ML20236C203
| ML20236C203 | |
| Person / Time | |
|---|---|
| Issue date: | 05/17/1984 |
| From: | Norry P NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Efros S, Wotherspoon W GENERAL ACCOUNTING OFFICE |
| Shared Package | |
| ML20236B994 | List:
|
| References | |
| FOIA-85-675 NUDOCS 8707290370 | |
| Download: ML20236C203 (17) | |
Text
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'o UNITED STATES N
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.,LE AR REGULATORY COMMISSIO.
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May 17, 1984 Seymour Efros, Esquire Associate General Counsel Office of the General Counsel United States General Accounting Office Washington, DC 20548
' Attention:
Bid Protest Control Unit William A. Wotherspoon, Esquire Re:
B-214586 - Tayloe Associates' Bid Protest Re: U.S. Nuclear Regulatory Commission IFB No. SECY-84-327-
" Stenographic Reporting Services 3
i Washington, DC Metropolitan Area
Dear Mr. Efros:
Tayloe Associates (Tayloe) filed a protest with respect to the above IFB by letter dated March 7,1984. The protest alleged that the requirement for floppy disks. and the 20-day acceptance period were unduly restrictive of competition.
NRC's report to GA0 dated April 12, 1984, responded to those allegations ~ arid' raised the issue of timeliness.
Tayloe's letter commenting on NRC's Report was dated April 26, 1984.
The following rebuttal to i
Tayloe's letter commenting on NRC's report dated April 12, 1984, assumes the reader is familiar with the Protest, Report and comments.
Timeliness Tayloe's letter to NRC's Contract Negotiator. dated February 8,1984 (Exhibit A to Tayloe's protest), stated the IBM Displaywriter requirement should be deleted, that the 20-day acceptance period is too long, and that the 8-day provision should be continued.
Item 9 of Exhibit A pr.esented arguments in support of Tayloe's position that the requirement should be deleted.
Items 11 and 12 of Exhibit A did not ask questions.but again presented arguments in support of Tayloe's position. The agency action on February 13,.1984, (Exhibit C, p. '25), was prejudicial to those positions' and clearly constituted " adverse agency action" under 4 C.F.R. 621.0(b).
Tayloe also addressed its concerns to SBA about these contract requirerrents-and apparently hoped SBA would receive an affirmative response from NRC l
N although Tayloe did not.
Tayloe's decision to wait until SBA heard from NRC did not extend the time limit which started to' run from February 13th when
\\ N ayloe learned of the adverse agency action.
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Tayloe implies NRC had an obligation to disclose its dealings with SBA to i
Tayloe. Ilhile Tayloe may have informed SBA of its concerns and SBA may have adopted them as its own, NRC neither was asked by SBA to keep Tayloe informed l
nor had any obligation to make any disclosure to Tayloe concerning its dealings with SBA.
Floppy Disk Requirements It is clear from Tayloe's protest dated March 7,1984, that NRC's requirement for floppy disks has not been understood by Tayloe.
The areas of misunder-standing have.been with respect to (1) NRC's need for floppy disks, (2) the j
purposes for which such disks will be used, (3) the reason the requirements
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of IFB SECY 84-327 differed from the requirements of IFB ASB-84-352, and (4) the nature of the floppy disk required by IFB SECY 84-327. These areas i
of misunderstanding are discussed in order.
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l (1)
NRC's Need From the time the Government in the Sunshine Act became law in March 1977, the Nuclear Regulatory Comission has required that most of its meetings be transcribed. Since that time, HRC has accumulated transcripts of Commission i
meetings at the rate of I Lout 200 per year.
These 1400 or so transcripts 1
i utilize approximately 10 linear feet of shelf space in the Offico of the Secretary -(SECY).
AltNbu h t e transcripts of Comission meetings are made solcly for infonnational purposes a'd expressions of opinion in them do not necessarily reflect final determinations or beliefs, they have become very useful sources for research for Commissioner and staff offices.
As valuable as they are, manual research in these documents is often time-consuming and laborious because of the sheer volume and numbers of transcripts to be searched.
With greater expansion of the size and responsibility of the Regional l
Offices, the regional staff has become more directly involved in Commission meetings and has develcped a greater need to know and understand the Comission's views on subjects of vital importance to the regions.
With l
increasing frequency, Regional Administrators and their staffs attend the i
meetings and participate directly in Comission discussions, at other times, L
through telephone conferencing, regional staffs are available to assist in l
meeting deliberations by phone.
At present, transcripts of these meetings i
are transmitted to the Regions (King of Prussia, Atlanta, Chicago, Dallas l
and San Francisco).
l As provided in the stenographic reporting contract, the Comission in its discretion may prepare transcripts of meetings not covered by the I
contractor. Over the past 8-10 months, SECY has been preparing such transcripts on IBM word processing equipment available in the office and i
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recorded on floppy disks.
During the several months prior to finalizing its requirement for ]FB SECY-84-327, SECY utilized both the word search'and the communications capabilities of this equipment in connection with meeting transcripts.
It found the word search feature to be an extremely valuable tool for quickly locating specific statements by specific individuals throughout a transcript. Tine savings over the otherwise laborious manual searches have been so significant that SECY has been exploring cost effective methods for converting the prior year's hard copy transcripts to the IBM disks.
It was also determined that the communication feature of the equipment permitted SECY to " send" the transcripts literally on a real time J
basis to standard NRC office equipment throughout our Headquarters Offices in the Bethesda - Silver Spring area and to the Regional Offices.
Based upon the experience with the NRC produced transcripts on floppy disks, it is clear that significant cost savings will accrue from having all future Commission meeting transcripts in disk form.
The savings are primarily in the following areas.
A.
Research - there will be important savings in professional staff resources now being utilized for time-consuming manual searches; searches will be more accurate; and there will be greater assurance that searched-for items will be found during multi-j transcript reviews.
B.
- edification of NRC Staff - there will be significant savings of time in the electronic transmission of transcripts between NRC's 10 Headquarters building locations and to the five Regions.
C.
Storace Space - shelf space for future transcripts in the Office of the Secretary alone could be reduced by 95%.
(2)
Purposes For Floppy Disks At the pre-bid conference Tayloe asked, "Does NRC intend to make rag tapes from the floppy disks? If not, what is their intended use?" NRC answered, "Yes."
The question was correctly answered.
Tayloe has incorrectly assumed from the answer that NRC intended only to make magnetic tapes from the floppy disks.
NRC has shown that it has a legitimate need for floppy disks in their own right.
This being so, Tayloe's question regarding what uses might be made of floppy disks was irrelevant.
The IFB as written properly reflected NRC's needs.
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(3) Different Requirements Tayloe contends that since the in-town procurement requires floppy disks and the out-of-town procurement does not, the former is unduly restrictive.
That is not so.
The two IFBs reflect the different needs of two different activities in NRC.
The Atomic Safety and Licensing Board (ASLB) intends to convert approximately 2,000 pages from the floppy disks to 9 track magnetic tapes, which ASLB requires for input to an on-line data base system for legal research. The Commission intends to use the remainder of the floppy disks for word search purposes and to communicate with NRC's five Regional Offices.
Most of ASLB's reporting requirements occur in the vicinity of nuclear power' reactors outside the Washington Metropolitan Area.
Those requirements are contained in IFB-ASB-84-352 which specifies 9 track magnetic tape as the desired media.
It was estimated that ASLB would require 2,000 pages of testimony to be reported under IFB SECY-84-327 and it was determined that it would be less burdensome to the small business community to require that the entire 17,000 pages be furnished on ' floppy disks than that the 17,000 pages be furnished in two different media.
(4) Nature of Floppy Disks i
Tayloe repeatedly refers to " IBM fl,oppy disks."
IFB SECY-84-327 has no such requirement.
It requires floppy disks (whether produced on IBM, Wang, Xerox, or other equipment) which are compatible with and can be successfully read and processed on an IBM Displaywriter. Tayloe quoted f rom Exhibit 8 of NRC's report and pointed out that Mr. Barry did not provide any facts supporting his suggestion that compatible disks can be produced on other word processors.
Such facts are set forth in the affidavit of James A. Shields which is attsched as Exhibit 1.
Tayloe states the Riley affidavit ~makes clear that the sof tware format for the Displaywriter is held proprietary by IBM.
In fact, the IBM proprietary media is inserted in the lef t-hand slot of the " toaster" part of the Displaywriter.
Any compatible diskette may be inserted in the right-hand slot.
The left slot media contains the instructions to the operating system, the right slot contains the transcription which the reporting service has furnished on a floppy disk.
IFB-SECY-84-327 does not require the contractor to furnish floppy disks for the left slot.
Tayloe has challenged the requirement for floppy disks as unduly restrictive of competition.
It has not shown, however, that the requirement is re'strictive of competition, much less that it is unduly restrictive.
Seven small businesses, including Tayloe, responded to the solicitation.
Tayloe has assumed that to produce floppy disks that are compatible with the IBM Displaywriter which the IFB specifies, it is necessary that the disks be produced on IBM equipment. The IFB avoided such a requirement in order to encourage competition among small businesses.
Choices available to offerors have been (1) to use IBM equipment which any might have, (2) to acquire new i
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. l or used IBM equipment by lease or purchase, (3) to subcontract with a company to produce floppy disks from the offeror's hard copy or word processing system, or (4) to adapt such other equipment to their word processing system as may be necessary to produce floppy disks.
Bidders price variances for l
floppy disks can more accurately be ascribed to the alternatives which are I
available to them to meet the requirement, rather than to confusion in the ma rketplace.
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OMB Circular A-76 l
Tayloe contends that the floppy disk requirement should be deleted and i
either performed in-house under OMB Circular A-76, or contracted out to l
firms that provide computer or word processing services.
The Comptroller General has repeatedly declined to render decisions concerning the propriety of an agency's determination under A-76 to contract out instead of performing work in-house.
These determinations are regarded as beyond the scope of its bid protest decision function because the provisions of A-76 are matters of executive branch policy.
National Assn of Government Employees, l.ocal R5-87, B-212735.2, Dec. 29,1983.
Tayloe contends that NRC, under OMB Circular A-76, should prepare the floppy disks and not impose the requirement on court reporting fims. Ci rcular A-76, however, by its terms does r.ot create any substantive or procedural I
basis for Tayloe to challenge NRC's decision to require the contractor under IFB SECY-84-327 to furnish floppy disks.
See OMb Circular A-76, para.
7(c)8.
In the alternative, Tayloe contends NRC should contract with firms that provide computer or word processing services to produce the floppy disks.
By including the floppy disk requirement in the reporting services solicitation one contractor will be responsible for meeting the delivery requi rements. Thus NRC's decision to package the activities for maximum efficiency was made in accordance with OMB Circular A-76, Supplement, Part I, Ch.1, Sec. C(1)d.
Acceptance Period Tayloe's argument in opposition to NRC's basic position is speculative:
it assumes the contractor each month will offer discounts on an individual invoice basis.
The fact that the contract provides that discounts may be offered on individual invoices does not mean either that the contractor to whom award is made will offer such discounts, or that NRC can or will accept the discount offer by paying within the specified period.
Tayloe incorrectly states NRC "has a general policy of taking advantage of all quick payment discounts."
In fact, before NRC can take advantage of a cash discount offer, the discount terms must yield an effective annual interest rate equal to, or greater than, the percentage rate based on the current value of funds to the U.S. Treasury when such terms are applied in a conversion formula which is explained in 1 Treasury Fiscal Requirements Manual 68040.30, a copy of which is attached as Exhibit 2.
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Conclusion The protest should be dismissed on the ground.it was not. filed in a timely-manner.
If it is not dismissed as untimely, it should be denied on the ground the requirements which Tayloe protested were not unduly restrictive i
of competition and did not discriminate against small businesses.
Sincerely, k
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P r cia G. Norry, Director.
Office of Administration Attachments:
Exhibit 1.
Affidavit of James A. Shields 2.
1 Treas. Fiscal Reg. Man 58040.30 cc w/attachr.1ents):
Joseph Gallo Esq.
Counsel for Tayloe Associates,
l Verl Zanders, SBA SKS Group 1:td.
Xecutive't'ourt Reporters 4
Free State Reporting, Inc.
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l AFFIDAVIT OF JAMES A. SHIELDS STATE OF MARYLAND
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COUNTY OF MONTGOMERY
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I, JAMES A. SHIELDS, being first duly sworn, do hereby depose and state:.
1.
I am employed as Chief of the Systems Support Branch Office of Resource Management, United States Nuclear Regulatory Commission, and have been so employed since April,1982.
From April,1980, to' April,1982, I was Chief of the Scientific Programmi.ng/ Terminal Operations Branch; From March, 1975 to April,1980, I was employed by NRC as a Scientific Programmer.
From July,1970, to March,1975, I 'was employed by the U.S. Department of Defense, Fort George G. Meade, Maryland, as a Scientific Programmer.
2.
As Chief of the Systems Support Branch I manage a staff of 20 computer specialists who provide automatic data processing and office automation services for the NRC.
My educational credits include a Master of Science Degree from the University of Maryland (1975) and a Phi Bets Kappa l
award.
In August,1974, I was certified as a Computer Systems Analyst-by l
l the Data Systems Career Panel. -
I EXHIBIT 1 to NRC letter 5/17/84, B-214586 9
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2-o 3.
I amYamiliar with (1) IF8 SECY-84-327 and subparagraph K of its 1
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specifications relating to floppy disks, (2) the Protest dated March 7, 1984, which was filed by Tayloe Associates concerning the floppy disk requirement, and (3) the Memorandum for Edward L. Halman, Director, Division i
of Contracts, from Learned H. Barry, Director, Office of Research l
Kanagement, dated March 28, 1984, a copy of which was attached as Exhibit 8 to NRC's report dated April 12, 1984.
In fact, I prepared such Memorandum for Mr. Barry's signature, since he is the Director of the Office and Mr.
1 Ra1 man's inquiry was directed to him.
I 4.
Tayloe stated in its comments dated April 26, 1984 that Mr. Barry did not provide any facts supporting his suggestion that compatible disks can be produced on other word processors.
The facts supporting that suggestion'are as follows:
A.
NRC has for some time had a contract under which International i
Research and Information Systems (IRIS) of Fairfax, Virginia furnishes floppy disks which are compatible with the IBM Displaywriter which is i
l involved in the Tayloe protest (compatible floppy disks).
Steve. Greenberg l
of that company has stated IRIS developed its own hardware and software to convert the floppy disks from the computer tape which it receives.
It does not use IBM equipment for that purpose.
B.
Other firms which, in the trade, are 'known as " conversion houses" are:
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OCR Incorporated, Restos., VA l
Interface Conversion Services, Falls Church, VA Tele / Disk Publishing, Annandale, VA' Impact Conrnunications, Springfield, VA i
Datascan, Los Angeles, CA C.
Circulars from Interface Conversion Services and Datascan are attached hereto.
It appears from these attachments that both firms have the 4
capability of prnducing compatible floppy disks without an IBM Di splaywriter. Datascan, however, does not have an'. office in the Washington Metropolitan Area' so it might have a slower turnaround.
D.
OCR Incorporated has an Optical Character Reader through which hard i
copy is read. fir. Roberts of OCR advised that if-a reporting service has any type of word processing equipment,' floppy disks that are compatible with l
l-an IBM Displaywriter can be produced by DCR.
E.
Impact Communications (Itrs. Leach) advised it can produce compatible floppy disks from about any word processing system and that, at last count, it had made such conversions from 43 different systems.
F.
I have been informed that Tele / Disk Publishing.made arrangements.to furnish compatible floppy disks to SKS Group, limited, and I have not contacted them.
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By referring to. compatible floppy disks 1. do not imply that if a I
reporting services firm has floppy disks produced for it by any conversion house named herein they will comply with* the requirements of I
IFB-SECY-84-327.
Whether the deliverables under such contract comply with'
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its terms is a question which can only be determined by the Contracting l'!
Officer or her designee.
e ES A. SHIELDS SUBSCRIBED and sworn to before me i
th(s' \\Tday of tiay,1984.
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FOR CUIDANCE OF DE TTMENIS AND ACENCIES 1
including progress and final payments, will be The conversion formula, with example, to '
f: l paid when due. Accounting systems will be de-convert sales discount terms to an effective annu-l signed to facilitate an agency's financial respon-al interest rate which will be used as a compari-sibilities and ensific the necessary degree of son against the percentage rate based on the control over the timely payment ofinvoices and current value of funds to Treasury,is ai follows:
the taking of appropriate discounts. When agen-cies take discounts after the expiration of the dis.
Conversion Formula count period or fail to make tim:ly payment.
interest penalities will be paid according to the Discount %
Days in Year Prompt Payment Act' of 1982 (Pu'blic Law x
97-177) and OMB impicmenting instructions in 100% minus Number of Number of Circular A-125.
Discount %
Days in ;
Days in
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Payment Discount.
l Period Period 8040.20-Timeliness of Disbursements. An agen-cy's payment system must be designed to provide for scheduling the issuing and mailing of checks
- Effective Annu9.1 Interest Rate l
for receipt by the payee as close as administratively possibic to but no later than the Examole ror Anotication of Conversion j
duc date in the invoice, contract, or other agree.
Formula
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ment. lf no due date is specified, the duc date will i
be considered to be on the thirtieth (30) day from Discount Terms:
1/2% (.005) in 10 days, i
the date of receipt of the invoice or acceptance net 30 days of the goods or services and payment will bc made as close as possible to, but no later than
.005 360 that (ale. Payments must not be made on in-
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.005 30 - 10 services by an agency or its duly authorized agent.except as specifically provided by contract,
Based upon this example, if the percentage rate or other agreemerct executed according to law.
based on the current value of funds to the Trea-I sury is 9%, the offered discount should be taken.
E040.30~ Cash Discounts. Agency payment sys-tems wifFmeerporate procedures that will auto.
8040.40 - Use of Treasury Financial Communi-matically take advantage of cash discounts as a cations System (TFCS) for Payments. Agencies matter of routine and eliminate any need for spe-will use the TFCS for vendor payments only cial handling. Such discounts will only be taken when such use is clearly advantageous to the l
when the discount terms applied in the conver.-
Goverr. ment (I TFRM 4-2500). Approval by the sion formula yield an effective annual interest
- Fiscal Assistant Secretary or his designee must l
rate equal to, or greater than the percentage rate be obtained before Govenment departments or l
based on the current value of funds to Treasury
- agencies utilize the system for any particular (1 TFRM 6-8020.20). Agencies will base the class or type of payment. Requests for approval computation of the discount period on the date should be forwarded to the Cash Management-of receipt of an invoice that is authorized f6r pay -
Operztions Staff (1 TFRM 6-8095).
ment by an agency, unless otherwise provided in the contract or invoice as to how the discount pe-8040.50 - Payment Practices. ' Agencies must riod is to be determined. All discounted paytnents make every effort to make payments of U.S. Gov-must be scheduled for check issuance as close as ernment obligations in a timely manner, r.cither' possible, but no later than the last day of the dis-carly nor late. Agency practices with' respect to count period. However, payments will not be the timeliness of payments must be summarized made to achieve discounts unless the related and reported to Treasury according to agency re-goods or services have been received, except as porti.ng responsibilities (I TFRM 6-8080.40). i specifically provided by contract or other agree-rnents executed bylaw. Agency practices with re-Section 8050 - CASH ADVANCES-spect to lost ceonomical discounts will be -
summarized and reported to Treasury according 8050.10 - Establishing Procedures for Cash Ad-to agency reporting responsibilities (I TFRM vances. It is the responsibility of grantor agencies to monitor the cash management practices of d ',
6-8080.40).
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EXHIBIT 2 'to NRC letter 5/17/84, B-214586 i
O T/L 405 TREASURY F15CA1. REQUIREAtENTS h1 ANUAL e
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