B-156865, JAN. 12, 1966

B-156865, JAN. 12, 1966

TO MEDICAL LITERATURE, INCORPORATED:

WE HAVE YOUR LETTERS OF SEPTEMBER 2 AND OCTOBER 20, 1965, WITH ATTACHMENTS, PROTESTING THE AWARD OF A CONTRACT TO THE AUERBACH CORPORATION FOR CANCER CHEMOTHERAPY ABSTRACTING SERVICES BY THE NATIONAL INSTITUTES OF HEALTH. THE FACTS SURROUNDING THE CONTROVERSY ARE OUTLINED IN OUR DECISION DATED SEPTEMBER 2, 1965, ADDRESSED TO ANOTHER UNSUCCESSFUL OFFEROR, ACADEMIC MEDICAL LITERATURE, INCORPORATED. THE REQUEST FOR PROPOSALS WAS SENT BY THE NATIONAL CANCER INSTITUTE ON APRIL 29, 1965, ONLY TO YOUR COMPANY AND THE PRESENT CONTRACTOR.

YOU ASSERT THAT THE AUERBACH CORPORATION, CONTRARY TO THE REQUIREMENT OF THE SYNOPSIS PUBLISHED IN THE COMMERCE BUSINESS DAILY ON MARCH 30, 1965, HAS LITTLE OR NO DEMONSTRATED CAPABILITIES OR EXPERIENCE AT ABSTRACTING IN THE CANCER FIELD. THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, HAS ADVISED US THAT THE AUERBACH QUOTATION WAS THE LOWER OF THE TWO PRICES RECEIVED. THE SELECTION OF THAT COMPANY FOR THE CONTRACT WAS REVIEWED AND APPROVED BY THE DRUG EVALUATION COMMITTEE ON JULY 12, 1965, AND BY THE SCIENTIFIC DIRECTORATE ON AUGUST 3, 1965. THE CONTRACT WAS EXECUTED ON SEPTEMBER 24, 1965. THE DEPARTMENT FURTHER REPORTS THAT THE PROJECT OFFICER AND MEMBERS OF THE SCIENTIFIC REVIEW GROUPS CONSIDER AUERBACH TO BE FULLY QUALIFIED TO PERFORM THE CONTRACT. THE DETERMINATION OF A COMPETING OFFEROR'S QUALIFICATIONS IS PRIMARILY A FUNCTION OF THE CONTRACTING AGENCY AND IS NOT OPEN TO QUESTION BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT WITHOUT A SHOWING OF BAD FAITH OR LACK OF A REASONABLE BASIS FOR THE ADMINISTRATIVE DETERMINATION. 43 COMP. GEN. 257, 262; 38 ID. 131, 133; 37 ID. 430, 435; CF. FRIEND V. LEE, 221 F.2D 96, 100. BELIEVE THE RESPONSIBILITY OF AUERBACH CORPORATION TO BE AMPLY SUPPORTED BY THE RECORD BEFORE US.

YOU MUST CONTEND THAT THE SCOPE OF WORK FOR THE 1965 COMPETITION WAS SO VAGUE AS TO MISLEAD MEDICAL LITERATURE, INCORPORATED, INTO SUBMITTING AN OFFERED PRICE CONSIDERABLY HIGHER THAN THE COST AT WHICH YOU NOW BELIEVE THE WORK REQUIRED BY THE NATIONAL CANCER INSTITUTE CAN BE ACCOMPLISHED. THE CRUX OF YOUR ARGUMENT IS THAT FOR SEVERAL YEARS, AS INCUMBENT CONTRACTOR ON THE PROJECT, YOUR COMPANY HAS BEEN SCANNING THE APPROXIMATELY 4700 JOURNALS SUBSCRIBED TO BY THE NATIONAL LIBRARY OF MEDICINE, BETHESDA, MARYLAND, FOR ARTICLES PERTINENT TO THE SURVEY, AND YOUR PROPOSAL WAS PREDICATED UPON CONTINUING ON THIS BASIS. IT NOW APPEARS THAT THE SUCCESSFUL OFFEROR, AUERBACH CORPORATION, IS SCANNING PERIODICALS OF THE COLLEGE OF PHYSICIANS LIBRARY IN PHILADELPHIA, PENNSYLVANIA (COMPRISING SOME 2700 JOURNAL TITLES).

WE CANNOT AGREE THAT THE REFERENCE IN THE SOLICITATION OF APRIL 29, 1965, TO THE PRIOR YEAR'S BRIEFING, AND THE LESS ELABORATE WORDING OF THE MORE RECENT WORK SCOPE, DEPRIVED YOU OF THE OPPORTUNITY TO QUOTE ON THE GOVERNMENT'S ACTUAL REQUIREMENTS. THE 1965 SOLICITATION OMITTED LANGUAGE SET FORTH IN THE PRIOR YEAR'S WORK SCOPE REQUIRING THE SCANNING OF PERIODICALS AVAILABLE IN THE NATIONAL LIBRARY OF MEDICINE AND LEFT TO THE PROPOSER'S DISCRETION THE DETERMINATION OF THE DEPTH OF SCANNING NEEDED TO PRODUCE AN ADEQUATE PUBLICATION. THE EARLIER REQUEST FOR PROPOSALS CALLED FOR OFFERS ON A COST-REIMBURSEMENT BASIS WHEREAS THE MORE RECENT COMPETITION WAS ON A FIXED-PRICE BASIS. WE UNDERSTAND THAT DURING THE PAST YEAR SEVERAL INFORMAL CONVERSATIONS WERE HELD WITH YOUR DIRECTOR, MR. S. SIM KEESLER, IN WHICH REPRESENTATIVES OF THE NATIONAL CANCER INSTITUTE EXPRESSED DOUBTS AS TO THE NECESSITY FOR SCANNING A LIST OF 4700 JOURNALS EACH YEAR. A GOVERNMENT REVIEW OF THE 1962 ISSUES OF CANCER CHEMOTHERAPY ABSTRACTS INDICATED THAT 197 JOURNALS PRODUCED 60 PERCENT OF THE 5084 ARTICLES REPRESENTED IN THE TOTAL VOLUME. MR. KESSLER WAS INFORMED, PRIOR TO THE FORMULATION OF YOUR OFFER, OF THE INITIATION OF AN OPERATIONS RESEARCH STUDY ON THE ECONOMICS OF SCANNING 4700 JOURNALS IN CONTRACT TO A LESSER NUMBER.

FOR THE REASONS OUTLINED ABOVE, WE CAN PERCEIVE NO LEGAL JUSTIFICATION FOR DISTURBING THE AWARD TO AUERBACH CORPORATION.