B-110359, JULY 16, 1952, 32 COMP. GEN. 26

B-110359: Jul 16, 1952

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BIDS - EVALUATION - STENOGRAPHIC REPORTING SERVICES - CONSIDERATION OF PRICES CHARGED GOVERNMENT AGENCIES AND GENERAL PUBLIC IN THE EVALUATION OF BIDS COVERING STENOGRAPHIC REPORTING OF HEARINGS BEFORE A GOVERNMENT AGENCY THERE ARE FOR CONSIDERATION OFFERS OF BONUS PAYMENTS TO THE GOVERNMENT. A BID MAY BE REJECTED IF IT IS ADMINISTRATIVELY DETERMINED THAT THE SALE PRICE OF TRANSCRIPTS TO THE PUBLIC IS SO EXCESSIVE AS TO ADVERSELY AFFECT THE PUBLIC INTEREST. 13 COMP. 1952: I HAVE YOUR LETTER OF JUNE 18. THERE WAS ALSO FORWARDED WITH YOUR LETTER DATED JUNE 14. COLUMBIA HAS ADDED A NOTE AND A BONUS WHEN IT COULD HAVE REFLECTED ITS PRICE TO THE GOVERNMENT BY FOLLOWING THE PROPOSAL FORM. HENCE COLUMBIA'S BID IS NOT COMPARABLE DIRECTLY WITH THE OTHER BIDS.

B-110359, JULY 16, 1952, 32 COMP. GEN. 26

BIDS - EVALUATION - STENOGRAPHIC REPORTING SERVICES - CONSIDERATION OF PRICES CHARGED GOVERNMENT AGENCIES AND GENERAL PUBLIC IN THE EVALUATION OF BIDS COVERING STENOGRAPHIC REPORTING OF HEARINGS BEFORE A GOVERNMENT AGENCY THERE ARE FOR CONSIDERATION OFFERS OF BONUS PAYMENTS TO THE GOVERNMENT, THE PRICE TO BE CHARGED OTHER GOVERNMENT AGENCIES AND THE PRICE TO BE CHARGED THE GENERAL PUBLIC, AND THEREFORE, A BID MAY BE REJECTED IF IT IS ADMINISTRATIVELY DETERMINED THAT THE SALE PRICE OF TRANSCRIPTS TO THE PUBLIC IS SO EXCESSIVE AS TO ADVERSELY AFFECT THE PUBLIC INTEREST. 13 COMP. GEN. 447, DISTINGUISHED.

ACTING COMPTROLLER GENERAL YATES TO THE CHAIRMAN, SUBVERSIVE ACTIVITIES CONTROL BOARD, JULY 16, 1952:

I HAVE YOUR LETTER OF JUNE 18, 1952, FORWARDING A COPY OF AN INVITATION FOR BIDS ISSUED JUNE 2, 1952, FOR FURNISHING STENOGRAPHIC REPORTING SERVICES TO YOUR BOARD DURING THE FISCAL YEAR BEGINNING JULY 1, 1952, AND ENDING JUNE 30, 1953, AND, IN EFFECT, REQUESTING A DECISION AS TO THE PROPRIETY OF MAKING AN AWARD OF A CONTRACT FOR THE SAID SERVICES.

THE THREE BIDS RECEIVED IN RESPONSE TO THE INVITATION MAY BE SUMMARIZED GENERALLY AS FOLLOWS:

CHART

ACE REPORTING ALDERSON COLUMBIA

CO. REPORTING REPORTING

CO. CO.

SCHEDULE A (1) ITEM 1: ORDINARY COPY------------ $0.70 FREE (2) FREE ITEM 2: DAILY COPY--------------- .85 FREE FREE ITEM 3:

ADDITIONAL ITEM 1---------------- .10 FREE FREE

ADDITIONAL ITEM 2---------------- .10 FREE FREE

SCHEDULE B (3) ITEM 1: ORDINARY COPY------------ .85 FREE FREE ITEM 2: DAILY COPY--------------- 1.00 FREE FREE ITEM 3:

ADDITIONAL ITEM 1---------------- .15 FREE FREE

ADDITIONAL ITEM 2---------------- .15 FREE FREE

SCHEDULE C (4) ITEM 1: ORDINARY COPY------------ .50 $0.45 $0.60 ITEM 2: DAILY COPY--------------- .75 .60 .90 ITEM 3:

ADDITIONAL ITEM 1---------------- .50 .30 .60

ADDITIONAL ITEM 2---------------- .75 .30 .90

(1) SCHEDULE A: CHARGES PER PAGE FOR 10 COPIES REQUIRED BY THIS BOARD FOR HEARINGS IN WASHINGTON, D.C.

(2) A BONUS OF $350 OFFERED BY THIS BIDDER.

(3) SCHEDULE B: CHARGES PER PAGE FOR 10 COPIES REQUIRED BY THIS BOARD FOR HEARINGS HELD OUTSIDE OF WASHINGTON, D.C.

(4) SCHEDULE C: CHARGES PER PAGE FOR COPIES TO BE SOLD BY THE REPORTER TO THE PUBLIC.

THERE WAS ALSO FORWARDED WITH YOUR LETTER DATED JUNE 14, 1952, FROM THE ALDERSON REPORTING COMPANY TO THE EXECUTIVE SECRETARY OF YOUR BOARD PROTESTING THE AWARD OF A CONTRACT TO THE COLUMBIA REPORTING COMPANY ON THE FOLLOWING GROUNDS:

(1) THE FIRST PARAGRAPH OF THE INVITATION PROVIDES THAT "BIDS MUST BE SUBMITTED ON THE ,PROPOSAL" FORM ATTACHED HERETO, AND IN STRICT ACCORDANCE HEREWITH.' COLUMBIA HAS ADDED A NOTE AND A BONUS WHEN IT COULD HAVE REFLECTED ITS PRICE TO THE GOVERNMENT BY FOLLOWING THE PROPOSAL FORM. HENCE COLUMBIA'S BID IS NOT COMPARABLE DIRECTLY WITH THE OTHER BIDS. THE WHOLE PURPOSE OF HAVING SPECIFICATIONS IN THE INVITATION TO BID IS TO PROVIDE A COMPARISON BETWEEN THE BIDS. BY GOING OUTSIDE THE PROPOSAL FORM COLUMBIA HAS MADE IT IMPOSSIBLE TO COMPARE THEIR BID WITH THE OTHER BIDS SUBMITTED.

(2) BONUS BIDS ARE NOT PERMITTED EXCEPT WHERE THE PRICE TO THE PUBLIC IS FIXED IN THE SPECIFICATIONS. IN SOME GOVERNMENT AGENCY REPORTING BIDS A BONUS BID IS PERMITTED, BUT THIS IS ONLY WHERE THE PRICE TO THE PUBLIC IS FIXED. OBVIOUSLY IF THE PRICES TO THE PUBLIC ARE FIXED IN THE INVITATION AND BIDDERS DESIRE TO BID "NO CHARGE" TO THE AGENCY AND STILL REDUCE THE BID, THE ONLY WAY TO DO IT IS BY OFFERING A BONUS. HERE THE BOARD HAS A GOOD REASON FOR NOT FIXING THE PRICE TO THE PUBLIC AND THE DEPARTMENT OF JUSTICE BECAUSE THERE HAS BEEN NO PATTERN FIXED IN CASES BEFORE THE BOARD TO DETERMINE WHAT SUCH PRICES SHOULD BE TO BRING ABOUT A BALANCE BETWEEN THE COST TO THE BOARD AND THE COST TO PURCHASERS OF TRANSCRIPT. POSSIBLY AT THE END OF THE PRESENT 1953 FISCAL YEAR SUCH A PATTERN WILL BE ESTABLISHED. AT THE PRESENT TIME, WITH NO FIXING OF RATES TO PURCHASERS THIS ITEM REMAINS A VARIABLE WHICH MUST BE FILLED IN BY THE BIDDER AND IS CONSIDERED AS A PART OF THE BID.

(3) THE PRICES BID BY COLUMBIA AS CHARGES TO BE MADE TO PERSONS APPEARING BEFORE THE BOARD AND TO THE DEPARTMENT OF JUSTICE ARE CLEARLY UNREASONABLE. IN THE PRESENT CASE BEFORE THE BOARD THE DEPARTMENT OF JUSTICE IS SECURING TWO COPIES ON A DAILY COPY BASIS AND PAYING FOR THEM AT THE RATE OF $1.20. UNDER THE PRESENT BID OF ALDERSON THEY WILL PAY .90 FOR TWO COPIES. THE DEFENDANT IN THIS CASE IS ALSO SECURING TWO COPIES ON A DAILY COPY BASIS.

IT IS STATED IN YOUR LETTER THAT THE GENERAL PUBLIC HAS NOT HERETOFORE PURCHASED COPIES OF THE TRANSCRIPT; THAT THE PETITIONER AND RESPONDENT IN EACH CASE BEFORE YOUR BOARD, ONE OF WHICH IS THE DEPARTMENT OF JUSTICE, EACH WILL PURCHASE TWO COPIES OF THE TRANSCRIPTS ON A DAILY BASIS; AND THAT ALTHOUGH THE COLUMBIA REPORTING COMPANY OFFERS A BONUS OF $350, ITS CHARGES TO THE PUBLIC ARE SO UNREASONABLY HIGH THAT THEY WOULD, IN EFFECT, AMOUNT TO AN INJUSTICE TO ONE OF THE PARTIES TO EACH CASE BEFORE YOUR BOARD.

THE BASIS FOR AWARD, AS STATED IN PARAGRAPH 1 OF " TERMS AND CONDITIONS OF THE INVITATION FOR BIDS" IS THAT "THE CONTRACT SHALL BE AWARDED TO THAT RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED.'

IT IS UNDERSTOOD FROM INFORMATION RECEIVED INFORMALLY FROM YOUR BOARD THAT THE DEPARTMENT OF JUSTICE PAID FOR ITS COPIES OF THE TRANSCRIPTS PROCURED DURING THE FISCAL YEAR 1952, AT THE PRICES QUOTED FOR SALE TO THE PUBLIC; AND THAT, SINCE THE TEN COPIES TO BE FURNISHED TO YOUR AGENCY WILL ALL BE UTILIZED, THAT DEPARTMENT MUST PURCHASE ITS REQUIREMENTS AT THE PRICE TO THE PUBLIC UNDER THE PRESENT INVITATION. THE DECISION OF THIS OFFICE REPORTED AT 13 COMP. GEN. 447, IS NOT APPLICABLE IN THIS INSTANCE BECAUSE IN THAT CASE THERE WAS NO LIMIT ON THE NUMBER OF COPIES WHICH COULD BE ORDERED BY THE CONTRACTING AGENCY AND HENCE NO REASON WHY IT COULD NOT ORDER ADDITIONAL COPIES OF TRANSCRIPTS REQUIRED BY OTHER AGENCIES. THEREFORE, THE ESTIMATED COST TO THE DEPARTMENT OF JUSTICE OF OBTAINING ITS COPIES OF TRANSCRIPTS AT PRICES QUOTED FOR SALE TO THE PUBLIC IS FOR CONSIDERATION IN DETERMINING THE ULTIMATE COST TO THE GOVERNMENT.

IT CONSISTENTLY HAS BEEN HELD THAT SECTION 3709 REVISED STATUTES, REQUIRES THE CONSIDERATION, IN CONNECTION WITH THE AWARD OF CONTRACTS FOR STENOGRAPHIC REPORTING, OF OFFERS BY BIDDERS OF BONUS PAYMENTS TO THE GOVERNMENT AS ADDITIONAL CONSIDERATION FOR THE AWARD OF SUCH CONTRACTS. ALSO, IT GENERALLY HAS BEEN RECOGNIZED THAT THE ADMINISTRATIVE AGENCY HAS THE RIGHT TO SPECIFY IN THE INVITATION TO BID MAXIMUM PRICES AT WHICH COPIES MAY BE SOLD BY THE REPORTER TO THE GENERAL PUBLIC IN ORDER TO INSURE THAT THE GENERAL PUBLIC WILL NOT BE CHARGED EXORBITANT PRICES, 18 COMP. GEN. 67; AND THAT, WHERE SUCH A MAXIMUM IS NOT SPECIFIED, A BID MAY NEVERTHELESS BE REJECTED, IF IT IS ADMINISTRATIVELY DETERMINED THAT SALES PRICES TO THE PUBLIC ARE SO EXCESSIVE AS TO AFFECT ADVERSELY THE PUBLIC INTEREST WITH RESPECT TO A MATTER PERTAINING TO THE AGENCY.

ACCORDINGLY, THE BIDS RECEIVED SHOULD BE EVALUATED ON THE BASIS INDICATED; AND IF IT IS DETERMINED THAT THE PRICE OF ANY BIDDER FOR SALE OF TRANSCRIPTS TO THE PUBLIC IS SO EXORBITANT AS TO AFFECT ADVERSELY THE PUBLIC INTEREST, THAT BID MAY BE REJECTED.