BNUMBER:  B-278056 
DATE:  December 22, 1997
TITLE: Molly Maguires, B-278056, December 22, 1997
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Matter of:Molly Maguires

File:     B-278056

Date:  December  22, 1997

Beverly Yablin for the protester.
Thomas Kelly, Esq., Government Printing Office, for the agency.
Jacqueline Maeder, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest against Government Printing Office's nonresponsibility 
determination is denied where it was based on the protester's 
unsatisfactory technical capability, the fact that most of the work 
samples provided by the protester were illustrations rather than 
published design work as required under the solicitation, and that the 
agency was unable to verify the protester's claimed experience.  

DECISION

Molly Maguires protests its rejection as nonresponsible under an 
invitation for bids (IFB) designated as Program 3216-M, issued by the 
Government Printing Office (GPO) for graphic design services.  Molly 
Maguires contends that the nonresponsibility determination lacked a 
reasonable basis and was made in bad faith.    

We deny the protest.

Program 3216-M contemplated the award of multiple 1-year contracts for 
the procurement of graphic design services for the Defense Automated 
Printing Service.  Section 1, the general terms and conditions of the 
solicitation, stated that, because of the creative nature of the work 
required under Program 3216-M, firms selected to perform the contract 
must have, among other things, "[e]xperience, including references, 
reputation, and record of accomplishment in designing and illustrating 
projects of a similar size, scope, and complexity."  The solicitation 
also advised that, in order to determine bidder responsibility, the 
agency may conduct a pre-award survey or require the submission of 
other evidence of artistic, technical, production, managerial, 
financial, and similar abilities.  

When bids were opened on July 31, Molly Maguires was the apparent low 
bidder.
During the ensuing pre-award survey, Molly Maguires provided the 
agency representative with a "Capabilities Statement" outlining, among 
other things, the background of the owner/principal of the firm; the 
firm's financial status, equipment and supplies; and a list of 12 
corporate clients.  The protester provided neither an address or phone 
number for any of these 12 references, nor the name of a specific 
contact for any of the references.  Molly Maguires also provided GPO 
with a copy of a letter of reference from a judge in whose courtroom 
Molly Maguires's principal had done case illustrations and artwork for 
a TV news program.  The letter was written by the judge and addressed 
to an advertising firm.  The protester also submitted a letter from an 
art college in Philadelphia certifying that Molly Maguires's principal 
had graduated from the college in 1987. 

In the agency's August 15 record of Molly Maguires's pre-award survey, 
the agency representative noted the size of the studio and the 
available equipment.  On the survey report, the agency representative 
specifically noted that the protester's technical capability was 
unsatisfactory, that most work samples shown to the agency 
representative were illustrations rather than published design 
samples, that the limited number of graphics samples did not appear to 
be recently produced, and that Molly Maguires would not relinquish the 
samples, so the agency photocopied them.[1]  The agency representative 
concluded that the protester provided "no evidence [that] the 
contractor is proficient at producing production-ready art, either 
electronically or mechanically."  The record of the survey also shows 
that the agency representative contacted four businesses referenced by 
Molly Maguires as previous clients, but that none of the personnel 
contacted by the agency representative were able to confirm that Molly 
Maguires had done business for the firm.  Because Molly Maguires 
failed to furnish acceptable samples and it did not appear that the 
firm was able to produce production-ready work, and because the agency 
could not verify Molly Maguires's references or current clients, the 
agency determined that Molly Maguires was nonresponsible.[2]  The 
agency awarded contracts to three bidders and, upon learning of the 
award and of the nonresponsibility determination, Molly Maguires 
protested to this Office.

Molly Maguires protests that the nonresponsibility determination was 
unreasonable because it was based on an improper pre-award survey.  
Specifically, the protester argues that it was "never ever asked for a 
list of references" but, as noted above, provided the list of 
corporate clients and two letters of reference.  The protester alleges 
that she asked GPO on several occasions if the agency wanted 
additional information, but that the agency representative never 
identified any required additional information.  The protester also 
states that it also offered the GPO copies of its owner's/principal's 
1099 (miscellaneous income) tax forms but the offer was refused by the 
agency. 

Molly Maguires's principal states that, after reviewing the GPO report 
on the protest, she called the references contacted by the GPO, and 
asserts that one of the references denied saying the words attributed 
to her by the GPO representative in the agency's pre-award survey 
record and another reference stated that the protester was listed on 
the firm's active records.  The third firm was the advertising firm 
that had been sent the letter of reference from the judge.  Molly 
Maguires's  principal concedes that she never worked for the 
advertising firm, but argues that she never claimed that she worked 
there and questions why the judge was never contacted.  As for the 
fourth reference, the firm allegedly denied that the person the GPO 
representative listed as having been contacted was an employee of that 
firm. 

Finally, the protester alleges that the agency representative would 
not look at her work at the pre-award survey and notes that there is 
no reference to her work in the handwritten notes made by the agency 
representative concerning the pre-award survey.  The protester argues 
that it provided samples of production-ready art as required by the 
solicitation, specifically noting an invitation the protester designed 
for the Kentucky Derby and work for TV Guide.  Molly Maguires also 
questions the agency's emphasis on "current" work since the 
solicitation does not specifically state that bidders must provide 
current work samples.  The protester argues that because "current" is 
not defined in the solicitation, "we can interpret current to mean any 
work done within the last 5-10 years."  The protester asserts that it 
provided six current samples of its work.  The protester argues that 
the agency's inability to verify Molly Maguires's work and the 
agency's dissatisfaction with the protester's work samples clearly 
show that the survey evaluation and subsequent rejection were 
erroneous and arbitrary and demonstrate bad faith on the part of the 
agency.  

A contracting agency has broad discretion in making responsibility 
determinations, since it must bear the brunt of difficulties 
experienced in obtaining the required performance.  Automated Datatron 
Inc., 68 Comp. Gen. 89, 91 (1988), 88-2 CPD  para.  481 at 2-3.  Although 
responsibility determinations must be based on fact, and reached in 
good faith, they are of necessity a matter of business judgment.  
Chandler Mktg. Group, supra, at 3.  We will not question a 
nonresponsibility determination unless the record shows bad faith on 
the part of agency officials or there is a lack of any reasonable 
basis for the determination.  EPCo Assocs., 
B-238015, Apr. 13, 1990, 90-1 CPD  para.  388 at 5.

Although Molly Maguires contends that it responded adequately to GPO's 
request for references and work samples, the record shows otherwise.  
Specifically, as the protester concedes and its "Capability Statement" 
shows, Molly Maguires did not provide information, including 
addresses, phone numbers, or specific individual contacts for any of 
the references listed.  The protester contends that these specifics 
are "unnecessary and undesirable" to include on a capabilities 
statement.  Indeed, Molly Maguires states in its protest (with 
reference to a conversation with the agency representative) that, 
"[t]o my utter disbelief, [the agency representative] informed me 
[that] he was trying to call people to verify my work."  In this 
respect, the IFB put bidders on notice that they were to provide 
references and other detailed information regarding their experience, 
which should have apprised the protester that GPO would contact 
references and that it was incumbent on bidders to provide traceable 
references.    

While the protester provided corporate names as references, the 
protester does not claim, nor does the record show, that Molly 
Maguires ever furnished phone numbers or addresses for the firms 
listed as clients.  In a declaration submitted by the agency 
representative, he states, as noted above, that while Molly Maguires's 
principal listed corporate clients, she "would not provide the 
addresses, telephone numbers or names of individuals to contact" at 
those firms and she "refused to provide the same information" for 
current clients.  The protester concedes that the agency 
representative, in a phone conversation in late August, "asked for 
names and telephone numbers of people at the companies for which 
[Molly Maguires's principal] did work."  While the protester's 
principal provided the names of nine individuals, she does not assert 
that she provided phone numbers or addresses for these contacts.[3]  
As a result of Molly Maguires's failure to provide complete reference 
information, the GPO representative himself tried to find references 
for Molly Maguires at the firms listed by the protester.  The record 
shows that the agency representative contacted four firms that he knew 
were in the Philadelphia area and whose phone numbers were available 
from the phone book.  He generally contacted the referenced firm's art 
department or art director.  In view of Molly Maguires's failure to 
give GPO even one contact and corresponding phone number, we find 
unobjectionable the manner in which GPO made its own inquiries into 
Molly Maguires's past experience. 

The protester's argument that the agency rejected its offer to provide 
forms to indicate the type of compensation its principal received from 
various companies is without relevance.  GPO's request for references 
was not simply for the purpose of verifying employment, which is all 
that these forms would have done.  Rather, references are requested, 
especially in circumstances, as here, where the work involves 
creativity, to assess the bidder's skill, including creativity and 
timeliness.  Employment tax forms do not address these issues.  

As to Molly Maguires's argument that the agency representative refused 
to look at her work at the pre-award survey, while the 
representative's handwritten notes do not reference the protester's 
samples, the complete pre-award survey report does discuss the 
protester's work samples.  Moreover, in its comments, Molly Maguires 
states that its principal had "already shown [her] portfolio book to 
[the agency representative] on the day the bids were opened."  The 
protester also concedes that she brought in additional samples of her 
work on August 21.  Molly Maguires states that it provided more 
samples than the agency required.  As to production-ready design 
samples, GPO concedes, as Molly Maguires argues, that the protester 
did have samples of production-ready designs.  However, as noted 
above, GPO found that most of Molly Maguires's samples were 
illustrations and the protester does not rebut this statement.  
Indeed, Molly Maguires points to only two examples of production-ready 
work and admits that, while considered a form of graphics, "[a] lot of 
[Molly Maguires's] work done for TV stations was illustration . . . ."

We find without merit the protester's argument that the agency 
emphasized current work samples yet the solicitation did not specify 
that current work samples would be required.  We find it reasonable 
for the agency to request current samples when conducting a pre-award 
survey.  While Molly Maguires states that it provided some current 
work samples, the most recent pay information provided by the 
protester was for 1993 and Molly Maguires's principal concedes that 
for the last 2 years she has been primarily involved in building and 
working on a home.  In any event, the agency examined all of the work 
samples submitted, regardless of recency and found insufficient 
examples of the type of work required under the solicitation.    

Finally, we find without merit the protester's allegation of bad 
faith.  To show bad faith, a protester must submit convincing proof 
that the contracting agency directed its actions with the specific and 
malicious intent to injure the protester.  Campbell Indus., B-238871, 
July 3, 1990, 90-2 CPD  para.  5 at 9.  Molly Maguires's argument that the 
nonresponsibility determination had no reasonable basis and therefore 
must have been made in bad faith is unsupported by the record, which, 
as discussed above, reflects that GPO did, in fact, have a reasonable 
basis to find Molly Maguires nonresponsible.  Accordingly, the 
allegation of bad faith is unfounded.

The protest is denied.

Comptroller General
of the United States

1. The record shows that the protester brought the samples to the 
agency and that agency personnel photocopied the samples in the 
presence of the protester.

2. GPO need not refer a nonresponsibility determination of a small 
business to the Small Business Administration (SBA) for review because 
GPO is a legislative branch agency not subject to SBA jurisdiction.  
Chandler Mktg. Group, B-247184, May 11, 1992, 92-1 CPD  para.  434 at 4.

3. While GPO and the protester state that they had several 
conversations concerning required additional information, both 
submitted documentation, in the form of telephone logs, of only that 
one late August telephone call.  In that conversation, both GPO and 
Molly Maguires noted that Molly Maguires provided GPO with additional 
references.  However, the logs are not identical.  While Molly 
Maguires's log states that the protester provided four specific 
individuals to contact at KYW-TV, Humana, Thomas Jefferson Hospital 
and Capital Holding, GPO's log states that Molly Maguires provided 
three specific individuals to contact at KYW-TV, Thomas Jefferson 
Hospital, and a reference connected with the Kentucky Derby.  As for a 
contact at Capital Holding, GPO's log states that the protester 
provided no contact or address.  Neither log suggests that any phone 
numbers for the contacts were provided by the protester.  GPO's log 
also states that the agency representative asked for names of current 
or recent clients but that the protester could not provide any.  The 
agency log also states that the representative suggested that Molly 
Maguires call the agency "if any [recent clients] come to mind."