B-136455, JUN. 30, 1958

B-136455: Jun 30, 1958

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GENERAL REPORTING: REFERENCE IS MADE TO YOUR LETTER OF JUNE 16. BIDS WERE REQUESTED FOR VERBATIM REPORTING AND RELATED SERVICES FOR THE PERIOD JULY 1. THE BOARD'S EVALUATION PLAN WHICH WAS DISTRIBUTED TO ALL PROSPECTIVE BIDDERS PROVIDES IN PART AS FOLLOWS: "NO EVALUATION WILL BE MADE ON BIDS FOR EXPEDITED COPY RATES. WHEN NO SALE OF EXPEDITED COPY WAS MADE TO OTHER PARTIES. WAS A NEGLIGIBLE (NEGLIGIBLE) ITEM IN THE TOTAL PAGES REPORTED. "DAILY COPY RATES TO THE BOARD AND TO THE PUBLIC ARE NOT CONSIDERED IN THE EVALUATION OF BIDS EXCEPT TO THE EXTENT THAT SUCH RATES SHALL NOT BE EXORBITANT.'. THE FOLLOWING BIDS WERE SUBMITTED BY ACME REPORTING ASSOCIATES AND YOU UNDER SCHEDULE NO. 2: TABLE HEARINGS ACME MCCABE (1) IN REGIONAL OFFICE CITIES ORDINARY COPY ?25 PP ?25 PP EXPEDITED COPY .45 PP .90 PP DAILY COPY 1.00 PP 1.40 PP (2) OUTSIDE REGIONAL OFFICE CITIES ORDINARY COPY .25 PP .25 PP EXPEDITED COPY .45 PP .90 PP DAILY COPY 1.20 PP 1.50 PP UPON CONSIDERATION OF THE LOW TIE BIDS RECEIVED FOR ORDINARY COPY.

B-136455, JUN. 30, 1958

TO FRANK J. MCCABE, GENERAL REPORTING:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 16, 1958, PROTESTING THE AWARD OF A CONTRACT TO ACME REPORTING ASSOCIATES FOR STENOGRAPHIC REPORTING SERVICES TO BE FURNISHED THE NATIONAL LABOR RELATIONS BOARD DURING THE FISCAL YEAR 1959.

BY INVITATION FOR BIDS DATED MAY 23, 1958, BIDS WERE REQUESTED FOR VERBATIM REPORTING AND RELATED SERVICES FOR THE PERIOD JULY 1, 1958, TO JUNE 30, 1959, IN ACCORDANCE WITH THE SPECIFICATIONS, TERMS AND CONDITIONS CONTAINED THEREIN. THE BOARD'S EVALUATION PLAN WHICH WAS DISTRIBUTED TO ALL PROSPECTIVE BIDDERS PROVIDES IN PART AS FOLLOWS:

"NO EVALUATION WILL BE MADE ON BIDS FOR EXPEDITED COPY RATES. THE QUANTITY ORDERED BY THE BOARD IN THE FISCAL YEAR 1958, WHEN NO SALE OF EXPEDITED COPY WAS MADE TO OTHER PARTIES, WAS A NEGLIGIBLE (NEGLIGIBLE) ITEM IN THE TOTAL PAGES REPORTED.

"DAILY COPY RATES TO THE BOARD AND TO THE PUBLIC ARE NOT CONSIDERED IN THE EVALUATION OF BIDS EXCEPT TO THE EXTENT THAT SUCH RATES SHALL NOT BE EXORBITANT.'

IN RESPONSE TO THE INVITATION, THE FOLLOWING BIDS WERE SUBMITTED BY ACME REPORTING ASSOCIATES AND YOU UNDER SCHEDULE NO. 2:

TABLE

HEARINGS ACME MCCABE

(1) IN REGIONAL OFFICE CITIES

ORDINARY COPY ?25 PP ?25 PP

EXPEDITED COPY .45 PP .90 PP

DAILY COPY 1.00 PP 1.40 PP

(2) OUTSIDE REGIONAL OFFICE

CITIES

ORDINARY COPY .25 PP .25 PP

EXPEDITED COPY .45 PP .90 PP

DAILY COPY 1.20 PP 1.50 PP

UPON CONSIDERATION OF THE LOW TIE BIDS RECEIVED FOR ORDINARY COPY, IT WAS ADMINISTRATIVELY DETERMINED NOT TO AWARD BY LOT, THE BOARD CONCLUDING THAT IT WAS TO THE ADVANTAGE OF THE GOVERNMENT TO MAKE AWARD TO ACME UNDER SCHEDULE NO. 2 FOR THE FOLLOWING REASONS:

"* * * HAVING RECEIVED TIE BIDS FOR ORDINARY COPY SERVICE (10 DAY DELIVERY) AND HAVING EXCLUDED A PRICE EVALUATION ON POSITIVE ADVANTAGE WAS FOUND IN THE ACME BID IN ITS RATES FOR EXPEDITED COPY AND DAILY COPY. CANNOT APPRAISE THIS ADVANTAGE IN TERMS OF AN AMOUNT OF MONEY, YET THE EFFECT IS DEFINITELY A SAVING IN MONEY. WE DID NOT FEEL COMPELLED TO WAIVE OUR RIGHT TO CONSIDER THE WHOLE BID BECAUSE OF OUR ANNOUNCEMENT THAT EXPEDITED AND DAILY COPY RATES WOULD NOT BE EVALUATED. BIDS FOR RATES ON EXPEDITED AND DAILY COPY SERVICE WERE REQUIRED BY THE INVITATION AND HAVING REQUIRED BIDS FOR THESE SERVICES, WE COULD NOT IGNORE THEM. FAILURE OF A BIDDER TO FURNISH THESE RATES WOULD HAVE DISQUALIFIED THE BID.'

IT IS A WELL-ESTABLISHED RULE, ANNOUNCED IN DECISIONS OF OUR OFFICE (15 COMP. GEN. 766; 34 ID. 451; 37 ID. 330), THAT AWARD MUST BE MADE BY LOT WHEN TIE BIDS ARE RECEIVED, UNLESS SUCH PROCEDURE WOULD OPERATE UNFAIRLY OR PREJUDICIALLY TO THE GOVERNMENT'S INTERESTS. HOWEVER, TO APPLY THIS RULE THE TIE BIDS MUST BE EQUAL IN ALL RESPECTS. WE AGREE THAT IT WAS PROPER, IN DETERMINING WHETHER AWARD SHOULD BE MADE BY DRAWING LOTS IN THIS CASE, TO CONSIDER THE BIDS OF ACME AND MCCABE IN THEIR ENTIRETY TO SEE WHETHER THE ACCEPTANCE OF EITHER WOULD BENEFIT THE GOVERNMENT AS AGAINST ACCEPTANCE OF THE OTHER. WE DO NOT AGREE THAT THE PROVISIONS OF THE EVALUATION STATEMENT EXCLUDING CERTAIN PRICE ITEMS FROM EVALUATION HAD THE EFFECT OF REMOVING THEM FROM CONSIDERATION FOR ANY PURPOSE. TO GIVE A CONTRARY EFFECT TO THE INVITATION WOULD BE TANTAMOUNT TO PREVENTING THE GOVERNMENT FROM MAKING AWARD TO THE LOWEST RESPONSIBLE BIDDER WHOSE BID "WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED," AS STIPULATED IN THE GENERAL CONDITIONS OF THE INVITATION. WE HAVE RECOGNIZED, IN CONNECTION WITH STENOGRAPHIC REPORTING CONTRACTS, THAT PRICES CHARGED THE PUBLIC ARE OF SUFFICIENT INTEREST TO THE GOVERNMENT TO JUSTIFY THEIR USE AS THE BASIS OF AWARDING SUCH CONTRACTS, ALL OTHER FACTORS BEING EQUAL, AND WE DO NOT FIND THAT CONSIDERATION THEREOF IN THIS CASE WAS PRECLUDED BY THE TERMS OF THE EVALUATION STATEMENT.

ACCORDINGLY, YOU ARE ADVISED THAT OUR OFFICE IS NOT REQUIRED TO OBJECT TO THE AWARD OF THE CONTRACT TO ACME REPORTING ASSOCIATES.