TITLE:  The Standard Register Company, B-289579, March 5, 2002
BNUMBER:  B-289579
DATE:  March 5, 2002
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Decision

Matter of: The Standard Register Company

File: B-289579

Date: March 5, 2002

Anthony W. Hawks, Esq., for the protester.

Drew Spalding, Esq., Government Printing Office, for the agency.

Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Fact that prior contracts on which protester experienced performance
problems were performed at facilities different from the one to be used for
current contract did not preclude agency from considering the contracts in
finding protester nonresponsible.

DECISION

The Standard Register Company protests the award of a contract to Monarch
Litho, Inc. under invitation for bids (IFB) No. 484-733, issued by the
Government Printing Office (GPO) for production of integrated card
production systems. Standard asserts that the agency improperly determined
that it was nonresponsible.

We deny the protest.

The IFB sought bids for the production and delivery of 4.5 million sets of
envelopes and envelope carriers for use by the Immigration and
Naturalization Service. Delivery was to be made in increments of 1.125
million sets on each of four dates, beginning January 14 and ending
March 18, 2002. Both Standard and Monarch submitted responsive bids, with
Standard's the apparent low bid at $382,050. Because Standard's bid was low,
the contracting officer investigated the firm's past performance to assess
its responsibility. This included examination of Standard's performance of
contract No. 477-716, performed at Standard's Maryland facility, and
contract No. 0621-S, which (agency records show) was to be performed at
Standard's Kirksville, Missouri facility, the same facility proposed for
performance of this requirement, but which Standard moved to its York,
Pennsylvania facility after award. Based on unfavorable reports, including a
100-percent late performance report for contract No. 0621-S, the contracting
officer determined that Standard was nonresponsible. After finding Monarch
responsible, the contracting officer made award to Monarch for $418,814.
Standard challenged this decision in an agency-level protest, which GPO
denied; Standard then filed this protest with our Office.

Standard does not dispute that it experienced the performance problems which
led to the agency's nonresponsibility determination; rather, it claims the
information the contracting officer considered was not relevant to the
solicited work, and did not show that Standard had significant performance
problems. Supplemental Comments at 2.

A contracting agency has broad discretion in making responsibility
determinations, since the agency must bear the effects of any difficulties
experienced in obtaining the required performance. Blocacor, LDA,
B-282122.3, Aug. 2, 1999, 99-2 CPD para. 25 at 4. Thus, a contracting officer
has the discretion to determine the weight to be accorded the information he
or she receives concerning a bidder's past performance, that is, to
determine whether that past performance indicates there will be problems on
the contract to be awarded. Mine Safety Appliances Co., B-266025, Jan. 17,
1996, 96-1 CPD para. 86 at 25. Although responsibility determinations must be
based on fact, and reached in good faith, they are of necessity a matter of
business judgment. Blocacor, LDA, supra. We will not question a
nonresponsibility determination absent bad faith on the part of agency
officials or the lack of a reasonable basis for the determination. EPCo
Assocs., B-238015, Apr. 13, 1990, 90-1 CPD para. 388 at 5.

The nonresponsibility determination here was reasonable. The agency reports
that there were "numerous unexcused problems performing adequately" on
contract No. 0621-S, including 6 (out of 6) print orders that were late by
23 to 77 days. Contracting Officer's Declaration para. 7. Similarly, contract
No. 477-716 was for the same items sought in this procurement, and the
agency reports that Standard had "significant problems performing . . . both
in terms of quality and timeliness." Id., para.para. 7-8. The contract at issue is
for printing and delivery of 4.5 million sets of documents, with the first
of four deliveries of 1.125 million sets due some 35 days after award, and
the last due some 94 days after award. In view of this relatively short
delivery schedule, the information regarding Standard's poor record
producing these same items and its late deliveries of other printed
materials was unquestionably relevant to the determination of its
responsibility, and supported the agency's negative finding. In our view,
Standard's poor performance of these two relevant contracts provided a
reasonable basis for the contracting officer's nonresponsibility
determination.

Standard asserts that it was improper for the agency to base its
nonresponsibility determination on Standard's performance on contract
Nos. 0621-S and 477-716, because neither of these contracts concerned
performance at its Kirksville facility. In this regard, according to
Standard, GPO has traditionally determined a bidder's responsibility based
on its performance at the offered production facility.

This argument is without merit. First, since past practice lacks the force
and effect of law, GPO was not bound by its alleged prior approach to
determining responsibility. See BMY, Div. of Harsco Corp., B-233081,
B-233081.2, Jan. 24, 1989, 89-1 CPD para. 67 at 6 (internal agency policy not
binding on agency because it lack force and effect of law). There is no
other reason why the agency could not consider Standard's past performance
at facilities other than that proposed for this contract. Considering such
past performance information is not precluded by GPO's Printing Procurement
Regulation (PPR) (see Ch. 1, sect. 5, para. 5(2), (4)), and it obviously is well
within an agency's discretion to consider any relevant past performance
information in determining a firm's responsibility. While performance at the
same facility well may be the most relevant kind of past performance
information, the manner in which a firm has carried out its contractual
obligations at other facilities also is relevant to predicting whether it
will satisfactorily perform the new contract. See BMY, Div. of Harsco Corp.,
supra (contracting officer properly considered delinquent contract
performance at different facility in finding firm nonresponsible).

We note, furthermore, that the record shows that some portion of contract
No. 0621-S was in fact performed at Kirksville, and that Standard
experienced performance problems prior to moving the contract to its York
facility. Specifically, Standard's performance printout for contract No.
0621-S included the following notation based on information from the
cognizant contract administrator:

Per [contract administrator] . . . Std. Register had numerous problems on
this [contract]. Show causes, quality problems, etc., were employed against
[contractor]. The job was even switched to another plant [without] success.
This [contractor] is nonresponsible.

Agency Report, Tab G; Contracting Officer's Declaration para. 7. The statement
that the job "was even switched to another plant [without] success"
indicates that the work was being performed at the original
facility--Kirksville--at the time the identified problems arose. The tenor
of the notation, including the assessment of "nonresponsibility," makes
clear that the agency considered the performance problems significant. [1]
This information was consistent with the agency's negative findings with
regard to contract No. 0621-S, and supported its nonresponsibility
determination.

Standard suggests that the agency should have examined its entire
performance record at all of its more than 30 facilities. However, agencies
are not required to investigate a firm's entire performance record; rather,
it is the bidder's duty to establish that it is a responsible prospective
contractor. See PPR, Ch. 1, sect. 5, para. 5(a); Yellowhorse Indus., B-250282, Jan.
12, 1993, 93-1 CPD para. 35 at 4. Moreover, even if there were evidence of a
more positive performance history (Standard has furnished no details
regarding the types of contracts performed at its other facilities, or the
quality of its performance at those facilities), this would not alter the
fact that there was ample evidence of significant performance problems on
directly relevant work to support the nonresponsibility determination. See
Pacific Photocopy and Research Servs., B-281127, Dec. 29, 1998, 98-2 CPD
para. 164 at 4; Mine Safety Appliances Co., supra.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. Standard also asserts that the contracting officer mistakenly believed
that it performed all of contract Nos. 0621-S and 477-716 at Kirksville.
Supplemental Comments at 3. The record establishes otherwise. The notation
on the 0621-S past performance sheet clearly notified the contracting
officer that performance of that contract "had been switched" from
Kirksville. As for contract No. 477-716, there is nothing in the record
indicating that the agency believed that contract was performed at
Kirksville.