B-140995, APR. 23, 1963

B-140995, APR. 23, 1963

TO THE HONORABLE DAVID J. WILSON, UNITED STATES CUSTOMS COURT:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 26, 1963, REQUESTING A DECISION AS TO WHETHER THE UNITED STATES CUSTOMS COURT MAY NEGOTIATE DIRECTLY WITH THE BOBBS-MERRILL COMPANY, INC., FOR THE PUBLICATION OF THE 1963 CUMULATIVE CUSTOMS LAW DIGEST POCKET SUPPLEMENT OR WHETHER COMPETITIVE BIDS MUST BE SOLICITED BY INVITATION OR ADVERTISING.

IT IS STATED THAT IN 1956 WHEN THE ORIGINAL CONTRACT FOR THE PUBLICATION OF THE BASIC DIGEST OF THE CUSTOM COURT'S DECISIONS WAS ENTERED INTO WITH THE BOBBS-MERRILL COMPANY COMPETITIVE BIDS WERE INVITED BUT THAT COMPANY WAS THE ONLY PUBLISHING COMPANY WHICH SUBMITTED A BID. ALL OTHER COMPANIES EITHER FAILED TO REPLY TO THE INVITATION OR ADVISED THE COURT THAT THEY WERE NOT INTERESTED. THE ORIGINAL CONTRACT WAS AMENDED TO COVER THE PREPARATION AND PUBLICATION OF THE POCKET CUMULATIVE DIGESTS OF 1960 AND 1961. THIS MATTER WAS THE SUBJECT OF OUR DECISION OF OCTOBER 28, 1959, B-140995, IN WHICH WE CONCLUDED THAT THERE WAS NO OBJECTION TO AMENDING THE CONTRACT WITH BOBBS-MERRILL COMPANY, INC., TO PERFORM THIS WORK SINCE IT WAS SHOWN THAT IT WAS WHOLLY IMPRACTICAL TO PROCURE THE SERVICES OF ANOTHER LAW PUBLISHER TO PREPARE A DIGEST SUPPLEMENT WHICH WOULD FOLLOW THE DIGEST AND SCHEME OF THE PARENT DIGEST. A NEW CONTRACT WAS ENTERED INTO WITH THE BOBBS-MERRILL COMPANY FOR THE PUBLICATION OF THE CUSTOMS LAW DIGEST POCKET SUPPLEMENT FOR 1962 AFTER SOLICITING BIDS FROM ALL FIRMS WHICH WERE KNOWN TO BE ABLE TO EDIT AND PUBLISH SUCH A DIGEST. AT THAT TIME ALL THE PUBLISHING HOUSES, EXCEPT ONE, TO WHOM THE INVITATION TO BID WAS EXTENDED EITHER RETURNED THE INVITATION WITH THE NOTATION "NO BID" OR FAILED TO REPLY AT ALL. ONE PUBLISHING HOUSE, THE MICHIE COMPANY, ADDRESSED A LETTER OF INQUIRY TO THE COURT, DATED NOVEMBER 17, 1962, IN WHICH IT EXPRESSED A DOUBT THAT IT COULD BID COMPETITIVELY WITH THE BOBBS- MERRILL COMPANY BECAUSE IN DOING THE EDITORIAL WORK FOR THE 1962 SUPPLEMENT IT WOULD HAVE TO USE THE MATERIAL IN THE 1961 SUPPLEMENT WHICH WAS COPYRIGHTED. THEREAFTER, BY LETTER OF DECEMBER 7, 1962, THE MICHIE COMPANY, ADVISED THAT IT WOULD NOT SUBMIT A BID BECAUSE THE MATERIAL IN THE 1961 SUPPLEMENTS WAS COPYRIGHTED. AFTER A DELAY OF SEVERAL MONTHS, THE BID OF BOBBS-MERRILL COMPANY FOR PREPARATION OF 1962 SUPPLEMENTS IN THE AMOUNT $9,600 WAS ACCEPTED AND THE WORK HAS BEEN PERFORMED.

IN YOUR LETTER YOU REQUEST TO BE ADVISED WHETHER THE UNITED STATES CUSTOMS COURT IS AUTHORIZED TO NEGOTIATE A CONTRACT FOR THE PURCHASE OF THE 1963 AND OTHER FUTURE CUMULATIVE DIGESTS WITH THE BOBBS-MERRILL COMPANY. IN ADDITION TO THE CIRCUMSTANCES ABOVE OUTLINED YOU STATE THAT THE CONTRACTOR HAS INVESTED NEARLY $100,000 IN THE DIGESTS PREPARED BY ITS EDITORIAL STAFF AND ALREADY PUBLISHED. YOU POINT OUT THAT ANY COMPETITIVE BIDDER WOULD HAVE TO EDIT AND PREPARE THE DIGEST OF THE COURT'S DECISIONS COVERING THE ORIGINAL PUBLICATION, AND THE 1960, 1961 AND 1962 SUPPLEMENTS AT A COST OF THOUSANDS OF DOLLARS IN EXCESS OF THE AMOUNT OF $9,600 PAID FOR THE PUBLICATION OF THE 1963 DIGEST. ALSO, YOU POINT OUT THAT SINCE THE MICHIE COMPANY ENTERTAINED A DOUBT THAT IT COULD ENTER INTO COMPETITIVE BIDDING AGAINST THE BOBBS MERRILL COMPANY IN VIEW OF THE OUTSTANDING COPYRIGHT, YOU BELIEVE THAT IT WOULD BE FUTILE TO ADVERTISE FOR PUBLISHING THE 1963 SUPPLEMENT AND FUTURE SUPPLEMENTS. THE JUDGES OF THE UNITED STATES CUSTOMS COURT HAVE AUTHORIZED THE MARSHAL OF THE COURT TO CERTIFY THAT THERE IS BUT ONE SOURCE OF SUPPLY AVAILABLE IN CONNECTION WITH THE PUBLICATION OF THE 1963 AND OTHER FUTURE CUMULATIVE POCKET DIGESTS, AND THAT CERTIFICATION IS ENCLOSED WITH YOUR LETTER.

PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES FOR THE GOVERNMENT UNDER THE PROVISIONS OF 41 U.S.C. 5 INVOLVING MORE THAN $2,500 MAY BE MADE OR ENTERED INTO ONLY AFTER ADVERTISING, EXCEPT, AMONG OTHER THINGS, WHEN ONLY ONE SOURCE OF SUPPLY IS AVAILABLE AND THE GOVERNMENT PURCHASING OR CONTRACTING OFFICER SHALL SO CERTIFY. IN THIS CASE IT HAS BEEN SHOWN ON TWO OCCASIONS THAT, FOR ALL PRACTICAL PURPOSES, ADVERTISING FOR YEARLY DIGEST POCKET SUPPLEMENTS SERVED NO USEFUL PURPOSE, NOT ONLY BECAUSE THE DIGEST FOR A PARTICULAR YEAR HAS TO BE INTEGRATED WITH THE WORK DONE BY BOBBS-MERRILL COMPANY FOR PRIOR YEARS BUT ALSO BECAUSE OF THE COPYRIGHT INTERESTS WHICH THE BOBBS-MERRILL COMPANY HAS ACQUIRED IN THE ENTIRE MATERIAL CONTAINED IN THE DIGESTS FOR THE YEARS 1960, 1961 AND 1962, SINCE THE DIGESTS HAVE BEEN COPYRIGHTED.

ACCORDINGLY, CONTRACTS FOR THE PURCHASE OF THE 1963 AND OTHER FUTURE CUMULATIVE DIGESTS MAY BE NEGOTIATED WITH THE BOBBS-MERRILL COMPANY, IN THE ABSENCE OF ANY CHANGE OF THE FACTS AND CIRCUMSTANCES WHICH WOULD MAKE IT PRACTICAL TO SOLICIT COMPETITIVE BIDS.