ADDITIONAL TRANSCRIPT COPIES REQUESTED BY THE PUBLIC IS UNREASONABLY HIGH.

THE RFP SET FORTH THE BOARD'S METHOD TO BE USED TO SELECT THE LOW PRICED OFFEROR BY DESCRIBING SEVEN CATEGORIES OF WORK AND DISCLOSING THE PERCENTAGE OF THE TOTAL VOLUME EXPECTED IN EACH CATEGORY. OFFERORS WERE ASKED TO SUBMIT FIXED PRICES PER PAGE FOR EACH CATEGORY. THE BOARD'S EVALUATION SHOWED THAT ALDERSON SUBMITTED THE LOW PRICED OFFER.

THE BOARD EXPLAINS THAT ALDERSON'S LOW PRICE WAS BASED ON (1) ITS UNUSUALLY LOW PRICE OF $.01 PER PAGE FOR THE ORIGINAL COPY IN THE ACCELERATED SERVICE CATEGORY (PROJECTED TO BE 55 PERCENT OF THE WORK) AND (2) THE UNUSUALLY HIGH PRICE OF $7.50 MAXIMUM PER PAGE FOR ADDITIONAL COPIES REQUESTED BY THE BOARD OR THE PUBLIC IN THIS CATEGORY (PROJECTED TO BE 5 PERCENT OF THE WORK). THE BOARD REPORTS THAT IT DID NOT EXPECT THE PRICE PER PAGE FOR ADDITIONAL COPIES TO EXCEED THE RATE FOR THE ORIGINAL TRANSCRIPT.

THE BOARD STATES THAT SINCE ALDERSON'S RATE OF $7.50 IS THE MAXIMUM RATE, THE BOARD IS UNCERTAIN WHAT THE CHARGE WILL ACTUALLY BE. ALDERSON EXPLAINS THAT IF THE PUBLIC RESISTS PURCHASING ADDITIONAL COPIES BECAUSE THE PRICE IS TOO HIGH, IT WILL REDUCE THE PRICE.

FIRST, IN OUR VIEW, ALDERSON'S PROPOSAL RESERVES THE RIGHT TO CHARGE THE BOARD OR THE PUBLIC THE RATE OF UP TO $7.50 PER PAGE; THEREFORE, BY THE CLEAR TERMS OF ALDERSON'S PROPOSAL, THE $7.50 RATE IS THE RATE THAT MUST BE USED TO EVALUATE ALDERSON'S PROPOSAL BECAUSE THAT RATE REPRESENTS THE HIGHEST AMOUNT THAT THE PUBLIC COULD BE CHARGED UNDER THE TERMS OF ALDERSON'S PROPOSAL.

SECOND, SECTION 11(A) OF THE FACA PROVIDES THAT AGENCIES SHALL MAKE AVAILABLE TO ANY PERSON, AT ACTUAL COST OF DUPLICATION, COPIES OF TRANSCRIPTS. 5 U.S.C. APPENDIX. WE HAVE HELD THAT THE ACT DOES NOT REQUIRE ANY PARTICULAR PROCEDURE ON THE PART OF AGENCIES CONTRACTING FOR REPORTING SERVICES, SO LONG AS THE PUBLIC IS ADEQUATELY PROTECTED AGAINST PAYING UNREASONABLY HIGH PRICES FOR DUPLICATING SERVICES. SEE HOOVER REPORTING COMPANY, INC., B-185261, JULY 30, 1976, 76-2 CPD 102, AND DECISIONS CITED THEREIN.

IN OUR DECISION IN CSA REPORTING CORPORATION, 59 COMP.GEN. 338 (1980), 80-1 CPD 225, WE CONCLUDED THAT ALDERSON'S PRICE OF $.75 PER PAGE FOR COPIES REQUESTED BY THE PUBLIC WAS NOT UNREASONABLE; MOREOVER, THE PUBLIC COULD OBTAIN COPIES FROM THE AGENCY FOR $.10 PER PAGE. COMPARE, CSA REPORTING CORPORATION, B-196545, JUNE 20, 1980, 80-1 CPD 435, WHICH INDICATES THAT ACME'S PRICE OF $.71 PER PAGE FOR COPIES REQUESTED BY THE PUBLIC WAS NOT UNREASONABLE.

HERE, THE BOARD REPORTS THAT ALDERSON'S RATE OF $7.50 IS EXCESSIVE AND UNREASONABLE. THE BOARD ALSO REPORTS THAT THERE WOULD BE UNACCEPTABLE DELAYS IN THE RECEIPT OF TRANSCRIPTS IF THE PUBLIC BYPASSED ALDERSON AND OBTAINED COPIES DIRECTLY FROM THE BOARD. IN THE CIRCUMSTANCES, WE CONCUR WITH THE BOARD THAT ALDERSON'S RATE OF $7.50 IS UNREASONABLY HIGH AND WE CONCLUDE THAT THE BOARD MAY PROPERLY REJECT ALDERSON'S PROPOSAL BECAUSE THE BOARD IS OBLIGATED TO PROTECT THE PUBLIC FROM PAYING UNREASONABLY HIGH PRICES FOR DUPLICATING SERVICES.

ACCORDINGLY, WE RECOMMEND THAT THE BOARD REJECT ALDERSON'S PROPOSAL.