BNUMBER: B-277268; B-277268.2
DATE: September 24, 1997
TITLE: Court Copies & Images, Inc., B-277268; B-277268.2, September
24, 1997
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Matter of:Court Copies & Images, Inc.
File: B-277268; B-277268.2
Date:September 24, 1997
John B. McDaniel, Esq., and O. Kevin Vincent, Esq., Baker & Botts,
LLP, for the protester.
Roberta M. Echard, Esq., Administrative Office of the U.S. Courts, for
the agency.
Scott Riback, Esq., and John Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest that agency improperly found protester's quotations
technically unacceptable based on its performance of predecessor
contract for requirements being solicited is denied where record
supports agency's evaluation finding of significant problems with
protester's performance.
DECISION
Court Copies & Images, Inc. (CCI) protests the actions of the
Administrative Office of the United States Courts (AOUSC) in
eliminating its quotations from further consideration under requests
for quotations (RFQ) for copying services at four locations of the
United States Bankruptcy Court for the Central District of
California.[1] CCI maintains that the agency unreasonably found its
quotations technically unacceptable based on its prior performance of
copier services at several Bankruptcy Court locations.
We deny the protest.
The solicitations contemplated the award of license agreements to the
firms selected based on price and experience/prior performance. This
latter factor was comprised of four considerations: experience in
providing copying and related services equivalent to the estimated
number of copies being solicited; courtesy and professionalism of the
vendor in responding to the public; the quality of the copies and
timeliness in providing them; and overall performance in providing
similar services. Quotations were to include three references for
which the firm had performed similar services, and a list of courts
for which they had performed such services. The RFQs explained that
the agency would evaluate materials submitted with the quotations, as
well as information obtained by the agency through reference checks.
On the basis of its review, the agency assigned quotations a rating of
either acceptable or unacceptable for the experience/prior performance
factor.
CCI quoted the lowest price for all four locations, but the AOUSC
rejected CCI's quotations as technically unacceptable based primarily
on the firm's prior performance of the requirements at three of the
four locations being solicited. According to the agency, CCI's
performance under the predecessor license agreements had been
unacceptable because of CCI's failure to offer all services required
in a manner that reflected favorably upon the reputation of the
courts, and because of the firm's continued violation of the terms of
the license agreements in numerous instances, for example, by sending
copies by facsimile and imposing minimum order amounts for
transactions where the purchaser wanted to pay using a credit card or
check. Additionally, the agency found two of CCI's three non-court
references of only marginal relevance because the two concerns--both
law firms--indicated that their primary involvement had been with
CCI's affiliated concern, BDR, which the law firms used for file
retrieval rather than copying services.
CCI takes issue with the agency's evaluation of its prior performance.
While CCI concedes that it had several difficulties at the outset of
contract performance, it maintains that it rapidly resolved all
matters brought to its attention by the courts, and that its more
recent performance has been exemplary. CCI therefore contends that
the agency's determination that its prior performance was technically
unacceptable was unreasonable because it failed to consider that CCI's
performance improved shortly after the startup of the contract.
When evaluating past performance, agencies properly may take into
consideration a firm's overall performance, and not just its most
recent activities, and properly may downgrade a firm even where,
compared to its earlier performance, its more recent performance is
improved. See GEC Marconi Elec. Sys. Corp., B-276186; B-276186.2, May
21, 1997, 97-2 CPD para. 23 at 12-13. Our Office will review a past
performance evaluation only to ensure that it was reasonable and
consistent with the evaluation criteria. Id.[2]
The evaluation here was reasonable; the record supports the agency's
finding of inadequate performance by CCI throughout its prior
contracts, including its more recent performance. Of particular
concern to the agency were CCI's activities that tended to reflect
negatively on the courts, as well as those activities that raised some
potential for at least the appearance of impropriety on the part of
CCI.
Among other problems, there were several concerns relating to CCI's
apparent misrepresentations with respect to the terms of its license
agreements. During a March 1995 audit of CCI's Los Angeles operation
(almost 6 months after CCI commenced performance), the agency found
that CCI's price brochures included statements that either were not
true or misrepresented the position of the court regarding the firm's
policies. In this regard, CCI's price brochure stated that customers
obtaining services by mail were required to include a self-addressed,
stamped envelope in order for CCI to process the request and that this
requirement was "[d]ue to the stipulations of our contract." In fact,
there was no such stipulation in CCI's license agreement, and the
agency found that this amounted to a misrepresentation of the contract
to the public. Despite the agency's bringing this concern to CCI's
attention, in May 1995 CCI submitted brochures for agency approval
that continued to include the representation concerning the
requirement that mail-in customers include a self-addressed, stamped
envelope with their orders due to the "stipulations" of CCI's
contract. The same audit revealed that CCI's price brochure
represented that its charges and services "were deemed by the U.S.
Bankruptcy Court to be the most beneficial to the public." The agency
deemed this representation inconsistent with the requirement of CCI's
license that the vendor refrain from referring to the license in
commercial literature in a manner that stated or implied that the
services offered were endorsed or preferred by the government. The
agency also found that CCI was imposing minimum charges for credit
card and check payments, also in violation of CCI's license agreement.
The record shows that similar problems existed at the other locations
where CCI had been awarded a license. For example, an April 1995
audit of the firm's operations at the San Bernadino location found
that CCI was not processing mail-in orders where the order did not
include a self-addressed, stamped envelope, and that CCI would not
telephone mail-in customers where there was a problem with their order
unless the customer had a toll-free number or would accept CCI's
collect call. During this audit, the agency found a box containing a
large quantity of unprocessed mail-in requests that was labeled
"toes-up file," and found as well that, in some instances, CCI would
cash the check submitted by the mail-in customer but not mail out the
order because of a lack of a self-addressed, stamped envelope.
In an audit of CCI's Santa Barbara operation in April 1995, the agency
found that CCI would provide documents by facsimile, but only to its
debit account holders. The agency was concerned with this practice,
both because CCI's license agreement did not permit the firm to offer
facsimile services, and because this practice suggested that CCI was
providing preferential service to customers that maintained an account
with CCI. The audit report concluded with the observation:
It is believed that having a debit account with CCI is being
used as a requirement to obtain professional service from CCI,
whereas customers that do not have a debit account receive
lesser service.
The agency again audited CCI's operations in the spring of 1996 and
found continuing problems with the firm's performance, notwithstanding
the agency's having brought the matters to CCI's attention on
numerous occasions. For example, during the contract period, CCI's
license agreement had been amended to grant the firm authority, not
only to copy files, but also to retrieve files from the courts'
central file rooms; this service was to be available to all customers.
In a May 1996 audit of CCI's Los Angeles operation, the agency
discovered that CCI would provide file retrieval services only to
those customers having a debit account with CCI.[3] The firm's
telephone message at the Los Angeles location also failed to state
affirmatively that file retrieval services were available and
continued to state that there were minimum charges for payments by
credit card or check and that CCI would not return telephone inquiries
where the customer did not have a toll-free number or did not accept
collect calls. Similarly, CCI's price list at the Santa Barbara
location continued to represent that CCI would furnish copies by
facsimile, but only where the customer maintained a debit account with
CCI. Additionally, an audit of CCI's San Bernadino operation
reflected the firm's continued practice of providing copies by
facsimile, despite the fact that the firm did not have authority to do
so; the audit concluded that the practice "is a flagrant violation of
the license and [a June 1995 letter that noted the fact that this
service was not authorized]."
In addition to these continuing problems, the record contains numerous
letters of complaint from customers to the courts relating to an
apparently improper relationship between CCI and its affiliate BDR.
(BDR is a concern that provides the same type of file retrieval
service offered by other customers of the copy service.) The letters
relate several customer concerns, including CCI's alleged preferential
processing of BDR requests, and use of the copyroom facilities by BDR
employees to conduct BDR business.
We conclude that the record contains ample evidence showing that the
agency had a reasonable basis for finding CCI technically unacceptable
based on its past performance.
CCI contends that the agency improperly discounted the favorable
references it received from the three private concerns identified in
its quotation. According to the protester, the agency mistakenly
determined that two of these favorable references were for file
retrieval rather than copier services when, in fact, these references
had used the copier services of CCI. In support of its position, CCI
has furnished a letter from one of the references in which the
cognizant individual clarifies his position, stating that his firm
uses CCI for both file retrieval and copier service. In a related
argument, CCI maintains that the agency contacted one of the eventual
awardees after quotations were submitted to obtain an additional
reference because the firm had included only two instead of the
required three references. CCI contends that the agency should have
solicited additional references from it when the agency found that two
of its references were not relevant.
Even given the agency's apparent error in finding that one of CCI's
references was referring to BDR rather than CCI, the agency
nonetheless reasonably discounted CCI's private references as less
relevant than its court references in reaching its determination as to
the acceptability of CCI's quotations. In this respect, agencies
properly may consider as more relevant--and properly may give more
weight to--prior experience references for the precise services being
solicited them to references involving services that are merely
similar in nature. Fidelity Techs. Corp., B-258944, Feb. 22, 1995,
95-1 CPD para. 112 at 2-3. Here, the RFQs indicated that the agency would
give consideration to references that were for copier services which
were equivalent in terms of the number of copies called for. CCI does
not contend, and the record does not show, that the two references
discounted by the agency were for services similar in magnitude to
those called for under the solicitations; in fact, both references
were for private law firms requiring copier services at a level far
below the quantity estimates included in the solicitations.
Additionally, the record shows only that the agency gave less weight
to the private references, but did not ignore them completely. In
this respect, the memorandum that discusses the agency's findings
states:
In balancing these references, consideration was given to the
fact that the solicitation is specifically for on-site copy
centers, and the court references reflect CCI's on-site copy
centers experience as the incumbent in [three locations].
In light of the terms of the solicitations, as well as the highly
relevant nature of CCI's court references, we have no basis for
objecting to the agency's discounting CCI's private references in
evaluating the firm's prior performance.
We also have no basis for finding the solicitation of an additional
reference from one of the awardees was inherently unfair to CCI. As
noted, the agency did not rely heavily on CCI's private references in
reaching its conclusions about the firm's prior performance. Thus, to
the extent that CCI now contends that it should have been given an
opportunity to substitute one of its private references, there is no
basis in the record for concluding that such a substitution would have
had any significant effect on the agency's evaluation of CCI's prior
performance.
CCI also maintains that the agency engaged in disparate treatment of
the vendors when evaluating the prior performance of one of the other
awardees. CCI contends that the agency did not consider one of the
four references included in the awardee's submissions when it
performed its technical evaluation. According to CCI, this reference
is especially probative because it shows that the awardee was not
performing satisfactorily at the San Fernando Valley location of the
Court. CCI concludes that the agency's actions show that it was
applying a different standard of scrutiny when evaluating CCI as
compared to the other vendor.
In reviewing allegations of disparate treatment, we examine the record
to ensure that the agency's evaluation was reasonable, consistent with
the terms of the solicitation, and fairly reflected the relative
merits of the competing submissions. See PW Constr., Inc., B-272248;
B-272248.2, Sept. 13, 1996, 96-2 CPD para. 130 at 3-4. On the basis of
the record before us, we have no basis for finding that the AOUSC
treated the vendors in a disparate manner when evaluating their prior
performance.
The record shows that the reference that the agency did not evaluate
relates to a license agreement awarded to that firm in July 1996. The
record includes no information showing concerns on the part of the
agency with respect to the firm's performance under that license.
Rather, it shows that shortly after award of the license, there
developed a disagreement between the awardee and CCI's affiliate BDR
regarding the processing of BDR's work at the location in question;
CCI's affiliate submitted several complaints to the agency regarding
the matter, and the record shows that the parties were apparently able
to reach agreement about how the difficulties were to be addressed.
In any case, the record shows that the awardee's prior performance was
found technically acceptable based primarily on the firm's
satisfactory performance of copy service requirements at several other
courts both within the central district of California as well as in
New York and Ohio, where the firm processed much larger quantities of
work than contemplated under the solicitations here. CCI does not
allege that the awardee's performance under those contracts was
unsatisfactory--or that the agency's evaluation of those references
was disparately favorable compared to its evaluation of CCI's
references--and we have no other basis for finding the evaluation
improper.
The protest is denied.[4]
Comptroller General
of the United States
1. The RFQs were for services at the United States Bankruptcy Courts
located at Santa Ana, Santa Barbara, Los Angeles and San Bernadino,
California; the four RFQs are unnumbered and identical.
2. Because AOUSC is part of the judicial branch, it is not subject to
the procurement statutes and regulations governing executive branch
procurements. Nonetheless, we review AOUSC procurements to ensure
that the agency's actions are reasonable. Superior Reporting Servs.,
Inc., B-230585, June 16, 1988, 88-1 CPD para. 576 at 3.
3. The agency discovered this performance problem by sending auditors
to the
copyroom to request files known to be in the central file room. The
auditors were denied the file retrieval service and told to obtain the
files themselves for CCI to perform the copying. The record further
shows that the practice persisted even after the matter was brought to
the attention of CCI.
4. In a separate protest, CCI challenged the actions of the agency in
issuing several interim purchase orders for its requirements during
the pendency of the protest. After CCI filed this second protest, the
agency terminated the purchase orders and made other arrangements to
obtain its interim requirements from the Department of Treasury; in
response to that action, CCI requested that it be reimbursed the costs
of filing and pursuing the second protest. We decline to grant CCI's
request. The record shows that the purchase orders were only used for
approximately 1 week, and they were terminated 1 day after CCI filed
its protest regarding the issue. Since the agency acted within 1 day
of being made aware of CCI's allegations, there is no basis for
finding CCI entitled to the costs of filing and pursuing this protest.
Southeast Technical Servs.--Entitlement to Costs, B-272374.2, Mar. 11,
1997, 97-1 CPD para. 107 (corrective action within 6 days of when issue
became framed constituted prompt corrective action, and protester not
entitled to costs of filing and pursuing protest).