B-151904, SEP. 12, 1963

B-151904: Sep 12, 1963

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BB-64 (17) FOR REPORTING SERVICES BY THE FEDERAL HOME LOAN BANK BOARD TO YOUR COMPANY WAS IMPROPER. ALSO WHETHER THE PRICES AT WHICH THE COPIES ARE OFFERED TO THE PUBLIC. WHICH PRICES HAVE NOT BEEN LIMITED BY THE PROCURING AGENCY. ARE EXORBITANT. TWO OF WHICH MAY BE SUMMARIZED IN RELEVANT PART AS FOLLOWS: (1) THE BONUS OFFERED BY A COMPETITOR TO THE GOVERNMENT MAY NOT BE CONSIDERED IN EVALUATING BIDS BECAUSE NO MAXIMUM BID PRICE TO THE PUBLIC WAS ESTABLISHED BY THE PROCURING AGENCY. (2) THE PRICES FOR COPY WHICH THE COMPETITOR PROPOSES TO CHARGE THE PUBLIC AND THE DEPARTMENT OF JUSTICE ARE EXORBITANT. IT GENERALLY HAS BEEN RECOGNIZED THAT THE ADMINISTRATIVE AGENCY HAS THE RIGHT TO SPECIFY IN THE INVITATION TO BID MAXIMUM PRICES AT WHICH COPIES MAY BE SOLD BY THE REPORTER TO THE GENERAL PUBLIC IN ORDER TO INSURE THAT THE GENERAL PUBLIC WILL NOT BE CHARGED EXORBITANT PRICES.

B-151904, SEP. 12, 1963

TO ALDERSON REPORTING COMPANY:

IN YOUR LETTER OF AUGUST 26, 1963, YOU ASK FOR RECONSIDERATION OF OUR DECISION DATED AUGUST 19, 1963, IN WHICH WE CONCLUDED THAT IN ACCORDANCE WITH THE PRINCIPLES PREVIOUSLY SET FORTH IN OUR DECISION 32 COMP. GEN. 26, A PROPER EVALUATION OF BIDS REQUIRED A DETERMINATION THAT AWARD OF CONTRACT NO. BB-64 (17) FOR REPORTING SERVICES BY THE FEDERAL HOME LOAN BANK BOARD TO YOUR COMPANY WAS IMPROPER.

YOU SAY THAT OUR DECISION 32 COMP. GEN. 26 DID NOT HOLD THAT IN EVALUATING BIDS RECEIVED FOR REPORTING SERVICES AN AGENCY MUST CONSIDER NOT ONLY BONUSES TO THE GOVERNMENT, BUT ALSO WHETHER THE PRICES AT WHICH THE COPIES ARE OFFERED TO THE PUBLIC, WHICH PRICES HAVE NOT BEEN LIMITED BY THE PROCURING AGENCY, ARE EXORBITANT. WE CANNOT AGREE. WHEN YOU SUCCESSFULLY PROTESTED THE AWARD OF THE CONTRACT INVOLVED IN 32 COMP. GEN. 26, YOU MADE THREE BASIC ARGUMENTS, TWO OF WHICH MAY BE SUMMARIZED IN RELEVANT PART AS FOLLOWS:

(1) THE BONUS OFFERED BY A COMPETITOR TO THE GOVERNMENT MAY NOT BE CONSIDERED IN EVALUATING BIDS BECAUSE NO MAXIMUM BID PRICE TO THE PUBLIC WAS ESTABLISHED BY THE PROCURING AGENCY.

(2) THE PRICES FOR COPY WHICH THE COMPETITOR PROPOSES TO CHARGE THE PUBLIC AND THE DEPARTMENT OF JUSTICE ARE EXORBITANT.

IN REPLY TO THE FIRST CONTENTION, OUR DECISION 32 COMP. GEN. 26, 28, READS AS FOLLOWS:

"IT CONSISTENTLY HAS BEEN HELD THAT SECTION 3709 REVISED STATUTES, REQUIRES THE CONSIDERATION, IN CONNECTION WITH THE AWARD OF CONTRACTS FOR STENOGRAPHIC REPORTING, OF OFFERS BY BIDDERS OF BONUS PAYMENTS TO THE GOVERNMENT AS ADDITIONAL CONSIDERATION FOR THE AWARD OF SUCH CONTRACT. ALSO, IT GENERALLY HAS BEEN RECOGNIZED THAT THE ADMINISTRATIVE AGENCY HAS THE RIGHT TO SPECIFY IN THE INVITATION TO BID MAXIMUM PRICES AT WHICH COPIES MAY BE SOLD BY THE REPORTER TO THE GENERAL PUBLIC IN ORDER TO INSURE THAT THE GENERAL PUBLIC WILL NOT BE CHARGED EXORBITANT PRICES, 18 COMP. GEN. 967; AND THAT, WHERE SUCH A MAXIMUM IS NOT SPECIFIED, A BID MAY NEVERTHELESS BE REJECTED, IF IT IS ADMINISTRATIVELY DETERMINED THAT SALES PRICES TO THE PUBLIC ARE SO EXCESSIVE AS TO AFFECT ADVERSELY THE PUBLIC INTEREST WITH RESPECT TO A MATTER PERTAINING TO THE AGENCY.'

IT SEEMS CLEAR FROM THE FACTS OF THE EARLIER DECISION AND THE QUOTATION THEREFROM THAT A BONUS OFFERED IN A BID FOR REPORTING SERVICES MUST BE CONSIDERED IN EVALUATION (UNLESS THE INVITATION OTHERWISE SPECIFIES, E.G., 37 COMP. GEN. 12), BUT THAT NONETHELESS THE BID MAY BE REJECTED IF THE PROCURING ACTIVITY DETERMINES THAT THE PRICES AT WHICH COPY IS TO BE OFFERED THE PUBLIC ARE EXORBITANT, NOTWITHSTANDING THE FACT THAT THE AGENCY DID NOT INDICATE IN THE INVITATION THE MAXIMUM PRICE THE PUBLIC COULD BE CHARGED.

THE SECOND ARGUMENT YOU PRESENTED, WHICH WAS THE BASIS OF THE DETERMINATION NOT TO MAKE THE AWARD TO THE COMPANY OFFERING A BONUS, IS NOT HERE RELEVANT BECAUSE WE ARE ADVISED THAT NO GOVERNMENT AGENCY REGULARLY PURCHASES "PUBLIC" COPIES, AND, AS YOU POINT OUT,"NO CHARGE OF EXORBITANT RATES IS PRESENTLY INVOLVED.'

FOR THE FOREGOING REASONS, OUR DECISION OF AUGUST 19, 1963, MUST BE SUSTAINED.

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