B-180460, JUN 10, 1974, 53 COMP GEN 932

B-180460: Jun 10, 1974

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IS NOT PATENTLY UNREASONABLE. INDICATES IT IS PAGE 1 OF 13. IS RESPONSIVE BECAUSE IT CLEARLY IDENTIFIES COMPLETE SOLICITATION AND CLAUSES CONTAINED OR REFERENCED THEREIN ARE INCORPORATED BY SPECIFIC REFERENCE IN BID. IS RESPONSIBILITY INFORMATION WHICH DOES NOT QUALIFY OR CONDITION BID OR LIMIT BASIS OF RESPONSIBILITY DETERMINATION. BIDDERS - QUALIFICATIONS - MANUFACTURER OR DEALER - ADMINISTRATIVE DETERMINATION - LABOR DEPARTMENT BIDDER'S QUALIFICATION AS "REGULAR DEALER" OR "MANUFACTURER" UNDER WALSH- HEALEY ACT IS DETERMINATION VESTED IN CONTRACTING OFFICER. GENERAL ACCOUNTING OFFICE IS WITHOUT AUTHORITY TO REVIEW. WHERE BID REPRESENTS BIDDER IS "REGULAR DEALER. " PROTESTER'S CONTENTION THAT BIDDER ACTUALLY IS "MANUFACTURER" PROVIDES NO BASIS TO QUESTION BID RESPONSIVENESS.

B-180460, JUN 10, 1974, 53 COMP GEN 932

BIDDERS - QUALIFICATIONS - CAPACITY, ETC. - PLANT FACILITIES, ETC. REVIEW OF RECORD CONCERNING DETERMINATION OF BIDDER'S NONRESPONSIBILITY TO PERFORM CONTRACT FOR PROVISION OF HARD COPIES AND MICROFICHE OF EDUCATIONAL LITERATURE INDICATES THAT ALTHOUGH BIDDER HAS EQUIPMENT CAPABILITY, WITH EXCEPTION OF BACKUP COPIER, CONTRACTING OFFICER'S FINDING ON THIS RESPONSIBILITY FACTOR, AS WELL AS FINDING THAT BIDDER LACKS NECESSARY PERSONNEL, IS NOT PATENTLY UNREASONABLE. CONTRACTS - SPECIFICATIONS - FAILURE TO FURNISH SOMETHING REQUIRED - INVITATION TO BID ATTACHMENTS BID WHICH OMITS PAGES OF INVITATION FOR BIDS CONTAINING MATERIAL PROVISIONS, BUT WHICH ON PAGE 1 CONTAINS STANDARD FORM 33 "SOLICITATION" AND "OFFER" CLAUSES, INDICATES IT IS PAGE 1 OF 13, AND WHICH ON PAGE 2 ACKNOWLEDGES ALL FOUR AMENDMENTS WHICH ALTERED EVERY PAGE OF SCHEDULE CONTAINED IN AND WORK SCOPE ATTACHED TO 13 PAGES OF SOLICITATION AS ORIGINALLY ISSUED, IS RESPONSIVE BECAUSE IT CLEARLY IDENTIFIES COMPLETE SOLICITATION AND CLAUSES CONTAINED OR REFERENCED THEREIN ARE INCORPORATED BY SPECIFIC REFERENCE IN BID. BIDS - QUALIFIED - LETTER, ETC. - LISTING PRODUCTION FACILITIES COVER LETTER INCLUDED WITH BID WHICH LISTS BIDDER'S PRODUCTION FACILITIES IN SEVERAL CITIES AND DESCRIBES NEW FACILITY TO BE OPENED IN WASHINGTON, D.C., IS RESPONSIBILITY INFORMATION WHICH DOES NOT QUALIFY OR CONDITION BID OR LIMIT BASIS OF RESPONSIBILITY DETERMINATION. BIDDERS - QUALIFICATIONS - MANUFACTURER OR DEALER - ADMINISTRATIVE DETERMINATION - LABOR DEPARTMENT BIDDER'S QUALIFICATION AS "REGULAR DEALER" OR "MANUFACTURER" UNDER WALSH- HEALEY ACT IS DETERMINATION VESTED IN CONTRACTING OFFICER, SUBJECT TO FINAL REVIEW BY DEPARTMENT OF LABOR, AND GENERAL ACCOUNTING OFFICE IS WITHOUT AUTHORITY TO REVIEW; AND WHERE BID REPRESENTS BIDDER IS "REGULAR DEALER," PROTESTER'S CONTENTION THAT BIDDER ACTUALLY IS "MANUFACTURER" PROVIDES NO BASIS TO QUESTION BID RESPONSIVENESS. CONTRACTS - PROTESTS - TIMELINESS WHERE CONTENTION IN PROTESTER'S COMMENTS ON ADMINISTRATIVE REPORT CHALLENGING PROPRIETY OF FILM TYPES SPECIFICATION IN SOLICITATION FOR DISTRIBUTION OF HARD COPIES AND MICROFICHE OF EDUCATIONAL LITERATURE IS PRESENTED TO GENERAL ACCOUNTING OFFICE (GAO) 3 MONTHS AFTER AGENCY DENIAL OF PROTEST ON SAME ISSUE AND SUBSEQUENT BID OPENING, IT IS UNTIMELY BECAUSE ISSUE WAS NOT BROUGHT TO GAO'S ATTENTION WITHIN 5 WORKING DAYS AFTER ADVERSE AGENCY ACTION; TO EXTENT ISSUE OF PROPRIETY OF DIAZO FILM MIGHT BE REGARDED AS BEING RAISED INITIALLY IN COMMENTS, IT IS UNTIMELY SINCE ALLEGED SOLICITATION IMPROPRIETY WAS APPARENT AND SHOULD HAVE BEEN RAISED BEFORE BID OPENING. CONTRACTS - SPECIFICATIONS - ADEQUACY - MINIMUM NEEDS STANDARD SINCE NO REASON IS PRESENTED WHY PROTESTER DID NOT BRING OBJECTION TO FILM TYPES SPECIFICATION TO GENERAL ACCOUNTING OFFICE'S (GAO) ATTENTION UNTIL 3 MONTHS AFTER BID OPENING, NO GOOD CAUSE IS SHOWN WHY ISSUE SHOULD NOW BE CONSIDERED; NOR IS ISSUE SIGNIFICANT, SINCE IT MERELY INVOLVES PROPRIETY OF AGENCY'S DETERMINATION OF MINIMUM NEEDS AND DRAFTING OF SPECIFICATIONS, AND APPLICATION OF GAO STANDARDS OF REVIEW TO PRESENT FACTS DOES NOT INVOLVE PROCUREMENT PRINCIPLE OF WIDESPREAD INTEREST. CONTRACTS - PROTESTS - TIMELINESS - LIMITATIONS PROTESTER'S OBJECTION TO GENERAL ACCOUNTING OFFICE'S BID PROTEST TIMELINESS RULES IS WITHOUT MERIT SINCE, AS INDICATED IN PREAMBLE TO 4 CFR 20, RULES REPRESENT TESTED AND PROVEN PRINCIPLES PROVIDING PARTIES FAIR OPPORTUNITY TO PRESENT CASES CONSISTENT WITH NEED TO RESOLVE PROTESTS IN REASONABLY SPEEDY MANNER.

IN THE MATTER OF LEASCO INFORMATION PRODUCTS, INC.; COMPUTER MICROFILM INTERNATIONAL CORPORATION; EDUCATIONAL FACILITIES CENTER; XEROX CORPORATION; BELL & HOWELL, JUNE 10, 1974:

WE HAVE CONSIDERED THE PROTESTS OF LEASCO INFORMATION PRODUCTS, INC. (LEASCO), AND COMPUTER MICROFILM INTERNATIONAL, CORP. (CMIC), UNDER INVITATION FOR BIDS (IFB) NIE-B-74-0001, ISSUED BY THE NATIONAL INSTITUTE OF EDUCATION (NIE), DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW). EACH BIDDER HAS PROTESTED AGAINST AWARD TO ANY BIDDER OTHER THAN ITSELF. IN ADDITION, WE HAVE HAD THE BENEFIT OF WRITTEN COMMENTS SUBMITTED BY REPRESENTATIVES OF THREE OTHER BIDDERS - EDUCATIONAL FACILITIES CENTER (EFC), XEROX CORPORATION, XEROX UNIVERSITY MICROFILMS (XEROX), AND BELL & HOWELL, MICRO PHOTO DIVISION (BELL & HOWELL). ALSO, REPRESENTATIVES OF THE FIVE PARTIES AND THE AGENCY PRESENTED THEIR VIEWS ORALLY AT A CONFERENCE ON THE PROTEST REQUESTED BY COUNSEL FOR LEASCO AND HELD AT OUR OFFICE ON APRIL 8, 1974. THE CONTROVERSY ESSENTIALLY INVOLVES A QUESTION OF WHICH OF THESE FIVE BIDDERS IS THE LOW RESPONSIVE, RESPONSIBLE, AND OTHERWISE QUALIFIED BIDDER FOR THIS PROCUREMENT. TO THE EXTENT NECESSARY, THE SPECIFIC CONTENTIONS OF THE PARTIES WILL BE DISCUSSED IN DETAIL IN A SERIATIM REVIEW OF THE BIDS, BEGINNING WITH THE LOWEST.

THE IFB WAS ISSUED ON OCTOBER 10, 1973. AS AMENDED, THE SOLICITATION INVITED BIDS ON A FIXED-PRICE REQUIREMENTS TYPE CONTRACT FOR THE OPERATION OF THE ERIC DOCUMENT REPRODUCTION SERVICE (EDRS) FOR A 1-YEAR PERIOD, WITH OPTIONS FOR 2 SUCCEEDING YEARS. ERIC IS THE EDUCATION RESOURCES INFORMATION CENTER, AN INTERNATIONAL SYSTEM WITH THE PRIMARY PURPOSE OF ACQUIRING, SELECTING, PROCESSING AND DISSEMINATING SIGNIFICANT R&D AND RELATED EDUCATIONAL LITERATURE. EDRS, ONE OF THE COMPONENTS OF THIS SYSTEM, INVOLVES THE PROVISION, EITHER IN MICROFICHE OR HARD COPY FORMAT, OF THE FULL TEXT OF REPORTS CITED IN THE JOURNAL "RESEARCH IN EDUCATION." IN SHORT, THE WORK INVOLVES BOTH THE PREPARATION OF MICROFICHE AND HARD COPIES OF EDUCATIONAL LITERATURE AND THE MAILING OF THIS MATERIAL IN RESPONSE TO ORDERS RECEIVED BOTH FROM THE GOVERNMENT AND FROM PRIVATE PARTIES.

SIX BIDS WERE OPENED ON JANUARY 11, 1974, AND THE BID PRICES WERE EVALUATED WITH THE FOLLOWING RESULTS:

1. EFC $201,237.00

2. CMIC 299,101.50

3. XEROX 311,985.00

4. BELL & HOWELL 329,447.00

5. LEASCO 338,817.50

6. MICROFORM MANAGEMENT

CORP 396,628.00

THE CONTRACTING AGENCY HAS DETERMINED THAT CMIC IS THE LOW RESPONSIVE, RESPONSIBLE, AND OTHERWISE QUALIFIED BIDDER. AWARD TO CMIC IS BEING WITHHELD PENDING OUR DECISION ON THE PROTESTS.

BY LETTER OF JANUARY 18, 1974, LEASCO PROTESTED TO OUR OFFICE AGAINST AWARD TO ANY OTHER CONCERN. IN REGARD TO EFC, LEASCO CONTENDED THE APPARENT LOW BID WAS NULL AND VOID, AS WELL AS NONRESPONSIVE; THAT EFC DID NOT MEET THE NECESSARY QUALIFICATIONS UNDER THE WALSH-HEALEY ACT; AND THAT ITS RESPONSIBILITY WAS QUESTIONABLE. IN ADDITION, LEASCO QUESTIONED EFC'S CERTIFICATION IN ITS BID THAT IT WAS A SMALL BUSINESS CONCERN.

SUBSEQUENTLY, THE CONTRACTING OFFICER DETERMINED THAT THE EFC BID WAS RESPONSIVE AND WAS NOT NULL AND VOID AS CONTENDED BY LEASCO. THE CONTRACTING OFFICER ALSO DETERMINED THAT EFC QUALIFIED UNDER THE WALSH HEALEY ACT AS A "MANUFACTURER." AS TO EFC'S SMALL BUSINESS SIZE STATUS, THE CONTRACTING OFFICER REQUESTED THE SMALL BUSINESS ADMINISTRATION (SBA) REGIONAL OFFICE IN CHICAGO FOR A FORMAL SIZE DETERMINATION. THE SBA REGIONAL OFFICE DETERMINED THAT EFC WAS OTHER THAN A SMALL BUSINESS CONCERN. THIS DETERMINATION WAS APPEALED TO THE SBA SIZE APPEALS BOARD AND WAS UPHELD IN A DECISION OF MAY 8, 1974. AS TO EFC'S RESPONSIBILITY, THE CONTRACTING OFFICER HAS MADE A DETERMINATION THAT THE LOW BIDDER IS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR.

NOTWITHSTANDING THE DETERMINATION THAT EFC WAS NONRESPONSIBLE, THE CONTRACTING OFFICER HAS REQUESTED OUR OFFICE TO DECIDE THE ISSUES RELATING TO THE RESPONSIVENESS OF EFC'S BID ON THE BASIS THAT IF EFC WAS DETERMINED BY THE SBA SIZE APPEALS BOARD TO BE A SMALL BUSINESS CONCERN, A CERTIFICATE OF COMPETENCY MIGHT CONCEIVABLY BE ISSUED OVERTURNING THE CONTRACTING OFFICER'S DETERMINATION OF NONRESPONSIBILITY. SINCE THIS IS NO LONGER A POSSIBILITY, AND SINCE, FOR THE REASONS WHICH FOLLOW, WE UPHOLD THE CONTRACTING OFFICER'S DETERMINATION OF EFC'S NONRESPONSIBILITY, WE DO NOT FIND IT NECESSARY TO CONSIDER THE ISSUES RELATING TO THE RESPONSIVENESS OF EFC'S BID.

BOTH LEASCO AND CMIC HAVE CONTENDED THAT THE LOW BIDDER IS NOT A RESPONSIBLE PROSPECTIVE CONTRACTOR. COUNSEL FOR LEASCO STATED ON INFORMATION AND BELIEF THAT EFC MAY NOT HAVE THE REQUIRED TECHNICAL, MANAGERIAL AND FINANCIAL CAPABILITIES TO PERFORM IN A TIMELY MANNER. THESE VIEWS HAVE BEEN ECHOED BY COUNSEL FOR CMIC, WHO DOUBTS THAT EFC HAS THE PERSONNEL, FACILITIES, OR FINANCIAL CAPABILITY TO PERFORM A CONTRACT FOR SOPHISTICATED REPRODUCTION OF A LARGE VOLUME OF DOCUMENTS. BOTH PROTESTERS POINT TO THE LARGE DISPARITY BETWEEN EFC'S BID PRICE AND THE OTHER BID PRICES AS INDICATING THAT THE LOW BIDDER MAY NOT HAVE COMPREHENDED THE SCOPE OF THE CONTRACT.

ON JANUARY 21, 1974, A SITE VISIT WAS MADE AT EFC BY A TEAM OF FIVE GOVERNMENT REPRESENTATIVES, INCLUDING THE CONTRACTING OFFICER. AMONG OTHER THINGS, THE TEAM INVESTIGATED EFC'S EQUIPMENT AND PERSONNEL. SUBSEQUENTLY, THE CONTRACTING OFFICER ON MARCH 1, 1974, MADE A DETERMINATION PURSUANT TO SECTION 1-1.1204-1(B) OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) THAT EFC WAS NONRESPONSIBLE. THE CONTRACTING OFFICER STATED THE BASIS FOR THE DETERMINATION WAS THAT EFC DID NOT HAVE THE EQUIPMENT AND PERSONNEL CAPACITY TO PERFORM ADEQUATELY AND/OR MEET THE REQUIRED PRODUCTION SCHEDULES.

IT IS REPORTED THAT THE DETERMINATION WAS ORALLY COMMUNICATED TO EFC'S COUNSEL ON MARCH 1, 1974. HOWEVER, THE MATTER WAS APPARENTLY HELD IN ABEYANCE BECAUSE THE PRELIMINARY ISSUE OF WHETHER EFC QUALIFIED AS A "MANUFACTURER" UNDER THE WALSH-HEALEY ACT (41 U.S.C CODE 35 NOTE) HAD TO BE RESOLVED. BY LETTER OF MARCH 14, 1974, WITH ENCLOSURES, COUNSEL FOR EFC SUBMITTED TO THE CONTRACTING OFFICER INFORMATION IN SUPPORT OF ITS CONTENTION THAT IT IS A "MANUFACTURER." SOME OF THIS INFORMATION ALSO HAD A BEARING ON THE QUESTION OF EFC'S RESPONSIBILITY.

IN A LETTER DATED MARCH 30, 1974, TO EFC, THE CONTRACTING OFFICER REVERSED HIS DETERMINATION REGARDING EFC'S NONQUALIFICATION AS A "MANUFACTURER." BY A SEPARATE LETTER OF THE SAME DATE TO EFC, THE CONTRACTING OFFICER STATED THAT AFTER A THOROUGH REVIEW OF THE RECORD, HE HAD MADE A FINAL DETERMINATION OF EFC'S NONRESPONSIBILITY. THIS LETTER LISTED A NUMBER OF DEFICIENCIES IN EFC'S EQUIPMENT AND PERSONNEL.

EFC'S COUNSEL REPLIED TO THE DETERMINATION OF NONRESPONSIBILITY BY LETTER DATED APPARENTLY APRIL 5, 1974, TO THE CONTRACTING OFFICER, A COPY OF WHICH WAS PROVIDED TO OUR OFFICE ON APRIL 8, 1974. COUNSEL CLAIMED THAT THE CITED DEFICIENCIES DID NOT HAVE TO BE CORRECTED, SINCE NO SUCH DEFICIENCIES EVER EXISTED. THE LETTER CONCLUDED:

*** I THEREFORE ASK YOU TO REVERSE YOUR DECISION AND DECLARE EFC A RESPONSIBLE CONTRACTOR. IF YOU DECIDE NOT TO REVERSE YOUR DECISION REGARDING EFC'S RESPONSIBILITY, I HEREBY APPEAL YOUR DECISION TO THE UNITED STATES GOVERNMENT GENERAL ACCOUNTING OFFICE AS ARBITRARY AND CAPRICIOUS.

WE HAVE SINCE BEEN INFORMALLY ADVISED, BOTH BY THE AGENCY AND EFC'S COUNSEL, THAT THE CONTRACTING OFFICER HAS CONSIDERED THE MATERIAL PRESENTED BY EFC IN THE ABOVE LETTER. HOWEVER, THE CONTRACTING OFFICER HAS NOT REVERSED HIS DETERMINATION OF NONRESPONSIBILITY.

ONE OF THE IMPORTANT ELEMENTS OF A BIDDER'S RESPONSIBILITY IS THE CAPABILITY TO PERFORM IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH IN THE SOLICITATION, WHICH INCLUDES SUCH FACTORS AS EQUIPMENT AND PERSONNEL. RESOLVING THIS QUESTION OF FACT NECESSARILY INVOLVES THE EXERCISE OF A CONSIDERABLE RANGE OF JUDGMENT AND DISCRETION BY THE CONTRACTING OFFICER. 43 COMP. GEN. 228, 230 (1963). IT IS NOT THE FUNCTION OF OUR OFFICE TO DETERMINE WHETHER EFC HAS DEMONSTRATED A CAPABILITY TO PERFORM THIS CONTRACT; RATHER, OUR FUNCTION IS TO REVIEW THE RECORD TO DETERMINE WHETHER THE CONTRACTING OFFICER'S EXERCISE OF JUDGMENT AND DISCRETION IN FINDING EFC NONRESPONSIBLE WAS REASONABLE UNDER THE CIRCUMSTANCES. THIS REGARD, WE HAVE STATED IN PRIOR CASES THAT A CONTRACTING OFFICER'S DETERMINATION OF RESPONSIBILITY OR NONRESPONSIBILITY WILL NOT BE DISTURBED ABSENT A REASONABLE BASIS THEREFOR. 51 COMP. GEN. 233 (1971); 45 ID. 4 (1965).

WE HAVE REVIEWED THE RECORD SUPPORTING THE ADMINISTRATIVE DETERMINATION OF NONRESPONSIBILITY, AS SUPPLEMENTED BY OPPOSING COUNSEL AND DISPUTED BY COUNSEL FOR EFC, AND WE HAVE CONCLUDED THAT THE CONTRACTING OFFICER'S DETERMINATION IN THIS REGARD REPRESENTED A REASONABLE EXERCISE OF PROCUREMENT DISCRETION. THOUGH WE BELIEVE THAT EFC HAS MADE OUT A CASE SUPPORTING ITS CONTENTION THAT IT HAS, OR HAS THE ABILITY TO OBTAIN, EQUIPMENT ADEQUATE TO THE FULFILLMENT OF THE CONTRACT, WE CAN, AT THE SAME TIME, APPRECIATE THE CONTRACTING OFFICER'S CONCERN REGARDING EFC'S BACKUP COPIER CAPABILITY SINCE THE BACKUP COPIER - BECAUSE OF ITS LOCATION - MAY NOT MEET THE HEAVY DAILY VOLUME OF WORK. THE CONTRACTING OFFICER'S DECISION ON THIS RESPONSIBILITY FACTOR (FPR 1-1.1203-2(A)(2)) IS BASED ON SUFFICIENT FACTS AND FINDINGS WHICH RAISE DOUBT AS TO THE ABILITY OF EFC TO PERFORM PROPERLY UNDER THE PRODUCTION CONSTRAINTS OF THE SOLICITATION AND WHILE WE MAY NOT SHARE ENTIRELY THIS DOUBT, WE CANNOT SAY THAT THE DECISION IS PATENTLY UNREASONABLE.

ON THE OTHER HAND, THE CONTRACTING OFFICER HAS ESTABLISHED, TO OUR SATISFACTION, THE BASIS FOR HIS CONCLUSION THAT EFC DOES NOT HAVE THE NECESSARY PERSONNEL TO PERFORM THE CONTRACT WORK IN AN ADEQUATE AND TIMELY MANNER. WE ARE OF THE OPINION THAT THE CONTRACTING OFFICER, AND OTHER OFFICIALS OF THE AGENCY HAVING PROCUREMENT RESPONSIBILITIES, WHO MUST BEAR THE BRUNT OF DIFFICULTIES THAT MAY BE EXPERIENCED DURING PERFORMANCE, ARE IN THE BEST POSITION TO JUDGE THE QUANTITY AND QUALITY OF PERSONNEL NECESSARY TO PERFORM THE WORK CONTEMPLATED BY THE SOLICITATION. IN VIEW OF THESE FACTS AND CONSIDERATIONS, TOGETHER WITH THE FACT THAT THE CONTRACTING OFFICER TWICE RECONSIDERED HIS DETERMINATION BUT WAS UNABLE TO RESOLVE HIS DOUBTS AND FIND EFC RESPONSIBLE, WE CANNOT SAY HIS DECISION WAS WITHOUT A REASONABLE BASIS; RATHER, HIS DECISION COMPORTED WITH FPR 1- 1.1202(D) PROVIDING:

*** WHERE A CONTRACTING OFFICER HAS DOUBTS REGARDING THE PRODUCTIVE CAPACITY *** OF A PROSPECTIVE CONTRACTOR WHICH CANNOT BE RESOLVED AFFIRMATIVELY, THE CONTRACTING OFFICER SHALL DETERMINE THAT THE PROSPECTIVE CONTRACTOR IS NONRESPONSIBLE.

AS FOR THE SECOND LOW BIDDER, CMIC, LEASCO AND BELL & HOWELL HAVE CONTENDED THAT ITS BID IS NONRESPONSIVE, AND THAT IT IS A NONRESPONSIBLE PROSPECTIVE CONTRACTOR.

LEASCO AND BELL & HOWELL FIRST CONTEND THAT THE CMIC BID IS NONRESPONSIVE BECAUSE IT DID NOT INCLUDE VARIOUS PAGES OF THE SOLICITATION WHICH CONTAINED MATERIAL TERMS AND PROVISIONS. SECOND, BELL & HOWELL POINTS TO A LETTER SUBMITTED WITH CMIC'S BID WHICH MADE REFERENCE TO A CMIC PRODUCTION FACILITY IN WASHINGTON, D.C. BELL & HOWELL VIEWS THIS LETTER AS CREATING A RESERVATION CONCERNING THE ABILITY OF CMIC TO PERFORM AND AS CALLING INTO QUESTION THE RESPONSIVENESS OF THE BID. BELL & HOWELL BELIEVES THE LETTER CREATES DOUBTS AS TO WHETHER ACCEPTANCE OF THE BID WOULD RESULT IN A BINDING CONTRACT AND ARGUES THAT A DOUBTFUL BID IS NONRESPONSIVE AND SHOULD BE REJECTED. THIRD, LEASCO CONTENDS THAT CMIC'S CERTIFICATION IN ITS BID THAT IT IS A "REGULAR DEALER" RENDERS THE BID NONRESPONSIVE BECAUSE THE TOTAL BID (INCLUDING THE COVER LETTER) INDICATES THAT CMIC INTENDS TO BE A "MANUFACTURER." IN ADDITION, LEASCO ARGUES THAT CMIC IS NOT A "REGULAR DEALER" AS THAT TERM IS DEFINED IN THE FEDERAL PROCUREMENT REGULATIONS.

WE WILL FIRST CONSIDER THE CONTENTION THAT THE CMIC BID IS NONRESPONSIVE BECAUSE OF FAILURE TO INCLUDE CERTAIN PAGES FROM THE SOLICITATION. THIS REGARD, IT IS NECESSARY TO DESCRIBE IN SOME DETAIL THE CONTENTS OF THE IFB, AS AMENDED, AND CMIC'S BID.

THE "TABLE OF CONTENTS" AT PAGE 5 OF THE IFB INDICATES THAT THE SOLICITATION CONSISTED OF THE FOLLOWING:

COVER PAGE - (SF-33)

REPRESENTATIONS AND CERTIFICATIONS - (SF-33-P. 2)

SOLICITATION INSTRUCTIONS AND CONDITIONS - (SF-33A-PP. 3-4)

SCHEDULE - (PP. 3-13)

GENERAL PROVISIONS - (SF-32)

SCOPE OF WORK - (ENCLOSURE I)

ALSO, PAGE 1 OF THE IFB SF33, INDICATES IN BLOCK 4 AT THE TOP OF THE PAGE THAT IT IS PAGE 1 OF 13 AND CONTAINS THE FOLLOWING LANGUAGE IN BLOCK 9 UNDER THE HEADING "SOLICITATION":

ALL OFFERS ARE SUBJECT TO THE FOLLOWING:

1. THE ATTACHED SOLICITATION INSTRUCTIONS AND CONDITIONS, SF 33-A. 2. THE GENERAL PROVISIONS, SF 32 11/69 EDITION, WHICH IS ATTACHED OR INCORPORATED HEREIN BY REFERENCE.

3. THE SCHEDULE INCLUDED BELOW AND/OR ATTACHED HERETO.

4. SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS ARE ATTACHED OR INCORPORATED HEREIN BY REFERENCE. (ATTACHMENTS ARE LISTED IN THE SCHEDULE.)

FURTHER DOWN THE PAGE, THE "OFFER" PORTION OF SF 33 STATES:

OFFER (NOTE: REVERSE MUST ALSO BE FULLY COMPLETED BY OFFEROR)

IN COMPLIANCE WITH THE ABOVE, THE UNDERSIGNED OFFERS AND AGREES, IF THIS OFFER IS ACCEPTED WITHIN - CALENDAR DAYS (60 CALENDAR DAYS UNLESS A DIFFERENT PERIOD IS INSERTED BY OFFEROR) FROM THE DATE FOR RECEIPT OF OFFERS SPECIFIED ABOVE, TO FURNISH ANY OR ALL ITEMS UPON WHICH PRICES ARE OFFERED, AT THE PRICE SET OPPOSITE EACH ITEM, DELIVERED AT THE DESIGNATED POINTS, WITHIN THE TIME SPECIFIED IN THE SCHEDULE.

IN ADDITION, SECTION XXI OF THE IFB, PAGE 13, STATED:

THE FOLLOWING GENERAL PROVISIONS, EXCEPT AS EXPRESSLY MODIFIED ELSEWHERE IN THIS SCHEDULE, ARE INCORPORATED HEREIN BY THIS REFERENCE WITH THE SAME FORCE AND EFFECT AS IF SET FORTH HEREIN IN FULL: (1) STANDARD FORM 32 (NOV. '69) ENTITLED "GENERAL PROVISIONS (SUPPLY CONTRACT)," (2) TAX CLAUSE.

STANDARD FORM 32, GENERAL PROVISIONS (SUPPLY CONTRACT), CONSISTS OF FOUR PAGES OF PROVISIONS. THE FOLLOWING PAGE, WITH THE HEADING "GENERAL PROVISIONS PAGE 5," WAS ENTITLED "TAX CLAUSE FOR FORMALLY ADVERTISED CONTRACTS (SEE FEDERAL PROCUREMENT REGULATIONS, SUBPART 1 11.4 REGARDING USE.) FEDERAL, STATE AND LOCAL TAXES." AT THE BOTTOM OF THE PAGE, THIS FORM BEARS THE NOTATION "HEW-328." THIS PAGE WAS FOLLOWED BY ENCLOSURE I, THE WORK SCOPE, WHICH CONSISTED OF 10 PAGES OF MATERIAL DESCRIBING EDRS.

THE IFB WAS AMENDED FOUR TIMES. AMENDMENT NO. 1, DATED OCTOBER 30, 1973, MADE ADMINISTRATIVE AND SUBSTANTIVE CHANGES AND INCLUDED ATTACHMENT "B" WHICH CHANGED THE BID EVALUATION METHOD IN SECTION XX OF THE IFB. AMENDMENT NO. 2, ISSUED ON NOVEMBER 14, 1973, NOTED, IN PART, THAT THE SCHEDULE PAGES "*** HAVE BEEN CONSIDERABLY ALTERED PER AMENDMENT NO. 1 TO THE EXTENT THAT THE NUMBER OF PAGES CANNOT NOW BE LISTED AS A SPECIFIC QUANTITY." AMENDMENT NO. 3, DATED DECEMBER 19, 1973, ALSO MADE SUBSTANTIAL CHANGES AND AMENDMENT NO. 4, OF DECEMBER 27, 1973, CORRECTED A CLERICAL ERROR IN AMENDMENT NO. 3.

CMIC SUBMITTED A BID WHICH, EXCLUDING ITS COVER LETTER, CONSISTS OF SEVEN PAGES: THE COVER PAGE SF 33; PAGE 2 OF SF 33; PAGES 6 AND 7 OF THE SCHEDULE; AND PAGES 2, 3 AND 4 (SCHEDULE OF PRICES FOR THE INITIAL 12- MONTH AWARD PERIOD AND THE 2 OPTION YEARS) OF ATTACHMENT "B," INCLUDED IN AMENDMENT NO. 1. ON PAGE 2 OF SF 33, THE BIDDER ACKNOWLEDGED THE RECEIPT OF ALL FOUR AMENDMENTS.

LEASCO ARGUES CMIC'S BID IS NONRESPONSIVE BECAUSE OF ITS FAILURE TO INCLUDE THE SF 32 GENERAL PROVISIONS, THE HEW FORM 328, AND THE WORK SCOPE. IT IS STATED THAT SINCE THESE PAGES CONTAIN MATERIAL PROVISIONS, ACCEPTANCE OF THE BID WOULD NOT BIND CMIC TO ALL THE MATERIAL TERMS AND PROVISIONS OF THE CONTEMPLATED CONTRACT. LEASCO NOTES THAT WHILE THE TABLE OF CONTENTS ON PAGE 5 OF THE IFB LISTS THE GENERAL PROVISIONS AND WORK SCOPE, THERE IS NO SPECIFIC REFERENCE TO THE TAXES CLAUSE IN HEW FORM 328. NOR IS THE WORK SCOPE SPECIFICALLY REFERENCED IN THE TABLE OF CONTENTS BY ITS COMPLETE TITLE. COUNSEL FOR LEASCO CITES B-172183, JUNE 29, 1971, AS DETERMINATIVE OF THE NONRESPONSIVENESS OF CMIC'S BID.

COUNSEL FOR BELL & HOWELL HAS ARGUED, FIRST, THAT THE IFB PLACED BIDDERS ON NOTICE THAT BIDS WERE TO CONFORM EXACTLY TO THE INVITATION. AT PAGE 11 THE IFB STATES IN PART:

*** FAILURE TO BID ON ALL ITEMS OR ANY OTHER OMISSION, OBLITERATION OR ALTERATION TO THESE SPECIFICATIONS OR THE ORDER AND MANNER OF SUBMITTING THE PRICES HEREIN MAY BE REASON FOR REJECTION OF BID.

COUNSEL CONTENDS THAT SINCE CMIC'S BID DID NOT CONFORM EXACTLY TO THE IFB, IT MUST BE REJECTED ON THIS BASIS ALONE. SECOND, IT IS ARGUED THAT SINCE THE IFB STATES AT PAGE 5 THAT FAILURE TO AGREE TO THE "CERTIFICATION OF NONSEGREGATED FACILITIES" CLAUSE WILL RENDER THE BID NONRESPONSIVE, AND SINCE CMIC DID NOT RETURN THIS PAGE, ITS BID MUST BE FOUND NONRESPONSIVE ON THAT BASIS.

THIRD, COUNSEL FOR BELL & HOWELL CONTENDS THAT EVEN IF THE IFB HAD NOT REQUIRED EXACT COMPLIANCE IN BIDDING, CMIC'S BID IS NONRESPONSIVE SINCE, UNDER THE STANDARDS ESTABLISHED BY OUR OFFICE, ITS BID FAILED TO RETURN MATERIAL PROVISIONS. COUNSEL CITES 49 COMP. GEN. 289 (1969), ID. 538 (1970), AND B-169594(1), OCTOBER 27, 1970, FOR THE GENERAL PROPOSITION THAT AN INCOMPLETE BID MAY BE CONSIDERED RESPONSIVE ONLY IF IT INCLUDES THE SF 33 COVER PAGE AS WELL AS AN EXACT LISTING SPECIFICALLY INCORPORATING ALL OMITTED PAGES BY REFERENCE. COUNSEL CONTENDS THAT SUCH INCORPORATION IS ABSENT IN CMIC'S BID AND POINTS OUT THAT IT IS VIRTUALLY IMPOSSIBLE TO FIND AN INCORPORATION OF ALL MISSING PAGES OF THE PRESENT INVITATION, SINCE AMENDMENT NO. 2 ITSELF ACKNOWLEDGED THAT THE IFB HAD BEEN SO ALTERED THAT IT WAS NOT POSSIBLE TO LIST THE NUMBER OF PAGES AS A SPECIFIC QUANTITY. LIKE LEASCO, COUNSEL ALSO CITES B-172183, SUPRA.

WE SEE NO BASIS FOR BELL & HOWELL'S CONTENTION THAT THE IFB REQUIRED BIDS TO CONFORM EXACTLY TO THE INVITATION. THE ABOVE-QUOTED PROVISION FROM PAGE 11 OF THE IFB, SUPRA, IS CLEARLY PERMISSIVE RATHER THAN MANDATORY IN ITS TERMS. IN THE ABSENCE OF SUCH A REQUIREMENT, THE GENERAL RULE IS THAT WHERE A BIDDER FAILS TO RETURN WITH HIS BID ALL OF THE DOCUMENTS WHICH WERE PART OF THE INVITATION, THE BID MUST BE SUBMITTED IN SUCH FORM THAT ACCEPTANCE WOULD CREATE A VALID AND BINDING CONTRACT REQUIRING THE BIDDER TO PERFORM IN ACCORDANCE WITH ALL OF THE MATERIAL TERMS AND CONDITIONS OF THE INVITATION.

IN 49 COMP. GEN. 289 (1969), THE BIDDER SUBMITTED A BID "IN COMPLIANCE WITH THE ABOVE," THAT IS, IN COMPLIANCE WITH THE SOLICITATION INSTRUCTIONS AND CONDITIONS, THE GENERAL PROVISIONS, THE SCHEDULE, AND SUCH OTHER PROVISIONS, REPRESENTATIONS, CERTIFICATIONS, AND SPECIFICATIONS AS WERE INCORPORATED BY REFERENCE OR LISTED IN THE SCHEDULE AS ATTACHMENTS. ALSO, IN THAT DECISION THE BID INCLUDED THAT PORTION OF THE SCHEDULE ENTITLED "COMPOSITION," WHICH IDENTIFIED IN DETAIL ALL OF THE VARIOUS CONDITIONS, PROVISIONS, SCHEDULES, CERTIFICATES AND OTHER DOCUMENTS COMPRISING THE TERMS OF THE CONTRACT TO BE AWARDED. IN VIEW OF THESE FACTS, WE HELD THAT SUCH REFERENCES IN THE BID CLEARLY OPERATED TO INCORPORATE ALL OF THE INVITATION DOCUMENTS INTO THE BID AND THAT AWARD TO THE BIDDER WOULD THEREFORE BIND HIM TO PERFORMANCE IN FULL ACCORD WITH THE CONDITIONS SET OUT IN THE REFERENCED DOCUMENTS.

IN 49 COMP. GEN. 538 (1970), WHERE THE BIDDER SUBMITTED AT LEAST TWO PAGES OF THE SCHEDULE WHICH MADE REFERENCE TO THE MATERIAL PROVISIONS OF THE IFB, IT WAS FOUND THAT SUCH REFERENCES OPERATED TO INCORPORATE THE ESSENTIAL INVITATION DOCUMENTS INTO THE BID.

A SIMILAR RESULT WAS REACHED IN B-169594, SUPRA, WHERE THE BIDDER ACKNOWLEDGED RECEIPT OF NINE AMENDMENTS, WHICH IDENTIFIED THE MATERIAL PARTS OF THE IFB BY NAME AND NUMBER AS WELL AS MANY OF THE INDIVIDUAL PROVISIONS, THUS MANIFESTING THE BIDDER'S INTENT TO BE BOUND BY THE IFB AS AMENDED AND TO COMPLY WITH ALL THE MATERIAL PROVISIONS OF THE CONTEMPLATED CONTRACT.

IN B-170044, OCTOBER 15, 1970, THE BID INCLUDED THE SF 33 WITH THE "SOLICITATION" AND "OFFER" CLAUSES REFERRED TO PREVIOUSLY; HOWEVER, IT FAILED TO INCLUDE PAGES 5 AND 6 OF THE SOLICITATION, WHICH CONTAINED NUMEROUS MATERIAL TERMS, INCLUDING CLAUSES SUPPLEMENTING AND MODIFYING SF 32 AND SF 33A. THE DECISION STATED:

*** THE QUESTION THEN ARISES WHETHER THERE IS SOME EVIDENCE IN THE GORNELL BID, OR LANGUAGE IN THOSE PORTIONS OF THE INVITATION SUBMITTED WITH ITS BID, THAT WOULD INCORPORATE THE ABOVE PROVISIONS INTO THE CORPORATION'S BID. IN THIS CONNECTION WE NOTE THAT THE ENTIRE INVITATION PACKAGE CONSISTED OF 28 PAGES NUMBERED IN SEQUENCE. GORNELL EXECUTED THE "OFFER" PORTION OF THE STANDARD FORM 33 USED IN THE SOLICITATION, AND INCLUDED THAT FORM WITH ITS BID. THE SOLICITATION WAS SPECIFICALLY IDENTIFIED, BY NUMBER AND DATE AND PLACE OF ISSUANCE, AT THE TOP OF THE FACESHEET OF THE FORM, AND AS BEING COMPRISED OF 28 PAGES WHICH DESIGNATED THE FACESHEET AS "PAGE 1 OF 28." SINCE GORNELL'S BID CLEARLY IDENTIFIED THE COMPLETE SOLICITATION TO WHICH IT RESPONDED AS CONSISTING OF 28 PAGES ALL OF THE 28 PAGES OF THE INVITATION AND THE CLAUSES CONTAINED OR REFERENCED THEREIN WERE, IN OUR OPINION, INCORPORATED BY SPECIFIC REFERENCE IN THE BID DOCUMENTS AS SIGNED AND SUBMITTED BY GORNELL. SUCH DOCUMENTS SHOULD THEREFORE BE CONSIDERED AS EVIDENCING GORNELL'S INTENTION TO BE BOUND BY ALL OF THE SUBSTANTIVE TERMS AND CONDITIONS OF THE IFB. SEE 47 COMP. GEN. 680 (1968).

HOWEVER, IN B-172183, SUPRA, THE DECISION RELIED ON BY BOTH LEASCO AND BELL & HOWELL, THE SOLICITATION DID NOT CONTAIN THE SF 33 "SOLICITATION" AND "OFFER" CLAUSES OR SIMILAR LANGUAGE. WHILE THE FIRST PAGE OF THE BID DID CONTAIN THE LANGUAGE "SUBJECT TO THE TERMS AND CONDITIONS HEREIN, THE UNDERSIGNED OFFERS TO LEASE ***," WE FOUND THAT THERE WAS A SUBSTANTIAL QUESTION AS TO WHETHER THE "HEREIN" REFERRED TO THE PROVISIONS OF THE SOLICITATION AS ISSUED OR TO THE PROVISIONS RETURNED WITH THE BID. SINCE THERE WAS NO CLEAR INDICATION THAT THE BIDDER INTENDED TO BE BOUND BY ALL OF THE MATERIAL PROVISIONS OF THE SOLICITATION, THE BID WAS FOUND TO BE NONRESPONSIVE.

IN THE PRESENT CASE, THE CONTRACTING OFFICER FOUND CMIC'S BID TO BE RESPONSIVE FOR THE FOLLOWING REASONS:

QUITE SIMPLY, THE LOWEST THREE BIDDERS ARE RESPONSIVE BECAUSE IT IS THE B -170044 CASE, NOT THE B-172183, THAT MATCHES THIS IFB. THE BELL & HOWELL PROTEST, PRESUMABLY REALIZING THIS, ATTEMPTS TO MAKE A DISTINCTION FROM B- 170044 BECAUSE WHILE "SCOPE OF WORK - (ENCLOSURE I)" IS REFERENCED ON PAGE 5 OF THE SOLICITATION, IT IS NOT IDENTIFIED CLEARLY ENOUGH BY TITLE OR PAGINATION TO ADEQUATELY INSURE THAT THE LOWEST THREE BIDDERS KNEW WHAT THEY WERE BIDDING ON.

IN THIS REGARD, NIE AGREES WITH CMIC'S COUNTER-ARGUMENT (ON PAGES 7-8 OF THEIR RESPONSE) THAT REFERENCES IN THE 13 PAGES OF THIS IFB TO "SCOPE OF WORK" AND "TAX CLAUSE" COULD MEAN NOTHING OTHER THAN THE "WORK SCOPE FOR THE OPERATION OF EDRS" AND THE ONLY TAX CLAUSE REQUIRED BY THE FEDERAL PROCUREMENT REGULATIONS IN A PROCUREMENT OF THIS KIND (FPR 1-11.401-1).

THE CONTENTION THAT THE BIDDERS MIGHT NOT HAVE KNOWN WHAT THEY WERE BIDDING ON CAN MORE AFFIRMATIVELY BE ELIMINATED BY OUTLINING SOME OF THE PECULIARITIES OF THIS INVITATION. ALL BIDDERS ACKNOWLEDGED RECEIPT OF ALL FOUR AMENDMENTS. THE AMENDMENTS, WHERE OVER 1 PAGE, HAVE THE SAME PAGE INDICATOR BLOCK (I.E., PAGE 1 OF -) AS STANDARD FORM 33 DOES. THESE AMENDMENTS HAVE CHANGED EVERY PAGE OF THE ORIGINAL SCOPE OF WORK, INCLUDING ITS TABLE 1, AND PAGES 5 THROUGH 13 OF THE ORIGINAL SCHEDULE. THUS, ALL BIDDERS HAD TO BE ON NOTICE OF ANY POSSIBLE OMISSIONS IN ANY PART OF THE ORIGINAL BID PACKAGE SENT TO THEM. ***

WE AGREE WITH THE CONTRACTING OFFICER'S DECISION THAT CMIC'S BID IS RESPONSIVE. ADMITTEDLY, THE PRESENT FACTUAL SITUATION DIFFERS FROM THE FACTS IN B-170044, WHERE THE 28-PAGE SOLICITATION HAD APPARENTLY BEEN UNDISTURBED BY ANY AMENDMENTS. HOWEVER, THE BASIS OF THE B-170044 HOLDING THAT THE BID IDENTIFIED THE COMPLETE SOLICITATION TO WHICH IT RESPONDED AND THAT THE CLAUSES CONTAINED OR REFERENCED THEREIN WERE INCORPORATED BY SPECIFIC REFERENCE IN THE BID SUBMITTED IS APPLICABLE HERE. ACKNOWLEDGING ON PAGE 2 OF ITS BID THE RECEIPT OF ALL FOUR AMENDMENTS, CMIC FIRST OF ALL BOUND ITSELF TO COMPLY WITH ALL OF THE MATERIAL TERMS SET FORTH IN THE AMENDMENTS. B-176462, OCTOBER 20, 1972. IN ADDITION, SINCE THE AMENDMENTS CHANGED EVERY PAGE OF THE ORIGINAL SCHEDULE AND WORK SCOPE, THE ACKNOWLEDGMENTS SERVED TO IDENTIFY THE COMPLETE SOLICITATION TO WHICH THE BID RESPONDED, REGARDLESS OF WHAT THE EXACT NUMBER OF PAGES IN THE SOLICITATION, AS AMENDED, MAY HAVE BEEN. CF. B-169594, SUPRA. UNDER THESE CIRCUMSTANCES, AS IN B-170044, THE CLAUSES EITHER CONTAINED IN OR REFERENCED IN THE COMPLETE SOLICITATION WERE INCORPORATED BY REFERENCE IN THE BID.

IN REGARD TO THE CONTENTIONS THAT THE "WORK SCOPE" IS NOT SUFFICIENTLY IDENTIFIED IN THE SOLICITATION, WE AGREE WITH THE CONTRACTING OFFICER THAT THE REFERENCE TO "WORK SCOPE" AT PAGE 5 OF THE SOLICITATION COULD REASONABLY BE REGARDED AS REFERRING ONLY TO THE WORK SCOPE FOR THE OPERATION OF EDRS. IN ANY EVENT, AT PAGE 3 OF AMENDMENT NO. 1 THE PROVISION IS IDENTIFIED BY ITS FULL TITLE. AS FOR THE TAX CLAUSE, IT APPEARS THAT FPR SUBPART 1-11.4 PROVIDES ONLY ONE BASIC TYPE OF TAX CLAUSE WHICH MUST BE USED IN ADVERTISED PROCUREMENTS. SEE FPR 1 11.401-1(C). THIS WAS THE CLAUSE INCLUDED IN THIS SOLICITATION. AGAIN, THE IDENTIFICATION OF THE PROVISION IS CLEAR.

WE SEE NO MERIT IN BELL & HOWELL'S CONTENTION THAT THE CMIC BID IS NONRESPONSIVE BECAUSE OF FAILURE TO AGREE TO THE CERTIFICATION OF NONSEGREGATED FACILITIES CLAUSE. UNDER THE LANGUAGE OF THAT PROVISION, OFFERORS "*** WILL BE DEEMED TO HAVE SIGNED AND AGREED TO THE PROVISIONS OF THE 'CERTIFICATION OF NONSEGREGATED FACILITIES.'" THUS, BY SIGNING ITS BID, CMIC INDICATED ITS AGREEMENT THAT IT WILL NOT SEGREGATE ITS FACILITIES. MOREOVER, IT APPEARS TO US THAT THE LATER LANGUAGE IN THE CLAUSE, "FAILURE *** TO AGREE *** WILL RENDER HIS BID OR OFFER NONRESPONSIVE ***," HAS REFERENCE TO AN ANCILLARY STATEMENT OR INDICATION IN THE BID WHICH RAISES A QUESTION OF POSSIBLE NONAGREEMENT NOTWITHSTANDING THE BID SIGNATURE. SUCH IS NOT THE CASE HERE.

AS FOR THE COVER LETTER SUBMITTED WITH CMIC'S BID, IT STATED IN PERTINENT PART AS FOLLOWS: ENCLOSED IS OUR BID FOR THIS SOLICITATION.

WE ARE A WELL ESTABLISHED MICROFILM SERVICE COMPANY WITH PRODUCTION FACILITIES IN THE FOLLOWING CITIES: ATLANTA, NEW YORK, INDIANAPOLIS, BOSTON, HARTFORD AND HOUSTON.

IN ADDITION, WE WILL HAVE A NEW FACILITY OPERATING IN THE WASHINGTON AREA BY MARCH 1974. IT WILL HAVE MODERN EQUIPMENT AND EXPERIENCED STAFF FOR ALL THE MICROFILMING AND COPY PRODUCTION REQUIREMENTS OF THIS CONTRACT. THIS INCLUDES, CAMERAS, PROCESSORS, DUPLICATORS, QUALITY CONTROL AND OTHER PRODUCTION EQUIPMENT.

IT IS OUR INTENTION TO SUPPORT THE SALE OF E.R.I.C. PUBLICATIONS IN NEW MICROPUBLISHING VENTURES. 3M COMPANY HAS THE MAJORITY INTEREST IN C.M.I.C.

WE WILL BE HAPPY TO PRESENT OUR CAPABILITIES IN DETAIL.

WE DO NOT READ THIS LETTER AS QUALIFYING OR PLACING CONDITIONS ON THE BID. WE AGREE WITH THE CONTRACTING AGENCY THAT IT MERELY PROVIDES INFORMATION CONCERNING CMIC'S RESPONSIBILITY AS A PROSPECTIVE CONTRACTOR.

IN THIS REGARD, LEASCO CONTENDS THAT THE COVER LETTER INDICATES THAT CMIC INTENDS TO USE THE WASHINGTON, D.C., FACILITY FOR PERFORMANCE OF THE CONTRACT. LEASCO ARGUES THAT CMIC'S RESPONSIBILITY AND QUALIFICATION UNDER THE WALSH-HEALEY ACT MUST BE JUDGED ON THE BASIS OF ITS WASHINGTON FACILITY'S CAPABILITIES AS OF THE TIME OF BID OPENING.

AS A GENERAL RULE, A DETERMINATION OF RESPONSIBILITY IS TO BE BASED UPON ALL INFORMATION AVAILABLE TO THE CONTRACTING OFFICER AT THE TIME OF AWARD, RATHER THAN ONLY UPON THE INFORMATION SUBMITTED WITH THE BID. SEE 41 COMP. GEN. 302 (1961). IN THE PRESENT CASE, WE SEE NO REASON WHY THE COVER LETTER SHOULD HAVE THE EFFECT OF LIMITING THE FINDINGS OF A RESPONSIBILITY DETERMINATION TO THE POSSIBLE USE OF CMIC'S WASHINGTON FACILITY TO THE EXCLUSION OF ITS OTHER FACILITIES.

AS FOR CMIC'S QUALIFICATIONS UNDER THE WALSH-HEALEY ACT AND LEASCO'S CONTENTION THAT CMIC IS NOT A "REGULAR DEALER," SUCH DETERMINATIONS ARE VESTED IN THE CONTRACTING OFFICER, SUBJECT TO FINAL REVIEW BY THE DEPARTMENT OF LABOR, AND OUR OFFICE IS WITHOUT AUTHORITY TO REVIEW THEM. B-179509, B-179518, NOVEMBER 6, 1973; B-179518, JANUARY 23, 1974. ANY DISAGREEMENT ON LEASCO'S PART AS TO THE CONTRACTING OFFICER'S DETERMINATION THAT CMIC IS A "REGULAR DEALER" SHOULD BE BROUGHT TO THE ATTENTION OF THE DEPARTMENT OF LABOR. FURTHERMORE, WE SEE NO BASIS TO REGARD THE "REGULAR DEALER" REPRESENTATION IN CMIC'S BID AS ONE AFFECTING ITS RESPONSIVENESS.

IN ITS LETTER OF APRIL 8, 1974, COMMENTING UPON THE ADMINISTRATIVE REPORT, COUNSEL FOR LEASCO PRESENTS AN ADDITIONAL ARGUMENT - THAT TWO OF THE THREE FILM TYPES FOR MICROFICHE SPECIFIED IN THE IFB "*** MAY BE TOTALLY UNACCEPTABLE TO A SUBSTANTIAL PORTION OF THE PROSPECTIVE PURCHASERS OF MICROFICHE UNDER ANY CONTRACT TO BE AWARDED ON THIS IFB."

COUNSEL POINTS OUT THAT THE IFB ORIGINALLY PROVIDED THAT A CONTRACTOR COULD, AT ITS OPTION, USE SILVER HALIDE, DIAZO, OR VESICULAR FILM, AND THAT THE FILM TYPE HAD TO BE SPECIFIED IN THE BIDS. LEASCO STATES THAT UPON RECEIPT OF THE IFB, IT DISCUSSED THIS MATTER AND OTHER COMPLAINTS WITH NIE, AND THAT IT ADVISED NIE THAT "*** VESICULAR FILM PROBABLY WOULD BE UNACCEPTABLE TO THE LIBRARY COMMUNITY BUT THAT MOST BIDDERS IN THIS COMPETITIVE SITUATION WOULD BE FORCED TO BID ON THE BASIS OF USING THE LEAST EXPENSIVE VESICULAR FILM." LEASCO STATES IT REQUESTED NIE TO AMEND THE IFB TO EXCLUDE VESICULAR FILM, AND THAT, WHILE AMENDMENTS NOS. 1 AND 2 RESOLVED SOME OF THE COMPLAINTS RAISED BY LEASCO, THEY DID NOT CHANGE THE FILM TYPES SPECIFICATION.

ON NOVEMBER 29, 1973, LEASCO SUBMITTED A LENGTHY WRITTEN PROTEST TO NIE. LEASCO OBJECTED, INTER ALIA, TO THE FILM TYPES SPECIFICATION. IN SECTION IX OF THE LETTER, LEASCO OBJECTED ON THE BASIS THAT THE THREE FILM TYPES VARY IN COST, WITH SILVER HALIDE THE MOST EXPENSIVE, FOLLOWED BY DIAZO AND VESICULAR IN DECLINING MAGNITUDE OF EXPENSE. LEASCO CONTENDED THAT, SINCE THE IFB REQUIRED BIDDERS TO SPECIFY FILM TYPE IN THEIR BIDS, FOR COMPETITIVE REASONS BIDDERS WOULD SELECT VESICULAR AND, THUS, THAT THE IFB'S OPTION TO SELECT FROM AMONG THE THREE FILM TYPES WAS ILLUSORY. SECTION X OF THIS LETTER WENT ON TO POINT OUT THAT, IN LEASCO'S VIEW, THE THREE FILM TYPES ARE NOT OF EQUAL QUALITY, AND THAT VESICULAR IS OF INFERIOR QUALITY TO THE OTHER TWO. A COPY OF TWO ARTICLES FROM THE OCTOBER 1973 ISSUE OF "AMERICAN LIBRARIES" MAGAZINE WAS SUBMITTED WITH THE LETTER; IT WAS STATED THESE ARTICLES INDICATE THAT VESICULAR FILM EMITS A GAS WHICH CORRODES METAL STORAGE CABINETS AND SHELVES, AND THAT THE LIBRARY OF CONGRESS WILL NOT USE VESICULAR FILM FOR COPIES OF PERMANENT COLLECTIONS. IT WAS ALSO STATED THAT ONE ARTICLE REFERS TO A STUDY BEING CONDUCTED ON THE PERMANENT CHARACTERISTICS OF VESICULAR FILM BY THE AMERICAN NATIONAL STANDARDS INSTITUTE (ANSI). LEASCO QUESTIONED WHETHER NIE SHOULD PERMIT THE USE OF VESICULAR FILMS, STATING THAT MANY POTENTIAL PURCHASERS WILL REFRAIN FROM PURCHASING VESICULAR FICHE, AND THE PURPOSE OF THE CONTRACT MAY THEREBY BE DEFEATED. LEASCO QUESTIONED THE "HAZARDS AND CONSEQUENCES" TO PURCHASERS OF ERIC DOCUMENTS IF THE CONTRACTOR USES VESICULAR FILM; LEASCO ALSO ALLEGED THE IFB IS DEFECTIVE DUE TO THE ILLUSORY FILM TYPES OPTION REFERRED TO ABOVE.

THE NOVEMBER 29, 1973, PROTEST TO NIE CONCLUDED BY STATING THAT LEASCO WOULD SEEK IMMEDIATE RELIEF FROM GAO AND/OR THE COURTS IF ANY OF THE ALLEGED DEFECTS WERE NOT CORRECTED IN FORTHCOMING AMENDMENTS TO THE IFB.

LEASCO'S APRIL 8, 1974, LETTER STATES THAT AMENDMENT NO. 3 CORRECTED SOME OF THE ALLEGED IMPROPRIETIES AND THAT IT DELETED THE REQUIREMENT THAT BIDDERS SPECIFY IN THEIR BIDS WHICH OF THE FILM TYPES THEY INTENDED TO USE. HOWEVER, NEITHER AMENDMENT NO. 3 NOR NO. 4 DELETED THE AUTHORIZED USE OF VESICULAR OR DIAZO FILM NOTWITHSTANDING LEASCO'S ADMINISTRATIVE PROTEST. ALSO, THE CONTRACTING OFFICER, BY LETTER OF JANUARY 2, 1974, REPLIED TO LEASCO'S PROTEST. THE CONTRACTING OFFICER STATED HIS BELIEF THAT HE FELT THE AMENDMENTS TO THE SOLICITATION HAD SATISFIED ALL OF LEASCO'S CONCERNS "EXCEPT FOR A FEW"; AS TO LEASCO'S OBJECTION TO THE QUALITY OF THE VARIOUS FILM TYPES, THE CONTRACTING OFFICER STATED THAT THIS "*** DID NOT CAUSE ANY CHANGE BECAUSE OF OUR CONTINUING DETERMINATION THAT ALL THREE TYPES OF FILM ARE SATISFACTORY."

THE FILM TYPES ISSUE WAS NOT RAISED IN ANY WRITTEN SUBMISSION TO OUR OFFICE UNTIL RECEIPT OF LEASCO'S LETTER OF APRIL 8, 1974, MORE THAN 3 MONTHS AFTER THE CONTRACTING OFFICER'S LETTER OF JANUARY 2 AND ALMOST 3 MONTHS AFTER BIDS WERE OPENED. IN THIS REGARD, THE LETTER OF APRIL 8, 1974, STATES:

AS INDICATED ABOVE, LEASCO HAS JUST RECENTLY LEARNED THAT NIE DID NOT OBTAIN THE CONCURRENCE OF THE LIBRARY COMMUNITY WHEN IT "DETERMINED," IN RESPONSE TO LEASCO'S PROTEST, THAT VESICULAR FILM WAS SATISFACTORY FOR THIS PROCUREMENT. IN ADDITION, LEASCO HAS JUST RECENTLY LEARNED THAT THE LIBRARY COMMUNITY DOES NOT CONSIDER DIAZO FILM ACCEPTABLE ON THIS PROCUREMENT. APPARENTLY THE LIBRARY COMMUNITY, OBVIOUSLY FAMILIAR WITH THE CURRENT CONTRACT WHICH REQUIRES SILVER HALIDE FILM FOR ALL MATERIALS WHICH LIKELY WILL FORM A PORTION OF A PERMANENT COLLECTION AND WHICH AUTHORIZES DIAZO FILM FOR NON-PERMANENT COLLECTION PURPOSES, DID NOT LEARN UNTIL JANUARY 1974 (AFTER NIE HAD TRANSMITTED ITS JANUARY 2, 1974 LETTER TO LEASCO) THAT THIS INVITATION AUTHORIZED VESICULAR AND DIAZO FILM FOR PERMANENT COLLECTION MATERIALS.

THE LETTER MAKES A NUMBER OF ALLEGATIONS CONCERNING DIAZO AND VESICULAR FILMS. BRIEFLY, THESE ARE THAT THE AMERICAN LIBRARY ASSOCIATION (ALA) MICROPUBLISHING COMMITTEE HAS EXPRESSED CONCERN THAT DIAZO AND VESICULAR FILM WILL NOT BE ACCEPTABLE TO LIBRARIANS; THAT THE CHAIRMAN OF THIS COMMITTEE HAS STATED TO NIE THAT NEITHER HE NOR THE COMMITTEE WOULD ENDORSE THE ACCEPTANCE FOR PERMANENT COLLECTIONS OF FILM TYPES NOT TESTED AND PROVED BY ANSI; THAT ALA AND THE NATIONAL MICROFILM ASSOCIATION TAKE THE POSITION THAT VESICULAR AND DIAZO MICROFICHE SHOULD NOT BE PURCHASED FOR PERMANENT COLLECTION UNTIL THEY HAVE BEEN TESTED AND FOUND ACCEPTABLE BY ANSI; AND THAT THE CHAIRMAN OF THE MICROPUBLISHING COMMITTEE HAS TOLD NIE THAT PERHAPS HALF OF THE CUSTOMERS UNDER THE CURRENT EDRS WILL STOP PURCHASING IF DIAZO OR VESICULAR FILM IS USED. FURTHER, LEASCO'S LETTER MAKES REFERENCE TO SEVERAL PUBLISHED ARTICLES WHEREIN DOUBTS ARE EXPRESSED ABOUT THE PERMANENCE CHARACTERISTICS OF DIAZO AND VESICULAR FILM.

BASED UPON THE FOREGOING ALLEGATIONS, THE SUBSTANCE OF LEASCO'S ARGUMENT IS THAT THE INSTANT IFB, BY AUTHORIZING THE USE OF DIAZO AND VESICULAR FILM, IS DEFECTIVE IN THAT IT IS CONTRARY TO SOUND PROCUREMENT POLICY FOR AT LEAST THREE REASONS. FIRST, THAT THE ACTIONS OF NIE IN AUTHORIZING DIAZO AND VESICULAR FILM UNDERTAKEN WITHOUT THE CONCURRENCE OF THE LIBRARY COMMUNITY RENDER THE IFB CONTRARY TO THE PUBLIC INTEREST; SECOND, THAT THE PROJECTED LACK OF ACCEPTANCE BY THE PUBLIC OF THESE FILM TYPES RENDERS THE IFB SELF-DEFEATING; AND, THIRD, THAT THE FAILURE OF NIE TO HEED WARNINGS ABOUT THE POTENTIAL HAZARDS AND THE QUESTIONABLE PERMANENCE OF THESE FILM TYPES VIOLATES ALL CONCEPTS OF SOUND PROCUREMENT POLICY. IN ADDITION, LEASCO'S LETTER STATES THAT THE IFB IS LEGALLY DEFECTIVE BECAUSE THERE IS NO PROVISION WHEREBY THE CONTRACTOR PROMISES TO TAKE RESPONSIBILITY FOR DAMAGE CAUSED BY DIAZO OR VESICULAR FILM. LEASCO HAS STATED ON INFORMATION AND BELIEF THAT NIE IS CONTEMPLATING OBTAINING SUCH A PROMISE FROM THE SUCCESSFUL CONTRACTOR, WHICH LEASCO CONCLUDES REPRESENTS AN IMPLICIT ADMISSION ON NIE'S PART THAT THE IFB IS NOW RECOGNIZED TO BE FATALLY DEFECTIVE.

THE INITIAL QUESTION FOR CONSIDERATION AS REGARDS THE ADDITIONAL ARGUMENT PRESENTED BY LEASCO IN ITS APRIL 8, 1974, LETTER IS WHETHER IT HAS BEEN TIMELY RAISED. IN THIS REGARD, SECTION 20.2 OF OUR INTERIM BID PROTEST PROCEDURES AND STANDARDS (4 CFR 20.2) PROVIDES IN PERTINENT PART:

(A) PROTESTORS ARE URGED TO SEEK RESOLUTION OF THEIR COMPLAINTS INITIALLY WITH THE CONTRACTING AGENCY. PROTESTS BASED UPON ALLEGED IMPROPRIETIES IN ANY TYPE OF SOLICITATION WHICH ARE APPARENT PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS SHALL BE FILED PRIOR TO BID OPENING OR THE CLOSING DATE FOR RECEIPT OF PROPOSALS. IN OTHER CASES, BID PROTESTS SHALL BE FILED NOT LATER THAN 5 DAYS AFTER THE BASIS FOR PROTEST IS KNOWN OR SHOULD HAVE BEEN KNOWN, WHICHEVER IS EARLIER. IF A PROTEST HAS BEEN FILED INITIALLY WITH THE CONTRACTING AGENCY, ANY SUBSEQUENT PROTEST TO THE GENERAL ACCOUNTING OFFICE FILED WITHIN 5 DAYS OF NOTIFICATION OF ADVERSE AGENCY ACTION WILL BE CONSIDERED PROVIDED THE INITIAL PROTEST TO THE AGENCY WAS MADE TIMELY ***

(B) THE COMPTROLLER GENERAL, FOR GOOD CAUSE SHOWN, OR WHERE HE DETERMINES THAT A PROTEST RAISES ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES OR PROCEDURES, MAY CONSIDER ANY PROTEST WHICH IS NOT FILED TIMELY.

SINCE LEASCO FILED A PROTEST WITH THE CONTRACTING AGENCY ON THE FILM TYPES ISSUE, ITS PROTEST TO OUR OFFICE ON ISSUES INVOLVED IN THE AGENCY PROTEST SHOULD HAVE BEEN FILED WITHIN 5 WORKING DAYS OF NOTIFICATION OF THE INITIAL ADVERSE AGENCY ACTION. SEE 52 COMP. GEN. 20, 23 (1972). WOULD APPEAR THAT NOTIFICATION OF THE INITIAL ADVERSE AGENCY ACTION ON THE FILM TYPES QUESTION OCCURRED UPON LEASCO'S RECEIPT OF THE CONTRACTING OFFICER'S LETTER DATED JANUARY 2, 1974. THE RECORD DOES NOT INDICATE THE DATE OF RECEIPT. HOWEVER, AT THE VERY LATEST, BID OPENING ON JANUARY 11, 1974, WOULD HAVE CONSTITUTED ADVERSE ACTION. WHILE LEASCO'S PROTEST OF JANUARY 18, 1974, TO OUR OFFICE WAS TIMELY FILED WITHIN 5 WORKING DAYS OF BID OPENING, THIS PROTEST WAS DIRECTED ENTIRELY AT THE RESPONSIVENESS, RESPONSIBILITY AND OTHER QUALIFICATIONS OF THE LOWER-PRICED BIDDERS; THE ISSUE OF THE FILM TYPES SPECIFICATION WAS NOWHERE MENTIONED. THEREFORE, WE CONCLUDE THIS ISSUE WAS NOT TIMELY RAISED.

IN THIS REGARD, WE MIGHT NOTE THAT, IN OUR VIEW, THE PROPRIETY OF BOTH DIAZO AND VESICULAR FILM TYPES WAS PUT INTO ISSUE BY LEASCO'S NOVEMBER 29, 1973, PROTEST TO NIE. IT IS NOTED THAT THE PROTEST TO NIE AS REGARDS THE ACCEPTABILITY OF FILM TYPES TO POTENTIAL PURCHASERS MADE REFERENCE ONLY TO VESICULAR FILM. TO THE EXTENT THAT LEASCO'S APRIL 8, 1974, LETTER MIGHT BE REGARDED AS CALLING INTO QUESTION FOR THE FIRST TIME WHETHER DIAZO FILM WAS LIKEWISE UNACCEPTABLE TO POTENTIAL PURCHASERS, WE THINK SUCH ISSUE IS UNTIMELY ON THE ALTERNATIVE BASIS THAT IT WAS A SOLICITATION IMPROPRIETY WHICH WAS APPARENT AND WHICH SHOULD HAVE BEEN RAISED BEFORE BID OPENING.

IN THE EVENT ITS ADDITIONAL ARGUMENT IS FOUND TO BE UNTIMELY, LEASCO HAS NEXT CONTENDED THAT OUR OFFICE SHOULD CONSIDER IT ON THE MERITS PURSUANT TO 4 CFR 20.2(B) ON THE BASIS THAT GOOD CAUSE HAS BEEN SHOWN. IN THIS REGARD, WE HAVE STATED THAT WHILE "GOOD CAUSE" VARIES WITH THE CIRCUMSTANCES OF EACH PROTEST, IT GENERALLY REFERS TO SOME COMPELLING REASON, BEYOND THE PROTESTER'S CONTROL, WHICH PREVENTED IT FROM FILING A TIMELY PROTEST. 52 COMP. GEN., SUPRA. LEASCO HAS STATED THAT, AFTER THE CONTRACTING OFFICER'S DENIAL OF ITS PROTEST TO NIE, IT DID NOT BRING THE FILM TYPES ISSUE TO OUR ATTENTION AT THAT TIME BECAUSE THE DENIAL OF ITS PROTEST WAS STATED TO BE BASED ON A "DETERMINATION" THAT ALL THREE TYPES OF FILM WERE SATISFACTORY. LEASCO CONTENDS THAT NIE HAS ADMITTED, AT SOME UNSPECIFIED RECENT TIME, THAT THE USE OF VESICULAR FILM WAS NOT EVEN DISCUSSED WITH THE "LIBRARY COMMUNITY" PRIOR TO THE DENIAL OF LEASCO'S PROTEST. IT IS CONTENDED THAT, IN VIEW OF THE IMPORTANCE OF THE FILM TYPE SPECIFICATION TO THE "LIBRARY COMMUNITY," THE SPECIFIC LANGUAGE AND IMPORT OF THE PROTEST DENIAL THUS CONSTITUTED AN ACTUAL OR CONSTRUCTIVE MISREPRESENTATION BY NIE WHICH UNJUSTLY LULLED LEASCO INTO NOT PROTESTING TO OUR OFFICE IN A TIMELY MANNER. WE ARE NOT PERSUADED BY THE CONTENTION THAT GOOD CAUSE EXISTS FOR A 3 MONTHS' DELAY IN PRESSING AN OBJECTION TO SPECIFICATIONS, BASED UPON THE PROTESTER'S SELF-SERVING ASSUMPTION AS TO THE PROPRIETY OF THE MANNER IN WHICH THE AGENCY ARRIVED AT ITS DECISION TO DENY THE PRE-BID OPENING PROTEST. WE SEE NO VALID REASON WHY LEASCO WAS PREVENTED FROM FILING A TIMELY PROTEST WITH GAO ON THIS ISSUE, AND THEREFORE NO GOOD CAUSE IS SHOWN WHY OUR OFFICE SHOULD NOW CONSIDER IT.

LEASCO NEXT CONTENDS THAT THE FILM TYPES QUESTION RAISES ISSUES SIGNIFICANT TO PROCUREMENT PRACTICES AND PROCEDURES AND SHOULD BE CONSIDERED PURSUANT TO 4 CFR 20.2(B) ON THAT BASIS. IN THIS REGARD, WE HAVE HELD THAT THIS EXCEPTION TO THE TIMELINESS RULES HAS REFERENCE TO THE PRESENCE OF A PRINCIPLE OF WIDESPREAD PROCUREMENT INTEREST. 52 COMP. GEN., SUPRA. THE RECORD DOES NOT SUPPORT THE APPLICATION OF THE EXCEPTION TO THE TIMELINESS RULES.

LEASCO CONTENDS THE PROCUREMENT IS UNIQUE, SINCE THE GOVERNMENT IS, IN EFFECT, MAKING AN AWARD FOR SALES TO NON-GOVERNMENT PURCHASERS, AND THE ISSUE OF ACCEPTABLE FILM TYPES TO ULTIMATE USERS IS CRUCIAL; THUS, IT IS CONTENDED THAT THE AUTHORIZATION OF USE OF DIAZO AND VESICULAR FILM WITHOUT THE CONCURRENCE OF THE LIBRARY COMMUNITY MUST BE RESOLVED BY OUR OFFICE. SECONDLY, LEASCO POINTS TO WHAT IT TERMS DISASTROUS CONSEQUENCES TO NON-GOVERNMENT PURCHASERS IF DIAZO AND VESICULAR FILM ARE IN PRACTICE AS UNACCEPTABLE AS LEASCO BELIEVES. THIRDLY, THE ISSUE IS SAID TO BE SIGNIFICANT BECAUSE OF THE PROFOUND IMPACT ON THE LIBRARY COMMUNITY BEYOND THE SPECIFIC ERIC MATERIALS TO BE DISTRIBUTED UNDER THIS CONTRACT. LEASCO ARGUES AN AWARD WILL CONSTITUTE A GOVERNMENT ENDORSEMENT OF THE CONTROVERTED FILM TYPES, GIVING THEM AN AURA OF ACCEPTABILITY AND ALLEGEDLY LEADING TO DETRIMENTAL RAMIFICATIONS ON THE FUTURE COURSE OF LIBRARY WORK IN THIS AREA.

WE DO NOT BELIEVE A SIGNIFICANT ISSUE IS INVOLVED. ALL OF THE QUESTIONS PRESENTED - THE ACCEPTABILITY OF VARIOUS FILM TYPES TO POTENTIAL USERS, THE POSSIBILITY THAT THE ULTIMATE FUNCTION OF THE CONTRACT MAY BE THWARTED BY USER NONACCEPTANCE, THE POSSIBLE HAZARDS TO USERS OF CERTAIN FILM TYPES, AND THE LONG-RANGE EFFECT OF USE OF CERTAIN FILM TYPES ON LIBRARY WORK GENERALLY - APPEAR TO INVOLVE PROCUREMENT POLICY ISSUES CONCERNING THE DRAFTING OF SPECIFICATIONS TO MEET PARTICULAR NEEDS. WHILE THESE MATTERS MAY BE OF IMPORTANCE TO THE LIBRARY COMMUNITY, IN THE CONTEXT OF PROCUREMENT PRINCIPLES AND PROCEDURES GENERALLY, THE ISSUE IS ONE OF WHETHER THE MINIMUM NEEDS OF THE GOVERNMENT WERE PROPERLY DETERMINED AND REFLECTED IN SPECIFICATIONS PROPERLY DRAFTED. WE DO NOT FIND THAT THE APPLICATION OF OUR WELL ESTABLISHED STANDARDS OF REVIEW IN THIS AREA TO THE PRESENT FACTUAL CIRCUMSTANCES WOULD INVOLVE A PROCUREMENT PRINCIPLE OF WIDESPREAD INTEREST.

ALTERNATIVELY, LEASCO HAS STATED THAT IN THE EVENT ITS ADDITIONAL ARGUMENT IS FOUND TO BE UNTIMELY AND NOT FOR CONSIDERATION UNDER 4 CFR 20.2(B), LEASCO THEN SUBMITS THAT THE TIMELINESS RULES OF OUR OFFICE "*** ARE IMPROPER AND CANNOT BE APPLIED TO THE DISADVANTAGE OF LEASCO." LEASCO HAS CONTENDED THAT IT IS A MATTER OF FACT THAT AGENCIES OFTEN DO NOT FURNISH ADMINISTRATIVE REPORTS WITHIN THE TIME LIMIT PROVIDED (4 CFR 20.5); THAT HEW IN THE PRESENT CASE DID NOT DO SO; AND THAT IT IS UNFAIR IN THESE CIRCUMSTANCES THAT THE AGENCY SUFFERS NO PENALTIES OR ADVERSE CONSEQUENCES AS A RESULT OF ITS NONCOMPLIANCE WITH OUR PORTEST RULES. LEASCO ALSO HAS STATED THAT IT IS A MATTER OF RECORD THAT OUR OFFICE OFTEN DOES NOT MEET ITS OWN TIME REGULATIONS WITH REGARD TO THE ISSUANCE OF A DECISION OR A WRITTEN STATEMENT REGARDING THE EXPECTED DATE OF DECISION (4 CFR 20.10).

WE DO NOT BELIEVE THESE CONTENTIONS REQUIRE EXTENDED COMMENT. BRIEFLY, THE PRINCIPLES EMBODIED IN THE TIMELINESS STANDARDS OF OUR BID PROTEST PROCEDURES AND STANDARDS REFLECT OUR LONG EXPERIENCE WITH TWO SOMETIMES CONFLICTING CONSIDERATIONS - THE PROBLEM OF PROVIDING PROTESTERS AND INTERESTED PARTIES A FAIR OPPORTUNITY TO PRESENT THEIR CASES ON THE ONE HAND AND THE PROBLEM OF ATTEMPTING TO RESOLVE BID PROTESTS IN A REASONABLY SPEEDY MANNER ON THE OTHER. SEE THE PREAMBLE TO OUR PROTEST RULES. THESE ENDS, WE RECOGNIZED, EVEN BEFORE THE ADOPTION OF OUR CURRENT PROCEDURES, THAT UNJUSTIFIED DELAYS IN THE PRESENTATION OF ISSUES BY PARTIES - SUCH AS ALLEGATIONS OF SOLICITATION IMPROPRIETIES RAISED LONG AFTER BID OPENING - WERE A FACTOR TO BE TAKEN INTO CONSIDERATION IN RESOLVING PROTESTS. SEE, FOR EXAMPLE, 50 COMP. GEN. 565, 576 (1971). FOR LEASCO'S SPECIFIC CONTENTIONS, WE HAVE HELD THAT A DELAY BEYOND 20 WORKING DAYS BY THE AGENCY IN FURNISHING ITS ADMINISTRATIVE REPORT DOES NOT JUSTIFY THE REJECTION OF THE REPORT. SEE B-177557, JULY 23, 1973. MIGHT NOTE THAT IN CIRCUMSTANCES WHERE A DELAY BEYOND 20 DAYS IN FURNISHING A REPORT APPEARS TO BE UNREASONABLE, IT IS OUR PRACTICE TO CALL SUCH MATTERS TO THE ATTENTION OF APPROPRIATE AGENCY OFFICIALS. SEE, FOR EXAMPLE, B 175854(2), SEPTEMBER 1, 1972. IN REGARD TO LEASCO'S CONTENTION CONCERNING SECTION 20.10 OF OUR PROCEDURES, IT HAS BEEN OUR PRACTICE TO INFORMALLY NOTIFY ALL INTERESTED PARTIES OF THE STATUS OF THE CASE AND OUR ESTIMATE OF EXPECTED DECISION DATE. IN THE PRESENT CASE, ALL PARTIES WERE SO NOTIFIED. IN ANY EVENT, SINCE LEASCO IS THE INCUMBENT CONTRACTOR, WE FAIL TO SEE HOW THE COMPLAINED OF DELAYS WOULD WORK TO ITS DISADVANTAGE.

IN VIEW OF THE FOREGOING, WE FIND NO BASIS FOR LEGAL OBJECTION TO THE PROPOSED AWARD TO CMIC AS THAT FIRM FOUND TO BE RESPONSIBLE AND OTHERWISE QUALIFIED BY THE CONTRACTING OFFICER TO PERFORM THE REQUIRED CONTRACT. UNDER THE CIRCUMSTANCES, OTHER ISSUES RAISED CONCERNING THE RESPONSIVENESS AND QUALIFICATIONS OF XEROX AND BELL & HOWELL ARE ACADEMIC AND NEED NOT BE CONSIDERED.

THE PROTEST OF LEASCO AGAINST AWARD TO ANY CONCERN OTHER THAN ITSELF IS THEREFORE DENIED.