B-141728, MAR. 11, 1960

B-141728: Mar 11, 1960

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REQUESTED OUR DECISION AS TO WHETHER SUCH PROTEST WILL REQUIRE CANCELLATION OF THE CONTRACT. EIGHT BIDS WERE RECEIVED AND. THE BID SUBMITTED BY WASHINGTON MAT SERVICE WAS DETERMINED TO BE LOW. WHILE THE BID OF WESTERN NEWSPAPER UNION WAS SECOND LOW. WESTERN NEWSPAPER UNION RAISED A QUESTION AS TO WHETHER WASHINGTON MAT SERVICE WAS QUALIFIED TO MEET ALL THE TERMS OF THE CONTRACT TO BE AWARDED. STATED THE WRITER'S UNDERSTANDING THAT IN PRIOR PROCUREMENTS IT WAS DEEMED NECESSARY THAT COMPLETE TYPESETTING. THIS INFORMATION WAS APPARENTLY INTENDED TO REFER TO THE FOLLOWING PROVISIONS OF THE SPECIFICATIONS: "ORIGIN OF COPY. ETC.: THE MAJORITY OF WORK EXPECTED TO BE ORDERED UNDER THESE SPECIFICATIONS IS HANDLED FOR THE GOVERNMENT BY ADVERTISING AGENCIES WHO ARE PARTICIPATING MEMBERS (SIC) OF THE ADVERTISING COUNCIL.

B-141728, MAR. 11, 1960

TO HONORABLE RAYMOND BLATTENBERGER, GOVERNMENT PRINTING OFFICE:

YOUR LETTER DATED JANUARY 18, 1960, TRANSMITTED A PROTEST BY WESTERN NEWSPAPER UNION AGAINST THE ACTION OF YOUR OFFICE IN AWARDING CONTRACT NO. GP-27225A TO WASHINGTON MAT SERVICE, INC., AND REQUESTED OUR DECISION AS TO WHETHER SUCH PROTEST WILL REQUIRE CANCELLATION OF THE CONTRACT.

YOUR LETTER STATES THAT ON JUNE 30, 1959, THE GOVERNMENT PRINTING OFFICE ADVERTISED FOR PRICES, COVERING THE PERIOD SEPTEMBER 1, 1959, TO AUGUST 31, 1960, ON THE PRODUCTION AND DISTRIBUTION OF NEWSPAPER ADVERTISING AND PROMOTIONAL MATERIAL REQUISITIONED BY VARIOUS GOVERNMENTAL AGENCIES AND REQUIRING SUCH OPERATIONS AND SERVICES AS TYPESETTING, PHOTOENGRAVING, AD MAKE-UP, PROOFING, ELECTROTYPING, STEREOTYPING, PLASTIC PLATEMAKING, STEREOTYPE MATRIX MAKING, MAT PROOFING, PRINTING, AND MAILING SERVICES. EIGHT BIDS WERE RECEIVED AND, UPON OPENING AND EVALUATION ON JULY 24, 1959, THE BID SUBMITTED BY WASHINGTON MAT SERVICE WAS DETERMINED TO BE LOW, WHILE THE BID OF WESTERN NEWSPAPER UNION WAS SECOND LOW.

BY LETTER DATED JULY 24, 1959, TO YOUR DIRECTOR OF PURCHASES, WESTERN NEWSPAPER UNION RAISED A QUESTION AS TO WHETHER WASHINGTON MAT SERVICE WAS QUALIFIED TO MEET ALL THE TERMS OF THE CONTRACT TO BE AWARDED, AND STATED THE WRITER'S UNDERSTANDING THAT IN PRIOR PROCUREMENTS IT WAS DEEMED NECESSARY THAT COMPLETE TYPESETTING, MATS, PRINTING, BINDING, AND OTHER FACILITIES BE AVAILABLE TO THE CONTRACTOR IN NEW YORK, CHICAGO, AND ON THE WEST COAST. THIS INFORMATION WAS APPARENTLY INTENDED TO REFER TO THE FOLLOWING PROVISIONS OF THE SPECIFICATIONS:

"ORIGIN OF COPY, ARTWORK, LAYOUTS, ETC.: THE MAJORITY OF WORK EXPECTED TO BE ORDERED UNDER THESE SPECIFICATIONS IS HANDLED FOR THE GOVERNMENT BY ADVERTISING AGENCIES WHO ARE PARTICIPATING MEMBERS (SIC) OF THE ADVERTISING COUNCIL, INC. THESE AGENCIES FURNISH SUCH SERVICES AS COPY WRITING; PREPARATION OF ART; CONSULTATIONS CONCERNING TYPE FACES, LAYOUT, PHOTOENGRAVINGS, ETC.; SUBMISSION OF COPY TO CONTRACTORS; RECEIPT OF PROOFS AND REVIEW AND CRITICISM THEREOF; ETC. INFORMATION AVAILABLE AT THE PRESENT TIME INDICATES THAT TREASURY DEPARTMENT BOND CAMPAIGN WORK IS BEING SERVICED BY A MEMBER ADVERTISING AGENCY IN CHICAGO, ILL. IT IS THEREFORE ESSENTIAL THAT THE CONTRACTOR BE IN A POSITION TO ACCEPT COPY AND SUBMIT PROOFS THROUGH HIS OFFICE OR AGENT IN CHICAGO, ILL.

"IN ADDITION TO THE TREASURY BOND CAMPAIGN, IT IS ALSO INTENDED THAT ADVERTISING CAMPAIGNS FOR OTHER GOVERNMENTAL AGENCIES BE SERVICED UNDER THESE SPECIFICATIONS. THERE IS NO INDICATION AT THE PRESENT TIME AS TO WHERE COPY FOR SUCH CAMPAIGNS WILL ORIGINATE; HOWEVER, IT IS BELIEVED THAT SOME MAY ORIGINATE IN NEW YORK CITY. THEREFORE, THE CONTRACTOR MUST ALSO BE IN A POSITION TO ACCEPT COPY AND SUBMIT PROOFS THROUGH HIS OFFICE OR AGENT IN NEW YORK CITY.

"IMPORTANT: BIDDERS SHOULD BE CERTAIN THAT THEY CAN SATISFACTORILY SERVICE ADVERTISING AGENCIES WHICH MAY BE LOCATED IN EITHER CHICAGO, ILL., OR NEW YORK CITY. FAILURE TO RENDER THE SERVICE STRICTLY IN ACCORDANCE WITH SCHEDULES AND IN A SATISFACTORY MANNER MAY RESULT IN THE LOSS OF FREE SERVICES RENDERED TO THE GOVERNMENT BY THE ADVERTISING AGENCIES AS WELL AS THE LOSS OF ADVERTISING SPACE IN NEWSPAPERS THROUGHOUT THE COUNTRY AND WILL BE CAUSE FOR DECLARING THE CONTRACTOR IN DEFAULT.'

"SPECIAL NOTE: ALL BIDDERS MUST STATE NAME AND LOCATION OF THEIR SOURCE OF SUPPLY IN THE UNITED STATES FOR THE MAKING OF STEREOTYPE MATS, AND THE SETTING OF TYPE AND MAKING OF ENGRAVINGS. CONTRACTOR FAILING TO SUPPLY THIS INFORMATION WITH HIS BID WILL GIVE JUST CAUSE FOR THE GOVERNMENT PRINTING OFFICE TO REJECT HIS BID. CONTRACTOR SHOULD HAVE SOURCE OF SUPPLY IN AT LEASE THREE PLACES (ONE EACH ON THE EAST AND WEST COASTS; AND IN THE CENTRAL PART OF THE UNITED STATES TO FACILITATE THE MAILING OF MATS). THE DISCRETION OF THE PUBLIC PRINTER MUST BE ACCEPTED IN DETERMINING THE VALUE OF THIS FEATURE.'

WITH ITS BID WASHINGTON MAT SERVICE SUBMITTED A LETTER WHICH CONTAINED THE FOLLOWING INFORMATION, AND STATED THAT SUCH INFORMATION WAS SUBMITTED PURSUANT TO THE SPECIAL NOTE QUOTED ABOVE:

EAST

JOHN E. HURLEY

WASHINGTON MAT SERVICE, INC.

1233 NEW YORK AVENUE, N.W.

WASHINGTON 5, D.C. METROPOLITAN 8-6347

CENTRAL

THOMAS F. ENGLISH, JR.

CERTIFIED DRY MAT CORP.

1414 W. 71ST PLACE

CHICAGO 36, ILLINOIS, RADCLIFF 3-1453

WEST

SIDNEY BORGEN

IDEAL MAT CO., INC.

327 E. 6TH STREET

LOS ANGELES 14, CALIFORNIA, MADISON 6-6731

BY LETTER DATED AUGUST 24, 1959, AND APPARENTLY AS A RESULT OF A TELEPHONE REQUEST FROM GOVERNMENT PRINTING OFFICE PERSONNEL FOR ADDITIONAL INFORMATION, WASHINGTON MAT SERVICE REPRESENTED THAT IT COULD SATISFACTORILY SERVICE ADVERTISING AGENCIES LOCATED IN EITHER CHICAGO OR NEW YORK CITY AND LISTED THE FOLLOWING CONTACTS FOR SERVICE:

FOR SERVICE IN CHICAGO:

THOMAS F. ENGLISH, JR.

1414 W. 71ST PLACE

CHICAGO 36, ILLINOIS,

ANDOVER 3-4286; AFTER 5:00 P.M. RADCLIFF 3-1453

FOR SERVICE IN NEW YORK CITY:

MR. GEORGE KEMPTER

MR. JAMES RICCA

555 FIFTH AVENUE

NEW YORK 17, N.Y.

MURRY HILL 2-6112-3-4

UNDER THE DATE OF AUGUST 28, 1959, YOU ADVISED WESTERN NEWSPAPER UNION THAT WASHINGTON MAT SERVICE HAD REPRESENTATIVES AND SOURCES FOR SERVICE IN NEW YORK, CHICAGO, LOS ANGELES, AND WASHINGTON, D.C., AND THERE WAS NO BASIS FOR REFUSING TO AWARD TO THAT COMPANY. CONTRACT NO. GP-27225A WAS AWARDED TO WASHINGTON MAT SERVICE ON THE SAME DATE.

BY LETTER DATED NOVEMBER 4, 1959, WESTERN NEWSPAPER UNION FORWARDED TO YOUR OFFICE A LETTER OF THE SAME DATE FROM FRANK M. TIGHE, EXECUTIVE VICE- PRESIDENT OF CERTIFIED DRY MAT CORPORATION, STATING THAT THE CORPORATION HAD NEVER AUTHORIZED WASHINGTON MAT SERVICE TO USE ITS NAME; THAT THE CHICAGO ADDRESS FOR THE CORPORATION LISTED BY WASHINGTON MAT SERVICE WAS THE RESIDENCE OF THOMAS F. ENGLISH, ITS CHICAGO SALESMAN; AND THAT MR. ENGLISH WAS NEVER AUTHORIZED TO REPRESENT THE CORPORATION IN ANY NEGOTIATIONS WITH WASHINGTON MAT SERVICE "TO RENDER SERVICES THAT WE ARE NOT EQUIPPED TO HANDLE, SUCH AS, TYPESETTING, ELECTROTYPING, ETC., ETC.' BASED UPON THIS ADVICE FROM CERTIFIED DRY MAT CORPORATION, WESTERN NEWSPAPER UNION CONTENDED THAT WASHINGTON MAT SERVICE HAD OBTAINED ITS CONTRACT BY MISREPRESENTATION AND PROTESTED AGAINST THE AWARD. BY LETTER DATED NOVEMBER 30, 1959, IT SUPPLEMENTED ITS PROTEST BY SPECIFIC REFERENCE TO THE PROVISIONS OF THE SPECIFICATIONS QUOTED ABOVE, ALLEGED DELIBERATE MISREPRESENTATION AND PROSUPPLEMENTED ITS PROTEST BY SPECIFIC REFERENCE TO THE PROVISIONS OF THE SPECIFICATIONS QUOTED ABOVE, ALLEGED DELIBERATE MISREPRESENTATION, AMOUNTING TO A VIOLATION OF 18 U.S.C. 287 AND 1001, BY WASHINGTON MAT SERVICE IN STATING THAT CERTIFIED DRY MAT CORPORATION WAS ITS SOURCE OF SUPPLY IN CHICAGO, AND REQUESTED CANCELLATION OF CONTRACT GP -27225A AND AWARD OF A NEW ONE YEAR CONTRACT TO WESTERN NEWSPAPER UNION.

THE FILES TRANSMITTED WITH YOUR LETTER INDICATE THAT ON NOVEMBER 13, 1959, YOU ADVISED WASHINGTON MAT SERVICE OF THE NATURE OF THE PROTEST AND REQUESTED AN EXPLANATION. UNDER DATE OF DECEMBER 10, 1959, JOHN EDWARD HURLEY, VICE PRESIDENT OF WASHINGTON MAT SERVICE, REPLIED THAT HE HAD BEEN ADVISED BY YOUR OFFICE, PRIOR TO BID SUBMISSION, THAT THE SPECIAL NOTE, QUOTED ABOVE, REQUIRED ONLY THE SUBMISSION OF THE NAME OF A CONTRACT IN EACH LOCATION AND DID NOT REQUIRE THE NAMES OF ALL THE FIRMS WHICH WOULD ACTUALLY DO THE SEVERAL KINDS OF WORK. MR. HURLEY'S LETTER ALSO STATED THAT, PRIOR TO BID SUBMISSION, HE HAD CONTACTED MR. GEORGE KEMPTER OF THE CERTIFIED DRY MAT CORPORATION, READ THE SPECIAL NOTE IN THE INVITATION TO HIM AND ASKED PERMISSION TO USE HIS NAME. MR. KEMPTER AGREED AND ADVISED MR. HURLEY HE COULD ALSO SUBMIT THE NAME OF MR. ENGLISH AS HIS CHICAGO CONTACT. WITH THIS LETTER MR. HURLEY SUBMITTED A LETTER FROM MR. ENGLISH DATED OCTOBER 1, 1959, ON THE LETTERHEAD OF CERTIFIED DRY MAT CORPORATION, WHICH REFERS TO THE "U.S. SAVING BOND JOB" AND URGES THE ORDERING OF "ENOUGH CERTIFIED MATS.' MR. HURLEY'S LETTER ALSO ADVISES THAT BETWEEN BID OPENING AND AWARD HE WAS CONTACTED BY PERSONNEL OF YOUR OFFICE (APPARENTLY BY TELEPHONE), ASKED TO IDENTIFY THE SOURCES OF SUPPLY FOR THE CENTRAL PART OF THE COUNTRY, AND DID SO AFTER RECEIVING SUCH INFORMATION FROM MR. ENGLISH.

YOUR LETTER OF JANUARY 18, 1960, SETS OUT THE OPINION OF THE CONTRACTING OFFICER THAT WASHINGTON MAT SERVICE WAS NEGLIGENT IN NOT ARRANGING FOR MORE DEFINITE SOURCES OF SUPPLY IN THE CENTRAL AREA PRIOR TO BID SUBMISSION, BUT THAT THE CONTRACTOR DID NOT DELIBERATELY FALSIFY ITS BID. ADDITIONALLY, YOU POINT OUT THAT THE CONTRACTOR HAS SATISFACTORILY PRODUCED ALL ORDERS PRESENTED UNDER THE CONTRACT, AND CALL ATTENTION TO THAT PORTION OF THE SPECIAL NOTE IN THE INVITATION WHICH STATES THAT THE DISCRETION OF THE PUBLIC PRINTER MUST BE ACCEPTED IN DETERMINING THE VALUE OF A BIDDER'S SOURCES OF SUPPLY. IN VIEW THEREOF, IT IS YOUR OPINION THAT THE AWARD WAS PROPER; THAT NO SPECIAL VALUE SHOULD BE PLACED UPON THE LOCATION FEATURE TO FACILITATE THE MAKING OF MATS; AND THAT THE CONTRACTOR SHOULD BE PERMITTED TO CONTINUE PERFORMANCE UNDER THE CONTRACT.

THE RECORDS OF THIS PROCUREMENT DO NOT CONTAIN ANY EVIDENCE TO REFUTE THE CONTRACTOR'S ALLEGATION THAT IT INTENDED, AND WAS REQUIRED, TO SUBMIT ONLY THE NAMES OF CONTRACTS, RATHER THAN SOURCES OF SUPPLY, WITH ITS BID, AND FROM DISCUSSIONS BETWEEN REPRESENTATIVES OF THIS OFFICE AND MEMBERS OF YOUR STAFF IT WOULD APPEAR THAT THE PROVISIONS OF THE INVITATION WERE SO INTERPRETED BY PERSONNEL DIRECTLY INVOLVED IN THE PROCUREMENT. THE PROVISIONS OF THE SPECIFICATIONS QUOTED ABOVE APPEAR TO VEST FULL DISCRETION IN YOUR OFFICE IN EVALUATING THIS FEATURE, AND THE CONTRACTOR'S REPRESENTATIONS AND THE VALIDITY OF THE AWARD MUST THEREFORE BE EXAMINED ON THAT BASIS.

THE CONTRACTOR'S BID IDENTIFIED ITS CHICAGO CONTACT AS "THOMAS F. ENGLISH, JR., CERTIFIED DRY MAT CORPORATION, 1414 S. 71ST PLACE," AND THE LETTER DATED NOVEMBER 4, 1959, FROM THE EXECUTIVE VICE-PRESIDENT OF THAT CORPORATION IDENTIFIED THAT ADDRESS AS THE RESIDENCE OF MR. ENGLISH. THE LETTER OF DECEMBER 10, 1959, FROM THE VICE-PRESIDENT OF WASHINGTON MAT SERVICE ALLEGES THAT HE CONTACTED ONE GEORGE KEMPTER OF CERTIFIED DRY MAT CORPORATION AND WAS AUTHORIZED TO USE BOTH HIS NAME FOR THE NEW YORK CITY CONTACT AND THAT OF MR. ENGLISH FOR A CHICAGO CONTACT. IN THE LIGHT OF THE ADVICE GIVEN TO THE BIDDER THAT IT WOULD BE SUFFICIENT TO IDENTIFY ITS CONTACT, AND NOT NECESSARY TO NAME THE ACTUAL SOURCE OF EACH TYPE OF WORK, WE DO NOT CONSTRUE THE BID AS REPRESENTING THAT THE CERTIFIED DRY MAT CORPORATION WAS TO BE THE SOURCE OF SUPPLY FOR ALL THE WORK IN THE CHICAGO AREA, BUT MERELY THAT MR. ENGLISH WOULD ACT AS THE WASHINGTON MAT SERVICE REPRESENTATIVE FOR HAVING ALL NECESSARY WORK DONE. MR. HURLEY'S EXPLANATION UNDER DATE OF DECEMBER 10, TOGETHER WITH THE LETTER OF OCTOBER 1 FROM MR. ENGLISH TO WASHINGTON MAT SERVICE IN WHICH REFERENCE IS MADE TO THE "U.S. SAVING BOND JOB," INDICATES THAT THE CONTRACTOR ACTED IN ENTIRE GOOD FAITH AND WITHOUT INTENT TO MISREPRESENT, AND IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO THE CONTRARY, WE ARE UNABLE TO CONCLUDE THAT THE CONTRACTOR'S REPRESENTATION IN THIS RESPECT WAS OF SUCH NATURE AS TO REQUIRE CANCELLATION OF THE CONTRACT.

BASED UPON THE PRESENT RECORD, THE PROTEST OF WESTERN NEWSPAPER UNION MUST THEREFORE BE DENIED.

THE ENCLOSURES RECEIVED WITH YOUR LETTER OF JANUARY 18 ARE RETURNED.