B-182161, JAN 31, 1975, 54 COMP GEN 645

B-182161: Jan 31, 1975

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WHICH PRIOR TO 1969 WAS INDEPENDENT AGENCY IN EXECUTIVE BRANCH AND THEREFORE SUBJECT TO FEDERAL PROCUREMENT REGULATIONS (FPR). IS NOW COURT OF RECORD UNDER ARTICLE I OF CONSTITUTION AND THUS NO LONGER SUBJECT TO FPR. COURT IS STILL REQUIRED TO COMPLY WITH 41 U.S.C. 5 (1970). TAX COURT INVITATION SEEKING ELECTRONIC REPORTING SERVICES IS NOT CONTRARY TO PROVISIONS OF 28 U.S.C. 753(B) (1970). TAX COURT FROM SOLICITING FOR ELECTRONIC REPORTING METHOD BECAUSE PROVISION AUTHORIZES "STENOGRAPHIC REPORTING" IS WITHOUT MERIT AS CONGRESS. WAS NOT SPECIFICALLY CONCERNED WITH LIMITING REPORTING TO TRADITIONAL WRITTEN MEANS BUT RATHER WITH ACCURATE REPORTING OF HEARINGS AND TESTIMONY. CONTRACTS - SPECIFICATIONS - RESTRICTIVE - JUSTIFICATION CONTENTION THAT INVITATION FOR BIDS PROVISION WHICH LIMITS COURT REPORTING ONLY TO ELECTRONIC METHOD IMPROPERLY RESTRICTS COMPETITION IS NOT SUSTAINED SINCE RECORD SHOWS THAT COURT'S DETERMINATION OF ITS NEEDS IS SUPPORTED BY REASONABLE BASIS.

B-182161, JAN 31, 1975, 54 COMP GEN 645

COURTS - TAX COURT OF UNITED STATES - COURT OF RECORD - STATUS OF PROCUREMENT U.S. TAX COURT, WHICH PRIOR TO 1969 WAS INDEPENDENT AGENCY IN EXECUTIVE BRANCH AND THEREFORE SUBJECT TO FEDERAL PROCUREMENT REGULATIONS (FPR), IS NOW COURT OF RECORD UNDER ARTICLE I OF CONSTITUTION AND THUS NO LONGER SUBJECT TO FPR. NEVERTHELESS, IN ITS RELEVANT PROCUREMENT PRACTICES, COURT IS STILL REQUIRED TO COMPLY WITH 41 U.S.C. 5 (1970). COURTS - REPORTERS - LIMITATION ON ELECTRONIC REPORTING U.S. TAX COURT INVITATION SEEKING ELECTRONIC REPORTING SERVICES IS NOT CONTRARY TO PROVISIONS OF 28 U.S.C. 753(B) (1970), WHICH LIMITS ELECTRONIC REPORTING TO AUGMENTING ROLE, AS THAT PROVISION CONCERNS U.S. DISTRICT COURTS, AND DOES NOT PURPORT TO INCLUDE U.S. TAX COURT WITHIN ITS PURVIEW. COURTS - TAX COURT OF UNITED STATES - REPORTING - STENOGRAPHIC V. ELECTRONIC CONTENTION THAT 26 U.S.C. 7458 (1970) PRECLUDES U.S. TAX COURT FROM SOLICITING FOR ELECTRONIC REPORTING METHOD BECAUSE PROVISION AUTHORIZES "STENOGRAPHIC REPORTING" IS WITHOUT MERIT AS CONGRESS, IN ENACTING PROVISION IN 1926, WAS NOT SPECIFICALLY CONCERNED WITH LIMITING REPORTING TO TRADITIONAL WRITTEN MEANS BUT RATHER WITH ACCURATE REPORTING OF HEARINGS AND TESTIMONY. THEREFORE, COURT CAN SOLICIT FOR ANY METHOD OF REPORTING WHICH EFFECTUATES SAID PURPOSE. CONTRACTS - SPECIFICATIONS - RESTRICTIVE - JUSTIFICATION CONTENTION THAT INVITATION FOR BIDS PROVISION WHICH LIMITS COURT REPORTING ONLY TO ELECTRONIC METHOD IMPROPERLY RESTRICTS COMPETITION IS NOT SUSTAINED SINCE RECORD SHOWS THAT COURT'S DETERMINATION OF ITS NEEDS IS SUPPORTED BY REASONABLE BASIS. IN SUCH TECHNICAL AREAS AS THIS, WHERE THERE MAY WELL BE DIFFERENCES OF OPINION, AGENCY'S EVALUATION OF OWN NEEDS SHOULD BE GIVEN GREAT WEIGHT BECAUSE AGENCY IS IN BEST POSITION TO ASSESS ITS OWN REQUIREMENTS. BIDS - SUBCONTRACTS - LIMITATIONS ON SUBCONTRACTING IN VIEW OF AGENCY'S PAST UNSATISFACTORY EXPERIENCE WITH SUBCONTRACTOR ATTEMPTS TO PROVIDE COURT REPORTING SERVICES UNDER PRIME CONTRACT, AGENCY MAY IMPOSE REASONABLE LIMITATIONS ON PRIME CONTRACTOR'S RIGHT TO SUBCONTRACT ALL OR PART OF SUCH WORK.

IN THE MATTER OF CSA REPORTING CORPORATION, JANUARY 31, 1975:

BY LETTER OF SEPTEMBER 4, 1974, CSA REPORTING CORPORATION (CSA) PROTESTED TO THIS OFFICE AGAINST THE ALLEGEDLY RESTRICTIVE REQUIREMENTS OF AN INVITATION FOR BIDS (IFB) ISSUED BY THE UNITED STATES TAX COURT, WASHINGTON, D.C., ON AUGUST 28, 1974, FOR THE VERBATIM REPORTING REQUIREMENTS OF ITS PROCEEDINGS THROUGHOUT THE UNITED STATES. PURSUANT TO THIS INVITATION, THE COURT REQUIRED, INTER ALIA, THAT THE REPORTING IN QUESTION WAS TO BE EFFECTED PURSUANT TO ELECTRONIC MEANS CONSISTING OF A 4 -TRACK SYSTEM AND BACK-UP EQUIPMENT, SUPERVISED BY A COMPETENT COURT REPORTER. BIDDERS WERE ALSO ADVISED THAT THE SUCCESSFUL CONTRACTOR WOULD BE REQUIRED TO UTILIZE ITS OWN EMPLOYEES IN AT LEAST 90 PERCENT OF THE SESSIONS OF THE COURT. THE CONTRACT PERIOD CONTEMPLATED BY THE IFB WAS NOVEMBER 1, 1974, THROUGH AUGUST 31, 1975. WHILE THREE BIDS WERE SUBMITTED, WE HAVE BEEN ADVISED THAT AN AWARD HAS NOT YET BEEN MADE PENDING OUR DECISION ON THE PROTESTS.

CSA PROTESTS THAT THE INVITATION'S REQUIREMENT THAT REPORTING BE RESTRICTED TO ELECTRONIC MEANS USING THE CONTRACTOR'S EMPLOYEES IN 90 PERCENT OF THE COURT'S SESSIONS IS IMPROPER AND CONTRARY TO THE EXPRESSED DESIRE OF CONGRESS. CSA CONTENDS THAT CONGRESS HAS REQUIRED THAT ALL REPORTING IN FEDERAL COURTS SHALL BE BY SHORTHAND OR MECHANICAL MEANS AND ONLY AUGMENTED BY ELECTRONIC SOUND RECORDING, AND THAT CONGRESS HAS ALSO STATED ANY REPORTING IN THE TAX COURT MUST BE DONE STENOGRAPHICALLY. CSA ALSO ARGUES THAT ELECTRONIC REPORTING IS, AT BEST, NO MORE EFFECTIVE THAN SHORTHAND OR STENOTYPE REPORTING, AND MOREOVER THAT THERE IS NO JUSTIFICATION UNDERLYING THE REQUIREMENT THAT THE CONTRACTOR'S EMPLOYEES MUST BE UTILIZED IN 90 PERCENT OF ALL REPORTED SESSIONS.

PRIOR TO 1969, THE U.S. TAX COURT (FORMERLY THE BOARD OF TAX APPEALS) WAS AN INDEPENDENT AGENCY IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. INTERNAL REVENUE CODE OF 1954, CH. 736, SEC. 7441, 68A STAT. 879, 26 U.S.C. SEC. 7441 (1964). AS SUCH, IT WAS SUBJECT TO THE PROVISIONS OF THE FEDERAL PROCUREMENT REGULATIONS (FPR), 40 U.S.C. SECS. 472, 474, 481(A) (1964), EVEN THOUGH IT POSSESSED THE POWER TO CONTRACT FOR THE REPORTING OF ITS PROCEEDINGS. 26 U.S.C. SEC. 7458 (1964). IN 1969, HOWEVER, CONGRESS AMENDED TITLE 26 OF THE U.S.C. TO PROVIDE THAT THE TAX COURT IS A COURT OF RECORD UNDER ARTICLE I OF THE CONSTITUTION OF THE UNITED STATES. TAX REFORM ACT OF 1969, PUBLIC LAW NO. 91-172, TITLE IX, SEC. 951, 83 STAT. 730, 26 U.S.C. SEC. 7441 (1970). WHILE THE COURT IS NO LONGER REQUIRED TO ADHERE TO FPR AS THE COURT IS NOT PART OF THE EXECUTIVE BRANCH, IT APPEARS THAT THE TAX COURT IS STILL SUBJECT TO THE GENERAL PROVISION OF 41 U.S.C. SEC. 5 (1970). IN ITS REPORT TO THIS OFFICE DATED SEPTEMBER 18, 1974, THE COURT INDICATED IT WILL FOLLOW THE REQUIREMENTS OF THAT PROVISION.

INITIALLY, CSA CONTENDS THAT THE COURT'S USE OF ELECTRONIC REPORTING IS IMPROPER BECAUSE CONGRESS, PURSUANT TO 28 U.S.C. SEC. 753(B) (1970), MANDATED THAT ALL REPORTING IN FEDERAL COURTS SHALL BE BY SHORTHAND OR MECHANICAL MEANS. THAT PROVISION DOES IN FACT PROVIDE THAT ELECTRONIC REPORTING SHALL BE USED ONLY TO AUGMENT SHORTHAND OR MECHANICAL MEANS OF REPORTING. HOWEVER, 28 U.S.C. SEC. 753(A) (1970) RESTRICTS THE APPLICATION OF THAT SECTION TO THE DISTRICT COURTS OF THE UNITED STATES, CANAL ZONE, GUAM, AND THE VIRGIN ISLANDS. THEREFORE, THE TAX COURT IS NOT REQUIRED TO RESTRICT ITS PROCEDURES SO AS TO COMPLY WITH THIS PROVISION.

CSA NEXT CONTENDS THAT, PURSUANT TO 26 U.S.C. SEC. 7458 (1970), THE COURT IS CONSTRAINED FROM REPORTING TESTIMONY IN HEARINGS BEFORE THE COURT BY OTHER THAN "STENOGRAPHIC" MEANS. AS CSA ESSENTIALLY CONSTRUES STENOGRAPHIC REPORTING TO BE REPORTING BY SHORTHAND OR MECHANICAL MEANS, AS OPPOSED TO ELECTRICAL OR ELECTRONIC MEANS, IT ARGUES THAT THE COURT'S IFB IMPROPERLY REQUIRES 4-TRACK ELECTRONIC RECORDING. THE COURT, IN ITS REPORT TO THIS OFFICE, POINTS OUT THAT THE PHRASE "STENOGRAPHICALLY REPORTED" WAS FIRST USED IN THE REVENUE ACT OF 1926, WAS PROBABLY USED BY THE CONGRESS AT THAT TIME TO DESCRIBE REPORTING GENERALLY, AND SINCE THAT TIME HAS BEEN EXPANDED TO INCLUDE OTHER SYSTEMS OF REPORTING. AS SUCH, THE COURT, PURSUANT TO THIS AUTHORITY, HAS USED VARIOUS MEANS OF SHORTHAND, MECHANICAL, AND ELECTRONIC REPORTING SYSTEMS. IN RESPONSE TO THIS ARGUMENT, CSA ARGUES THAT IF THE TERM IN QUESTION IS ALL-INCLUSIVE, THEN THE IFB SHOULD REFLECT THIS DIVERSITY OF ACCEPTABLE SYSTEMS. CSA, HOWEVER, REITERATES ITS BELIEF THAT THE TERM IS NOT ALL-INCLUSIVE. POINTS TO INSTANCES IN THE PAST WHERE CONGRESS HAS AMENDED STATUTES CONCERNING REPORTING TO EXPRESSLY PERMIT THE USE OF ELECTRONIC REPORTING, AND ARGUES THAT IF CONGRESS HAD WISHED THE TAX COURT TO UTILIZE ELECTRICAL RECORDING MEANS, THE STATUTE WOULD HAVE BEEN AMENDED TO SPECIFICALLY SO STATE.

THE BOARD OF TAX APPEALS, NOW THE TAX COURT, WAS ESTABLISHED IN 1924 TO PERMIT TAXPAYERS TO SECURE A DETERMINATION OF TAX LIABILITY BEFORE PAYMENT OF THE DEFICIENCY. FLORA V. UNITED STATES, 362 U.S. 145 (1960). THE BOARD WAS ORIGINALLY REQUIRED TO MAKE A REPORT IN WRITING OF ITS FINDINGS OF FACT AND DECISION IN EACH CASE, AND, SHOULD THE AMOUNT OF TAX IN CONTROVERSY HAVE BEEN MORE THAN $10,000.00, THE ORAL TESTIMONY TAKEN AT THE HEARING WAS REQUIRED TO BE REDUCED TO WRITING. REVENUE ACT OF 1924, CH. 234, TITLE IX, SECS. 900(G), (H), 43 STAT. 337. A PRECISE MEANS OF REDUCTION WAS NOT SPECIFIED. IN 1926, CONGRESS AMENDED THIS ACT SUBSTANTIALLY, TO PROVIDE FOR MORE FORMALIZED PROCEDURES AND AVENUES OF APPEAL. PURSUANT TO THIS REVISION, CONGRESS PROVIDED, FOR THE FIRST TIME, THAT THE BOARD'S HEARINGS WERE TO BE STENOGRAPHICALLY REPORTED. REVENUE ACT OF 1926, CH. 27, TITLE X, SEC. 907(A), 44 STAT. 107. THE REPORTS ON THIS LEGISLATION DO NOT EXPRESSLY COMMENT ON THE ADDITION OF THE PHRASE "STENOGRAPHICALLY REPORTED." HOWEVER, THE SENATE DID NOTE THAT THE BOARD'S DECISIONS WERE CONSIDERED JUDICIAL BY THE SENATE COMMITTEE ON FINANCE, COURT REVIEW OF BOARD DECISIONS WAS MADE TO CONFORM TO THE PROCEDURE IN THE CASE OF AN ORIGINAL ACTION IN THE FEDERAL DISTRICT COURT, AND REVIEW OF THE DECISION "MAY" BE LIMITED TO THE RECORD MADE BEFORE THE BOARD. S. REPORT NO. 52, 69TH CONG., 1ST SESS. 36-37 (1926).

TRADITIONALLY, STENOGRAPHY HAS BEEN DEFINED AS THE ART OF WRITING IN SHORTHAND, AND A STENOGRAPHER HAS BEEN CONSIDERED TO BE ONE WHO WRITES IN SHORTHAND. 40 WORDS AND PHRASES, STENOGRAPHIC, STENOGRAPHY (1964). FROM OUR REVIEW OF THE LEGISLATIVE HISTORY OF THE ABOVE PROVISION, HOWEVER, IT APPEARS THAT CONGRESS, IN REQUIRING "STENOGRAPHIC REPORTING," WAS PRIMARILY CONCERNED WITH HAVING CERTAIN PROCEEDINGS AND TESTIMONY RECORDED, ESPECIALLY FOR PURPOSES OF APPEAL. THE REPORTS OF THE HOUSE AND SENATE ATTACH NO SPECIAL SIGNIFICANCE TO THE PHRASE "STENOGRAPHICALLY REPORTED," AND THERE IS NO INDICATION THEREIN THAT CONGRESS WISHED TO LIMIT THE REPORTING IT DESIRED TO STENOGRAPHIC MEANS. THE PROTESTER HAS NOT FURNISHED THIS OFFICE WITH ANY MATERIAL WHICH WOULD INDICATE THAT SUCH A RESTRICTION WAS IN FACT DESIRED. IN THE ABSENCE OF SUCH DOCUMENTARY EVIDENCE, THE INTERPRETATION FAVORED BY CSA WOULD UNDULY RESTRICT THE TAX COURT IN CONTRACTING FOR THE REPORTING OF SUCH HEARINGS IN A MANNER WE BELIEVE NOT INTENDED BY THE CONGRESS. THEREFORE, THE TAX COURT IS NOT IN OUR OPINION PRECLUDED BY 26 U.S.C. SEC. 7458 (1970) FROM SOLICITING FOR ELECTRICAL MEANS OF RECORDING.

REGARDING THE RESTRICTIVE NATURE OF THE IFB, CSA CONSIDERS AS RESTRICTIVE BOTH THE REQUIREMENT THAT ONLY A 4-TRACK ELECTRICAL SYSTEM CAN BE USED FOR RECORDING AND THE STIPULATION THAT THIS SYSTEM MUST BE OPERATED BY THE CONTRACTOR'S EMPLOYEES IN AT LEAST 90 PERCENT OF THE COURT'S SESSIONS. CSA CONTENDS THAT 41 U.S.C. SEC. 5 (1970) PROHIBITS ANY RESTRICTION ON THE METHOD USED FOR THE REPORTING OF HEARINGS IN THE FEDERAL GOVERNMENT. FROM A TECHNICAL POINT OF VIEW, CSA ARGUES THAT ELECTRONIC RECORDING SYSTEMS ARE NO BETTER FOR COURTROOM RECORDING THAN SHORTHAND AND/OR STENOTYPE AND POINTS OUT THAT IN SEVERAL RECENT STUDIES ELECTRICAL RECORDING HAS BEEN CONSIDERED TO BE A LESS ACCEPTABLE REPORTING METHOD. CSA ALSO POINTS TO RECENT CONGRESSIONAL HEARINGS CONCERNING 28 U.S.C. SEC. 753(B) (1970) WHICH, IN THE PROTESTER'S VIEW, CONCLUSIVELY ESTABLISHES THE DESIRABILITY OF COURT REPORTING BY SHORTHAND OR STENOTYPE. REGARDING THE SO-CALLED 90 PERCENT EMPLOYEE REQUIREMENT, CSA PERCEIVES NO BASIS FOR THIS PROVISION, AS ALL THE IFB REQUIRES IS A TRANSCRIPT, AND IT IS ALLEGEDLY IMMATERIAL BY WHOSE PERSONNEL THE TRANSCRIPT IS PRODUCED SO LONG AS THE METHOD USED IS ACCEPTABLE.

AS JUSTIFICATION FOR THE PROVISIONS IN QUESTION, THE TAX COURT INFORMS THIS OFFICE THAT THE PROBLEMS EXPERIENCED BY THE COURT IN THE PAST HAVE ALL RELATED TO SUBCONTRACTORS AND/OR STENOGRAPHIC REPORTING SYSTEMS. THE COURT REPORTS THAT ITS EXPERIENCE WITH VARIOUS REPORTING METHODS, INCLUDING SHORTHAND, STENOTYPE, STENOMASK, AND ELECTRICAL MEANS, HAS INDICATED THAT ELECTRONIC REPORTING HAS CONSISTENTLY PRODUCED THE HIGHEST QUALITY TRANSCRIPTS, PARTICULARLY IN THE AREA OF ACCURACY. THE TRANSCRIPTS FURNISHED IN THE PAST FROM REPORTING CONTRACTORS USING ELECTRICAL MEANS HAVE GENERALLY BEEN HIGHLY ACCURATE AND TIMELY RECEIVED, WITH ANY ERRORS THEREIN ATTRIBUTED TO TRANSCRIPTION RATHER THAN REPORTER INPUT. IN THIS CONNECTION, THE COURT HAS FURNISHED THIS OFFICE WITH A NUMBER OF JOINT MOTIONS TO CORRECT TRANSCRIPTS WHICH TEND TO SUPPORT THIS PROPOSITION. WE HAVE ALSO BEEN SUPPLIED WITH A STUDY CONDUCTED UNDER THE AUSPICES OF THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION WHICH IS CONSIDERED TO SUPPORT THE COURT'S TECHNICAL CONCLUSION. IN THE VIEW OF THE COURT, ANOTHER BENEFIT OF THE USE OF THE ELECTRONIC SYSTEM IS ITS PLAYBACK CAPABILITY, WHICH ENABLES A JUDGE TO REPLAY THE RECORDED TESTIMONY SO AS TO IMMEDIATELY RESOLVE PROBLEMS OR QUESTIONS WHICH MAY ARISE.

ALLIED WITH, AND A POSSIBLE CAUSE OF, THE DIFFICULTIES EXPERIENCED BY THE COURT CONCERNING SHORTHAND AND MECHANICAL REPORTING IS THE PERFORMANCE RECORD OF SUBCONTRACTORS USING THESE SAME TYPES OF REPORTING METHODS. FACT, IT APPEARS FROM THE COURT'S REPORT THAT THESE DIFFICULTIES ARE THE GENESIS OF THE 90 PERCENT EMPLOYEE REQUIREMENT. AS AT LEAST 90-95 PERCENT OF THE COURT'S SESSIONS ARE OUTSIDE WASHINGTON, D.C., PAST CONTRACTORS HAVE UTILIZED THE SERVICES OF SUBCONTRACTORS TO PERFORM A VERY LARGE PART OF THE CONTRACT REPORTING REQUIREMENTS. IT APPEARS THAT THESE SUBCONTRACTORS HAVE GENERALLY USED SHORTHAND OR STENOTYPE FOR REPORTING. THE TAX COURT REPORTS, HOWEVER, THAT THE SUBCONTRACTORS SO ENGAGED HAVE PRODUCED LESS THAN ACCEPTABLE TRANSCRIPTS, PARTICULARLY IN THE AREA OF ACCURATE REPORTING OF TESTIMONY. ALSO, SUBCONTRACTORS HAVE CREATED PROBLEMS BY FAILING TO APPEAR AT TRIAL SESSIONS AND REFUSING TO BE AVAILABLE FOR SESSIONS SCHEDULED IN THE EVENING OR ON WEEKENDS. THE COURT HAS THEREFORE DETERMINED THAT, IN ORDER TO ELIMINATE SUCH DIFFICULTIES, EMPLOYEES OF THE PRIME CONTRACTOR MUST BE UTILIZED IN AT LEAST 90 PERCENT OF THE COURT'S SESSIONS. WHILE IT IS RECOGNIZED THAT THIS REQUIREMENT WILL MOST PROBABLY RESTRICT POTENTIAL BIDDERS TO THOSE LARGE OR SO-CALLED "NATIONAL" REPORTING COMPANIES, THE COURT BELIEVES SUCH A PROVISION IS NECESSARY TO THE SUCCESSFUL PRODUCTION OF ACCURATE TRANSCRIPTS.

THE QUESTION WHETHER ELECTRICAL OR ELECTRONIC REPORTING MEANS ARE SUPERIOR TO THE MORE TRADITIONAL METHODS OF COURT REPORTING, I.E., SHORTHAND, STENOTYPE, STENOMASK, HAS BEEN EXTENSIVELY DISCUSSED OVER THE PAST SEVERAL YEARS. MANY STATE AND MUNICIPAL COURTS ARE NOW EMPLOYING ELECTRONIC REPORTING MEANS, AND ONE STATE, ALASKA, HAS SUCCESSFULLY USED ELECTRONIC REPORTING AS ITS COURT REPORTING SYSTEM SINCE 1960. WE ALSO NOTE, HOWEVER, THAT IN ITS REPORT TO CHIEF JUDGE HAROLD H. GREENE DATED FEBRUARY 1, 1973, THE COURT REPORTERS DIVISION OF THE DISTRICT OF COLUMBIA COURTS STATED THAT THE COURT'S ELECTRONIC REPORTING SYSTEM, INSTALLED ON AN EXPERIMENTAL BASIS IN NOVEMBER 1970, IN SUPERIOR COURT, WAS INADEQUATE TO MEET THE NEEDS OF THE COURT. THE REPORT RECOMMENDED THAT THE RECORDERS BE PHASED OUT AND REPLACED WITH COURT REPORTERS.

THE UNITED STATES CONGRESS HAS ALSO CONSIDERED AND DEBATED THIS MATTER. IN ORDER TO PROVIDE FOR THE EXPEDITIOUS PRODUCTION OF TRANSCRIPTS, A BILL WAS PROPOSED WHICH WOULD HAVE PERMITTED, IF DIRECTED, ELECTRONIC SOUND RECORDINGS OF ANY PROCEEDINGS IN ANY U.S. DISTRICT COURT WITHOUT A COURT REPORTER IN ATTENDANCE. S. 952, 91ST CONG., 1ST SESS. SEC. 8(A) (1969); HEARINGS ON S. 952 BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE JUDICIARY, 91ST CONG., 1ST SESS., SER. 10, AT 5, 14 (1969). THE SOLE USE OF ELECTRONIC RECORDING DEVICES WAS GIVEN SUPPORT IN SENATE HEARINGS BY THE HONORABLE JOHN BIGGS, JR. SENIOR JUDGE OF THE THIRD CIRCUIT. HEARINGS ON S. 952, S. 567, S. 474, S. 585, S. 852, S. 898, S. 1036, S. 1216, S. 1509, S. 1646, S. 1712, S. 2040 BEFORE THE SUBCOMMITTEE ON IMPROVEMENTS IN JUDICIAL MACHINERY OF THE SENATE COMMITTEE ON THE JUDICIARY, 91ST CONG., 1ST SESS. 62-63, 67 (1969). THE SENATE REPORT ON THIS MEASURE, SUPPORTED IN PRINCIPLE BY MANY WITNESSES IN THE ABOVE-CITED HEARINGS, FAVORED THE USE OF SOPHISTICATED SOUND RECORDING TECHNIQUES IN U.S. DISTRICT COURTS, IN PLACE OF COURT REPORTERS, SO AS TO ENABLE EXPEDITIOUS PRODUCTION OF TRANSCRIPTS. S. REPORT NO. 91-262, 91ST CONG., 1ST SESS. 356 (1969). WHEN THIS PROVISION WAS BEFORE THE HOUSE OF REPRESENTATIVES, HOWEVER, THERE WAS CONSIDERABLE OPPOSITION TO THE SENATE PROVISION REGARDING ELECTRONIC RECORDING BY MANY ADVOCATES OF THE COURT REPORTER METHOD OF REPORTING. SEE, E.G., HEARINGS ON S. 952 BEFORE SUBCOMMITTEE NO. 5 OF THE HOUSE COMMITTEE ON THE JUDICIARY, SUPRA, AT 296-311, 323-35, 335-37, 447- 57, 457-59. ACCORDINGLY, THE HOUSE AMENDMENTS TO THE SENATE BILL DELETED THE SENATE'S PROPOSAL CONCERNING ELECTRONIC RECORDING. H.R. REPORT NO. 91 -887, 91ST CONG., 2D SESS. 5 (1970). IN CONFERENCE, THE SENATE ESSENTIALLY ACCEDED TO THE POSITION OF THE HOUSE. H.R. REPORT NO. 91- 1086, 91ST CONG., 2D SESS. 6-7 (1970). WHILE THE ABOVE INDICATES THAT CONGRESS HAS, FOR THE PRESENT, DECIDED AGAINST ALLOWING THE SUBSTITUTION OF ELECTRONIC RECORDING TECHNIQUES FOR THE COURT REPORTERS, WE NOTE THAT IT IS RECOGNIZED THAT CONSIDERABLE ADVANCES HAVE BEEN MADE IN ELECTRONIC EQUIPMENT IN THE PAST SEVERAL YEARS. COURT REPORTING STUDY (CALIFORNIA), A FEASIBILITY STUDY OF ALTERNATIVE METHODS OF PREPARING COURT TRANSCRIPTS (HEREINAFTER REFERRED TO AS THE SACRAMENTO REPORT) 9 (1973).

THE COMPARATIVE MERITS OF ELECTRONIC RECORDING VERSUS SHORTHAND OR MECHANICAL RECORDING FOR COURTROOM REPORTING HAVE ALSO BEEN ANALYZED IN THREE DIFFERENT STUDIES MADE IN THE PAST 4 YEARS. IN ORDER TO DETERMINE THE DESIRABILITY OF IMPLEMENTING ELECTRONIC RECORDING TECHNIQUES IN NEW YORK STATE COURTROOMS, A COMMITTEE TO STUDY THE MATTER WAS APPOINTED BY THE PRESIDING JUSTICES, APPELLATE DIVISIONS, FIRST AND SECOND JUDICIAL DEPARTMENTS, STATE OF NEW YORK. AFTER COMPARISON OF SEVERAL TYPES OF ELECTRONIC RECORDING EQUIPMENT WITH COURT REPORTERS, THE COMMITTEE CONCLUDED THAT THE TRANSCRIPTS OF THE COURT REPORTERS WERE FAR SUPERIOR TO THOSE OF RECORDING MACHINES, AND THAT RECORDING MACHINES WERE NOT VIABLE SUBSTITUTES FOR COURT REPORTERS. REPORT OF THE COMMITTEE TO EVALUATE ELECTRONIC RECORDING TECHNIQUES (HEREINAFTER REFERRED TO AS NEW YORK REPORT) 11 (1971). THESE CONCLUSIONS WERE BASED ON TEST RESULTS WHICH PRODUCE FINDINGS THAT, AMONG OTHER THINGS, THE ELECTRONIC RECORDING TRANSCRIPTS SUFFERED FROM PROBLEMS RELATING TO ACCURACY, COMPLETENESS, SPEAKER IDENTIFICATION, QUALITY, EXTRANEOUS NOISES, AND TRANSCRIPTION DELAY. NEW YORK REPORT AT 5-7. IN HIS STATEMENT ACCOMPANYING THE REPORT, THE COMMITTEE CHAIRMAN NOTED THAT THE COMMITTEE'S CONCLUSIONS WERE NOT INCONSISTENT WITH PRIOR REPORTS ON THE MATTER. SEE STATEMENT OF LOUIS WALDMAN (10/13/71) TO ACCOMPANY NEW YORK REPORT.

SUBSEQUENT TO THIS REPORT, LOS ANGELES COUNTY AND ITS COURT SYSTEM CONDUCTED AN EVALUATION OF ELECTRONIC RECORDING DEVICES TO DETERMINE THEIR PRACTICALITY AND COSTS. VARIOUS TYPES OF ELECTRONIC RECORDING DEVICES WERE PARALLEL-TESTED WITH THE OFFICIAL COURT REPORTERS OF THE LOS ANGELES SUPERIOR COURT FOR A PERIOD OF 15 COURT DAYS. AT THE CONCLUSION OF THE TESTING, ANALYSIS OF THE TEST DATA INDICATED THAT, AS A RULE, THE COURT REPORTERS WERE MORE ACCURATE THAN THE ELECTRONIC DEVICES IN QUESTION. CITY OF LOS ANGELES SUPERIOR COURT, STUDY TO DETERMINE POTENTIAL USE OF ELECTRONIC RECORDING AND COMPUTER TRANSLATION SYSTEM 33 (1972) (HEREINAFTER REFERRED TO AS LOS ANGELES STUDY), AS REPORTED IN SACRAMENTO REPORT AT 8. IT WAS ALSO REPORTED THAT TRANSCRIPTION PROCESSING TIME WAS NOT REDUCED BY THE USE OF ELECTRONIC DEVICES. LOS ANGELES STUDY AT 25- 26.

THE THIRD AND FINAL REPORT CONSIDERED BY THIS OFFICE WAS CONDUCTED BY SACRAMENTO COUNTY, CALIFORNIA, ADMINISTERED BY THE CALIFORNIA COUNCIL ON CRIMINAL JUSTICE, AND FUNDED PRIMARILY BY A GRANT FROM THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION, U.S. DEPARTMENT OF JUSTICE. THE STUDY, WHICH WAS SPECIFICALLY FOR THE PURPOSE OF ANALYZING ALTERNATIVE METHODS OF PREPARING COURT TRANSCRIPTS AND WHICH LASTED 1 1/2 YEARS, PARALLEL-TESTED TRANSCRIPTS PRODUCED BY COURT REPORTERS AND ELECTRONIC DEVICES AND COMPARED THE RESULTS IN TERMS OF ACCURACY, SPEED OF PREPARATION AND COST. BRIEFLY STATED, IT WAS CONCLUDED THAT THE ELECTRONIC DEVICES USED WERE MORE ACCURATE THAN COURT REPORTERS BY AN ERROR RATE OF 1 TO 3.22, THE TIME EXPENDED IN CASE COMPLETION (DAILIES) BY BOTH METHODS WAS GENERALLY EQUAL, AND THE COST OF ELECTRONIC DEVICES FOR THE YEAR 1972 WAS APPROXIMATELY 70 PERCENT OF THE COST OF THE COURT REPORTER SYSTEM. SACRAMENTO REPORT AT 67 -68. AFTER REVIEWING THE REPORT, AND ALSO CONSIDERING AN ANALYSIS OF THE REPORT BY ARTHUR YOUNG AND COMPANY, THE EVALUATING COMMITTEE OF THE COURT REPORTING STUDY CONCLUDED THAT THE PROPER USE OF ELECTRONIC EQUIPMENT FOR COURT REPORTING WAS A FEASIBLE ALTERNATIVE TO THE PRESENT TRADITIONAL METHOD OF REPORTING BY SHORTHAND OR MECHANICAL MEANS. SEE APPENDIX E TO SACRAMENTO REPORT.

WHILE REVIEWING THE FINDINGS AND CONCLUSIONS OF THESE THREE REPORTS, THIS OFFICE WAS PRESENTED WITH SEVERAL ANALYSES AND CRITIQUES OF THESE REPORTS, PARTICULARLY THE SACRAMENTO REPORT. IN ARRIVING AT OUR DECISION ON THIS PROTEST, THESE MATERIALS WERE GIVEN APPROPRIATE CONSIDERATION.

THE INSTANT PROCUREMENT WAS ADVERTISED PURSUANT TO 41 U.S.C. SEC. 5 (1970) WHICH CONTEMPLATES FREE AND OPEN COMPETITION FOR THE ACTUAL NEEDS OF THE GOVERNMENT, WITH OPPORTUNITY FOR ALL QUALIFIED PERSONS TO COMPETE. 20 COMP. GEN. 903, 907, 912 (1941). CONSISTENT WITH THE PURPOSE OF THE STATUTE, SOLICITATIONS MUST BE SUCH AS TO ALLOW COMPETITION ON AN EQUAL BASIS, AND CONDITIONS OR LIMITATIONS WHICH HAVE NO REASONABLE RELATION TO THE GOVERNMENT'S NEEDS ARE IMPROPER. UNITED STATES V. BROOKRIDGE FARMS, INC., 111 F.2D 461, 463 (10TH CIR. 1940).

IN THE INSTANT CASE, EVIDENCE HAS BEEN PRESENTED TO SUPPORT THE PROTESTER'S CONTENTION THAT ELECTRONIC RECORDING IS NOT SUPERIOR TO THE MORE TRADITIONAL METHODS OF REPORTING (E.G., SHORTHAND AND MECHANICAL DEVICES). THE RECORD SHOWS THAT THE TRADITIONAL METHODS OF REPORTING IN FACT ARE CONSIDERED ACCEPTABLE BY MANY FEDERAL AGENCIES UTILIZING REPORTING SERVICES FOR THEIR HEARINGS AND CONFERENCES. THESE AGENCIES INCLUDE THE ENVIRONMENTAL PROTECTION AGENCY, THE DEPARTMENT OF JUSTICE, THE INTERSTATE COMMERCE COMMISSION, THE FEDERAL MARITIME COMMISSION, THE FEDERAL COMMUNICATIONS COMMISSION AND THE CIVIL AERONAUTICS BOARD.

ON THE OTHER HAND, WE NOTE FROM THE STUDIES WHICH HAVE BEEN CITED THAT THE ELECTRONIC METHOD IS NOW CONSIDERED TO BE AN EFFECTIVE MEANS OF REPORTING COURTROOM PROCEEDINGS. THE SACRAMENTO REPORT SUGGESTS THAT IN SOME RESPECTS THE ELECTRONIC METHOD OF REPORTING MAY BE SUPERIOR TO THE MORE TRADITIONAL METHODS. THE TAX COURT REPORTS THAT IT HAS USED BOTH THE TRADITIONAL METHODS AND ELECTRONIC SYSTEMS AND THAT THE ELECTRONIC METHOD "HAS PRODUCED THE FINEST TRANSCRIPTS THE COURT HAS EXPERIENCED AND REALLY THE ONLY VERBATIM TRANSCRIPT SINCE IT IS THE ACTUAL VOICE OF THE PARTIES." IT IS REPORTED THAT:

WHEN THE COURT, IN CONFERENCE, WAS APPRISED OF THE FACT THAT A SUBSTANTIAL AMOUNT OF TRANSCRIBING BY THE TWO LOWEST BIDDERS (UNDER AN INVITATION ISSUED PRIOR TO THE SUBJECT INVITATION, WHICH WAS CANCELED) WOULD BE EITHER STENOTYPE REPORTING OR STENOMASK REPORTING BY SUBCONTRACTING, THE COURT DETERMINED THAT THE REPORTING MUST BE OF ELECTRICAL RECORDINGS AND PRIMARILY BY THE PRIME CONTRACTOR TO ELIMINATE THE ERRORS THAT THE COURT HAS EXPERIENCED IN THE PAST. ON OCCASIONS THE JUDGES TRYING CASES HAVE HAD SOME PROBLEM OR QUESTION ABOUT THE TRANSCRIPT AND HAVE ASKED FOR THE TAPE TO REPLAY THAT PORTION WHERE THERE WAS A PROBLEM.

BASED ON ITS EXPERIENCE OVER THE YEARS THE COURT HAS COME TO THE CONCLUSION THAT FOR ITS PURPOSES THE ELECTRONIC RECORDING SYSTEM "IS FAR SUPERIOR TO ANY OTHER SYSTEM." IN REACHING THIS CONCLUSION, THE COURT PLACES PARTICULAR EMPHASIS ON THE DESIRABILITY OF LISTENING TO THE RECORDED VOICES OF THE PARTIES. BY MEANS OF ELECTRONIC RECORDING THE COURT IS ABLE TO RECAPTURE NOT ONLY THE EXACT WORDS OF THE PARTIES BUT ALSO THE MANNER IN WHICH THE WORDS WERE SAID. THESE FEATURES, OF COURSE, ARE UNIQUE TO THE ELECTRONIC METHOD OF REPORTING AND ARE NOT AVAILABLE UNDER THE MORE TRADITIONAL METHODS.

AS THE STUDIES CITED ABOVE INDICATE, DIFFERENCES OF OPINION EXIST AS TO THE RELATIVE MERITS OF ELECTRONIC RECORDING VERSUS THE MORE TRADITIONAL METHODS OF REPORTING. WE HAVE RECOGNIZED, HOWEVER, THAT WHERE A PROCUREMENT IS FOR SERVICES OR SUPPLIES OF A HIGHLY TECHNICAL OR SPECIALIZED NATURE, THERE MAY WELL BE DIFFERENCES OF OPINION AS TO HOW AN AGENCY'S NEEDS SHOULD BE ACCOMMODATED BUT THAT IN THE ABSENCE OF A CLEAR SHOWING OF UNREASONABLENESS THE AGENCY'S DETERMINATION IN THE MATTER WILL NOT BE QUESTIONED BY THIS OFFICE. MATTER OF DIGITAL EQUIPMENT CORPORATION, B-181336. SEPTEMBER 13, 1974; B-174775, JUNE 5, 1972. THIS CASE, ALTHOUGH THE TRADITIONAL METHODS OF REPORTING ARE BEING USED BY MANY FEDERAL AGENCIES, WE CANNOT SAY THAT THE TAX COURT'S DETERMINATION TO RESTRICT ITS PROCUREMENT TO ELECTRONIC RECORDING SYSTEMS IS WITHOUT A REASONABLE BASIS.

WITH RESPECT TO THE IFB'S REQUIREMENT THAT THE SUCCESSFUL CONTRACTOR UTILIZE ITS OWN EMPLOYEES IN 90 PERCENT OF THE COURT'S SESSIONS, AS THE OVERWHELMING MAJORITY OF THESE SESSIONS ARE OUTSIDE WASHINGTON, D.C., THE PRACTICAL EFFECT OF THIS REQUIREMENT WOULD BE TO LIMIT BIDDING TO NATIONAL CONTRACTORS OR THOSE CONTRACTORS WITH NATIONWIDE AFFILIATIONS, AND TO DISCOURAGE THE COMPETITION OF SMALLER CONTRACTORS WHO IN THE PAST HAVE RELIED HEAVILY ON SUBCONTRACTORS. THE COURT'S REPORT TO THIS OFFICE INFORMS US, HOWEVER, THAT IN THE PAST IT HAS, AS PREVIOUSLY DETAILED, EXPERIENCED GREAT DIFFICULTIES WITH SUBCONTRACTOR SERVICE. ACCORDINGLY, THIS RESTRICTION HAS BEEN IMPLEMENTED TO INSURE SERVICE BY PRIME CONTRACTORS.

AN AGENCY DOES HAVE AUTHORITY TO IMPOSE REASONABLE LIMITATIONS ON THE RIGHT OF THE PRIME CONTRACTOR TO SUBCONTRACT ALL OR A PORTION OF THE WORK IN QUESTION. B-149096, AUGUST 9, 1962; 37 COMP. GEN. 678 (1958). THIS RESTRICTION REASONABLY MAY BE BASED ON HISTORICAL EXPERIENCE OF POOR PERFORMANCE UNDER SIMILAR CIRCUMSTANCES. MATTER OF PLATTSBURGH LAUNDRY AND DRY CLEANING CORP. ET AL., 54 COMP. GEN. 29 (1974). IN OUR OPINION, THE TAX COURT HAS ESTABLISHED THAT, TO A LARGE EXTENT, PAST SUBCONTRACTOR REPORTING SERVICE HAS BEEN UNSATISFACTORY. THEREFORE, WE BELIEVE THE AGENCY MAY REASONABLY RESTRICT THE EXTENT OF SUBCONTRACTING, AND HAVE NO BASIS TO DISAGREE WITH THE RESTRICTION IN THE SUBJECT SOLICITATION.

IN VIEW OF THE FOREGOING, THE PROTEST IS DENIED.