BNUMBER:  B-281127 
DATE:  December 29, 1998
TITLE: Pacific Photocopy and Research Services, B-281127, December
29, 1998
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Matter of:Pacific Photocopy and Research Services

File:     B-281127

Date:December 29, 1998

Bernard Dane Stein, Esq., for the protester.
Linda R. Horowitz, Esq., Administrative Office of the U. S. Courts, 
for the agency.
Katherine I. Riback, Esq., and Paul Lieberman, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest against nonresponsibility determination is denied where the 
determination was reasonably based upon the contracting officer's 
conclusion that the protester's recent contract performance on similar 
work was inadequate because of consistently high volume of unresolved 
customer complaints, notwithstanding protester's disagreement with the 
agency's interpretation of the underlying facts.  

Pacific Photocopy and Research Services protests the determination by 
the Administrative Office of the U. S. Courts that Pacific is 
nonresponsible, under an unnumbered invitation for bid (IFB) for a 
licensing agreement to provide copy center services for the U. S. 
Bankruptcy Court for the Southern District of Florida.  Pacific 
asserts that the nonresponsibility determination lacked a reasonable 
basis and was made in bad faith.

We deny the protest.

BACKGROUND

A predecessor IFB was issued on March 2, 1998, seeking bids to provide 
both off-site and on-site vendor operated copy centers to furnish 
copying and related services for the provision of court documents to 
the public for the divisional offices of the U. S. Bankruptcy Court in 
the Southern District of Florida (FLSBC) located in Fort Lauderdale, 
West Palm Beach and Miami.  Section H.2 of the IFB entitled "Conduct" 
provided that:  "Vendors will be providing services to the public and 
all conduct by Vendors may affect the public's opinion of the Court.  
Therefore, Vendors are expected to provide timely, courteous service 
to the public, and conduct business in a fashion befitting the Court 
at all times."  

The IFB instructed vendors to provide along with their bids a list of 
three private references, as well as all courts for which the vendor 
had previously provided copying and/or related services to the public.  
The IFB stated that "[a]ward will be made to the responsive, 
responsible vendor submitting the lowest aggregate price."  IFB at 42.  
The court received seven bids by the March 18 due date, of which 
Pacific's was low.  At that time Pacific had been performing the 
services being acquired for the FLSBC since 1993.  On April 1, the 
contracting officer determined that, while Pacific was the lowest 
bidder, it was not a responsible vendor and award was made to the next 
lowest, responsible bidder, Americo.[1]  The contracting officer's 
nonresponsibility determination was based upon Pacific's 
unsatisfactory and deficient performance for the FLSBC, as well as its 
poor performance as the copy center vendor for the U. S. District 
Court in the Southern District of Florida (FLSDC) and the U. S. 
Bankruptcy Court in the Middle District of Florida (FLMBC).  The 
clerks at each of the courts where Pacific had provided copying 
services expressed their substantial dissatisfaction with Pacific's 
performance, and stated that they had received a constant stream of 
verbal and written complaints from the public regarding Pacific's 
performance.  The contracting officer also determined that as the 
incumbent contractor that Pacific had consistently breached the terms 
of the license agreement despite repeated notices by the clerk of the 
FLSBC to Pacific regarding those infractions.  The next lowest bidder 
on this IFB, Americo, was then awarded the license agreement for the 
FLSBC.  Subsequently, effective August 14, Americo was terminated for 
poor performance.  

On August 11, the IFB in question here was issued to all interested 
vendors to provide these same copying services.  The court received 
two bids, and again Pacific was the apparent low bidder.  The 
contracting officer then reexamined and  reevaluated Pacific's 
responsibility, endeavoring to obtain the most current information 
concerning Pacific's performance.  Because at the time Pacific was 
providing copy services for the FLMBC, the court contacted each of the 
three divisional managers in the three separate court locations for 
the FLMBC located in Orlando, Tampa, and Jacksonville, to discuss 
Pacific's performance as the current copy service vendor.  Each of the 
court managers reported that the court continued to receive written 
and oral complaints regarding Pacific's performance.  The complaints 
primarily concerned Pacific's billing practices, the professionalism 
of Pacific's staff, and the timeliness with which the public was 
provided with requested copies of court documents.  The court also 
contacted two out of the three private references that Pacific 
provided in its bid, both of whom gave Pacific favorable 
references.[2]  While the contracting officer took cognizance of 
Pacific's favorable private references, she determined that Pacific's 
performance in the federal courts was more relevant to her 
responsibility determination because, under this IFB, Pacific would 
also be providing copies of court documents to the public.  Based upon 
Pacific's record of unsatisfactory performance in the FLSBC and the 
FLSDC, as well as the unfavorable reference information obtained from 
the FLMBC, where Pacific's performance problems were ongoing, Pacific 
was found nonresponsible.  The court then made award to Judicial 
Research and Retrieval Services, the remaining bidder, which was found 
responsible.  This protest followed. 
ANALYSIS

Pacific contends that the court's nonresponsibility determination 
lacks a reasonable basis and contains generalities and unsupported 
attributions.  Basically, Pacific argues that it has not experienced 
any serious performance problems and that some complaints are bound to 
occur simply due to the large volume of business that it conducts.  
Pacific provides a response to each of the letters of complaint that 
the court included in its report to our Office.  

The court views Pacific's record as replete with serious performance 
problems, and  notes that, because the public can only obtain copies 
of court documents through the court designated copy service, the 
conduct of the vendor is particularly important, as noted in the IFB, 
because the vendor's conduct affects the public's opinion of the 
court.  The court was particularly concerned that the constant stream 
of complaints regarding Pacific's performance, especially regarding 
its billing practices, has served to tarnish the reputation of the 
court.  The court notes that despite its receipt of consistent 
complaints regarding, for example, Pacific's billing practices, and 
the court's notification to Pacific of these complaints, the problems, 
and the resultant complaints persist.

Before awarding a contract, a contracting officer must make an 
affirmative determination that the prospective contractor is 
responsible.  Federal Acquisition Regulation (FAR)  sec.  9.103(b).  In the 
absence of information clearly indicating that the prospective 
contractor is responsible, the contracting officer shall make a 
determination of nonresponsibility.  Id.  With regard to a prospective 
contractor's prior performance, the firm must have a satisfactory 
performance record, and a contractor that is or has recently been, 
seriously deficient in contract performance, shall be presumed to be 
nonresponsible, unless the contracting officer determines that the 
circumstances were properly beyond the contractor's control.  FAR  sec.  
9.104-3(b).

Our Office 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 determination, since the determination is 
essentially a matter of business judgment and encompasses a wide 
degree of discretion.  Schenker Panamericana (Panamï¿½) S.A., B-253029, 
Aug. 2, 1993, 93-2 CPD  para.  67 at 2-3.  The contracting officer may base 
her determination upon a reasonable perception of inadequate past 
performance, even where the contractor disputes the agency's 
interpretation of the facts or has appealed an adverse determination.  
Id. at 3.  Applying this standard here, the court's determination was 
clearly reasonable. 

While Pacific is of the view that any performance problems were 
excusable and its performance satisfactory, the record provides a 
reasonable basis for the court to conclude that Pacific's performance 
was deficient and that the deficiencies were not due to circumstances 
beyond Pacific's control.  At the time of the nonresponsibility 
determination, the contracting officer reviewed the nonresponsibility 
determination that had been made 5 months earlier and sought to update 
it by obtaining current information regarding Pacific's performance.  
Accordingly, the contracting officer contacted the three divisional 
managers for the FLMBC, where Pacific was currently providing copy 
services, in the three separate court locations in Orlando, Tampa, and 
Jacksonville, and learned that the court continued to receive written 
and oral complaints regarding Pacific's performance.  While Pacific 
offers explanations and interpretations of the record that provide a 
more favorable picture of Pacific's activities than that drawn by the 
contracting officer, this does not alter the fact that there was ample 
evidence for the contracting officer to conclude that Pacific had a 
protracted and continuous history of serious performance problems.  
See MCI Constructors, Inc., B-240655, Nov. 27, 1990, 90-2 CPD  para.  431 at 
6.  

Pacific also seems to argue that the court failed to forward to it 
each complaint received and did not provide Pacific with an 
opportunity to comment prior to the contracting officer's making her 
nonresponsibility determination.  However, responsibility 
determinations are administrative in nature and do not require the 
procedural due process otherwise necessary in judicial proceedings.  
Accordingly, a contracting officer may base a negative determination 
of responsibility on evidence in the record, and there is no 
requirement that offerors be advised of the determination in advance 
of the award.  Lithographic Publications, Inc., supra, at 4-5.  

Finally, we find without merit the Pacific's allegation that the 
determination was made in bad faith.  To show bad faith, a protester 
must submit proof that the contracting agency directed its actions 
with the specific and malicious intent to injure the protester.  Molly 
Maguires, B-278056, Dec. 22, 1997, 97-2 CPD  para.  169 at 5.  Pacific's 
argument that the nonresponsibility determination must have been made 
in bad faith is contradicted by the record, which, as discussed above, 
reflects that the contracting officer had a reasonable basis to find 
Pacific nonresponsible.   Accordingly, the allegation of bad faith is 
unfounded.  

The protest is denied. 

Comptroller General 
of the United States      

1. Pacific did not protest this finding of nonresponsibility, which 
was not referred to the Small Business Administration for 
consideration under the certificate of competency (COC) procedures 
because the court does not fall within the relevant statutory 
definition of "agency" for purposes of the COC referral requirements.  
Lithographic Publications, Inc., B-217263, Mar. 27, 1985, 85-1 CPD  para.  
357 at 2.

2. The record shows that the contracting officer also made four 
attempts to contact Pacific's third private reference, without 
success.