TITLE: B-298011, American Printing House for the Blind, Inc., May 15, 2006
BNUMBER: B-298011
DATE: May 15, 2006
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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).