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B-124116, AUG. 4, 1955

B-124116 Aug 04, 1955
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TO JOHNSTON AND KING: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 27. REFERENCE IS MADE TO YOUR UNDATED LETTER RECEIVED JUNE 28. WAS CREATED AND WOULD BE IN THE BEST INTERESTS OF THE UNITED STATES AND THAT. BIDDERS WERE ADVISED ALSO THAT THE CONTRACTOR MUST SELL COPIES OF THE TRANSCRIPT OF HEARINGS TO THE GENERAL PUBLIC AT PRICES NOT IN EXCESS OF THOSE SPECIFIED IN THE "BIDDER'S PROPOSAL" ATTACHED TO THE INVITATION AND THAT BIDS WOULD BE EVALUATED ON THE BASIS OF (A) THE LOWEST COST TO THE FEDERAL GOVERNMENT. YOU PROTEST THE INCLUSION OF THE PROVISION IN THE INVITATION PROHIBITING CONSIDERATION OF ZERO BIDS TO THE GOVERNMENT ON THE GROUND THAT SUCH A PROVISION IS OUT OF "LINE WITH PRIOR DECISIONS OF THE COMPTROLLER GENERAL.'.

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B-124116, AUG. 4, 1955

TO JOHNSTON AND KING:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 27, 1955, WITH ENCLOSURES, PROTESTING THE AWARD OF A CONTRACT TO WARD AND PAUL FOR FURNISHING STENOGRAPHIC REPORTING SERVICE TO THE NATIONAL MEDIATION BOARD DURING THE FISCAL YEAR 1956. ALSO, REFERENCE IS MADE TO YOUR UNDATED LETTER RECEIVED JUNE 28, 1955, RELATIVE TO COMPETITION FROM OUTSIDE REPORTERS AGAINST OFFICIAL REPORTERS OF THE NATIONAL MEDIATION BOARD AND TO YOUR LETTER OF JULY 20, 1955, IN FURTHER SUPPORT OF YOUR PROTEST.

THE INVITATION FOR BIDS ADVISED BIDDERS THAT THE NATIONAL MEDIATION BOARD HAD DETERMINED THAT A LOWER COST TO THE GENERAL PUBLIC FOR COPIES OF TRANSCRIPTS WOULD BEST SERVE THE PURPOSE FOR WHICH THE RAILWAY LABOR ACT, AS AMENDED, WAS CREATED AND WOULD BE IN THE BEST INTERESTS OF THE UNITED STATES AND THAT, FOR THAT REASON, THE BOARD WOULD NO LONGER ACCEPT OR CONSIDER BIDS ON THE BASIS OF FURNISHING FREE COPIES OF TRANSCRIPTS TO THE GOVERNMENT. BIDDERS WERE ADVISED ALSO THAT THE CONTRACTOR MUST SELL COPIES OF THE TRANSCRIPT OF HEARINGS TO THE GENERAL PUBLIC AT PRICES NOT IN EXCESS OF THOSE SPECIFIED IN THE "BIDDER'S PROPOSAL" ATTACHED TO THE INVITATION AND THAT BIDS WOULD BE EVALUATED ON THE BASIS OF (A) THE LOWEST COST TO THE FEDERAL GOVERNMENT, (B) THE LOWEST COST TO THE GENERAL PUBLIC, (C) THE QUALITY OF ANY PRIOR REPORTING SERVICE FOR THE MEDIATION BOARD, AND (D) SATISFACTORY STATEMENT AS TO "EXPERIENCE AND FACILITIES" OF THE BIDDER AND OTHER RELEVANT MATTERS.

YOU PROTEST THE INCLUSION OF THE PROVISION IN THE INVITATION PROHIBITING CONSIDERATION OF ZERO BIDS TO THE GOVERNMENT ON THE GROUND THAT SUCH A PROVISION IS OUT OF "LINE WITH PRIOR DECISIONS OF THE COMPTROLLER GENERAL.' YOU STATE THAT WHERE ONE BIDDER IS CLEARLY LOW IN HIS BID TO THE GOVERNMENT AND HIS RATES TO THE PUBLIC ARE WITHIN THE LIMITS PROVIDED IN THE INVITATION, THEN PREDOMINATING CONSIDERATION SHOULD BE GIVEN TO THE BID TO THE GOVERNMENT AND THE LOWER BIDDER TO THE GOVERNMENT SHOULD BE AWARDED THE CONTRACT. THERE HAVE ALSO BEEN CONSIDERED THE SUPPLEMENTAL ARGUMENTS IN YOUR LETTER OF JULY 20, 1955.

IT APPEARS FROM THE ABSTRACT OF BIDS FURNISHED BY THE NATIONAL MEDIATION BOARD THAT YOU QUOTED A PRICE OF ONE-HALF CENT PER PAGE FOR ALL COPY TO BE FURNISHED THE GOVERNMENT EXCEPT IN CATEGORIES 2 (F) AND 2 (G) AS TO WHICH YOU BID ZERO; THAT FOR COPIES TO BE FURNISHED THE PUBLIC YOU QUOTED PRICES OF 35 CENTS, 30 CENTS, AND ONE-HALF CENT PER PAGE FOR IMMEDIATE, DAILY, AND ORDINARY DELIVERY, RESPECTIVELY. IT FURTHER APPEARS THAT WARD AND PAUL QUOTED 1 CENT PER PAGE FOR ALL COPY TO BE FURNISHED THE GOVERNMENT; AND THAT THEY QUOTED 28 CENTS, 15 CENTS, AND 1 CENT PER PAGE, RESPECTIVELY, FOR IMMEDIATE, DAILY, AND ORDINARY DELIVERY TO THE PUBLIC. A CONTRACT FOR THE REPORTING SERVICES WAS AWARDED TO WARD AND PAUL AS THE LOWEST RESPONSIVE BIDDER.

IT IS PRIMARILY A MATTER FOR THE CONTRACTING AGENCY, NOT ONLY TO PREPARE INVITATIONS FOR BIDS AND ACCOMPANYING SPECIFICATIONS TO MEET THE GOVERNMENT'S NEEDS, BUT ALSO TO DETERMINE WHETHER THE ACCEPTANCE OF ONE OF THE BIDS RECEIVED WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT WITHIN THE LIMITS OF THE INVITATION. THE NATIONAL MEDIATION BOARD REPORTS THAT IT IS FIRMLY CONVINCED OF THE JUSTICE OF THE PROPOSITION THAT THE BOARD, CONSIDERING THE NATURE OF ITS FUNCTIONS, SHOULD NOT RECEIVE REPORTING SERVICES GRATIS FROM CONTRACTORS WHEN BY SO DOING THE COST OF SIMILAR SERVICES TO THE GENERAL PUBLIC, WHICH IS VITALLY INTERESTED IN THE BOARD'S PROCEEDINGS, IS TO BE INCREASED.

THE INCLUSION OF THE PROVISION PRECLUDING CONSIDERATION OF ZERO BIDS TO THE GOVERNMENT AND OF THE PROVISION REQUIRING THAT THE COST TO THE GENERAL PUBLIC BE CONSIDERED AS A FACTOR IN THE EVALUATION OF BIDS IN CIRCUMSTANCES SUCH AS INVOLVED IN THIS CASE IS NOT CONTRARY TO THE DECISIONS OF THIS OFFICE. SEE 26 COMP. GEN. 881.

ACCORDINGLY, AND SINCE THERE CAN BE NO QUESTION BUT THAT YOUR BID WAS NOT RESPONSIVE TO THE REQUIREMENTS OF THE INVITATION, THERE IS NO LEGAL BASIS UPON WHICH WE WOULD BE WARRANTED IN DISAGREEING WITH THE ADMINISTRATIVE PROCEDURE FOLLOWED IN THIS INSTANCE.

YOUR LETTER RECEIVED JUNE 28, 1955, HAS BEEN BROUGHT TO THE ATTENTION OF THE BOARD WITH THE REQUEST THAT WE BE FURNISHED A COMPLETE REPORT WITH REGARD TO THAT MATTER ALSO. WE WILL ADVISE YOU FURTHER UPON RECEIPT OF THE REPORT.

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