B-124390, SEP. 2, 1955

B-124390, SEP. 2, 1955

TO PENNSYLVANIA ASSOCIATION FOR THE BLIND, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 9, 1955, PROTESTING THE ACTION OF THE LIBERTY OF CONGRESS IN DISREGARDING YOUR BID FOR THE MANUFACTURE OF TALKING BOOK REPRODUCERS.

IN SUPPORT OF YOUR PROTEST YOU STATE THAT THE LAW PROVIDES AMPLE AUTHORITY TO THE LIBRARIAN OF CONGRESS TO PLACE ORDERS WITH NON-PROFIT AGENCIES FOR THE BLIND CAPABLE OF SUPPLYING BRAILLE BOOKS, TALKING BOOKS AND TALKING BOOK REPRODUCERS AND THEIR REPAIR, WHEN THE BID PRICES QUOTED BY SUCH AGENCIES ARE REASONABLE AND COMPETITIVE WITH THOSE OF COMMERCIAL PROFIT-MAKING CONCERNS. YOU STATE FURTHER THAT IN THE PRESENT PROCUREMENT YOU SUBMITTED A BID OF $32.39 PER MACHINE BASED ON FURNISHING 8,000 OR MORE REPRODUCERS; THAT WHEN BIDS WERE OPENED IT WAS FOUND THAT THERE WERE FIVE COMMERCIAL PRODUCERS WHOSE BID PRICES WERE HIGHER THAN YOURS AND FIVE WHOSE BID PRICES WERE LOWER; AND THAT, AS THE BIDDER QUOTING THE LOWEST PRICE WAS NOT CONSIDERED ACCEPTABLE BY THE LIBRARY, AN ORDER FOR 6,000 MACHINES WAS TENTATIVELY OFFERED TO THE DEWALD RADIO MANUFACTURING CORPORATION AT A PRICE OF $27.80 PER MACHINE. IN YOUR PRICE QUOTATION YOU OFFERED TO MEET ANY QUOTATION OR BID THAT WAS LOWER THAN YOURS PROVIDED SUCH QUOTATION WAS SUBMITTED BY A MANUFACTURER OF EQUAL RESPONSIBILITY AND INTEGRITY AND ONE WHO MANUFACTURES ONE-FIFTIETH OF THE ORDER PER WEEK. YOU STATE THAT YOU WERE INTERESTED IN OBTAINING THE CONTRACT FOR THIS PROCUREMENT BECAUSE YOU HAD INVESTED SOME $70,000 IN DEVELOPING A TALKING BOOK REPRODUCER DEPARTMENT. YOU STATE ALSO THAT YOU HAVE BEEN MANUFACTURING THESE MACHINES FOR THE PAST TWO FISCAL YEARS AND HAVE NEVER HAD ANY COMPLAINT CONCERNING YOUR PRODUCT. IN FURTHER SUPPORT OF YOUR PROTEST YOU CLAIM THAT YOU HAVE REVOLUTIONIZED THE TALKING BOOK REPRODUCER FOR THE LIBRARY OF CONGRESS AND THAT BLIND PERSONS HAVE ACCEPTED YOUR PRODUCT WITH SUCH SATISFACTION THAT REQUESTS FOR IT FAR EXCEED THOSE MADE FOR MANY YEARS IN THE PAST.

IT IS ASSUMED THAT THE LAW TO WHICH REFERENCE IS MADE IN YOUR LETTER IS THE ACT OF AUGUST 8, 1946, 60 STAT. 908, WHICH CONTAINS THE FOLLOWING PERTINENT PROVISION:

"* * * IN THE PURCHASE OF BOOKS IN EITHER RAISED CHARACTERS OR IN SOUND- REPRODUCTION RECORDINGS THE LIBRARIAN OF CONGRESS, WITHOUT REFERENCE TO SECTION 5 OF TITLE 41, U.S.C. SHALL GIVE PREFERENCE TO NON-PROFIT-MAKING INSTITUTIONS OR AGENCIES WHOSE ACTIVITIES ARE PRIMARILY CONCERNED WITH THE BLIND, IN ALL CASES WHERE THE PRICES OR BIDS SUBMITTED BY SUCH INSTITUTIONS OR AGENCIES ARE, BY SAID LIBRARIAN, UNDER ALL THE CIRCUMSTANCES AND NEEDS INVOLVED, DETERMINED TO BE FAIR AND REASONABLE.'

IN REPORTING UPON YOUR CONTENTIONS AND IN REFERRING TO HIS AUTHORITY UNDER THE ABOVE STATUTE, THE LIBRARIAN OF CONGRESS STATES AS FOLLOWS:

"THE LIBRARY OF CONGRESS INTERPRETS THIS AUTHORITY TO BE MANDATORY ONLY IN INSTANCES WHERE THE PRICES SUBMITTED BY THE NON-PROFIT ORGANIZATION ARE FAIR AND REASONABLE IN THE LIGHT OF THE CIRCUMSTANCES AND NEEDS INVOLVED. THE LIBRARY ALSO HAS AN OBLIGATION TO THE CONGRESS TO ACHIEVE A MAXIMUM IN EFFICIENCY AND ECONOMY THROUGH ITS EXPENDITURES, TO THE END THAT AS MANY MACHINES OFFERING HIGH QUALITY IN PERFORMANCE AND DURABILITY IN STRUCTURE WITHIN A REASONABLE PRICE RANGE MAY BE SECURED AS FUNDS WILL PERMIT. THEREFORE THE LIBRARY TAKES THE POSITION THAT IT IS NOT UNDER OBLIGATION TO FAVOR THE NON PROFIT ORGANIZATIONS WHEN IT WOULD APPEAR THAT THE INTERESTS OF THE GOVERNMENT AND THE PROGRAM WOULD BEST BE SERVED BY MAKING AN AWARD TO A COMPETITIVE COMMERCIAL BIDDER.

"WHEN INVITATIONS HAVE BEEN EXTENDED TO PROSPECTIVE BIDDERS, BOTH NON- PROFIT AND COMMERCIAL, AND BIDS HAVE BEEN SUBMITTED IN GOOD FAITH BY BOTH TYPES OF BIDDERS, THE LIBRARY IS OF THE CONVICTION THAT A STRONG OBLIGATION IS IMPOSED UPON IT TO ACCEPT THE BIDS IN EQUALLY GOOD FAITH, AND NOT TO CONSIDER THEM MERELY AS DEVICES FOR ASCERTAINING COMPARABLE PRICE QUOTATIONS OF COMMERCIAL AND NON-PROFIT BIDDERS.

"THE LIBRARY IS PREPARED TO TAKE ADVANTAGE OF AUTHORITY TO GIVE PREFERENCE TO NON-PROFIT ORGANIZATIONS IF INDICATED, BUT IN THIS INSTANCE IN VIEW OF THE DIFFERENTIAL IN UNIT PRICE, $4.59, IT FELT THAT THE NON- PROFIT ORGANIZATION'S BID COULD NOT BE CONSIDERED AS FAIR AND REASONABLE IN VIEW OF THE CIRCUMSTANCES AND NEEDS INVOLVED. THE LIBRARY FURTHER FELT THAT WITHIN THE FRAMEWORK OF COMPETITIVE BIDDING IT COULD NOT ENTERTAIN THE OFFER OF THE PENNSYLVANIA ASSOCIATION FOR THE BLIND TO MEET THE PRICE OF ANY LOWER BIDDER.

"THE LIBRARY BELIEVES THAT THE POSSIBILITY OF SECURING A HIGH QUALITY MACHINE AT A REASONABLE PRICE THROUGH COMPETITIVE BIDDING SHOULD BE EXPLORED, AND CANNOT SUBSCRIBE TO THE STATEMENT THAT PREVIOUS MANUFACTURE BY COMMERCIAL CONCERNS WAS OF POOR QUALITY, ALTHOUGH ADMITTEDLY OUR EXPERIENCE WITH ONE OF THE RECENT MODELS WAS NOT ENTIRELY SATISFACTORY. MOREOVER, THE LIBRARY CANNOT ACCEPT WITHOUT RESERVATION MR. CLUNK'S CONCEPTION OF THE PERFECTION ATTAINED IN MANUFACTURE BY THE PENNSYLVANIA ASSOCIATION FOR THE BLIND OR HIS ATTITUDE OF EXCLUSIVE CREDIT FOR SUCH IMPROVEMENT, ALTHOUGH THE PERFORMANCE OF THE MACHINE MANUFACTURED, MODEL B, HAS BEEN IN GENERAL ACCEPTABLE.'

THE DETERMINATION OF THE LIBRARIAN OF CONGRESS THAT YOUR QUOTED PRICE CANNOT BE CONSIDERED FAIR AND REASONABLE IN VIEW OF THE CIRCUMSTANCES AND NEEDS OF THE LIBRARY INVOLVES A MATTER OF DISCRETION WHICH IS NOT SUBJECT TO REVIEW BY THIS OFFICE IN THE ABSENCE OF A CLEAR SHOWING OF BAD FAITH OR A COMPLETE DISREGARD OF THE FACTS. NO SUCH SHOWING HAS BEEN MADE IN THIS CASE. ACCORDINGLY, WHILE IT MAY BE TRUE, AS CLAIMED BY YOU, THAT THE LIBRARIAN IS NOT REQUIRED TO GIVE AN ORDER TO A COMMERCIAL COMPANY SIMPLY BECAUSE THAT COMPANY HAS SUBMITTED A BID, THERE APPEARS NO PROPER BASIS FOR QUESTIONING THE ACTION OF THE LIBRARIAN IN THIS INSTANCE IN AWARDING THE CONTRACT TO THE LOWEST ACCEPTABLE BIDDER.