American Multi Media, Inc.--Reconsideration, B-293782.2, August 25, 2004

B-293782.2 Aug 25, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights American Multi Media, Inc. (AMI) requests that we reconsider our May 10, 2004 decision dismissing as untimely its protest of the award of a contract to Potomac Talking Books Services, Inc. (PTBS) under invitation for bids (IFB) No. S-LCO4004, issued by the Library of Congress for recording magazines on cassettes in accordance with the National Library Service for the Blind and Physically Handicapped specifications. In its protest, AMI, which initially had been awarded a contract that included the recording of Good Housekeeping magazine, complained that the agency terminated that portion of its contract in order to award the requirement to PTBS after the agency decided that in evaluating bids it had neglected to apply a 10-percent price preference for nonprofit organizations that serve the blind and physically handicapped. AMI argued that PTBS was not a nonprofit organization, and it challenged the Library's interpretation of the statutory preference and its application of the preference to PTBS's bid. On reconsideration, we reverse our prior dismissal, but we deny the merits of AMI's protest. View Decision B-293782.2, American Multi Media, Inc.--Reconsideration, August 25, 2004 Decision Matter of: American Multi Media, Inc.--Reconsideration File: B-293782.2 Date: August 25, 2004 Frederic G. Antoun, Esq. for the protester. William L. Walsh, Jr., Esq. and Amy J. McMaster, Esq., Venable LLP, for Potomac Talking Book Services, Inc., an intervenor. Emily Vartanian, Esq., Library of Congress, for the agency. Jeanne W. Isrin, Esq., and Jerold D. Cohen, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Prior decision dismissing protest as untimely because it was filed more than 10days after a telephone conversation in which the contracting officer told the protester/original awardee to stop work because consideration of whether an evaluation preference should have been applied to another bid could result in the contract going to that bidder is reversed; a firm is not required to file a defensive protest while an agency is considering action inimical to the firm's interests. 2. Where solicitation provided for 10-percent evaluation preference for nonprofit-making institutions or agencies whose activities are primarily concerned with the blind and with other physically handicapped persons, protest that awardee should not have been found eligible for the preference because it lacks federal tax-exempt status under 26U.S.C. 501(c) is denied, since the agency was not unreasonable in determining that the preference could be applied based on registration as a not-for-profit corporation under applicable state law. DECISION American Multi Media, Inc. (AMI) requests that we reconsider our May 10, 2004 decision dismissing as untimely its protest of the award of a contract to Potomac Talking Books Services, Inc. (PTBS) under invitation for bids (IFB) No. S-LCO4004, issued by the Library of Congress for recording magazines on cassettes in accordance with the National Library Service for the Blind and Physically Handicapped specifications. In its protest, AMI, which initially had been awarded a contract that included the recording of Good Housekeeping magazine, complained that the agency terminated that portion of its contract in order to award the requirement to PTBS after the agency decided that in evaluating bids it had neglected to apply a 10-percent price preference for nonprofit organizations that serve the blind and physically handicapped. AMI argued that PTBS was not a nonprofit organization, and it challenged the Library's interpretation of the statutory preference and its application of the preference to PTBS's bid. On reconsideration, we reverse our prior dismissal, but we deny the merits of AMI's protest. Based on AMI's apparent low bid and satisfactory technical rating, the firm was awarded the contract that included the recording of Good Housekeeping magazine effective December 16, 2003. After award, however, it came to the attention of contracting officials that the 10percent evaluation preference for nonprofit organizations that serve the blind and physically handicapped had not been applied to PTBS's bid, possibly erroneously, and that PTBS's bid would have been low had the preference been applied. A telephone conversation took place between AMI and the contracting officer on or about December 23; the content of that conversation is at issue here. The agency maintains that the contracting officer informed AMI that its contract would be amended to remove Good Housekeeping. Library's Rebuttal Response, Apr. 22, 2004 at exh. 1. AMI states that it was told only to stop work because the agency's consideration of the matter might result in the award going to PTBS.