BNUMBER:  B-271767; B-271768; B-271769; B-271770
DATE:  July 24, 1996
TITLE:  Information Resources Incorporated

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Matter of:Information Resources Incorporated

File:     B-271767; B-271768; B-271769; B-271770

Date:July 24, 1996

Charles E. Marks for the protester.
Kerry L. Miller, Esq., Government Printing Office, for the agency.
Jerold D. Cohen, Esq., Office of the General Counsel, GAO, 
participated in the preparation of the decision.

DIGEST

Record does not support the protester's argument that the contracting 
agency acted in bad faith in finding the protester nonresponsible 
based on poor past performance while awarding contracts to other firms 
with poor records where the performance records of the other firms 
were substantially better than the protester's, who recently had 
experienced serious performance deficiencies on similar contracts with 
the same agency. 

DECISION

Information Resources Incorporated (IRI) protests the Government 
Printing Office's (GPO) determinations that IRI was nonresponsible for 
purposes of awards under GPO programs B-880S, B-562S, B-354S, and 
B-532S for microfilm reproduction and distribution.

We deny the protests.

IRI submitted the lowest bid under each of the four invitations, but 
was rejected following the contracting officer's determination that 
IRI was a nonresponsible concern for purposes of any awards.  The 
contracting officer was the same individual in each case, and his 
determination, concurred in by the GPO Contract Review Board, was made 
concurrently with the nonresponsibility determinations made regarding 
IRI's other three bids.  IRI protests that the contracting officer's 
nonresponsibility determinations discriminated against IRI essentially 
because the companies that ultimately were awarded contracts (and 
companies previously awarded GPO contracts) had performance records no 
better than IRI's.  

We will not question a nonresponsibility determination absent a 
showing of bad faith by the contracting agency or the lack of any 
reasonable basis for the finding, since the determination is 
essentially a matter of business judgment and encompasses a wide 
degree of discretion.  Triad Mechanical, Inc., B-258129, 
Dec. 6, 1994, 94-2 CPD  para.  224.  In reviewing a nonresponsibility 
determination based on prior performance, we will consider whether the 
determination was reasonably based on the information available to the 
contracting officer.  Id.  Moreover, in order to show bad faith, a 
protester must present virtually irrefutable evidence that the 
contracting agency directed its actions with the specific and 
malicious intent to injure the protester.  Schenker Panamericana 
(Panama) S.A., B-253029, Aug. 2, 1993,  93-2 CPD  para.  67.  

The contracting officer's determination regarding IRI in each case 
included the following finding:

     ". . . This firm consistently had production and quality problems 
     for the past 6 months on various similar contracts as evidenced 
     by the attached documentation which shows consistent problems 
     with non compliance with various terms of existing and past 
     contracts.

     "Over the past 12 month period, of 244 orders performed, 30 
     orders have been rejected for a rate of 12%.  Additionally, the 
     contractor has received 26 cure notices and has been defaulted 4 
     times[[1]] over the past 12 months."

IRI takes issue with some of the contracting officer's decisions in 
that 12-month period with respect to, for example, whether cure or 
show cause notices should have been sent, whether performance concerns 
should have been handled through oral communication (rather than 
written notices), and whether GPO should have subjected IRI's 
performance to as many inspections as it did.  We will not consider 
IRI's arguments in that regard, however, since we do not consider as 
part of our bid protest function the propriety of a contracting 
agency's decisions about the best way to administer an existing 
contract.  See Bid Protest Regulations, 4 C.F.R.  sec.  21.5(a) (1996).  In 
this respect, we point out that we have recognized that a contracting 
officer may base a nonresponsibility determination on a reasonable 
perception of inadequate prior performance even where the agency did 
not terminate a prior contract for default, or where the contractor 
disputes the agency's interpretation of the facts.  See Schenker 
Panamericana (Panama) S.A., supra.

IRI further argues that GPO has a history of awarding contracts to 
firms with unsatisfactory performance records, including the awardees 
here.  IRI complains that those performance problems are handled less 
severely than are IRI's (for example, often by oral admonishment 
rather than by cure notice), and that GPO's contracting officer 
consequently employed different standards of responsibility for IRI 
than for other contractors in finding only IRI nonresponsible.  IRI 
thus presumably is arguing that either the actual awardees in the four 
GPO programs in issue should have been found nonresponsible, or IRI 
should have been awarded the contracts. 

Based on our review of the record, we find nothing unreasonable or 
otherwise improper in GPO's determinations regarding IRI vis a vis the 
other awardees.  

For example, IRI claimed in its responses to cure notices issued under 
Program 
B-823S, which later was terminated for default (on October 6, 1995), 
that its performance problems were due to quality control failures 
resulting from specific mechanical and personnel problems that had 
been identified and corrected by September 4, 1995.  Also, in its 
current protests, IRI claims that its poor performance under Program 
B-823S was an anomaly, limited to one production run under one 
contract stemming from one isolated event.  The record shows, however, 
that IRI continued to suffer performance problems even after September 
4.  By October 6, when IRI's contract for Program B-823S was 
terminated, IRI had received additional cure notices on that and other 
GPO programs, as well as several customer complaints.  Further, IRI's 
performance was problematical after its default, with IRI receiving 
numerous additional cure notices for unsatisfactory performance, 
rejections for poor quality, written and telephonic warnings 
concerning deficient performance, and numerous customer complaints 
about poor service as well as cure notices stemming from IRI's failure 
to satisfy customer complaints.  IRI's pre-award survey shows that in 
the period leading up to award, IRI had a 13-percent lateness rate for 
the year; an 86-percent rejection rate for orders inspected (30 of 
35), with a 12-percent overall rejection rate (30 of 244 orders); and 
8 cure notices issued in the preceding 4 months.  We also note that 
while IRI blamed its poor performance under Program B-823S at least 
partly on staffing issues, and then claimed it had taken steps to 
resolve that problem,[2] in February of 1996 IRI still was blaming 
poor contract performance on staff shortages.[3] 

On the other hand, the record shows that neither of the two awardees 
under the programs in issue (two companies each received two awards) 
had experienced  similarly significant and consistent performance 
problems during the period leading up to award.  B&B Information's 
record as reflected in its pre-award survey shows no defaults and a 
7-percent lateness rate for the year, and although the record shows a 
50-percent rejection rate for the 2 orders inspected, the overall 
rejection rate was .19 percent (1 of 538 orders).  Further, B & B had 
no late orders in the preceding 3 months, and no cure notices were 
issued to the contractor in the preceding 4 months (although 1 had 
been prepared--its issuance was deemed unnecessary).  The pre-award 
survey for Court Reporting Services (formerly Microform, Inc.) shows 
no defaults, a 1-percent lateness rate for the year, and a 
25-percent rejection rate for inspected orders (1 of 4), with an 
overall rejection rate of .1 percent (1 of 538 orders).  In the 3 
months preceding the awards, Court Reporting had an 8-percent lateness 
rate and 1 show cause notice issued.  

In our view, then, when contrasted with IRI's performance record for 
the same period, the disparity in performance between the protester 
and the awardees is quite apparent.  IRI experienced serious 
performance deficiencies on similar contracts, including one contract 
default, and continued to experience performance problems despite a 
reduced work load (after the default).  Both awardees had much better 
performance histories on previous contracts, successfully executing a 
greater number of orders with fewer problems and a greater level of 
consistency.  The record thus does not support the protester's 
position that a review of the performance records of GPO contractors 
establishes that the contracting officer's nonresponsibility 
determinations with respect to IRI were made in bad faith.  

The protests are denied.

Comptroller General 
of the United States

1. GPO advises that IRI in fact was defaulted only once, but that the 
number of actual defaults was not itself a determinative factor in the 
contracting officer's decision.

2. In a September 13 response to a cure notice, IRI stated, "[t]he 
addition of a second shift operation and inspection/quality control 
personnel, should return us to our prior level of shipping / quality 
conformance."  In a September 25 response to another cure notice, IRI 
stated that production problems "were remedied by . . . [h]iring of 
new inspection manager and quality control staff."  

3. In its response to February cure notices, IRI stated, "[d]ue to 
reduced number of orders received and the resulting staff reduction 
during the month of January . . . Information Resources lapsed in the 
delivery of the required postage and distribution reports."