B-174813, APR 10, 1972, 51 COMP GEN 635

B-174813, APR 10, 1972, 51 COMP GEN 635

CONTRACTS - SPECIFICATIONS - AMBIGUOUS - CHANGES, REVISIONS, ETC. - EXPLANATIONS, ETC., REQUIREMENT AN INVITATION FOR BIDS (IFB) TO PROCURE A LEGAL INFORMATION RETRIEVAL DATA BASE WHICH, BECAUSE IT DID NOT CLEARLY INDICATE WHETHER A PHOTOCOMPOSITION, A LINOTRON 1010 SYSTEM, OR A MASTER TYPOGRAPHY PROGRAM WAS TO BE FURNISHED, WAS AN AMBIGUOUS IFB THAT WAS INADEQUATE TO SECURE THE NECESSARY PRICING FOR COMPETITIVE BID EVALUATION PURPOSES, AND THE LACK OF CLARITY HAVING GENERATED A NUMBER OF ORAL REQUESTS FOR EXPLANATIONS, AN AMENDMENT PURSUANT TO SECTION 1-2.207(D) OF THE FEDERAL PROCUREMENT REGULATIONS SHOULD HAVE BEEN ISSUED. THEREFORE, THE CONTRACT AWARDED SHOULD BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT AS THE AWARD WAS NOT IN ACCORD WITH A REASONABLE INTERPRETATION OF THE IFB, AND THE PROCUREMENT RESOLICITED. PURSUANT TO PUBLIC LAW 91-510, THE ACTION TAKEN ON THIS RECOMMENDATION SHOULD BE SENT TO THE SENATE AND HOUSE COMMITTEES ON GOVERNMENT OPERATIONS WITHIN 60 DAYS.

TO THE CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, APRIL 10, 1972:

WE REFER TO THE REPORT DATED JANUARY 25, 1972, FROM THE DIRECTOR, DIVISION OF ADMINISTRATION, RELATIVE TO THE PROTESTS OF AUTOCOMP, INC. (AUTOCOMP), AND SDA CORPORATION (SDA) AGAINST THE CONTRACT AWARDED TO COMPOSITION METHODS, INC. (CMI), UNDER AN UNDATED, UNNUMBERED INVITATION FOR BIDS (IFB) ISSUED BY THE NATIONAL LABOR RELATIONS BOARD (NLRB), WASHINGTON, D.C.

WHILE AUTOCOMP AND SDA HAVE RAISED SPECIFIC GROUNDS OF PROTEST, FOR REASONS HEREINAFTER STATED, WE DO NOT BELIEVE IT NECESSARY TO RESPOND TO EACH CONTENTION BECAUSE WE ARE RECOMMENDING THAT THE CONTRACT AWARDED TO CMI BE TERMINATED FOR CONVENIENCE OF THE GOVERNMENT AND ITS NEEDS READVERTISED UNDER PROPER TERMS AND CONDITIONS.

PURSUANT TO A WAIVER GRANTED OCTOBER 8, 1971, FROM THE PUBLIC PRINTER, THE IFB WAS ISSUED FOR: (1) THE CREATION AND MAINTENANCE OF A LEGAL INFORMATION RETRIEVAL DATA BASE; (2) KEYBOARDING OF MANUSCRIPT AND/OR PROCESSING OF PAPERTAPES PREPARED BY NLRB; (3) PRODUCTION OF A MASTER TYPOGRAPHY PROGRAM FOR INPUT TAPE OR PRODUCTION OF A LINOTRON 1010 CONTROL TAPE; AND (4) PHOTOCOMPOSITION OF FULLY MADE-UP PAGES OF THE DECISIONS AND ORDERS OF THE NLRB UNTIL THE GOVERNMENT PRINTING OFFICE CAN DEVELOP THE PHOTOCOMPOSITION CAPABILITY TO MEET NLRB'S REQUIREMENTS.

SECTION 1 OF THE IFB PROVIDED AS FOLLOWS:

THIS CONTRACT COVERS NATIONAL LABOR RELATIONS BOARD REQUIREMENTS FOR THE CREATION AND MAINTENANCE OF A LEGAL INFORMATION RETRIEVAL DATA BASE AND PRODUCTION OF PHOTOCOMPOSED PAGES, OR A LINOTRON 1010 CONTROL TAPE, OR A MASTER TYPOGRAPHY PROGRAM INPUT TAPE, FOR BOUND VOLUMES OF DECISIONS AND ORDERS OF THE NATIONAL LABOR RELATIONS BOARD (HEREIN CALLED NLRB).

FURTHER, SECTION 3 OF THE IFB PROVIDED:

SECTION 3 - AWARD CRITERIA

.01 BASIS OF AWARD:

THE AWARD OF THIS CONTRACT WILL BE MADE IN THE BEST INTEREST OF THE GOVERNMENT AND WILL NOT BE MADE SOLELY ON PRICE; OTHER FACTORS WILL BE CONSIDERED SUCH AS THE BIDDER'S EXPERIENCE IN PREPARING COMPUTER FILES FOR PHOTOCOMPOSITION, AND HIS BACKUP COMPOSITION SYSTEM IN THE EVENT THE LINOTRON IS NOT OPERATIONAL. THE NLRB REPRESENTATIVES MAY AT THEIR OPTION MAKE AN ONSITE INSPECTION OF A BIDDER'S PLANT TO AID IN EVALUATION OF BIDS.

.02 STATEMENT OF EXPERIENCE AND QUALIFICATIONS:

(A)THE BIDDERS MUST SUBMIT WITH THEIR BID A STATEMENT OF EXPERIENCE AND QUALIFICATIONS.

(B) TO FACILITATE EVALUATION OF THE PROPOSAL, EACH OFFEROR SHALL SUBMIT THE INFORMATION REQUESTED IN THE FOLLOWING SEQUENCE:

(1) RELEVANT EXPERIENCE OF PROPOSED STAFF IN THE FIELD OF DATA PROCESSING, PREPARATION OF COMPUTER FILES FOR PHOTOCOMPOSITION, AND IN USE OF THE LINOTRON.

(2) SAMPLES OF SIMILAR WORK PRODUCED.

(3) A DESCRIPTION OF A BACKUP COMPOSITION SYSTEM IN THE EVENT THE LINOTRON IS NOT IN OPERATION. IF THIS SERVICE IS PURCHASED, THE CONTRACTOR MUST SUBMIT A LETTER FROM THE SUPPLIER CERTIFYING THAT THE SERVICE WILL BE AVAILABLE ON SHORT NOTICE.

(4) OFFEROR'S ADDENDA (OPTIONAL): ANY ADDITIONAL PERTINENT DATA THE OFFEROR MAY ELECT TO PROVIDE SHOULD BE INCLUDED IN THIS SECTION.

(A) COST PER THOUSAND INPUT CHARACTERS FOR THE KEYBOARDING AND CREATION OF THE STANDARD DATA FILE. TO INCLUDE PROOFREADING AND CORRECTIONS NECESSARY TO MAKE THE FILE ACCURATE $ X 4 X 10

(B) COST PER THOUSAND INPUT CHARACTERS FOR PROCESSING PAPER TAPE PROVIDED BY NLRB TO PRODUCE THE STANDARD DATA FILE TO MAKE THE FILE ACCURATE $ X 2 X 10

(C) COST PER THOUSAND INPUT CHARACTERS TO PRODUCE THROUGH THE COMPUTER COMPOSITION PROGRAM A LINOTRON 1010 CONTROL TAPE CONTAINING FULLY MADE UP PAGES $ X 6 X 10

IT IS CLEAR FROM THE RECORD THAT PHOTOCOMPOSITION WORK WAS AN IMMEDIATE REQUIREMENT OF THE PROCUREMENT AND THAT USE OF THE GOVERNMENT PRINTING OFFICE LINOTRON 1010 SYSTEM WAS NOT POSSIBLE UNTIL SOME UNDISCLOSED TIME IN THE FUTURE. THUS, THE URGENT NEED EXPRESSED IN THE JANUARY 25 REPORT COULD ONLY BE MET THROUGH A CONTRACTOR-FURNISHED PHOTOCOMPOSITION SYSTEM.

THE SOLICITATION PRICING SCHEDULE, WHEN VIEWED IN THE LIGHT OF THE KNOWN NEEDS AND REQUIREMENTS AS EXPRESSED IN SECTIONS 1 AND 3, WAS BOTH AMBIGUOUS AND INADEQUATE TO SECURE THE NECESSARY PRICING FOR COMPETITIVE BID EVALUATION PURPOSES. IN OUR OPINION, THE SOLICITATION LACKED THE CLARITY ESSENTIAL TO EQUAL COMPETITIVE BIDDING. THIS LACK OF CLARITY GENERATED A NUMBER OF ORAL REQUESTS FOR EXPLANATIONS OF THE SOLICITATION TERMS; AND IT WAS ONLY THROUGH THESE REQUESTS THAT BIDDERS LEARNED FROM THE BOARD OF THE NECESSITY TO PRICE PHOTOCOMPOSITION WORK. WHILE MOST BIDDERS RECEIVED ORAL CLARIFICATIONS PRIOR TO BID OPENING - SINCE THE INFORMATION ADMITTEDLY WAS NECESSARY FOR THE PURPOSES OF BID PREPARATION - A FORMAL AMENDMENT SHOULD HAVE BEEN ISSUED PURSUANT TO SECTION 1-2.207(D) OF THE FEDERAL PROCUREMENT REGULATIONS. THIS SUBSECTION PROVIDES IN THIS REGARD:

(D) ANY INFORMATION GIVEN TO A PROSPECTIVE BIDDER CONCERNING AN INVITATION FOR BIDS SHALL BE FURNISHED PROMPTLY TO ALL OTHER PROSPECTIVE BIDDERS, AS AN AMENDMENT TO THE INVITATION, IF SUCH INFORMATION IS NECESSARY TO BIDDERS IN SUBMITTING BIDS ON THE INVITATION OR IF THE LACK OF SUCH INFORMATION WOULD BE PREJUDICIAL TO UNINFORMED BIDDERS. NO AWARD SHALL BE MADE ON THE INVITATION UNLESS SUCH AMENDMENT HAS BEEN ISSUED IN SUFFICIENT TIME TO PERMIT ALL PROSPECTIVE BIDDERS TO CONSIDER SUCH INFORMATION IN SUBMITTING OR MODIFYING THEIR BIDS.

WITHOUT DETAILING SPECIFIC INSTANCES OF UNCERTAINTY, IT IS CLEAR THAT PARTICIPATING BIDDERS WERE CONFUSED AS TO HOW BIDS COULD BE SUBMITTED AND REMAIN RESPONSIVE TO THE BOARD'S ADVERTISED NEEDS - WHETHER THEY WERE FOR PHOTOCOMPOSITION, A LINOTRON 1010 SYSTEM, OR A MASTER TYPOGRAPHY PROGRAM. WE CANNOT REACH A SATISFACTORY UNDERSTANDING FROM THE IFB ITSELF AS TO WHAT IT WAS THAT THE BOARD HAD SUBMITTED TO COMPETITION. THE IFB REFERRED TO PHOTOCOMPOSITION WORK AND TO A MASTER TYPOGRAPHY PROGRAM, WITHOUT EXPLAINING THE BOARD'S DESIRES WITH RESPECT THERETO AND WITHOUT PROVIDING FOR THEIR PRICE EVALUATION. NOR DO WE BELIEVE THAT THE CONTRACT ULTIMATELY AWARDED WAS IN ACCORD WITH WHAT MAY BE SAID TO CONSTITUTE A REASONABLE INTERPRETATION OF THE IFB. ACCORDINGLY, IT IS OUR VIEW THAT THE CONTRACT WITH CMI SHOULD BE TERMINATED FOR THE CONVENIENCE OF THE GOVERNMENT AND THE PROCUREMENT RESOLICITED UNDER PROPER TERMS AND CONDITIONS.

AS THIS DECISION CONTAINS A RECOMMENDATION FOR CORRECTIVE ACTION TO BE TAKEN, IT IS BEING TRANSMITTED BY LETTERS OF TODAY TO THE CONGRESSIONAL COMMITTEES NAMED IN SECTION 232 OF THE LEGISLATIVE REORGANIZATION ACT OF 1970, PUBLIC LAW 91-510. IN VIEW THEREOF, YOUR ATTENTION IS DIRECTED TO SECTION 236 OF THE ACT WHICH REQUIRES THAT YOU SUBMIT WRITTEN STATEMENTS OF THE ACTION TAKEN WITH RESPECT TO THE RECOMMENDATION. THE STATEMENTS ARE TO BE SENT TO THE HOUSE AND SENATE COMMITTEES ON GOVERNMENT OPERATIONS NOT LATER THAN 60 DAYS AFTER THE DATE OF THIS LETTER AND TO THE COMMITTEES ON APPROPRIATIONS IN CONNECTION WITH THE FIRST REQUEST FOR APPROPRIATIONS MADE BY YOUR AGENCY MORE THAN 60 DAYS AFTER THE DATE OF THIS LETTER.

WE WOULD APPRECIATE ADVICE OF WHATEVER ACTION IS TAKEN ON OUR RECOMMENDATION.