TITLE: B-298011, American Printing House for the Blind, Inc., May 15, 2006
BNUMBER: B-298011
DATE: May 15, 2006
*******************************************************************
B-298011, American Printing House for the Blind, Inc., May 15, 2006
DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective
Order. This redacted version has been approved for public release.
Decision
Matter of: American Printing House for the Blind, Inc.
File: B-298011
Date: May 15, 2006
Walter L. Sales, Esq., Stoll Keenon Ogden PLLC, for the protester.
David P. Metzger, Esq., Anand V. Ramana, Esq., and David J. Craig, Esq.,
Holland & Knight LLP, for the American Foundation for the Blind; Frederic
G. Antoun, Jr., Esq., for Carolina Talking Books, Inc.; William S. Taylor,
Esq., Taylor & Rea, PLC, for Potomac Talking Book Services, Inc.; and
James H. Marlow, Esq., Hamilton and Faatz, for Talking Book Publishers,
Inc., the intervenors.
Emily Vartanian, Esq., Library of Congress, for the agency.
Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.
DIGEST
1. Under invitation for bids (IFB) for production of books on tape that
provided for multiple awards and limited the number of titles to be
awarded to an individual bidder to 500, award of a contract for less than
500 titles to a bidder, which will also be performing work on one aspect
of 1,000 additional titles as a subcontractor to two other awardees, was
not contrary to 500-title limitation.
2. Allegation that bidders falsely certified to having arrived at their
prices independently is a matter for contracting officer's consideration
in determining bidder responsibility not subject to Government
Accountability Office's review.
DECISION
American Printing House for the Blind, Inc. (APH) protests the award of
contracts for the production of books on tape to Carolina Talking Books,
Inc. (CTB), the American Foundation for the Blind (AFB), and Talking Books
Publishers, Inc. (TBP) under invitation for bids (IFB) No. 20060046,
issued by the Library of Congress. The protester contends that the IFB
provided for the award of no more than 500 titles to a bidder, but that
CTB has in effect been awarded over 1,000 titles because both AFB and TBP
are subcontracting with CTB for the cassette duplication portion of the
work on the titles awarded to them. APH further argues that none of these
three bidders--CTB, AFB, and TBP--could truthfully have certified to
having arrived at their prices independently.
We deny the protest.
The IFB, which was issued on November 30, 2005, contemplated the award of
multiple fixed-price, indefinite-quantity contracts for recording,
duplicating, packaging, and distributing books on tapes. The bid schedule
identified 10 quantity tiers (1-50 titles, 51-100 titles, and so on up to
451-500 titles), and bidders were requested to furnish a price per minute
for recording and a price per cassette for duplicating for each quantity
tier up to their maximum capacity. The IFB explained that "the standard
title" consisted of 670 minutes of narration, eight recordable compact
disks containing a narration review copy, one recordable compact disk
containing a Digital Talking Book, and 968 copies of 2.3 cassettes each,
for a total of 2,226 cassettes. IFB sect. B.2. The IFB further explained
that extended prices would be calculated by applying unit prices to the
quantities contained in the standard title, but that actual contract
prices would result "from application [of] bid prices to books assigned"
and would "depend on the length of books selected and the number of copies
of each required." IFB sect. B.3.
The IFB notified bidders that they could not enter into subcontracts
without obtaining the consent of the contracting officer and the
contracting officer's technical representative, and contained a clause
that bidders could complete to furnish notice of their intention to
subcontract.[1] The IFB also contained the standard Certificate of
Independent Price Determination (Federal Acquisition Regulation sect.
52.203-2) at sect. K.2. This section provided in relevant part as follows:
(a) The offeror certifies that:
(1) The prices in this offer have been arrived at independently,
without, for the purpose of restricting competition, any consultation,
communication, or agreement with any other offeror or competitor
relating to,
(i) Those prices;
(ii) The intention to submit an offer, or
(iii) The methods or factors used to calculate the prices offered.
(2) The prices in this offer have not been and will not be knowingly
disclosed by the offeror, directly or indirectly, to any other offeror
or competitor before bid opening (in the case of a sealed bid
solicitation) or contract award (in the case of a negotiated
solicitation) unless otherwise required by law; and
(3) No attempt has been made or will be made by the offeror to induce
any other concern to submit or not to submit an offer for the purpose
of restricting competition.
Five bidders responded to the IFB. Prices submitted were as follows:
+------------------------------------------------------------------------+
|Price per minute for narration |
|------------------------------------------------------------------------|
|# of Titles |Bidder |
| |--------------------------------------------------------|
| |AFB |APH |CTB |PTB[2] |TBP |
|---------------+-----------+----------+----------+-----------+----------|
|1-50 |$29.500 |$7.000 |$6.235 |$24.500 |$10.000 |
|---------------+-----------+----------+----------+-----------+----------|
|51-100 |$13.600 |$7.000 |$5.448 |$19.500 |$9.500 |
|---------------+-----------+----------+----------+-----------+----------|
|101-150 |$8.750 |$7.000 |$3.945 |$18.750 |$9.000 |
|---------------+-----------+----------+----------+-----------+----------|
|151-200 |$7.070 |$5.750 |$3.895 |$13.250 |$8.000 |
|---------------+-----------+----------+----------+-----------+----------|
|201-250 |$6.210 |$5.750 |$4.060 |$11.500 |$7.500 |
|---------------+-----------+----------+----------+-----------+----------|
|251-300 |$5.690 |$5.500 |$4.338 |$10.250 |$7.000 |
|---------------+-----------+----------+----------+-----------+----------|
|301-350 |$5.350 |$5.500 |$5.303 |$7.700 |$6.500 |
|---------------+-----------+----------+----------+-----------+----------|
|351-400 |$5.100 |$5.000 |$8.335 |$6.850 |$6.000 |
|---------------+-----------+----------+----------+-----------+----------|
|401-450 |$4.930 |$5.000 |$8.335 |$6.000 |$5.500 |
|---------------+-----------+----------+----------+-----------+----------|
|451-500 |$4.780 |$4.550 |$8.335 |$5.000 |$5.075 |
+------------------------------------------------------------------------+
+------------------------------------------------------------------------+
|Price per cassette for duplication |
|------------------------------------------------------------------------|
|# of Titles |Bidder |
| |--------------------------------------------------------|
| |AFB |APH |CTB |PTB |TBP |
|---------------+-----------+-----------+----------+----------+----------|
|1-50 |$0.510 |$1.250 |$0.782 |$1.500 |$0.510 |
|---------------+-----------+-----------+----------+----------+----------|
|51-100 |$0.510 |$1.250 |$0.677 |$1.500 |$0.510 |
|---------------+-----------+-----------+----------+----------+----------|
|101-150 |$0.510 |$1.250 |$0.567 |$1.400 |$0.510 |
|---------------+-----------+-----------+----------+----------+----------|
|151-200 |$0.510 |$1.200 |$0.510 |$0.950 |$0.510 |
|---------------+-----------+-----------+----------+----------+----------|
|201-250 |$0.510 |$1.200 |$0.510 |$0.550 |$0.510 |
|---------------+-----------+-----------+----------+----------+----------|
|251-300 |$0.510 |$1.200 |$0.510 |$0.550 |$0.510 |
|---------------+-----------+-----------+----------+----------+----------|
|301-350 |$0.510 |$1.200 |$0.625 |$0.550 |$0.510 |
|---------------+-----------+-----------+----------+----------+----------|
|351-400 |$0.510 |$1.150 |$0.677 |$0.550 |$0.510 |
|---------------+-----------+-----------+----------+----------+----------|
|401-450 |$0.510 |$1.100 |$0.730 |$0.550 |$0.510 |
|---------------+-----------+-----------+----------+----------+----------|
|451-500 |$0.510 |$1.000 |$0.730 |$0.550 |$0.510 |
+------------------------------------------------------------------------+
Applying the formula set out above, the agency calculated bidders' prices
per title as follows:
+------------------------------------------------------------------------+
|Price per title |
|------------------------------------------------------------------------|
|# of Titles |Bidder |
| |----------------------------------------------------------|
| |AFB |APH |CTB |PTB |TBP |
|-------------+------------+-----------+----------+-----------+----------|
|1-50 |$20,900.26 |$7,479.97 |$5,923.39 |$19,754.00 |$7,835.26 |
|-------------+------------+-----------+----------+-----------+----------|
|51-100 |$10,247.26 |$7,479.97 |$5,161.67 |$16,404.00 |$7,500.26 |
|-------------+------------+-----------+----------+-----------+----------|
|101-150 |$6,997.76 |$7,479.97 |$3,908.71 |$15,678.90 |$7,165.26 |
|-------------+------------+-----------+----------+-----------+----------|
|151-200 |$5,872.16 |$6,530.22 |$3,748.19 |$10,992.26 |$6,495.26 |
|-------------+------------+-----------+----------+-----------+----------|
|201-250 |$5,295.96 |$6,530.22 |$3,858.83 |$8,929.30 |$6,160.26 |
|-------------+------------+-----------+----------+-----------+----------|
|251-300 |$4,947.56 |$6,362.56 |$4,045.26 |$8,091.80 |$5,825.26 |
|-------------+------------+-----------+----------+-----------+----------|
|301-350 |$4,719.76 |$6,362.56 |$4,948.59 |$6,383.30 |$5,490.26 |
|-------------+------------+-----------+----------+-----------+----------|
|351-400 |$4,552.26 |$5,915.81 |$7,097.66 |$5,813.80 |$5,155.26 |
|-------------+------------+-----------+----------+-----------+----------|
|401-450 |$4,438.36 |$5,804.40 |$7,215.74 |$5,244.30 |$4,820.26 |
|-------------+------------+-----------+----------+-----------+----------|
|451-500 |$4,337.86 |$5,279.77 |$7,215.74 |$4,574.30 |$4,535.51 |
+------------------------------------------------------------------------+
Both AFB and TBP identified CTB as their subcontractor for cassette
duplication in their bids. On January 20, 2006, the agency awarded AFB a
contract for 500 titles, and on January 24, it awarded APH a contract for
44 titles, CTB a contract for 151 titles, PTB a contract for 500 titles,
and TBP a contract for 500 titles.
APH protested to our Office on February 21, arguing that because CTB (as a
subcontractor) would be performing the duplication portion of the work for
the titles awarded to AFB and TBP, it had effectively been awarded 1,150
titles, in violation of the IFB limitation of 500 titles per bidder.[3]
The protester also argued that it was clear that AFB and TBP had arrived
at their prices for cassette duplication after consultation with CTB, and
thus none of the three could truthfully have certified to having
determined their prices independently.
The protester has cited and we have found no solicitation provision or
other legal authority supporting the argument that because AFB and TBP
intend to subcontract a portion of the work awarded to them to CTB (that
is, duplication of the titles), the titles awarded to AFB and TBP should
be regarded as awarded to CTB for purposes of the 500-title cap. In this
regard, we note that the awards to be made under the IFB were for titles,
for each of which the contractor was responsible for providing both
narration and duplication, and there was nothing in the IFB that precluded
subcontracting.
Moreover, while the parties disagree as to the purpose of the 500-title
cap, with the agency maintaining that it was intended "to ensure that
contractors not take on work greater than their capacity to complete the
work, thus jeopardizing [the agency's] ability to provide books on tape to
its blind and physically handicapped patrons," Agency Memorandum of Law at
4, and the protester contending that the cap's purpose was to ensure that
too large a percentage of the work not go to a particular bidder or
bidders so that multiple bidders would remain interested in competing, we
do not think CTB's combined workload, as a contractor to the Library of
Congress and as a subcontractor to AFB and TBP, is inconsistent with
either purpose. To the extent that the cap was intended to protect against
an award exceeding an individual bidder's production capacity, the agency
reports that CTB's capacity for cassette production is [deleted] per
year, which exceeds by a substantial margin the number of cassettes that
it will be producing as a prime contractor and as a subcontractor under
the contracts at issue here. On the other hand, to the extent that the cap
was intended to ensure that too large a percentage of the contract value
not be awarded to a single bidder, even when the work that CTB will be
performing as a subcontractor is added to the work that it will be
performing as a contractor, the total dollar value of the work that it
will be performing is less than the dollar value of 500 titles. In this
regard, the cassette duplication work accounts for only approximately a
quarter of either AFB's or TBP's price for a standard title.[4] When a
quarter of AFB's price for 500 titles (representing the work to be
subcontracted to CTB by AFB) is added to a quarter of TBP's price for 500
titles (representing the work to be subcontracted to CTB by TBP), and that
sum is then added to CTB's total price for 151 titles (the number of
titles awarded to CTB directly), the result is still less than any
bidder's total price for 500 titles. In other words, CTB is not getting an
unduly large share of the overall work.
Regarding the protester's contention that it is clear from the fact that
AFB and TBP bid the same price for tape duplication that they both
consulted with CTB regarding their pricing for this portion of the work,
and that their certifications that they arrived at their prices
independently must therefore be false, such an allegation is not for
consideration by our Office, but, rather, is a matter for the contracting
officer to consider in determining bidder responsibility. U-Liners
Contracting Co., Inc., B-245179.2, Oct. 24, 1991, 91-2 CPD para. 370 at
1-2. We will review an affirmative determination of responsibility--as was
made by the contracting officer with regard to the bidders in
question--only where it is alleged that definitive responsibility criteria
in the solicitation were not met or evidence is identified that raises
serious doubts that, in reaching a particular responsibility
determination, the contracting officer unreasonably failed to consider
available relevant evidence or otherwise violated statute or regulation.
Bid Protest Regulations, 4 C.F.R. sect. 21.5(c) (2006); Government
Contracts Consultants, B-294335, Sept. 22, 2004, 2004 CPD para. 202 at 2.
There is no allegation here that definitive responsibility criteria were
not met, nor is there any evidence that the contracting officer
unreasonably failed to consider relevant information or otherwise violated
statute or regulation in determining AFB, TBP, or CTB responsible.[5]
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] This clause, IFB sect. K.16, required the bidder to identify "the
nature of the work to be subcontracted" and the name and address of the
proposed subcontractor.
[2] Potomac Talking Book Services, Inc.
[3] Pursuant to the protester's theory, the number of titles effectively
awarded to CTB should actually be 1,151.
[4] Since a standard title consists of 670 minutes of narration and 2,226
cassettes, AFB's price for the narration portion of the work was $3,202.60
($4.780 * 670) and its price for the duplication portion of the work was
$1,135.26 ($.51 x 2,226). Similarly, TBP's price for the narration work
was $3,400.25 ($5.075 x 670) and its price for the duplication work was
$1,135.26.
[5] We also agree with the agency that, in any event, there is no evidence
of collusion among the bidders here. While it is true that CTB knew the
price at which it had offered to perform the duplication work for AFB and
TBP, there is no evidence that it knew that the other bidders would quote
that precise price, without any mark-up or mark-down, in their bids. There
is also no evidence that the other bidders knew the prices that CTB would
bid for the duplication services, or that any of the three communicated
with any other of the three with regard to the prices that it intended to
offer for narration. Moreover, while it is also true that CTB may have had
information that the protester did not have regarding the intention of AFB
and TBP, which had apparently bid jointly in the past, to submit separate
bids, there is no evidence that any information regarding the intention to
submit separate bids was conveyed for the purpose of restricting
competition. See FAR sect. 52.203-2(a)(1).