B-120328, JUNE 25, 1954, 33 COMP. GEN. 606

B-120328, JUNE 25, 1954, 33 COMP. GEN. 606

BIDS - EVALUATION - STENOGRAPHIC REPORTING SERVICES - PRICES CHARGED GENERAL PUBLIC BIDS TO FURNISH STENOGRAPHIC REPORTING SERVICES, WHICH ARE RECEIVED IN RESPONSE TO AN INVITATION WHICH PROVIDES THAT EVALUATION OF CHARGES TO BE MADE THE GENERAL PUBLIC FOR COPIES OF TRANSCRIPTS WILL BE BASED ON THE TOTAL COST TO THE PUBLIC FOR ORDINARY, DAILY, AND IMMEDIATE COPY, MAY NOT BE EVALUATED ON THE BASIS OF SPECIAL CONSIDERATION OF THE COST TO THE PUBLIC OF ORDINARY COPY IN THE ABSENCE OF ANY INDICATION IN THE INVITATION THAT THE COST OF ORDINARY COPY WOULD BE GIVEN GREATER CONSIDERATION THAN THAT AFFORDED THE OTHER CLASSES OF COPY.

ACTING COMPTROLLER GENERAL WEITZEL TO CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION, JUNE 25, 954:

REFERENCE IS MADE TO YOUR LETTER, RECEIVED JUNE 16, 1954, RELATIVE TO THE PROTEST OF HOWARD B. SMITH IN CONNECTION WITH THE AWARD OF A CONTRACT PURSUANT TO BIDS OPENED ON JUNE 2, 1954, FOR REPORTING HEARINGS BEFORE YOUR COMMISSION DURING THE COMING FISCAL YEAR. THE PROTEST IS AGAINST ANY EVALUATION OF CHARGES TO BE MADE THE PUBLIC FOR COPIES OF TRANSCRIPTS WHICH DOES NOT APPLY THE BIDDERS' PRICES FOR "ORDINARY," "DAILY" AND "IMMEDIATE" COPY, IN WASHINGTON AND ELSEWHERE, TO THE NUMBER OF EACH CLASS OF COPY SOLD DURING THE PAST 10 OR 11 MONTHS.

YOUR LETTER FURNISHES A TABULATION OF THE THREE BIDS OFFERING THE LOWEST PRICES TO THE PUBLIC FOR TRANSCRIPTS WHICH APPLIES THAT METHOD OF EVALUATION BUT IS BASED UPON THE NUMBER OF PAGES SOLD DURING THE FISCAL YEAR 1953 AND THE FIRST NINE MONTHS OF THE FISCAL YEAR 1954. AS STATED IN THE LETTER, THE RESULTS SHOW THAT THE TOTAL COST TO THE PUBLIC OF PURCHASING STENOGRAPHIC REPORTS OF THE COMMISSION'S HEARINGS WOULD BE LESS IF THE CONTRACT IS AWARDED TO MR. SMITH. HOWEVER, YOUR LETTER STATES:

* * * HOWEVER, IT IS ALSO EVIDENT THAT THE PUBLIC WOULD HAVE TO PAY SUBSTANTIALLY MORE FOR ORDINARY COPY IF THE CONTRACT IS AWARDED TO EITHER SMITH OR COLUMBIA. IT IS THE COMMISSION'S OPINION THAT THE PRICE OF ORDINARY COPY TO THE PUBLIC DESERVES SPECIAL CONSIDERATION IN AWARDING THE REPORTING CONTRACT, SINCE THAT IS THE LOWEST PRICE AT WHICH A PERSON WHO REQUIRES A COPY OF A TRANSCRIPT CAN PURCHASE ONE. DAILY AND IMMEDIATE COPY ARE IN THE NATURE OF AN ADDED CONVENIENCE, AND IT IS BELIEVED TO BE MORE IMPORTANT TO PROVIDE A LOW PRICE FOR THOSE WHO WISH THE ADDED CONVENIENCE OF DAILY OR IMMEDIATE COPY. MOREOVER, IF THE CONTRACT IS AWARDED TO SMITH, THE LOWEST OVER-ALL BIDDER, THE COST TO THE PUBLIC FOR ORDINARY COPY WOULD BE OVER 60 PERCENT MORE THAN IF THE CONTRACT IS AWARDED TO ELECTREPORTER. ON THE OTHER HAND, THE PUBLIC WOULD ONLY HAVE TO PAY APPROXIMATELY ONE-THIRD MORE FOR DAILY COPY IF THE CONTRACT IS AWARDED TO ELECTREPORTER RATHER THAN TO SMITH. IN ADDITION, THE OVER-ALL SAVING TO THE PUBLIC, IF THE CONTRACT IS AWARDED TO SMITH RATHER THAN TO ELECTREPORTER, WOULD BE PROPORTIONATELY VERY SMALL.

YOU REQUEST THE DECISION OF THIS OFFICE AS TO WHETHER AN AWARD TO ELECTREPORTER WOULD BE CONSIDERED PROPER AND CONSISTENT WITH THE CONTRACT POLICIES OF THE GOVERNMENT.

THE ATTACHMENT TO THE INVITATION ENTITLED," FOR THE INFORMATION OF BIDDERS," EMPHASIZES THAT BIDS OFFERING A BONUS TO THE GOVERNMENT FOR AWARD OF THE CONTRACT WILL NOT BE CONSIDERED. WITH EQUAL EMPHASIS, PARAGRAPH 14 THEREOF PROVIDES:

EACH " PROPOSAL" (BID) SHALL SET FORTH THE MAXIMUM CHARGES AT WHICH THE REPORTING COMPANY PROPOSES TO SUPPLY ORDINARY, DAILY OR IMMEDIATE COPY OF TRANSCRIPTS AS DEFINED IN THE ATTACHED PROPOSAL, TO OTHERS THAN THE COMMISSION. IN AWARDING THE CONTRACT ALL BIDS WILL BE EVALUATED ON THE BASIS OF SAID PROPOSED CHARGES TOGETHER WITH OTHER PERTINENT FACTORS.

NOTHING IN THAT PROVISION, NOR ELSEWHERE IN THE INVITATION, CAN BE CONSTRUED AS INDICATING TO PROSPECTIVE BIDDERS THAT ORDINARY COPY WILL BE GIVEN ANY GREATER CONSIDERATION THAN OTHER CLASSES OF COPY. IN VIEW THEREOF, THE ONLY REASONABLE CONSTRUCTION OF THAT PROVISION IS THAT THE TOTAL OF THE COSTS TO THE PUBLIC WAS THE BASIS OF EVALUATION PRESCRIBED. TO CHANGE THE BASIS OF EVALUATION FROM THAT ADVERTISED AFTER THE OPENING OF SEALED BIDS WOULD BE PREJUDICIAL TO THE RIGHTS OF BIDDERS. THAT WOULD BE TANTAMOUNT TO CHANGING THE RULES OF THE GAME AFTER THE OPENING WHISTLE. IF THE PRICE OF ORDINARY COPY WAS REGARDED AS SO CONTROLLING A FACTOR TO BE CONSIDERED IN MAKING THE AWARD AS YOU NOW INDICATE, ALL BIDDERS SHOULD HAVE BEEN MADE AWARE OF THAT FACT IN THE INVITATION.

ACCORDINGLY, IT MUST BE CONCLUDED THAT TO AWARD THE CONTRACT UPON ANY BASIS OF EVALUATION DIFFERING FROM THAT CONTAINED IN THE INVITATION WOULD NOT BE CONSISTENT WITH PROPER PROCEDURES FOR AWARDING CONTRACTS PURSUANT TO ADVERTISED SPECIFICATIONS AND SEALED BIDS.