B-153340, MAR. 20, 1964

B-153340, MAR. 20, 1964

TO PUBLIC PRINTER, U.S. GOVERNMENT PRINTING OFFICE:

BY LETTER OF FEBRUARY 19, 1964, YOU REQUESTED OUR DECISION AS TO WHETHER THE ACTION TAKEN BY YOUR OFFICE IN AWARDING A CONTRACT TO DAKOTA MICROFILM SERVICE, INC. (DAKOTA), ON ITEM 5, PRICE CLASS 4, UNDER YOUR PROPOSAL FOR A TERM CONTRACT FOR TABULATING CARDS FOR THE PERIOD BEGINNING FEBRUARY 1, 1964, AND ENDING JULY 31, 1964, WAS PROPER AND WHETHER THE AWARD MADE TO DAKOTA MAY BE SUSTAINED FOR THE FULL TERM OF THE CONTRACT IN VIEW OF THE PROTEST RECEIVED FROM THE MINNESOTA MINING AND MANUFACTURING COMPANY (MINNESOTA).

IT IS REPORTED THAT IN RESPONSE TO THE PROPOSAL, BIDS WERE RECEIVED ON ITEM 5, PRICE CLASS 4, FROM BELL AND HOWELL COMPANY, DAKOTA, MINNESOTA AND INTERNATIONAL BUSINESS MACHINES CORPORATION; THAT THE BID FROM THE INTERNATIONAL BUSINESS MACHINES CORPORATION WAS REJECTED BECAUSE THE CORPORATION HAD QUALIFIED ITS BID AS TO THE FILM THICKNESS; AND THAT THE BID FROM THE BELL AND HOWELL COMPANY WAS ALSO REJECTED BECAUSE THE COMPANY HAD QUOTED ITS PRICES AS F.O.B. ORIGIN AND FAILED TO ENTER ON PAGE 24, ITEM 38, THE SHIPPING CHARGES TO THE 12 AREAS INDICATED UNDER THE ITEM. YOUR ACTION IN REGARD TO THE REJECTION OF THE BID OF BELL AND HOWELL COMPANY WAS SUSTAINED BY OUR OFFICE IN OUR DECISION OF FEBRUARY 17, 1964, B-153340. THE BIDS OF DAKOTA AND MINNESOTA ON ITEM 5, PRICE CLASS 4, WERE ACCEPTED ON DECEMBER 19, 1963.

YOU STATE THAT ON DECEMBER 9, 1963, AFTER THE BIDS HAD BEEN OPENED, BUT PRIOR TO THE MAKING OF THE REFERRED-TO AWARDS, MINNESOTA OBJECTED TO THE CONSIDERATION OF THE BID RECEIVED FROM DAKOTA AND THAT IN ITS LETTER OF THE SAME DATE THE COMPANY STATED THAT IT WAS ITS BELIEF THAT THE PRODUCT OFFERED BY DAKOTA WAS NOT IN ACCORDANCE WITH MILITARY SPECIFICATIONS. MIL -C-9877A, AS CALLED FOR UNDER PARAGRAPH 29.1 OF THE SPECIFICATIONS. THE COMPANY ALSO STATED THAT IT WAS ITS BELIEF THAT DAKOTA HAD NOT PREVIOUSLY PERFORMED WORK COMPARABLE IN ALL RESPECTS TO THAT FOR WHICH THE BID WAS SUBMITTED, AS REQUIRED BY THE EXPERIENCE REQUIREMENTS CONTAINED IN THE NOTICE TO BIDDERS WHICH PROVIDES AS FOLLOWS:

"IN AWARDING CONTRACTS, CONSIDERATION WILL BE GIVEN ONLY TO THOSE BIDDERS, WHO AS MANUFACTURERS HAVE PREVIOUSLY PERFORMED WORK COMPARABLE IN ALL RESPECTS WITH THAT FOR WHICH A BID IS SUBMITTED AND WHO WILL, WHEN SO REQUESTED, SHOW EVIDENCE THAT THEY AS MANUFACTURERS HAVE PERFORMED SUCH WORK IN A SATISFACTORY MANNER.'

IT IS STATED THAT BECAUSE OF THE STATEMENTS MADE BY MINNESOTA IN REGARD TO THE ABILITY OF DAKOTA TO PERFORM THE CONTRACT, YOUR OFFICE REQUESTED THAT CORPORATION TO FURNISH INFORMATION IN REGARD TO ITS EXPERIENCE IN MANUFACTURING THE TYPE OF CARDS REQUIRED BY THE CONTRACT; THAT ON DECEMBER 16, 1963, THE CORPORATION FURNISHED A STATEMENT OF ITS EXPERIENCE AND THAT THE INFORMATION CONTAINED THEREIN WAS GIVEN TO MINNESOTA. YOU STATE FURTHER THAT AT THAT TIME YOUR OFFICE BELIEVED THAT IT HAD SATISFIED MINNESOTA IN REGARD TO THE EXPERIENCE QUALIFICATIONS OF DAKOTA, BUT THAT ON FEBRUARY 10, 1964, REPRESENTATIVES OF MINNESOTA PROTESTED THE AWARD THAT HAD BEEN MADE TO DAKOTA AND AGAIN CONTENDED THAT DAKOTA HAS NOT PERFORMED WORK COMPARABLE IN ALL RESPECTS TO THAT REQUIRED BY THE EXPERIENCE PROVISIONS OF THE CONTRACT.

IT IS REPORTED THAT THE CONTRACING OFFICER HAS STATED THAT HE BELIEVES THAT DAKOTA QUALIFIES UNDER THE EXPERIENCE PROVISIONS OF THE CONTRACT FOR THE FOLLOWING REASONS:

"THEY HAVE SUBMITTED SAMPLES AT OUR REQUEST WHICH HAVE BEEN TESTED BY OUR DIVISION OF TESTS AND TECHNICAL CONTROL AND FOUND TO CONFORM TO THE SPECIFICATIONS OF THE CONTRACT.

"UPON OUR REQUEST THEY ALSO FURNISHED US WITH A COMPLETE HISTORY OF THE FIRM'S EXPERIENCE, WHICH INDICATES THAT ALTHOUGH THE FIRM IS RELATIVELY NEW IN THE MANUFACTURING PHASE OF THE INDUSTRY, THEY HAVE 15 YEARS EXPERIENCE IN THE APERTURE CARD FIELD; THAT THEY HAVE ALSO GIVEN US ASSURANCE IN WRITING THAT THEY COMPLETELY UNDERSTAND THE SPECIFICATIONS OF THE CONTRACT; THAT THEY ARE CAPABLE OF PRODUCING MATERIAL IN ACCORDANCE WITH THE SPECIFICATIONS AND HAVE FURNISHED A DETAILED DESCRIPTION OF THEIR APERTURE CARD MACHINERY WHICH APPEARS TO BE CAPABLE OF PRODUCING OVER ONE MILLION CARDS PER MONTH.

"THEY HAVE ALSO FURNISHED US WITH A LIST OF CUSTOMERS WHICH THEY HAVE REQUESTED TO BE TREATED AS CONFIDENTIAL AND TO BE USED ONLY IN EVALUATING THEIR QUALIFICATIONS.'

WE HAVE HELD THAT THE AWARD OF A CONTRACT MAY BE LIMITED TO THOSE BIDDERS MEETING SPECIFIED QUALITATIVE AND QUANTITATIVE EXPERIENCE REQUIREMENTS IN A SPECIALIZED FIELD WHERE THE BIDDING CONDITIONS SO PROVIDE AND A DETERMINATION HAS BEEN MADE THAT THE INTERESTS OF THE GOVERNMENT WOULD BE SERVED THEREBY. SEE 37 COMP. GEN. 196 AND ID. 420 AND DECISIONS CITED THEREIN. HOWEVER, IN 39 COMP. GEN. 173 WE INDICATED THAT OUR OFFICE DOES NOT CONDONE THE REJECTION OF BIDS OF RESPONSIBLE BIDDERS BECAUSE AS A TECHNICAL MATTER THEY DO NOT MEET PRESCRIBED EXPERIENCE QUALIFICATIONS. IN THAT CONNECTION, IT WAS SAID AT PAGE 178 THAT "THE STATEMENT OF SUCH QUALIFICATIONS SHOULD NOT BE CONSIDERED AS HAVING THE EFFECT OF TRANSFORMING THE PURELY FACTUAL QUESTION OF RESPONSIBILITY INTO A LEGAL QUESTION OF CONFORMITY TO THE INVITATION.'

THEREFORE, SINCE THE CONTRACTING OFFICER HAS MADE A VALID DETERMINATION THAT DAKOTA MICROFILM SERVICE, INC., IS A RESPONSIBLE BIDDER, OUR OFFICE SEES NO BASIS FOR OBJECTING TO THE AWARD THAT WAS MADE TO THAT CORPORATION AND SUCH AWARD MAY BE SUSTAINED FOR THE FULL TERM OF THE CONTRACT PERIOD.