46 Fed. Cl. 740 (2000)

In the United States Court of Federal Claims

No. 00-262C

(Filed: June 8, 2000)

* * * * * * * * * * * * * * * *  *

NEWS PRINTING COMPANY, INC.,
   Plaintiff,
      v.                              Bid protest;
THE UNITED STATES,                    Responsibility determination;
   Defendant,                         Special factors.
     and
GRAPHICDATA, LLC,
   Intervenor.

* * * * * * * * * * * * * * * * * *

William J. Spriggs, Washington, D.C., for plaintiff. David J.
Taylor, Edward W. Gray, Jr., and Christopher E. George,
Washington, D.C., of counsel.

Russell A. Shultis, with whom were Acting Assistant Attorney
General David W. Ogden, David M. Cohen, and Donald E. Kinner,
Washington, D.C., for defendant.

Richard D. Lieberman, Washington, D.C., for intervenor. Karen R.
O'Brien, Washington, D.C., of counsel.

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OPINION

---------------

BRUGGINK, Judge.

This bid protest is before the court on the parties' cross-
motions for summary judgment pursuant to Rule 56.1 RCFC. News
Printing, Inc., the plaintiff, challenges award of the contract
to GraphicData, LLC, the intervenor. The administrative record is
complete, the motions have been fully briefed, and oral argument
was held on June 6, 2000. The case presents the question of
whether the invitation for bids should be construed in such a way
that the putative awardee had to demonstrate actual compliance
with the substantive specifications as part of the pre-award
responsibility determination. While such a result would be novel,
the wording of the solicitation gives the plaintiff room to make
the argument. Nevertheless, for the reasons set forth below, we
grant the government's motion for summary judgment and deny the
plaintiff's corresponding cross-motion.

FACTS

On February 17, 2000, the Government Printing Office (GPO) issued
an Invitation for Bids (IFB) for a requirements contracts for
Program D306-S. The work solicited concerns the printing of
patents issued by the Patent and Trademark Office (PTO). Thus,
although the GPO is the contracting entity, the real interested
party is the PTO. The contract was to run from April 1, 2000,
until March 31, 2001, with two possible twelve-month extensions.
The IFB was amended twice on March 2, 2000. One effect was to
extend the opening of bids from March 14 to March 17, 2000.

Certain provisions of the IFB are critical to News Printing's
claim. They concern what occurs with respect to the putative low
bidder during the time between bid opening and award. The most
important is the section dealing with a pre-award test:

The contractor shall, during the Government's pre-award on-site
visit, be required to produce from a Government furnished tape,
copies of 100 patents, in accordance with these specifications.
The tape will be furnished the morning of the test. The samples
produced during the test run will be inspected for conformance to
image position as stated under Quality Assurance Levels and
Standards (page 2), and to Quality Attribute Level III.

The Government will approve, conditionally approve, or disapprove
the samples within 2 workdays of the receipt thereof. Approval or
conditional approval shall not relieve the prospective contractor
from complying with the specifications. A conditional approval
shall state any further action required by the contractor. A
notice of disapproval shall state the reasons therefor.

. . .

In the event compliance with the specifications cannot be
demonstrated by the prospective contractor they shall be declared
nonresponsible.

The second IFB provision at issue requires the low bidder to
submit for government approval a written quality control program
addressing seven specific factors. The quality control program
was to be submitted within five days of the prospective
contractor being notified that it was the low bidder.

The third provision at issue concerns Exhibit F, which is a form
attached to the IFB dealing with how the contractor will capture
billing data. The IFB states that: "The contractor shall be
required to submit during the pre-award survey evidence of their
ability to meet the requirements of Exhibit F."

In summary, News Printing contends that these three provisions of
the IFB constitute definitive responsibility criteria; that the
agencies did not apply these criteria to GraphicData; and that
GraphicData in fact did not meet these requirements. Because,
according to News Printing, the section dealing with the pre-
award survey incorporates directly the substantive requirements
of the contract, it is necessary to summarize the work called
for.

Section 2 of the IFB, entitled "Specifications," sets forth the
manner in which patents are to be printed and distributed. The
IFB states that the contractor must be able to produce between
1,500 and 5,000 patents a week. In abbreviated form, the patent
printing process works as follows: The PTO, through its Patent
Data Capture Contractor, supplies the printing contractor with
8mm Exabyte tapes containing the "Patent Postscript" data, i.e.
the information that makes up the substance of the patent. The
agency also furnishes computer files for "Classification Label
tape." The IFB states that the classification label files(1) are
"necessary in order to print the appropriate information on the
front page of the patent and then sort the finished documents for
delivery." The printing contractor is then responsible for
extracting this data and producing the several types and forms of
patents, with a classification label printed in the upper-left
corner of the first page of each.(2)

The classification label is an important part of the patent
printing process, as it controls how the finished patents are
sorted and delivered. Before it was amended, the original IFB
stated the following about labeling:

Prior to final and full implementation of the label printing
process, the contractor shall at a minimum perform the following
testing in conjunction with PTO personnel. For no less than three
issues the contractor shall provide lists of printed label
facsimiles for patents in selected Art Units to be determined by
the government. In addition, the government may also request that
actual patent copies containing the printed filing label be
provided for approximately one to three Art Units to be
determined by the government. For a minimum of two issues, the
contractor shall provide lists of printed label facsimiles for
all patents in those issues. The contractor may also be asked to
provide a sample of their ability to correctly fulfill the
Government's sorting and boxing requirement. Final implementation
of the new process will not occur until the Government determines
that all label printing is correct and accurate and that sorting
and boxing will occur as required.

On March 2, 2000, the above portion of the IFB was deleted by
Amendment No. 2 and replaced with the following:

Prior to the commencement of the first print order, the PTO may
require a test of the classification label printing and
subsequent sorting capabilities of the contractor. The PTO will
assist in the start-up of the label processing by having
technical personnel available to answer any questions concerning
the details of this requirement.

The work called for is not new, although the particulars of the
work have changed materially in the most recent solicitation.
Both News Printing and GraphicData have experience with prior
contracts. News Printing was the incumbent at the time of the
solicitation and had the prior contract for three years. That
award was contested and is the subject of GraphicData, LLC v.
United States, 37 Fed. Cl. 771 (1997). Previously, GraphicData
had the printing contract for a seven year period. As to the
present solicitation, both News Printing and GraphicData
submitted timely bids. GraphicData was the low bidder at
$1,762,549.89. News Printing was next low bidder at
$1,870,938.18.

On March 28, 2000, a pre-award survey team, headed by Supervisory
Printing Specialist Patrick Morrisey and consisting of officials
from the GPO and PTO, conducted a pre-award survey at
GraphicData's facility in Burlington, New Jersey. During the
survey, GraphicData was given a data tape and told to produce 100
patents, without classification labels. Very little direct
evidence exists as to the conduct or results of the testing.
Apparently Mr. Morrissey and his team did not take notes and were
content with eyeballing the results of the test run.

The Contracting Officer (CO) relied on Mr. Morrissey and the
others conducting the pre-award test. In his recommendation to
the contract review board, the CO indicated that GraphicData,
although in his view not required to do so, volunteered to print
a run of patents that included classification labels:

[a]ll requirements of the contract were reviewed and discussed
with Graphic Data personnel with special emphasis on the weekly
issue labeling requirements of the contract.
. . . .
In accordance with contract terms a pre-award test was conducted
during the pre-award survey. The test consisted of loading an 8mm
Exabyte Government tape into the contractor's system and running
off 100 patents. The contractor completed this requirement with
no problems. In addition to running the 100 patents Graphic Data
also printed label data (weekly issue labeling requirement) in
the upper left corner of the patents. The printing of the label
data was not part of the pre-award test, however, Graphic Data
voluntarily ran the labels to demonstrate their complete
understanding of all contract requirements.

AR at 95.

This is supported by a one page document furnished by Mr.
Morrissey to the CO entitled "Question, Answers & Observations."
In it, he recites that "[d]uring the plant tour, the contractor
ran some patents with the labeling requirement in place (this was
not required as a part of the pre-award test). The PTO personnel
inspected the samples with the labeling and all agreed that
GraphicData had a very good understanding of what was required to
do the labeling." In one of his three affidavits, Mr. Morrissey
states that the "sample patents that GraphicData produced did not
place a label that corresponded to the patent upon which it
appeared."

Only a few of the sample patents still exist. Plaintiff points
out that they are printed in "duplex" form, i.e., front and back,
whereas the specifications call for only part of a patent to be
printed in duplex form. This also resulted in the front of one
patent sometimes being printed on the back of another patent. The
paper used in the test run was "soft" paper, not the hard stock
required by the contract for final copy, as the government
concedes. This series of deviations from the performance
specifications prove, according to News Printing, that the
agencies waived the contract specifications during the test.

The CO's memo of March 29 also addresses, in brief form, the
other two pre-award requirements plaintiff questions: "During the
pre-award survey Graphic Data demonstrated their ability to meet
the following contract requirements: . . . the ability to meet
the requirements of Exhibit F (electronic billing). In addition,
both the Quality Assurance Plan and Security Plan were reviewed,
discussed, and approved."

In the litigation record, Mr. Morrissey's May 18 affidavit
provides a bit more detail as to how he came to the conclusion
that GraphicData satisfied the requirement of showing its
"ability to meet the requirements of Exhibit F." He recites that
he relied on the knowledge of a Mr. Gerry Groeber, an official
with the PTO, and a member of the pre-award survey team: "Based
upon his knowledge of GraphicData's prior performance, Mr.
Groeber stated that GraphicData was capable of performing the
'itemized statement for billing generated from electronic input'
requirement." In short, GraphicData was not required to actually
produce a sample billing in accordance with Exhibit F.

The CO concluded his report by recommending that Graphic Data be
awarded the procurement for project D306-S in part because of
their "full understanding of contract requirements." On March 30,
2000, Graphic Data was awarded the contract and GPO issued the
first purchase order.

It is apparent that the agency viewed the pre-award test, the
ability to bill electronically, and the submission of a quality
plan as general, rather than definitive responsibility criteria.
The GPO and the PTO were satisfied that GraphicData had the
ability and the equipment to do what it said it would. In
addition, GPO relied, at least in part, on circumstantial
evidence of GraphicData's ability to perform.

Newsprinting offered into the record certain events which
occurred after the award, asserting that they are relevant to the
selection process. For example, it asserts that GraphicData was
allowed to commence performance one week late. The printing run
for that first week of the contract was added to incumbent News
Printing's contract. It also asserts that GraphicData was ten
days late in completing delivery of the weekly printing run for
the week of April 18. That run, according to plaintiff, contained
several defects. Three patents had portions of other patents
mistakenly stapled to them, and at least five did not have front
pages.

On March 31 News Printing filed a protest with the General
Accounting Office (GAO) of the award of the contract to
GraphicData. That protest was dismissed on May 2, 2000. The GAO
held, among other things, that News Printing was challenging
GPO's responsibility determination, and that the responsibility
issues raised in News Printing's challenge were of a general
nature (i.e., not definitive responsibility criteria) and
therefore not subject to review.(3) The plaintiff filed the
instant action on May 5, 2000.

DISCUSSION

Newsprinting presents three main rationales in support of its bid
protest: (1) that the government improperly conducted and
evaluated the pre-award test; (2) that GraphicData did not
produce a Quality Assurance Program (QAP) that met the contract
requirements, and; (3) that GraphicData did not produce any
evidence of its ability to generate a computer listing for
billing requirements (Exhibit F).

At the outset, we can observe that plaintiff is correct that
GraphicData was not called upon during the pre-award test to
actually comply with all contract specifications. Nor was it
required to demonstrate its billing capabilities. Whether that
was legal error remains to be determined.

Each of plaintiff's arguments is grounded in the assumption that
the contract requirements to which it refers are "definitive
responsibility criteria," and not general responsibility
criteria. If News Printing is correct, then the court's role in
the procurement is considerably greater than it would be if
plaintiff is not correct. If plaintiff is correct, the court's
role is akin to what it would be if the plaintiff were asserting
that the awardee had submitted a non-responsive bid - the court
would conduct its review under the standards of the
Administrative Procedures Act,(4) i,e., whether the decision to
award was arbitrary, capricious, or not in accordance with law.
Moreover, in that latter circumstance, the parties' substantial
disagreements about whether, in fact, the intervenor "passed" the
pre-award test would have to be addressed. If it is wrong, then
these allegations are, for all practical purposes, not reviewable
here, in the absence of an allegation of fraud or bad faith.
Neither fraud or bad faith has been alleged.

In short, the threshold-and potentially dispositive-question is
purely one of law: Can the court review the alleged deficiencies
because they relate to definitive responsibility requirements?
Only if the answer is "yes," must the court proceed.

The pre-award determination of a bidder's capability of
performing the contract is normally referred to as the
"responsibility" inquiry. The applicable regulations are set out
in Subpart 9.1 of the Federal Acquisition Regulations.
Responsibility is typically contrasted with "responsiveness,"
which focuses on the bid, rather than the bidder. The difference
is captured in the following definitions:

Responsibility--The ability of a bidder to properly perform
contract work.

Responsiveness--A bid's conformity with, and commitment to meet,
the material terms of an invitation for bids.

D. Arnavas and W. Ruberry, Government Contract Guidebook p. GL-17
(2d ed. 1994).

There are two types of responsibility standards recognized in the
regulations, general and special. General responsibility
standards are discussed at 48 C.F.R.  9.104-1. Seven mandatory
elements are set out, six specific and one catch-all. They all
focus on the same overall inquiry: Is the bidder capable of
performing the work? Thus the CO is required to use her best
judgment in assessing such characteristics as financial strength,
prior track record, and organizational skills. Most relevant
here, the CO has to be satisfied that the contractor has the
necessary "production . . . and technical equipment and
facilities, or the ability to obtain them." 48 C.F.R. 
9-104-1(f).

When it is "necessary for a particular acquisition," the IFB can
set out "special standards" of responsibility. Id. at 9.104-2 The
regulations suggest that they might be particularly desirable
when unusual expertise or specialized facilities are needed. Id.
Such standards are typically referred to as definitive
responsibility criteria. A recent decision of the court has
stated:

[D]efinitive responsibility criteria [are] specific and objective
standards established by an agency for use in a particular
procurement for the measurement of a bidder's ability to perform
the contract. These special standards of responsibility limit the
class of bidders to those meeting specified qualitative and
quantitative qualifications necessary for contract performance.

Chas. H. Tompkins Co. v. United States, 43 Fed. Cl. 716, 720
(1999). For example, a requirement that a contractor produce
documentation demonstrating three projects of similar scope to
the IFB has been held to be a definitive responsibility
criterion. See M & M Welding and Fabricators, Inc., B- 271750,
96-2 C.P.D. * 37, 1996 WL 413250 at *3. The CO can only impose
special standards, however, if they are "set forth in the
solicitation (and so identified)." Two characteristics thus mark
a definitive responsibility criteria. They must be specific and
objective, and the bidders have to be warned of them.

This exercise in taxonomy matters. The presumption against
special standards translates into a presumption of non-review of
responsibility determinations. At the GAO, this presumption
appears in the applicable regulations. See 4 C.F.R.  21.5(c).
The same presumption has arisen in cases of judicial review.
General responsibility determinations will not be overturned,
absent allegations of fraud or bad faith. See Trilon Educational
Corp. v. United States, 217 Ct. Cl. 266, 271 (1978). "A
contracting agency has broad discretion in making responsibility
determinations since it must bear the brunt of difficulties
experienced in obtaining the required performance. Responsibility
determinations are of necessity a matter of business judgment and
such judgments must, of course, be based on fact and reached in
good faith." In re House of Communications & Graphics, B-245920,
1992 WL 55054 at *2 (Comp. Gen. 1992). Only if the responsibility
standards are "special" or "definitive responsibility criteria,"
is the court able to do a typical bid protest review for abuse of
discretion. See John C. Grimberg Co. v. United States, 185 F.3d
1297, 1303 (Fed. Cir. 1999).

The question of compliance with Exhibit F can be addressed in
short order. The IFB requires the contractor to submit during the
pre-award survey "evidence of their ability to meet the
requirements of Exhibit F." Contrary to plaintiff's
characterization, there is nothing about this directive which
suggests that it is anything other than the typical inquiry under
 9.104-1(f), concerning the contractor's possession of the
necessary equipment to do the work. The IFB does not refer to
production of a sample bill, but to the "ability" to do billing.
While ability could be demonstrated by an actual run, that is not
the only way it can be shown. The CO's determination of whether
that requirement is met is thus not subject to judicial scrutiny
because the court would have no objective criteria to determine
whether the CO's assessment is correct when it is based, as it
can be, on circumstantial proof.(5)

For similar reasons, we reject plaintiff's contention that the
requirement for submission of a QAP is a specialized standard.
News Printing contends that the requirement that the plan
"address" a minimum of seven elements provides the objectivity
and specificity contemplated. We disagree. The fact of submission
of a plan may be subject to objective inquiry, but the
objectivity ends there. The contents of such a plan (e.g., how
verification will be accomplished) are clearly not a "specified
qualitative [or] quantitative qualification necessary for
contract performance." Tompkins, 43 Fed. Cl. at 720. A
determination of whether the plan "addresses" these elements is
plainly one that is inherently subjective. Succumbing to
plaintiff's invitation to second guess the CO's conclusion that
the plan addressed the seven minimum elements would result in
precisely the type of review from which we are foreclosed.(6)

Plaintiff's better argument concerns the pre-award test. As to
this element, bidders were put on notice that failure to satisfy
the test would result in a finding of non-responsibility. Whether
that meets the requirement of notice, however, is difficult to
separate from the question of whether the performance being
tested is sufficiently objective and specific. Plainly bidders
were on notice that responsibility vel non was at stake. It is
less than clear that they were on notice that they had to be able
to perform the contract even before award.

With respect to the search for objective and specific criteria,
plaintiff points to the language in the IFB that the contractor
must "produce from a Government furnished tape, copies of 100
patents, in accordance with these specifications." Failure to do
so (leaving room for retries) renders the bidder non-responsible.
News Printing contends that the phrase "these specifications"
incorporates all performance requirements of the contract, and
that, because many of the specifications are specific and
objective, the pre-award test becomes a definitive responsibility
criteria . The pre-award test advanced by plaintiff-which would
require tangible demonstration of the ability to comply with
every term of contract performance-is akin to complete
performance itself.

This argument is a novel one. Counsel for News Printing candidly
conceded that he was unaware of any decisions in which the
ability to demonstrate actual performance was treated as a
special standard, and thus subject to court or GAO review. The
inertia against this construction is significant, because it runs
directly contrary to the larger regulatory and judicial edifice
that has evolved distinguishing questions of responsiveness,
responsibility, and contract performance.

The full import of plaintiff's argument has to be seen in stark
relief at this point. It contends that every element of the
specifications and the incorporated quality standards had to be
met. The court asked plaintiff's counsel the following question
at oral argument: "Does that mean that every single specification
becomes a definitive-responsibility requirement insofar as it can
be tested by a run of 100 patents?" His response was, "[y]es." As
discussed below, counsel suggested that this was not literally
the case,(7) but, if anything, this lack of comprehensiveness
adds to the difficulty.

The court's concerns are not based in its inability to find
objective and specific criteria in the IFB specifications
section. Indeed there is no shortage of such requirements that
the protestor could mine for deviations. The specifications
section discusses the complicated process for the production of
certificates of correction and withdrawn patents. They also
contain requirements for the banding, packing and distribution of
patents. The specifications contain a great deal of detail as to
the physical appearance of the printed product. In addition, the
general terms and conditions contains a "Quality Assurance Levels
and Standards" clause which, in turn, incorporates by reference
detailed requirements as to the quality of the final product.
These levels and standards are then incorporated by reference
into the pre-award test clause, which states that the samples
produced during the test run "will be inspected for conformance
to image position as stated under Quality Assurance Levels and
Standards (page 2), and to Quality Attribute Level III."

By way of illustrating the objectivity and specificity of the
performance requirements, during oral argument, counsel for News
Printing introduced an excerpt from what the court understands to
be one of the quality standards applicable to the printing of
patents along with the classification labels. The excerpt is
three pages long, although the document itself is over forty
pages long. It describes, apparently in some detail, printing
attributes and finishing attributes. In plaintiff's view of the
protest, each of the detailed specifications in the IFB itself,
as well as all the specific quality standards incorporated in the
quality assurance clause, had to be applied, to the extent
practicable, during the pre-award test.

In short, no doubt the parties would agree that a neutral
observer could, in effect, look over Mr. Morrissey's shoulder and
determine whether certain performance specifications were
satisfied in the pre-award test, for example, the font
requirements. Yet the very multiplicity of potential defects is
the undoing of plaintiff's argument. The fact that the plaintiff
is able to isolate certain specifications which are
unquestionably objective and quantifiable, i.e., subject to third
party scrutiny, is not, under these circumstances, sufficient to
permit the conclusion that the pre-award test is a definitive
responsibility requirement itself. Although most of the
specifications are precise, the court would not be in a position,
for example, to determine the arbitrariness of the CO's
determination that "[r]ubber bands [were] of sufficient strength
to hold patents in groups without causing damage to the patent
pages," or that shipping containers were "packed solidly."

These are the types of issues that must be addressed during
performance.(8)

We hold that the disputed criteria in its entirety must be
objective and specific, not simply portions of it.

Plaintiff's concession that not all of the performance
specifications could be applied during a pre-award test is
telling in this regard. If some aspects of contract performance
were not practicable to be tested at the pre-award test and thus
not required, then what particular aspects of the extensive
specifications section was GraphicData required to demonstrate at
the pre-award test? This uncertainty in itself is sufficient to
preclude a finding that the pre-award test was a definitive
responsibility criteria.

While the court cannot rule that such a definitive responsibility
criteria is inconceivable, it is sufficient to dispose of the
present suit to rule that, if the agency wanted to incorporate
actual performance of the substantive specifications as part of
the pre-award responsibility determination, it had to do so more
clearly. The most natural reading of the pre-award language is
that the agency wanted to satisfy itself as to the capability of
the putative bidder to perform the contract, based on its best
judgment as to how good a job the bidder did in printing a sample
of 100 patents. Such a construction is fully consistent with the
general responsibility inquiries set out in the regulation. See
48 C.F.R.  9.104-1(f).

Having concluded that the pre-award test did not create any sort
of special standard, it then becomes part of the contracting
officer's subjective responsibility determination. See Tompkins,
43 Fed. Cl. at 720-21. As such, his finding that GraphicData
successfully completed the pre-award test is not reviewable
absent fraud or bad faith, not alleged here.

CONCLUSION

Plaintiff's cross-motion for summary judgment is denied.
Defendant's motion for summary judgment is granted. The complaint
is dismissed. Each side to bear its own costs. The clerk is
directed to enter judgment accordingly.

______________________________

ERIC G. BRUGGINK
Judge

_______________

1. Five types of computer files, all with a different function in
creating the classification label, are supplied to the
contractor.

2. The printing contractor is also responsible for a variety of
other tasks related to the printing of newly-issued patents (e.g.
the printing of Certificates of Correction, etc.). These contract
requirements are not implicated in this action.

3. We note that while the GAO bid protest decision in this matter
is entitled to deference to the extent it deals with the same
issues, it does not preclude a separate action here.
Consequently, News Printing is correct that its bid protest is
entitled to a fresh consideration.

4. 5 U.S.C.  706 (1994); 28 U.S.C.  1491(b)(4).

5. Even if plaintiff were correct that this constituted a
definitive responsibility criteria, its wording suggests the need
for substantial flexibility in the CO. As the Comptroller
General's office has noted:

Literal compliance with definitive responsibility criteria is not
required where there is evidence that an offeror has exhibited a
level of achievement equivalent to the specified criteria.
Whether sufficient evidence exists to conclude that an offeror
has met such a criterion is subject to considerable discretion;
the relative quality of the evidence is a matter for the judgment
of the contracting officer to determine.

In re HAP Constr., Inc., B-278515, 98-1 C.P.D. * 48, 1998 WL
48704 at *3. "The relative quality of the evidence is a matter
for the contracting officer." In re Roth Brothers, Inc.,
B-235539, 89-2 C.P.D. * 100, 1989 WL 241071 at *2.

6. Nor are we willing to set aside the procurement simply because
the CO granted a four day extension of time for the submission of
the QAP.

7. For example, the IFB calls for the printer to be able to print
between 1,500 and 5,000 patents a week, yet the pre-award test
calls for only 100 sample patents.

8. News Printing has suggested that GraphicData has, since the
award of the contract, been deficient in its performance. The
government and GraphicData disagree. The court will assume, for
purposes of this ruling, that News Printing has evidence to
support its assertion that GraphicData has not performed
flawlessly. Plaintiff's allegations in this respect are
irrelevant. To the extent that the asserted deficiencies concern
performance or lack thereof after award, they are beyond the
scope of a bid protest. It is the government's obligation to
enforce performance standards once the award is made.