B-164566, JUN. 20, 1968

B-164566, JUN. 20, 1968

TO MR. DESSECKER:

YOUR LETTER OF JUNE 12, 1968, WITH ENCLOSURES, REQUESTS THAT OUR OFFICE CONSIDER THE PROTEST OF ACE-FEDERAL REPORTERS, INC., AGAINST THE AWARD OF A CONTRACT TO SANSOM REPORTING, INC., UNDER SECURITIES AND EXCHANGE COMMISSION SOLICITATION NO. 521 ISSUED ON MAY 9, 1968.

THE SUBJECT SOLICITATION IS FOR STENOGRAPHIC REPORTING SERVICES ON A NATIONWIDE BASIS FOR FISCAL YEAR 1969 AND REQUIRES THAT THE CONTRACTOR HAVE REPRESENTATIVES IN ALL PRINCIPAL CITIES THROUGHOUT THE UNITED STATES. IN THIS REGARD, PARAGRAPH 13 OF THE SOLICITATION PROVIDES:

"13. BUSINESS BACKGROUND OF BIDDER. EACH BID MUST ALSO BE ACCOMPANIED BY A STATEMENT OF FACTS IN DETAIL SETTING FORTH THE BUSINESS AND TECHNICAL ORGANIZATION OF THE BIDDER AVAILABLE FOR THE PERFORMANCE OF THE REQUIRED SERVICES, INCLUDING SATISFACTORY EVIDENCE OF EXPERIENCE IN THIS CLASS OF WORK, BUSINESS RELIABILITY, AND FACILITIES FOR PROPERLY PERFORMING THE WORK ON A NATION-WIDE BASIS, AND THE NAMES AND ADDRESSES OF HIS REPRESENTATIVES IN ALL PRINCIPAL CITIES THROUGHOUT THE UNITED STATES.'

ON THE BASIS OF PROJECTED VOLUME FIGURES BASED ON CURRENT EXPERIANCE, YOU REPORT THAT THE ESTIMATED COST TO THE GOVERNMENT FOR THE REQUIRED SERVICES UNDER THE SANSOM BID IS APPROXIMATELY $237,000, AS OPPOSED TO AN ESTIMATED COST OF APPROXIMATELY $259,000 UNDER THE SECOND LOW BID SUBMITTED BY ACE- FEDERAL. IT IS PROPOSED THAT AWARD BE MADE TO SANSOM AS THE LOWEST RESPONSIVE, RESPONSIBLE BIDDER. HOWEVER, AWARD HAS BEEN WITHHELD PENDING RESOLUTION OF THE ACE-FEDERAL PROTEST AGAINST AN AWARD TO SANSOM.

THE ACE-FEDERAL PROTEST MAINTAINS THAT THE SANSOM BID IS "ILLEGAL, INVALID, AND NONRESPONSIVE TO THE INVITATION" ON THE GROUNDS THAT SANSOM FAILED TO COMPLY WITH THE PROVISIONS OF SOLICITATION PARAGRAPH 13 IN NOT SUBMITTING WITH ITS BID THE NAMES AND ADDRESSES OF ITS REPRESENTATIVES IN ALL PRINCIPAL CITIES IN THE UNITED STATES AND IN NOT PROVIDING SATISFACTORY INFORMATION WITH REGARD TO ORGANIZATION, EVIDENCE OF EXPERIENCE, BUSINESS RELIABILITY AND FACILITIES. ACE FEDERAL ALSO CONTENDS THAT SUCH BID IS ILLEGAL BECAUSE NO CERTIFICATE OF AUTHORITY HAS BEEN ISSUED TO SANSOM, A FOREIGN CORPORATION, BY THE DISTRICT OF COLUMBIA, WHERE THE CONTRACT IS TO BE AWARDED; AND THAT AWARD TO SANSOM WOULD NOT BE IN THE GOVERNMENT'S BEST INTERESTS BECAUSE SANSOM IS A NONUNION CONCERN. IN ADDITION TO THE ACE-FEDERAL PROTEST, A LETTER AND A TELEGRAM WERE RECEIVED FROM A LABOR UNION OBJECTING TO ANY AWARD TO A NONUNION FIRM.

IN YOUR JUNE 12 SUBMISSION, YOU STATE THAT AT THE TIME OF BID OPENING SANSOM HAD NOT SUBSTANTIALLY COMPLIED WITH THE REQUIREMENTS OF PARAGRAPH 13 BUT THAT THE SANSOM BID WAS ACCEPTED ,SUBJECT TO A PROMPT AND ADEQUATE SHOWING OF SANSOM'S ABILITY TO PERFORM THE NECESSARY WORK ON A NATION-WIDE BASIS.' YOU FURTHER STATE THAT SINCE BID OPENING SANSOM HAS PROVIDED "APPROPRIATE INFORMATION CONCERNING ITS BACKGROUND AND ORGANIZATION, AND HAS DETAILED THE ARRANGEMENTS IT HAS MADE AND IS MAKING FOR A WASHINGTON, D.C. OFFICE AND FORNECESSARY FIELD REPRESENTATION.' YOU CONCLUDE THAT THE SANSOM BID IS RESPONSIVE BECAUSE IT OFFERS TO PERFORM ALL REQUIRED SERVICES SET FORTH IN THE SOLICITATION AND THAT THE INFORMATION PERTAINING TO BACKGROUND, ORGANIZATION AND ABILITY TO PERFORM ON A NATIONWIDE BASIS WAS PROPERLY ACCEPTABLE AFTER BID OPENING SINCE PARAGRAPH 13, ABOVE, RELATES TO THE BIDDER'S RESPONSIBILITY AS OPPOSED TO THE RESPONSIVENESS OF THE BID.

WE AGREE THAT THE INFORMATION CALLED FOR IN PARAGRAPH 13 PERTAINS TO RESPONSIBILITY RATHER THAN TO RESPONSIVENESS BECAUSE IT DEALS WITH THE BIDDER'S QUALIFICATIONS AND ABILITY TO PERFORM THE WORK CALLED FOR IN THE INVITATION, AND THAT THERE IS, THEREFORE, NO REQUIREMENT THAT IT BE SUBMITTED BEFORE BID OPENING. SEE 45 COMP. GEN. 4, 7; B-161045, MAY 10, 1967. ALSO, IT IS WELL SETTLED THAT THE DETERMINATION OF THE RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR IS PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY WHICH WILL NOT BE QUESTIONED BY OUR OFFICE ABSENT EVIDENCE OF BAD FAITH OR THE LACK OF A REASONABLE BASIS FOR THE DETERMINATION. B-160224, JANUARY 25, 1967; 38 COMP. GEN. 131, 133. THERE IS NO INDICATION OF BAD FAITH OR THE LACK OF A REASONABLE FACTUAL BASIS HERE AND, THEREFORE, WE CONCLUDE THAT YOUR DETERMINATION THAT SANSOM IS A RESPONSIBLE BIDDER IS NOT SUBJECT TO QUESTION. CONCERNING SANSOM'S FAILURE TO ACQUIRE A CERTIFICATE OF AUTHORITY FROM THE DISTRICT OF COLUMBIA, THE PRESIDENT OF SANSOM REPORTING, INC., BY LETTER DATED JUNE 10, 1968, STATES THAT THE DISTRICT OF COLUMBIA CORPORATION COUNSEL'S OFFICE HAS ADVISED HIM THAT NO SUCH CERTIFICATE IS REQUIRED OF A FOREIGN CORPORATION UNTIL A CONTRACT IS AWARDED. IN ANY EVENT, STATE OR LOCAL LICENSING REQUIREMENTS DO NOT CONTROL THE ELIGIBILITY OF BIDDERS TO OBTAIN GOVERNMENT CONTRACTS. B-157063, SEPTEMBER 14, 1965; B-159723, SEPTEMBER 28, 1966. WITH REGARD TO THE FACT THAT SANSOM IS NOT A UNION CONCERN, THE EMPLOYMENT OF UNION LABOR BY GOVERNMENT CONTRACTORS IS NOT REQUIRED BY STATUTE OR REGULATION, AND THERE IS, THEREFORE, NO LEGAL JUSTIFICATION FOR REJECTION OF A LOW RESPONSIVE BID SOLELY BECAUSE THE LOW BIDDER DOES NOT EMPLOY UNION LABOR. 31 COMP. GEN. 561.

ACCORDINGLY, OUR OFFICE HAS NO OBJECTION TO THE PROPOSED AWARD OF A CONTRACT TO SANSOM REPORTING, INC., IF PROPER IN OTHER RESPECTS.