B-136395, JUL. 30, 1958

B-136395: Jul 30, 1958

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TO COLUMBIA REPORTING COMPANY: FURTHER REFERENCES IS MADE TO YOUR LETTER OF JUNE 5. BY THE INVITATION REFERRED TO BIDS WERE REQUESTED. BIDS WERE RECEIVED FROM ONLY TWO FIRMS. YOUR PROTEST AGAINST THE AWARD OF THE CONTRACT TO GENERAL IS MADE "ON THE GROUND OF FINANCIAL RESPONSIBILITY. THE SAID SECTION IS AS FOLLOWS: "8. THAT DELIVERY PURSUANT TO THE STATEMENT ON PAGE 4 THEREOF IS DELAYED.'. THE QUOTATIONS OF GENERAL WERE LOWER THAN OR EQUAL TO THOSE WHICH YOU OFFERED. IT WAS CONCLUDED THAT THE CONTRACT SHOULD BE AWARDED TO GENERAL. PROVIDED IT WAS ELIGIBLE TO RECEIVE THE AWARD. - "INVESTIGATION OF GENERAL REPORTING CORPORATION DISCLOSED THAT THIS ENTITY WAS GRANTED ITS CORPORATE CHARTER UNDER APPLICABLE STATUTES OF THE STATE OF DELAWARE ON MAY 28.

B-136395, JUL. 30, 1958

TO COLUMBIA REPORTING COMPANY:

FURTHER REFERENCES IS MADE TO YOUR LETTER OF JUNE 5, 1958, PROTESTING THE AWARD OF A CONTRACT TO GENERAL REPORTING CORPORATION, PURSUANT TO INVITATION NO. 1991, ISSUED MAY 15, 1958, BY THE INTERSTATE COMMERCE COMMISSION.

BY THE INVITATION REFERRED TO BIDS WERE REQUESTED--- TO BE OPENED JUNE 3, 1958--- FOR FURNISHING STENOGRAPHIC REPORTING SERVICES IN CONNECTION WITH HEARINGS BEFORE THE INTERSTATE COMMERCE COMMISSION DURING THE PERIOD JULY 1, 1958, TO JUNE 30, 1959. BIDS WERE RECEIVED FROM ONLY TWO FIRMS--- YOURS AND THE GENERAL REPORTING CORPORATION, THE LOW BIDDER. YOUR PROTEST AGAINST THE AWARD OF THE CONTRACT TO GENERAL IS MADE "ON THE GROUND OF FINANCIAL RESPONSIBILITY, PARTICULARLY AS REGARDS ABILITY TO RESPOND IN DAMAGES FOR LATE DELIVERY OF PRODUCT UNDER SECTION 8 OF THE SPECIFICATIONS * * *. THE SAID SECTION IS AS FOLLOWS:

"8. DELAYS-LIQUIDATED DAMAGES. IN THE EVENT THE CONTRACTOR FAILS OR REFUSES TO MAKE FULL AND COMPLETE DELIVERY OF THE TRANSCRIPT AND COPIES THEREOF AND EXHIBITS AND COPIES WITHIN THE TIMES SPECIFIED ON PAGE 4 HEREOF LIQUIDATED DAMAGES SHALL BE CHARGEABLE AGAINST THE CONTRACTOR AT THE RATE OF $10.00 PER DAY FOR EACH CALENDAR DAY OR PERIOD THEREOF, THAT DELIVERY PURSUANT TO THE STATEMENT ON PAGE 4 THEREOF IS DELAYED.'

IN ITS REPORT ON THE MATTER OF YOUR PROTEST, THE INTERSTATE COMMERCE COMMISSION STATES THAT, SINCE FOR EACH ITEM BID, THE QUOTATIONS OF GENERAL WERE LOWER THAN OR EQUAL TO THOSE WHICH YOU OFFERED, IT WAS CONCLUDED THAT THE CONTRACT SHOULD BE AWARDED TO GENERAL, PROVIDED IT WAS ELIGIBLE TO RECEIVE THE AWARD, OTHER FACTORS CONSIDERED. THE REPORT STATES FURTHER THAT---

"INVESTIGATION OF GENERAL REPORTING CORPORATION DISCLOSED THAT THIS ENTITY WAS GRANTED ITS CORPORATE CHARTER UNDER APPLICABLE STATUTES OF THE STATE OF DELAWARE ON MAY 28, 1958. IT FURTHER APPEARED THAT THE CORPORATION ISSUED 100 SHARES OF STOCK WITH NO PAR VALUE. THE RECORD DISCLOSES THAT ROY L. SMITH, JR. IS THE PRESIDENT OF THE CORPORATION AND WALDO CLARK THE SECRETARY-TREASURER. IN A LETTER DATED JUNE 11, 1958, THE CORPORATION ADVISED THAT SUBSCRIPTIONS TO CAPITAL STOCK OF $50,000 WILL BE PAID INTO THE CORPORATION TREASURY AS NEEDED FOR WORKING CAPITAL AND BOND LIABILITY. STOCKHOLDERS WERE LISTED AS FOLLOWS: HAROLD B. ALDERSON, WALDO CLARK, ARTHUR G. PREVIN, HOWARD B. SMITH, ROY L. SMITH, JR.

"SINCE THE CORPORATION AS SUCH WAS WITHOUT EXPERIENCE IN THE FIELD OF STENOGRAPHIC REPORTING, THE COMMISSION DEEMED IT NECESSARY TO INVESTIGATE THE INDIVIDUAL REPUTATIONS FOR RELIABILITY OF EACH OF THE OFFICERS OF THE CORPORATION AS WELL AS THE STOCKHOLDERS, BOTH AS TO FINANCIAL RESPONSIBILITY AND EXPERIENCE IN THE SERVICES TO BE PERFORMED UNDER THE CONTRACT. WHILE INDIVIDUAL CREDIT REPORTS WERE NOT AVAILABLE FOR HOWARD B. SMITH AND WALDO CLARK, SUCH REPORTS GAVE HAROLD B. ALDERSON, ROY L. SMITH, JR., AND ARTHER G. PREVIN A "GOOD RATING.' MOREOVER, IT APPEARS THAT EACH OF THE OFFICERS OF THE CORPORATION AS WELL AS ITS STOCKHOLDERS, ACTING AS EMPLOYEES OF REPORTING FIRMS, OR AS PROPRIETORS OF SUCH FIRMS, HAD SUCCESSFULLY PERFORMED STENOGRAPHIC SERVICES FOR A NUMBER OF DEPARTMENTS AND AGENCIES OF THE GOVERNMENT, INCLUDING THIS COMMISSION.'

ON THE BASIS OF THE FOREGOING, IT WAS CONCLUDED BY THE COMMISSION THAT GENERAL IS ABLE TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS AND, UPON THE PRESENTATION OF AN ACCEPTABLE PERFORMANCE BOND, A CONTRACT WAS AWARDED TO GENERAL ON JUNE 13, 1958.

INSOFAR AS CONCERNS THE INCLUSION OF THE LIQUIDATED DAMAGES PROVISION IN THE CONTRACT, DESCRIBED BY YOU AS "A NEW PROVISION," AND WITH REFERENCE TO WHICH YOU STATE THAT YOU BID ON THE PREMISE OF STRICT COMMISSION ENFORCEMENT, YOU PRESUMABLY ARE AWARE OF THE FACT THAT THE PREPARATION OF SPECIFICATIONS FOR THE PROCUREMENT OF SUPPLIES OR SERVICES IS PRIMARILY THE RESPONSIBILITY OF THE PROCURING ADMINISTRATIVE AGENCY. LIKEWISE, THE DETERMINATION OF THE RESPONSIBILITY OF BIDDERS IS A MATTER PRIMARILY FOR ADMINISTRATIVE DETERMINATION. IN THE LATTER CONNECTION, THERE IS NECESSARILY A CONSIDERABLE SCOPE FOR THE EXERCISE OF A SOUND ADMINISTRATIVE DISCRETION AND, IN THE ABSENCE OF A CLEAR INDICATION OF ABUSE OF THAT DISCRETION, WE DO NOT UNDERTAKE TO INTERFERE WITH THE ADMINISTRATIVE ACTION TAKEN.

IN THE PRESENT CASE, THE COMMISSION REPORTEDLY HAS SATISFIED ITSELF THAT THE GENERAL REPORTING CORPORATION IS A RESPONSIBLE BIDDER AND, HAVING SEEN FIT TO INCLUDE IN THE CONTRACT ENTERED INTO WITH GENERAL A PROVISION FOR THE ASSESSMENT OF LIQUIDATED DAMAGES IN THE EVENT OF DELAYS IN DELIVERIES, WE HAVE NO REASON TO BELIEVE THAT THE COMMISSION WILL NOT EXACT STRICT CONFORMANCE TO THAT PROVISION IN THE EVENT GENERAL FAILS OR REFUSES TO MAKE FULL AND COMPLETE DELIVERIES WITHIN THE TIMES SPECIFIED IN THE CONTRACT. CONSEQUENTLY, IT MUST BE CONCLUDED THAT YOUR PROTEST FURNISHES NO BASIS ON WHICH WE WOULD BE JUSTIFIED IN QUESTIONING FURTHER THE AWARD IN THIS CASE.