B-175922, OCT 17, 1972

B-175922, OCT 17, 1972

BID PROTEST - RESPONSIBILITY - BIDDER QUALIFICATIONS DECISION DENYING THE PROTESTS OF UNITED PRESS INTERNATIONAL AND INDEPENDENT TELEVISION NEWS LTD., AGAINST AWARD OF A CONTRACT TO HEARST METROTONE NEWS, INC., UNDER AN IFB ISSUED BY NASA, FOR SERVICES AND MATERIALS TO SUPPORT THE NASA TELEVISION NEWS AND INFORMATION PROGRAMS. IN MATTERS OF BIDDER RESPONSIBILITY, QUESTIONS CONCERNING THE QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR ARE PRIMARILY FOR RESOLUTION BY THE ADMINISTRATIVE OFFICERS CONCERNED. IN THE ABSENCE OF A SHOWING, BY CONVINCING EVIDENCE, OF BAD FAITH, ARBITRARY OR CAPRICIOUS ACTION, OR LACK OF ANY REASONABLE BASIS FOR THE DETERMINATION, THERE IS NO JUSTIFICATION FOR GAO TO OBJECT TO OR SUBSTITUTE ITS JUDGMENT FOR, A DETERMINATION MADE ON THIS QUESTION BY AN ADMINISTRATIVE AGENCY, 49 COMP. GEN. 553 (1970).

TO SCHLANGER BLUMENTHAL & LYNNE:

REFERENCE IS MADE TO YOUR LETTERS DATED MAY 9, JUNE 26 AND AUGUST 29, 1972, PROTESTING, ON BEHALF OF UNITED PRESS INTERNATIONAL AND INDEPENDENT TELEVISION NEWS (UPITN) LTD., THE AWARD OF A CONTRACT ON MARCH 28, 1972, TO HEARST METROTONE NEWS, INC., UNDER INVITATION FOR BIDS (IFB) NO. W-10- 11026A/DHC-5 ISSUED FEBRUARY 23, 1972, BY THE CONTRACTS DIVISION OF THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION HEADQUARTERS (NASA), WASHINGTON, D.C.

THE IFB SOLICITED BIDS FOR SERVICES AND MATERIALS TO SUPPORT THE NASA TELEVISION NEWS AND INFORMATION PROGRAMS. EACH BIDDER WAS REQUIRED TO SUBMIT WITH HIS BID, PURSUANT TO PARAGRAPH 23 (RESPONSIBLE BIDDER) OF THE SOLICITATION INSTRUCTIONS AND CONDITIONS, CERTAIN DATA WHICH WOULD DEMONSTRATE TO THE SATISFACTION OF THE GOVERNMENT THAT HE POSSESSED THE PAST EXPERIENCE AND THE PRESENT CAPABILITY TO PERFORM THE WORK DESCRIBED IN THE IFB.

TWO BIDS WERE RECEIVED AND OPENED ON MARCH 20, 1972. THE BIDS WERE TABULATED AND EVALUATED AS FOLLOWS:

BIDDER AGGREGATE BID PRICE

HEARST METROTONE NEWS $56,467.17

UPITN 61,328.60

THE DIRECTOR OF PUBLIC INFORMATION, OFFICE OF PUBLIC AFFAIRS, CERTIFIED IN A MEMORANDUM TO THE CONTRACTING OFFICER, DATED MARCH 24, 1972, THAT HEARST HAD SATISFACTORILY PROVIDED THESE SERVICES FOR THE PAST TEN YEARS, AND THAT HEARST DID IN FACT MEET ALL THE REQUIREMENTS FOR AWARD OF THE CONTRACT. THE CONTRACTING OFFICER THEREFORE DETERMINED, ON MARCH 27, 1972, THAT HEARST WAS A RESPONSIBLE BIDDER, AND AWARD OF THE CONTRACT WAS MADE TO HEARST ON MARCH 28, 1972.

UPITN FILED A PROTEST WITH NASA ON APRIL 5, 1972, ALLEGING THAT HEARST DID NOT COMPLY WITH SUBPARAGRAPH 23(D) IN THAT HEARST DID NOT MAINTAIN STAFF PERSONNEL IN THE WASHINGTON, D. C., METROPOLITAN AREA. UPON RECEIPT OF THE PROTEST THE CONTRACTING OFFICER REQUESTED HEARST TO SUBMIT DOCUMENTATION DETAILING THE PERSONNEL EMPLOYED BY HEARST AT THE WASHINGTON OFFICE DURING THE SIX-MONTH PERIOD FROM OCTOBER 13, 1971, THROUGH APRIL 9, 1972. BASED UPON THE DOCUMENTATION RECEIVED FROM HEARST, THE CONTRACTING OFFICER DENIED THE PROTEST ON APRIL 24, 1972. THEREAFTER, YOU PROTESTED TO THIS OFFICE ON BEHALF OF UPITN ON MAY 9, 1972, ADDITIONALLY MAINTAINING THAT HEARST DID NOT COMPLY WITH THE PROVISIONS OF SUBPARAGRAPH 23(B) IN THAT IT DID NOT MAINTAIN CAMERA CREWS AT THE LOCATIONS DESCRIBED THEREIN.

IN MATTERS OF BIDDER RESPONSIBILITY WE HAVE CONSISTENTLY HELD THAT QUESTIONS CONCERNING THE QUALIFICATIONS OF A PROSPECTIVE CONTRACTOR ARE PRIMARILY FOR RESOLUTION BY THE ADMINISTRATIVE OFFICERS CONCERNED. IN THE ABSENCE OF A SHOWING, BY CONVINCING EVIDENCE, OF BAD FAITH, OR ARBITRARY OR CAPRICIOUS ACTION, OR LACK OF ANY REASONABLE BASIS FOR THE DETERMINATION, WE ARE NOT JUSTIFIED IN OBJECTING TO, OR SUBSTITUTING OUR JUDGMENT FOR, A DETERMINATION MADE ON THIS QUESTION BY AN ADMINISTRATIVE AGENCY. 49 COMP. GEN. 553 (1970), 45 COMP. GEN. 4 (1965), 43 COMP. GEN. 257 (1963), 38 COMP. GEN. 778 (1959), 37 COMP. GEN. 430 (1957).

SUBPARAGRAPH 23(B) REQUIRES THAT THE BIDDER "MUST BE AN ORGANIZATION WORLD-WIDE IN SCOPE, WITH CAMERA CREWS IN OR IN CLOSE PROXIMITY TO MOST MAJOR U.S. CITIES PLUS MANY OVERSEAS LOCATIONS." WE FIND NO REQUIREMENT THEREIN THAT SUCH CAMERA CREWS MUST ALSO BE STAFF EMPLOYEES. RATHER, AS INDICATED IN THE REPORT OF THE CONTRACTING OFFICER DATED MAY 24, 1972, ANY OF THE THREE WORKING RELATIONSHIPS COMMONLY UTILIZED BY THE TELEVISION NEWS FILM INDUSTRY, I.E., STAFF, STRINGER, OR FREE LANCE EMPLOYEE, IS ACCEPTABLE, SO LONG AS THE CAMERA CREW UTILIZED IS SO AFFILIATED WITH THE BIDDER. HEARST METROTONE NEWS THEREFORE APPEARS TO COMPLY WITH SUBPARAGRAPH 23(B) BY MAINTAINING SUCH WORKING RELATIONSHIPS CAMERA CREWS IN NEW YORK, WASHINGTON, CHICAGO, LOS ANGELES, MIAMI, ORLANDO, HOUSTON, ATLANTA, JACKSONVILLE, ANCHORAGE, NEW ORLEANS, DALLAS, SAN DIEGO, SAN FRANCISCO, SEATTLE, DENVER, HONOLULU, MINNEAPOLIS, DETROIT, INDIANAPOLIS, CINCINNATI, CLEVELAND, PHILADELPHIA, MEMPHIS, KNOXVILLE, CHARLOTTE, NORFOLK, AND OTHER CITIES. OVERSEAS, HEARST HAS ASSOCIATE OFFICES IN LONDON, PARIS, ROME, BELGRADE, BUCHAREST, ATHENS, BUDAPEST, BERLIN, BONN, VIENNA, MADRID, BRUSSELS, MEXICO CITY, BOGOTA, BUENOS AIRES, CARACAS, LOGOS, JOHANNESBURG, TOKYO, MANILA, SYDNEY, NEW DELHI, FORMOSA, TEHERAN AND OTHER FOREIGN CITIES. IN VIEW THEREOF, WE MUST AGREE WITH THE ADMINISTRATIVE DETERMINATION THAT HEARST METROTONE NEWS COMPLIES WITH SUBPARAGRAPH 23(B).

ADDITIONALLY, YOU MAINTAIN IN YOUR PROTEST TO THIS OFFICE THAT HEARST METROTONE NEWS HAS NOT MET THE IMPLICIT REQUIREMENTS OF SUBPARAGRAPH 23(D) BECAUSE HEARST HAS ALLEGEDLY NOT MAINTAINED STAFF CAMERA CREWS, ON 24-HOUR CALL, AT ITS WASHINGTON, D.C. FACILITY. SUBPARAGRAPH 23(D) PROVIDES THAT A RESPONSIBLE BIDDER "MUST BE LOCATED IN OR ESTABLISH AN OPERATING FACILITY IN THE WASHINGTON, D.C. METROPOLITAN AREA AND MAINTAIN, ON CALL, 24-HOUR-A-DAY STAFF CAMERA CREWS, FILM EDITORS ***." IN RESPONSE TO INQUIRIES FROM NASA PROMPTED BY UPITN'S APRIL 5, 1972, PROTEST, HEARST'S WASHINGTON OFFICE SUBMITTED THE AFOREMENTIONED PAYROLL LIST, DATED APRIL 14, 1972, CONTAINING THE EMPLOYMENT RECORDS OF AFFILIATED STAFF PRODUCERS, DIRECTORS, WRITERS, EDITORS, CAMERAMEN, SOUNDMEN, AND ELECTRICIANS FOR THE SIX-MONTH PERIOD OCTOBER 13, 1971, THROUGH APRIL 9, 1972. SUMMARIZING THIS DATA, THE ADMINISTRATIVE REPORT DATED JUNE 19, 1972, STATED:

"FROM AN EXAMINATION OF HEARST'S APRIL 14TH LETTER, IT IS APPARENT THAT HEARST HAS NOT CLAIMED THAT MESSRS. ALPERT (EXCEPT ON ONE OCCASION), APOLLO, KOZA AND WILLET WERE EMPLOYED BY THE WASHINGTON OFFICE. DURING THE SIX-MONTH (APPROXIMATE) PERIOD COVERED BY THIS LETTER, MR. REEK WORKED ALL BUT THREE WEEKS OUT OF THE WASHINGTON OFFICE. MESSRS. PALLADINO, FOOKES, MAY, GERLACK, RYAN AND WARD WERE EMPLOYED BY THE HEARST WASHINGTON OFFICE WITH SIMILAR REGULARITY. OF THE PERSONNEL CITED BY HEARST, SOME ARE EMPLOYED ON A SUBCONTRACT BASIS, OTHERS ON AN ASSIGNMENT BASIS, AND THE REMAINDER ARE HEARST EMPLOYEES; HEARST CONTRIBUTES TOWARD THE PENSION PLANS AND WELFARE BENEFITS, AND IS RESPONSIBLE FOR THE VACATION TIME OF ALL."

THE RECORD ALSO INDICATES THAT THE NEWS AUDIO-VISUAL BRANCH, PUBLIC INFORMATION DIVISION, CONCLUDED, ON OR ABOUT MARCH 24, 1972, THAT HEARST HAD THE REQUIRED STAFF CAMERA CREWS AVAILABLE IN WASHINGTON, D.C., AND THAT HEARST HAD PREVIOUSLY RESPONDED SATISFACTORILY TO ALL REQUESTS FOR SERVICE.

YOUR CONTENTION THAT THE STAFF CAMERA CREW, REFERRED TO IN SUBPARAGRAPH 23(D), IS REQUIRED TO BE PHYSICALLY PRESENT AT THE WASHINGTON, D.C., FACILITY DIFFERS FROM THE INTERPRETATION OF THE CONTRACTING OFFICER, WHOSE CONTENTION THAT A STAFF CAMERA CREW MEMBER NEED ONLY BE EMPLOYED IN CONSONANCE WITH INDUSTRY PRACTICE AS A STRINGER, STAFF MEMBER, OR INDEPENDENT CONTRACTOR, AND THUS NEED NOT BE A MEMBER OF THE FACILITY STAFF, IS SUPPORTED BY THE NEWS AUDIO-VISUAL BRANCH. ASSUMING THAT YOUR INTERPRETATION IS CORRECT, HOWEVER, THE RECORD BEFORE US INDICATES THAT HEARST DID MAINTAIN SUCH STAFF CAMERA CREWS IN WASHINGTON, D.C., FOR A PERIOD OF AT LEAST FIVE MONTHS IMMEDIATELY PRECEDING AWARD OF THE CONTRACT. ON THE BASIS OF THIS RECORD, WE FIND NO REASON TO DISAGREE WITH THE DECISION OF THE ADMINISTRATIVE OFFICER IN REGARD TO HEARST'S QUALIFICATIONS UNDER SUBPARAGRAPH 23(D).

ACCORDINGLY, YOUR PROTEST IS DENIED.