BNUMBER:  B-281487             
DATE:  February 16, 1999
TITLE: Mail Boxes Etc., B-281487, February 16, 1999
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Matter of:Mail Boxes Etc.

File:B-281487            
        
Date:February 16, 1999

Jane Walters for the protester. 
Kerry L. Miller, Esq., Government Printing Office, for the agency. 
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency reasonably determined that protester was nonresponsible based 
upon conclusion that protester lacked equipment necessary to perform 
the contract where protester failed to provide sufficient evidence to 
show that it had or could obtain the required equipment in time to 
meet the solicitation's delivery schedule.

DECISION

Mail Boxes Etc. (MBE) protests the determination by the Government 
Printing Office (GPO) that it is nonresponsible under invitation for 
bids (IFB) No. 2085S for electrostatic copying services for the 
Department of Agriculture, the U.S. Forest Service, and various other 
agencies located in the Juneau, Alaska area.  MBE argues that the 
nonresponsibility determination lacks a reasonable basis.

We deny the protest.

The IFB contemplated the award of a fixed-price, indefinite-delivery, 
indefinite-quantity requirements contract for copying services.  IFB 
at 4.  The successful bidder is to produce flat forms and books 
requiring such operations as electrostatic, thermal or other copying 
process, color copying, binding, packing, labeling, and delivery.  Id. 
at 6.  The IFB estimated an average of 42 orders each month, with as 
many as 10 orders placed in one day, for approximately 504 orders 
annually.  Id.  The IFB also listed estimated quantities of copies per 
order, ranging from 20 to 2,000 copies per order of flat forms and 
from 1 to 3,000 copies per order of books.  Id.

MBE submitted the low bid by the October 15, 1998 bid opening date.  
In order to make a responsibility determination, the contracting 
officer (CO) requested that MBE provide a list of all of its equipment 
and suppliers, as well as information regarding the firm's financial 
resources.  In response, MBE provided GPO with the requested 
information, including a list of its equipment which MBE set out under 
two categories:  "EQUIPMENT ON PREMISES" and "EQUIPMENT ON ORDER/READY 
TO BE SHIPPED."  MBE provided no further details or explanation 
regarding the equipment it identified as being "on order."

The CO reviewed MBE's response and concluded that MBE did not have the 
necessary equipment on hand to perform the contract and had not 
provided any evidence of its ability to obtain the necessary equipment 
in sufficient time to begin performance in accordance with the IFB's 
schedule.[1]  In a letter received by MBE on October 22, the CO 
informed MBE that the firm was considered nonresponsible because it 
did not currently have all of the equipment on hand necessary to 
perform the contract.  Specifically, the CO's letter informed MBE that 
the firm was found nonresponsible[2] because the firm had not 
performed any GPO contracts; that its equipment was on order 
contingent upon MBE receiving the award; and that it could not be 
determined exactly when the equipment would be installed and ready for 
use in performing the contract.  On October 22, MBE filed an 
agency-level protest, and before the CO could issue a decision on that 
protest, MBE filed the instant protest in our Office.

The GPO's Printing Procurement Regulations (PPR) require the CO to 
make an affirmative determination that a firm is responsible before 
awarding a contract to that firm.  PPR I-5.1.  In order to receive a 
favorable responsibility rating, an offeror must meet several minimum 
standards applicable to the procurement, including having a 
satisfactory record of performance regarding both quality and 
timeliness on previously-awarded contracts, and possessing, or having 
the ability to obtain, the necessary equipment, technical skills, and 
productive capacity to perform the contract.  PPR I-5.4(iii) and (iv).  
The PPR specifically state that prospective contractors must 
affirmatively demonstrate that they are responsible through 
satisfactory performance on prior similar contracts or by presenting 
evidence of their ability to satisfy the contract requirements.  PPR 
I-5.5.  The PPR require that the CO make a nonresponsibility 
determination if, based on the available information, there is no 
clear indication that the prospective contractor meets those minimum 
standards.  PPR I-5.6.  The CO is required to determine a firm 
nonresponsible where there is doubt as to the offeror's productive 
capability which cannot be resolved affirmatively.  Id.

The CO is vested with broad discretion in exercising his or her 
business judgment in making a nonresponsibility determination.   
Document Printing Serv., Inc., B-256654, B-257051, July 8, 1994, 94-2 
CPD  para.  13 at 3.  Our Office generally will not disturb a 
nonresponsibility determination unless a protester can show either 
that the procuring agency had no reasonable basis for the 
determination or that it acted in bad faith.  Id.  In our review of 
nonresponsibility determinations, we consider only whether the 
negative determination was reasonably based on the information 
available to the CO at the time it was made.  Id. at 4.  Based on our 
review of the record here, we think that the CO's nonresponsibility 
determination is reasonably supported.

The CO's determination that MBE is nonresponsible was primarily based 
on his finding that MBE lacked the necessary equipment to perform the 
contract.  Specifically, the CO explained in his findings and 
determination that the IFB's specifications require that the 
contractor's copy equipment be able to accept electronic storage media 
such as "imoega Zip and Jaz disks and 3/4" floppy disks," and also 
have the ability to accept and send "FTP files and CDs."  CO's 
Findings and Determination, Oct. 21, 1998.  The CO found that MBE's 
equipment lacked these capabilities.  The CO further noted that MBE 
indicated that it had a variety of equipment required to perform the 
contract "on order," contingent upon award of the contract.  The CO 
explained, however, that, even if awarded the contract, "[MBE] will 
not have this equipment in place and running for at least another week 
and therefore would not be prepared to perform [the contract]."  Id.  
The CO further explained in his findings and determination that he did 
not believe that MBE could be ready to perform the contract within 1 
week of award since the equipment that MBE identified as being "on 
order" had to be installed, and MBE's personnel would require training 
on the new equipment.  Id.

In our view, the CO's nonresponsibility determination is reasonably 
supported by the record.  The IFB stated that deliveries under the 
contract must be made within 1 to 10 workdays, with the majority of 
deliveries required within 1 to 5 days.  IFB at 10.  Additionally, the 
IFB stated that approximately two percent of the orders would require 
same-day delivery.  Id.  MBE does not dispute the CO's finding that it 
lacked all of the equipment required to meet the IFB's delivery 
schedule, and does not take issue with the CO's conclusion that the 
equipment it did have available did not have the required 
capabilities.  Further, MBE does not disagree with the CO's 
determination that the equipment it had identified as being "on order" 
would require at least 1 week to deliver and install, and that its 
personnel would require training in the use of that equipment.  
Clearly, if MBE did not have all of the required equipment on hand to 
begin performance, it could not meet the IFB's relatively short 
delivery schedule if awarded the contract.  Based on the information 
available to him at the time, the CO reasonably determined that MBE 
was nonresponsible.

MBE argues that the CO's determination was not reasonable because "no 
pre-award survey was ever conducted" and because the CO did not make 
further inquiries to obtain detailed information "about the status and 
shipping arrangements that MBE had in place . . . ."  MBE also 
maintains that the CO should have asked for "clarification or even 
additional information if he had doubts" about the information MBE had 
provided.[3]  Comments at 2-3.

The protester's arguments are without merit.  A pre-award survey is 
not a legal prerequisite to a responsibility determination; COs have 
broad discretion concerning whether to conduct such surveys and may 
use, as was done here, other information available to them concerning 
a firm's responsibility.  See Mine Safety Appliances Co., B-266025, 
Jan. 17, 1996, 96-1 CPD  para.  86 at 5.  In any event, given that MBE did 
not have at its facility all of the equipment required to perform the 
contract, and the equipment it did have did not have the required 
capabilities, we fail to see, and the protester does not explain, how 
an on-site pre-award survey of MBE would have affected the CO's 
nonresponsibility determination.

Further, as already explained, the burden is on the prospective 
contractors to affirmatively demonstrate that they are responsible 
through the satisfactory performance on prior similar contracts or by 
presenting evidence of their ability to satisfy the contract 
requirements.  PPR I-5.5.  Here, there is no evidence in the record 
showing, and the protester does not contend, that MBE had previously 
performed any similar contracts.  In addition, the record shows that 
except for submitting a list of the equipment it identified as being 
"ON ORDER/READY TO BE SHIPPED," MBE provided no evidence to the CO 
that it had entered into any sales agreement or lease arrangement 
showing that it could obtain the equipment required to perform the 
contract; nor did MBE provide any explanation about any shipping 
arrangements MBE alleges it "had in place."[4]  Contrary to the 
protester's suggestion, there is no legal requirement for the CO to 
obtain additional information or seek clarification about the firm's 
ability to obtain the required equipment.

In sum, we conclude that the CO reasonably determined that MBE was 
nonresponsible based on the lack of evidence showing that MBE was 
capable of obtaining the equipment required in sufficient time to meet 
the solicitation's delivery schedule.

The protest is denied.

Comptroller General
of the United States

1. The IFB stated that GPO contemplated making a single award for a 
base year from October 1, 1998 to September 30, 1999, with up to three 
1-year option periods.  The IFB stated that deliveries under the 
contract must be made within from 1 to 10 workdays, with the majority 
of deliveries required from 1 to 5 days.  Approximately 2 percent of 
the orders would require same-day delivery.  IFB at 10.

2. Despite MBE's status as a small business concern, the 
nonresponsibility determination was not referred to the Small Business 
Administration because GPO is a legislative agency and is not subject 
to the referral requirements of the Small Business Act, 15 U.S.C.  sec.  
637(b)(7) (1994).  See Fry Communications, Inc., B-207605, Feb. 1, 
1983, 83-1 CPD  para.  109 at 2-5.
 
3. MBE also argues that the CO's determination was made in bad faith.  
However, to show bad faith there must be a showing that the agency 
intended to harm the protester.  Complere Inc., B-257946, Nov. 23, 
1994, 94-2 CPD  para.  207 at 4.  MBE has made no such showing.

4. After GPO found MBE nonresponsible, several of MBE's suppliers 
submitted letters to the CO indicating their willingness and apparent 
capability to perform various services in support of MBE if it was 
awarded the contract.  These letters, however, were not submitted in 
response to the CO's request that MBE provide evidence of its 
responsibility.  In any event, they are not legally binding 
contractual arrangements with MBE which the CO would have been 
required to accept as evidence that MBE could obtain the equipment 
necessary to perform the contract.