B-145272, JUN. 29, 1961

B-145272: Jun 29, 1961

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INC.: REFERENCE IS MADE TO LETTERS OF MARCH 9 AND MARCH 15. THE BASIS OF THE PROTEST IS THAT THE PROCUREMENT OF THESE SERVICES MUST BE MADE BY ADVERTISED COMPETITIVE BIDDING AND THAT PROCUREMENT MAY NOT BE MADE ON A NEGOTIATED BASIS. IT IS ALLEGED IN YOUR BEHALF THAT BEGINNING WITH THE CALENDAR YEAR 1957 THE NATIONAL INSTITUTES OF HEALTH ISSUED INVITATION FOR BIDS FOR THE TRANSLATION. IT WAS DECIDED TO NEGOTIATE CONTRACTS COVERING TRANSLATION OF SEVEN RUSSIAN BIOMEDICAL JOURNALS. IT IS CONTENDED THAT THE PROCUREMENT OF THE SERVICES HERE INVOLVED DOES NOT FALL WITHIN ANY OF THE 15 CATEGORIES LISTED IN 41 U.S.C. 252 (C) AS EXCEPTIONS TO THE RULE REQUIRING COMPETITIVE BIDDING. THE ADMINISTRATIVE OFFICE HAS REPORTED THAT ITS ELECTION TO USE NEGOTIATION IN PROCURING THE REQUIRED SERVICES WAS MADE PURSUANT TO THE REQUIREMENTS OF 41 U.S.C. 252 (C) (10) WHICH DEALT WITH THE PROCUREMENT OF PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION.

B-145272, JUN. 29, 1961

TO PERGAMON PRESS, INC.:

REFERENCE IS MADE TO LETTERS OF MARCH 9 AND MARCH 15, 1961, FROM YOUR ATTORNEYS, PROTESTING THE AWARD OF ANY CONTRACT AS A RESULT OF SOLICITATION OF PROPOSALS BY THE NATIONAL INSTITUTES OF HEALTH FOR THE TRANSLATION INTO ENGLISH, PUBLICATION AND DISTRIBUTION OF A CERTAIN NUMBER OF RUSSIAN JOURNALS DURING THE CALENDAR YEAR 1961.

THE BASIS OF THE PROTEST IS THAT THE PROCUREMENT OF THESE SERVICES MUST BE MADE BY ADVERTISED COMPETITIVE BIDDING AND THAT PROCUREMENT MAY NOT BE MADE ON A NEGOTIATED BASIS.

IT IS ALLEGED IN YOUR BEHALF THAT BEGINNING WITH THE CALENDAR YEAR 1957 THE NATIONAL INSTITUTES OF HEALTH ISSUED INVITATION FOR BIDS FOR THE TRANSLATION, PUBLICATION AND DISTRIBUTION OF A DESIGNATED NUMBER OF RUSSIAN SCIENTIFIC JOURNALS. AS A RESULT OF COMPETITIVE BIDDING YOU RECEIVED CONTRACTS FOR FOUR SUCCESSIVE YEARS FOR PART OR ALL OF THE WORK ADVERTISED. HOWEVER, IN CONSIDERING THE RUSSIAN SCIENTIFIC RELATION PROGRAM FOR 1961, IT WAS DECIDED TO NEGOTIATE CONTRACTS COVERING TRANSLATION OF SEVEN RUSSIAN BIOMEDICAL JOURNALS. IT IS CONTENDED THAT THE PROCUREMENT OF THE SERVICES HERE INVOLVED DOES NOT FALL WITHIN ANY OF THE 15 CATEGORIES LISTED IN 41 U.S.C. 252 (C) AS EXCEPTIONS TO THE RULE REQUIRING COMPETITIVE BIDDING.

THE ADMINISTRATIVE OFFICE HAS REPORTED THAT ITS ELECTION TO USE NEGOTIATION IN PROCURING THE REQUIRED SERVICES WAS MADE PURSUANT TO THE REQUIREMENTS OF 41 U.S.C. 252 (C) (10) WHICH DEALT WITH THE PROCUREMENT OF PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION. ALSO, IN THIS CONNECTION PARAGRAPH 1-1.301 OF FEDERAL PROCUREMENT REGULATIONS (FPR) PROVIDES THAT IT SHALL BE THE OBJECTIVE TO USE THAT METHOD OF PROCUREMENT WHICH SHALL BE MOST ADVANTAGEOUS TO THE GOVERNMENT-- - PRICE, QUALITY AND OTHER FACTORS CONSIDERED.

IT IS ADMINISTRATIVELY REPORTED THAT THE EXPERIENCE OF THE PAST FOUR YEARS WITH YOUR COMPANY ,HAS REFLECTED A LEVEL OF RESPONSIBILITY WHICH WAS UNSATISFACTORY TO THE GOVERNMENT FROM A POINT OF VIEW OF PERFORMANCE AND CONTROL.' ALSO, IT IS REPORTED THAT IN AN ATTEMPT TO OBTAIN THE DESIRED STANDARDS OF PERFORMANCE UNDER THE CONTRACTS FOR 1961, WHICH STANDARDS COULD BE ONLY EVALUATED QUALITATIVELY AND THUS WERE NOT REDUCIBLE TO SPECIFICATIONS FOR ADVERTISEMENT, THE TRANSACTION WERE HANDLED ON A NEGOTIATED BASIS. PARAGRAPH 1-3.210 OF THE FPR FURNISHES EXAMPLES OF SITUATIONS WHERE A CONTRACT MAY BE NEGOTIATED WITHOUT FORMAL ADVERTISING WHEN IT IS IMPRACTICABLE TO SECURE COMPETITION. AS AN EXAMPLE, THE AUTHORITY TO NEGOTIATE MAY BE USED WHEN IT IS IMPOSSIBLE TO DRAFT ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATELY DETAILED DESCRIPTION OF THE REQUIRED PROPERTY OR SERVICES. ANOTHER ILLUSTRATION AS TO WHEN THE AUTHORITY TO NEGOTIATE MAY BE USED IS WHEN THE CONTEMPLATED PURCHASE IS FOR TRAINING FILM, MOTION PICTURE PRODUCTIONS OR MANUSCRIPTS. IN LINE WITH THESE ILLUSTRATIONS THE ADMINISTRATIVE OFFICE CONSIDERED THAT THE PROCUREMENT OF SCIENTIFIC TRANSLATIONS WAS AN ITEM THAT WOULD BE MORE PROPER FOR NEGOTIATION THAN FORMAL ADVERTISING SINCE IT WAS DIFFICULT TO WRITE QUALITY INTO A SPECIFICATION. IT WAS CONSIDERED IN THE GOVERNMENT'S INTEREST TO MAKE AN AWARD BASED UPON APPRECIABLE QUALITATIVE DIFFERENCES AS EVIDENCED IN SPECIMEN TRANSLATIONS AS WELL AS COMPARABLE COST DATA PROVIDED BY PROPOSALS.

IN PREPARATION FOR THE EVALUATION OF THE PROPOSALS, A PREAWARD SITE VISIT BY PROFESSIONAL, TECHNICAL AND CONTRACTING PERSONNEL WAS MADE TO SIX OF THE PROSPECTIVE CONTRACTORS' PLANTS, INCLUDING YOUR PLANT, ROYER AND ROGERS, INC., AND CONSULTANTS BUREAU ENTERPRISES, INC. THE PROPOSALS RECEIVED WERE EVALUATED ON THE BASIS OF THE QUALITY OF SAMPLES OF TRANSLATIONS, PRICE, ADEQUACY OF FACILITY FOR PRODUCTION AND DISTRIBUTION OF JOURNALS, AND PAST PERFORMANCE. TWO AWARDS WERE MADE TO ASSURE TIMELY DELIVERY BECAUSE IT WAS CONSIDERED THAT THERE WAS NOT ONE RESPONSIBLE COMPANY QUALIFIED TO PRODUCE THE VOLUME NECESSARY FOR THE TOTAL PRESENT REQUIREMENT. ALSO, IT WAS IN LINE WITH THE OBJECTIVE TO ASSIST MORE COMPANIES IN GAINING EXPERIENCE IN TRANSLATING AND PUBLISHING RUSSIAN JOURNALS.

THE REASONS ASSIGNED FOR THE REJECTION OF YOUR BID ARE AS FOLLOWS:

"1. ABSENCE OF "WORKING" SCIENTIFIC EDITING BY REPUTABLE WESTERN (ENGLISH SPEAKING) SCIENTISTS EMINENT IN THE SEVERAL DISCIPLINES COVERED BY THE JOURNALS, TO ASSUME RESPONSIBILITY FOR VERACITY AND ADEQUACY OF TRANSLATION. THIS COMPANY HAS RUSSIAN TRANSLATORS ON THEIR STAFF BUT THEY ARE NOT QUALIFIED SCIENTIFICALLY IN THE SUBJECTS COVERED BY THE JOURNALS AND CONSEQUENTLY MANY MISTAKES ARE MADE. THESE TRANSLATORS ARE NOT RECOGNIZED AUTHORITIES ON THE SUBJECTS TRANSLATED; THEREFORE, INACCURACIES ON THEIR PART HAVE NO REFLECTION ON THEIR SCIENTIFIC STATUS. IN ORDER TO TRANSLATE ACCURATELY, TECHNICALLY, AND SATISFACTORILY, ONE WOULD HAVE TO THINK LIKE THE AUTHOR IN THE SAME SCIENTIFIC FIELD. PERGAMON'S STAFF OF TRANSLATORS OVER THE PAST SEVERAL YEARS HAS BEEN UNSATISFACTORY AND THE SITE VISIT PROVED THAT THE STAFF HAS NOT IMPROVED.

"2. A POOR RECORD OF DELIVERY PERFORMANCE IN THE PAST.

"3. A RECORD OF POOR COMMUNICATION WITH THE OXFORD, ENGLAND OFFICE IN RECTIFYING ERRORS IN DISTRIBUTION OVER THE PAST FOUR YEARS.

"4. APPARENT INABILITY OF THE OXFORD OFFICE TO CONTROL DISTRIBUTION OF PUBLISHED JOURNALS AT THEIR SOURCE IN WARSAW, POLAND, RESULTED IN NUMEROUS ERRORS.

"5. NONCOMPLIANCE WITH SEVERAL CONTRACT CLAUSES SUCH AS:

"A. ONE REFERRING TO PRIVATE SALE OF SUBSCRIPTIONS (TO JOURNALS) AT PRICES NOT TO EXCEED THE COST TO THE GOVERNMENT; THE PRICE OF SIX OF THE SEVEN JOURNALS WAS INCREASED, FOUR OF THEM BY 100 PERCENT, ONE BY 50 PERCENT, AND THE SIXTH BY 33 PERCENT, WITHOUT REGARD TO THE ABOVE CONTRACT STIPULATION, AND WITHOUT CONSULTATION WITH THE PROGRAM;

"B. THE CLAUSE PROHIBITING COMMERCIAL ADVERTISING IN THE JOURNALS; AND

"C. ONE REFERRING THE THE FORMAT OF FOOTNOTES AND CITATIONS.

"6. ASSURANCE BY PERGAMON PRESS, INC. (NEW YORK) OF ITS INDEPENDENCE FROM PERGAMON PRESS, LTD. (ENGLAND) AS THE PUBLISHING CONTRACTOR, DESPITE INSTRUCTION (FROM THIS CONTRACTOR) THAT ALL DISCUSSION REDISTRIBUTION ERRORS BE CONDUCTED WITH THE OXFORD OFFICE; ALL DELIVERIES OF TRANSLATED COPY AND DISTRIBUTION LISTS COPIES COME FROM OXFORD (ALL FINISHED JOURNALS ARE DISTRIBUTED DIRECTLY FROM WARSAW, POLAND); AND ALL INVOICES CARRY REQUESTS FOR PAYMENTS TO BE MADE TO THE OXFORD OFFICE.'

WHILE IT IS INDICATED IN THE LETTERS FROM YOUR ATTORNEYS THAT NO REASONS HAD BEEN ASSIGNED FOR ABANDONING THE COMPETITIVE BIDDING PROCESS FOR PROCUREMENT OF THE INVOLVED SERVICES, THE FOREGOING REASONS FOR THIS CHANGE LEND SUPPORT TO THE DECISION OF THE ADMINISTRATIVE OFFICE TO MAKE "AN EFFORT TO SECURE THE QUALITY OF SERVICES WHICH BEST REPRESENT THE GOVERNMENT'S PARTICIPATION IN THE RESPONSIBLE PUBLICATION OF ENGLISH TRANSLATIONS OF THE SEVEN RUSSIAN BIOMEDICAL JOURNALS.' IT IS REPORTED THAT "THE PAST FOUR YEARS HAVE NOT REFLECTED A LEVEL OF RESPONSIBILITY WHICH IS SATISFACTORY TO THE GOVERNMENT.'

THE FACT THAT THE PROCUREMENT OF THESE SERVICES WAS MADE DURING THE PAST FOUR YEARS THROUGH FORMAL ADVERTISING DOES NOT IN ITSELF PRECLUDE THE ADMINISTRATIVE OFFICE FROM PROCURING THEM NOW THROUGH NEGOTIATION. PROBABLY THE MOST COGENT REASON FOR NEGOTIATION IN THIS CASE IS THE FACT THAT IT IS DIFFICULT TO WRITE INTO A SPECIFICATION THE DESIRED QUALITY OF THE TRANSLATIONS TO BE MADE.

IN VIEW OF THE FOREGOING WE DO NOT CONSIDER THAT THE PROCUREMENT OF THE SERVICES IN QUESTION BY NEGOTIATION WAS IMPROPER.