B-147013, SEP. 21, 1961

B-147013, SEP. 21, 1961

TO CHARLES M. NOONE, ESQUIRE:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 22, 1961, PROTESTING AS ATTORNEY FOR THE TABULATING CARD COMPANY, PRINCETON, NEW JERSEY, ANY AWARD UNDER INVITATION FOR BIDS NO. 1 (FY-62), ISSUED BY INTERNAL REVENUE SERVICE, TREASURY DEPARTMENT, ON AUGUST 9, 1961.

THE RECORD SHOWS THAT, IN CONNECTION WITH THE PROPOSED PROCUREMENT F.O.B. DESTINATION OF 75 MILLION TABULATING CARDS, DUAL COLOR PRINTING AND SHIPPED ON WOODEN SKIDS, THE INTERNAL REVENUE SERVICE REQUESTED AND OBTAINED GOVERNMENT PRINTING OFFICE WAIVER NO. 68258, DATED JULY 25, 1961, AUTHORIZING THE DIRECT COMMERCIAL PROCUREMENT OF THE TABULATING CARDS. THE ISSUANCE BY INTERNAL REVENUE SERVICE OF INVITATION FOR BIDS NO. 1, PURSUANT TO THAT AUTHORIZATION, AND ANY AWARD THEREUNDER IS PROTESTED ON THE GROUND, IN SUBSTANCE, THAT THE TABULATING CARDS SHOULD BE PROCURED UNDER THE TERM CONTRACT FOR SUCH SUPPLIES PREVIOUSLY ENTERED INTO BY THE PUBLIC PRINTER. WHILE INVITATION FOR BIDS NO. 1 WAS SUBSEQUENTLY CANCELLED AND REPLACED BY INVITATION FOR BIDS NO. 1 A, SINCE THE ONLY MATERIAL DIFFERENCE BETWEEN THE TWO INVITATIONS WAS THE DELETION IN THE LATTER INVITATION OF THE REQUIREMENT FOR DUAL PRINTING, IT IS ASSUMED THAT, FOR THE SAME REASONS ASSIGNED WITH RESPECT TO THE ORIGINAL INVITATION, YOU ARE PROTESTING THE ISSUANCE OF THE REPLACEMENT INVITATION AND YOUR LETTER WILL BE SO CONSIDERED.

THE TERM CONTRACT REFERRED TO BY YOU COVERS A MULTIPLE AWARD TO 14 FIRMS, INCLUDING THE TABULATING CARD COMPANY, BY THE PUBLIC PRINTER, IN ACCORDANCE WITH AUTHORITY GRANTED BY THE JOINT COMMITTEE ON PRINTING, FOR THE FURNISHING OF THE REQUIREMENTS OF THE GOVERNMENT FOR TABULATING CARDS DURING THE 6-MONTH PERIOD FROM JULY 1, 1961, TO DECEMBER 31, 1961. UNDER THE ACT OF MARCH 1, 1919, AS AMENDED, 44 U.S.C. 111, THE USE OF THIS TERM CONTRACT BY GOVERNMENT AGENCIES FOR PROCURING THE SUPPLIES LISTED THEREIN IS MANDATORY, UNLESS A CLEARANCE IS OBTAINED FROM THE PUBLIC PRINTER FOR PROCUREMENT FROM OTHER SOURCES, AS AUTHORIZED BY THE ACT OF JULY 8, 1935, AS AMENDED, 44 U.S.C. 14. THAT AN EXCEPTION MAY BE AUTHORIZED BY THE PUBLIC PRINTER TO THE OTHERWISE MANDATORY USE OF THE CONTRACT IS COVERED THEREIN UNDER THE HEADING,"INSTRUCTIONS TO USING NCIES," WHEREIN IT IS PROVIDED THAT "WHEN SPECIAL ITEMS OF DEPARTMENTAL PRINTING NOT COVERED BY THE CONTRACTS ARE REQUIRED, PRINTING AND BINDING REQUISITIONS MUST BE PRESENTED TO THE PUBLIC PRINTER.' FURTHER, WITH RESPECT TO ANY ITEMS OR FEATURES REQUIRED BY GOVERNMENT AGENCIES AND NOT COVERED BY THE CONTRACT, IT IS SPECIFICALLY PROVIDED THEREIN UNDER PARAGRAPH 5.2 OF THE "GENERAL TERMS AND CONDITIONS" THAT "NEGOTIATION FOR ITEMS OR FEATURES NOT PROVIDED HEREIN IS PROHIBITED.'

THE RECORD SHOWS THAT, IN CONFORMANCE WITH THE FOREGOING TERMS OF THE CONTRACT AND APPLICABLE LAW, THE INTERNAL REVENUE SERVICE, HAVING ESTABLISHED A REQUIREMENT THAT ITS ORDER FOR TABULATING CARDS BE SHIPPED ON SKIDS, A FEATURE WHICH YOU ADMIT IS NOT PROVIDED FOR IN THE TERM CONTRACT, SUBMITTED ITS REQUISITION TO THE PUBLIC PRINTER. THE WAIVER GRANTED BY THE PUBLIC PRINTER, ON THE BASIS OF THAT REQUIREMENT, PROVIDES THAT---

"THIS WAIVER NOT APPLICABLE TO OR VALID FOR ANY ITEM WHICH CAN BE ORDERED UNDER THE TERM CONTRACTS MADE AND DISTRIBUTED BY THE PUBLIC PRINTER UNDER THE APPROVAL OF THE JOINT COMMITTEE ON PRINTING.'

IN SUPPORT OF YOUR OPINION THAT THE INVITATION ISSUED BY INTERNAL REVENUE SERVICE IS ILLEGAL, YOU INVITE ATTENTION TO THE FACT THAT, WHILE THE WAIVER PROVIDES THAT IT IS NOT VALID FOR ANY ITEM WHICH CAN BE ORDERED UNDER THE TERM CONTRACT, THE INVITATION CALLS FOR PRICES ON TABULATING CARDS, AN ITEM COVERED BY THE TERM CONTRACT, AND THE BIDS RECEIVED IN RESPONSE THERETO WILL BE EVALUATED TAKING INTO ACCOUNT THE PRICES QUOTED ON TABULATING CARDS.

WHILE TABULATING CARDS ARE COVERED BY THE TERM CONTRACT, THE SHIPMENT OF THESE CARDS ON WOODEN SKIDS, AS REQUIRED BY INTERNAL REVENUE SERVICE, IS NOT COVERED BY THE CONTRACT AND, IN FACT, WAS THE BASIS FOR THE EXERCISE BY THE PUBLIC PRINTER OF HIS DISCRETIONARY AUTHORITY TO GRANT A WAIVER FOR THE DIRECT COMMERCIAL PROCUREMENT OF THE CARDS. THE DETERMINATION OF THE ACTUAL NEEDS OF THE GOVERNMENT IS PRIMARILY AN ADMINISTRATIVE RESPONSIBILITY AND IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE OF IMPROPRIETY WILL NOT BE QUESTIONED BY THIS OFFICE. BASED ON THE ADMINISTRATIVE REPORT IN THE INSTANT CASE THAT THE REQUIREMENT FOR SHIPPING THE TABULATING CARDS ON WOODEN SKIDS WAS TO FACILITATE THE HANDLING THEREOF AND THAT ALL QUALIFIED BIDDERS, INCLUDING THE TABULATING CARD COMPANY, HAVE HAD AN OPPORTUNITY TO SUBMIT QUOTATIONS UNDER THE COVERING INVITATION, WE PERCEIVE NO LEGAL BASIS FOR QUESTIONING THE ADMINISTRATIVE ACTION.