TITLE:  Bluff Springs Paper Company, Ltd./R.D. Thompson Paper Products, B-286797.3, August 13, 2001
BNUMBER:  B-286797.3
DATE:  August 13, 2001
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Bluff Springs Paper Company, Ltd./R.D. Thompson Paper Products, B-286797.3,
August 13, 2001

Decision

Matter of: Bluff Springs Paper Company, Ltd./R.D. Thompson Paper Products
Company, Inc. Joint Venture

File: B-286797.3

Date: August 13, 2001

Anthony W. Hawks, Esq., for the protester.

Scott P. Pavelle, Esq., for Esselte Corporation, an intervenor.

Jennifer R. Fantuz, Esq., Government Printing Office, for the agency.

David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Agency reasonably determined to reprocure defaulted requirement from other
than protester, a joint venture that was the evaluated next low bidder on
the original procurement, where preaward survey information indicated that
protester and component companies had performed late on numerous recent
contracts, while awardee had recently performed similar work successfully.

DECISION

Bluff Springs Paper Company, Ltd./R.D. Thompson Paper Products Company, Inc.
Joint Venture protests the award of a contract to Esselte Corporation
pursuant to the Government Printing Office's (GPO) reprocurement of modular
disability folders under program No. C684-S. The joint venture asserts that
GPO improperly found it nonresponsible, and thus ineligible for award.

We deny the protest.

The reprocurement followed the termination for default of a contract for the
requirement that had been awarded to Thom-Tex Paper Converting Corporation.
The contracting officer, reprocuring without resoliciting, first considered
the feasibility of an award to the joint venture, since it had been the
evaluated next low bidder after Thom-Tex under the original competition.
However, based upon October 19, 2000 preaward surveys of Bluff Springs and
R.D. Thompson individually, GPO determined that the joint venture was
nonresponsible due to unacceptable past performance, and therefore issued a
purchase order to Esselte on October 23. Agency Report, June 1, 2001, at
1-2; Reaward of Program C684-S, Oct. 20, 2000; Repurchase of Program C684-S,
Oct. 20, 2000. On October 31, in response to an agency-level protest from
the joint venture, GPO reaffirmed the determination not to negotiate with
the joint venture, based in part on a new, October 30 preaward survey, which
indicated significant late performance by the joint venture. Reevaluation of
Repurchase After Default, Program C684-S, Oct. 31, 2000.

The joint venture argues that GPO failed to recognize that the performance
record of the joint venture itself was the most relevant responsibility
information, and also improperly failed to look behind the numerical data
and consider information--such as the reasons for any delays, and whether
the contractors had taken corrective action--that might bear on the
likelihood of successful performance. The protester notes that GPO's
Printing Procurement Regulation (PPR), chapter I, section 5, subsection 6,
requires the contracting officer to base nonresponsibility determinations on
"all available information."

Generally, the statutes and regulations governing federal procurements are
not strictly applicable to reprocurements of defaulted requirements.
Montage, Inc., B-277923.2, Dec. 29, 1997, 97-2 CPD para. 176 at 2. In
particular, under the standard termination for default clause incorporated
into GPO solicitations and contracts, the contracting officer may reprocure
"under the terms and in the manner the Contracting Officer considers
appropriate" for the repurchase. GPO Contract Terms, Pub. No. 310.2,
Contract Clauses sect. 20(a)(2)(b). We will review a reprocurement to determine
whether the agency acted reasonably under the circumstances. Marvin Land
Sys., Inc., B-276434, B-276434.2, June 12, 1997, 97-2 CPD para. 4 at 3.

GPO's determination to eliminate the joint venture from consideration for
the reprocurement was reasonable. The October 2000 preaward surveys, based
on the most recent 13 months of contractor compliance data, represented the
data most relevant to assessing the likelihood of successful performance.
The October 19 preaward surveys indicated that the joint venturers
individually had performed late on numerous jobs, with Bluff Springs late on
16 of 31 jobs, or 52 percent, and R.D. Thompson late on 6 of 25 jobs, or 24
percent. Likewise, the October 30 preaward survey indicated that the joint
venture itself had been late on 8 of 31 jobs, or 26 percent. [1] In
contrast, the October 19 preaward survey indicated that Esselte had been
late on only one job (of the three jobs reflected in the data), and Esselte
had satisfactorily performed a contract for modular disability folders as
recently as April 2000. This information fairly indicated that the joint
venture and its constituent parts had experienced more significant
performance problems than Esselte; even though Esselte's late percentage was
33 percent (1 out of 3 contracts), we think the agency reasonably could
consider the volume of contracts on which the joint venture was late as an
indicator that its performance had been more problematic than Esselte's, and
that it more likely would experience performance problems if awarded the
contract here. Further, since there was nothing on the face of the preaward
survey information that brought its validity into question, we think the
agency reasonably could rely on it without further investigation. See
generally Lynwood Machine & Eng'g, Inc., B-285696, Sept. 18, 2000, 2001 CPD
para. __ at 7 (where agency was not otherwise required to communicate with
vendors regarding past performance information, and there was no reason to
question the validity of the information, contracting officer reasonably
relied on the information without seeking to verify it or permitting the
protester to rebut it). Under these circumstances, GPO reasonably made award
to Esselte, which had recently successfully performed work the same as that
being procured, and did not have an extensive record of late performance.

In any case, it does not appear that further investigation would have
warranted a different result. The protester has suggested that late delivery
on one of a related, or "strapped," group of jobs may have resulted in the
entire group being marked as late in the contractor compliance database,
thus inflating its overall late percentage. However, GPO had generated
Contractor Performance Histories for the joint venturers on August 30, 2000,
and these detailed reports confirm, even after adjustment for possible
instances of strapped jobs, that the joint venturers had performed late on
numerous jobs. Specifically, the report showed that Bluff Springs had been
late on 14 of 32 jobs (approximately 44 percent) in the immediately
preceding 13 months. GPO calculates that, while 2 of the late jobs were for
a single strapped job, eliminating this double-counting leaves Bluff Springs
late on 13 of 32 jobs, or approximately 41 percent. Likewise, the August
report indicated that R.D. Thompson had been late on 8 of 31 jobs
(approximately 26 percent) for the immediately preceding 13 months, and that
there was no possibility that the overall lateness rate had been inflated by
strapped jobs. Agency Report, June 1, 2001, at 9.

Although GPO never obtained a detailed history for the joint venture itself,
and the protester asserts that the joint venture's preaward survey late rate
may have resulted from cancellation of a number of strapped jobs, it remains
that the individual joint venturers each had recent performance records
characterized by numerous instances of late performance; agencies generally
may consider the individual venturers' performance in assessing a joint
venture's past performance. See Arctic Slope World Servs., Inc., B-284481,
B-284481.2, Apr. 27, 2000, 2000 CPD para. 75 at 11 n.6.

We conclude that the agency reasonably made award to Esselte under the
reprocurement.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. GPO reports that the records in the database of contractor compliance are
maintained for only 13 months and thereafter are purged. Agency Report, June
1, 2001, at 9 n.6.