TITLE:  Gray Graphics Corporation, B-295421, February 18, 2005
BNUMBER:  B-295421
DATE:  February 18, 2005
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   Decision

   Matter of:   Gray Graphics Corporation

   File:            B-295421

   Date:              February 18, 2005

   Anthony Hawks, Esq., for the protester.

   LaTonya D. Hayes, Esq., Government Printing Office, for the agency.

   Peter D. Verchinski, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protester*s allegation that agency improperly rejected its low bid for
printing services after determining that it was nonresponsible is denied;
agency*s nonresponsibility determination was reasonable based on
information showing that protester had made late deliveries under recent
contracts.

   DECISION

   Gray Graphics Corporation protests the award of a contract to McDonald &
Eudy Printers, Inc. under an invitation for bids (IFB) designated as
Program 645-S, issued by the Government Printing Office (GPO) for printing
services.  Gray Graphics contends that GPO improperly found it
nonresponsible, and thus ineligible for award.

   We deny the protest.

   Program 645-S contemplated the award of a 1-year requirements contract,
with 1A option year, for the procurement of printing services for
Government Accountability Office (GAO) reports (commonly referred to as
*GAO Bluebooks*).  The solicitation called for the contractor to publish
approximately 20 to 45 reports per month, with the reports being
approximately 8 to 500 pages long, and the time for production and
delivery of the reports ranging from 1 to 3 workdays.  Both Gray and
McDonald submitted responsive bids; Gray bid $393,735 and McDonald bid
$455,807.  Because Gray*s bid was low, the contracting officer (CO)
investigated its past performance to assess its responsibilty.  The CO
found that Gray recently had delivered several projects late and, on this
basis, determined that Gray was nonresponsible.  After determining that
McDonald, the incumbent, was responsible, the agency made award to that
firm.  Gray challenged the CO*s finding of nonresponsibility in an
agency-level protest, which GPO denied, and then filed this protest with
our Office.

   Gray principally alleges that the agency*s nonresponsibility determination
lacked a reasonable basis because its performance history--specifically,
the number of delinquencies on its prior contracts--was not so deficient
that its ability to satisfactorily perform the contract was in question.

   A contracting agency has broad discretion in making responsibility
determinations, since it must bear the brunt of difficulties experienced
in obtaining the required performance.  Molly Maquires, B-278056, Dec. 22,
1997, 97-2 CPD P 169 at 3.  Thus, a contracting officer has the discretion
to determine the weight to be accorded the information he or she receives
concerning a bidder*s past performance, that is, to determine whether that
past performance indicates there will be problems on the contract to be
awarded.  Mine Safety Appliances Co., B-266025, Jan. 17, 1996, 96a**1A CPD
P 86 at 25.  Although responsibility determinations must be based on fact,
and reached in good faith, they are of necessity a matter of business
judgment.  Molly Maquires, supra, at 3.  We will not question a
nonresponsibility determination absent a showing of bad faith on the part
of agency officials, or that the determination has no reasonable basis.
    EPCo Assocs., B-238015, Apr. 13, 1990, 90-1 CPD P 388 at 5. 

   The nonresponsibility determination here was reasonable.  The record shows
that, at the time the CO made her determination, Gray had performed late
on 7 of 215 orders for the previous 3  1/2 months, for a 3 percent
delinquency rate.  While, as the protester notes, this is not a large
number in absolute terms, the agency took a practical view of the
delinquencies; it notes that, had the protester been performing the GAO
contract during the previous year--in which there were 337 orders--its
delinquency rate would have resulted in 11 late orders.  Agency Report
(AR), Tab 2, Denial of Agency-Level Protest, at 2.  Moreover, the agency
was concerned that Gray*s performance history demonstrated a recent upward
trend in late deliveries.[1]  AR, TabA 6, Findings and Determination.  In
this regard, of the recent late jobs, Gray was late on 2 of 70 jobs, or 3
percent, in July, 4 of 75 jobs, or 5 percent, in September, and 1 of 10
jobs, or 10 percent, for the first half of October.  AR, Tab 5.
    Considering that GAO Bluebooks are time critical in nature, with *an
extremely tight schedule with a 2 to 3 day turnaround,* the agency
determined that Gray*s recent record of delinquencies brought its ability
to timely perform all jobs under this contract into question.  AR, Tab 6,
Findings and Determination.  We find no basis for objecting to this
determination.

   Gray alleges that McDonald*s delinquency rate was similar to its own, and
concludes that the agency unfairly applied a different, more stringent
standard in assessing Gray*s responsibility.  This argument is without
merit.  While the awardee indeed had a recent record of delinquencies
similar to Gray*s, the agency considered McDonald*s perfect record of
timely performance as the incumbent GAO Bluebook contractor to be more
probative of its ability to perform the new contract than its performance
of other, unrelated contracts.  We find nothing unreasonable in the
agency*s according determinative weight to McDonald*s performance of the
same requirement as that under the IFB.  Neither did this constitute
application of a different standard; rather, the different responsibility
determinations resulted from the fact that the two firms were not
similarly situated with regard to past performance. 

   Gray Maintains that the agency improperly made a comparative, *best value*
award, since it was essentially based on a comparison of Gray*s and
McDonald*s performance histories.  This argument, too, is without merit. 
The record shows that the CO was fully aware of the comparative
performance histories of Gray and McDonald, and she referred to this
comparative information in her denial of Gray*s agency-level protest.  AR,
Tab 2, Denial of Agency-Level Protest, at 2.  However, the record
nevertheless supports the conclusion that her nonresponsibility
determination was based on her finding, not that McDonald*s past
performance was superior to Gray*s, but, as discussed above, that Gray*s
recent delinquencies brought into question that firm*s ability to perform
the GAO Bluebook contract without delinquencies.  In this regard, the
Findings and Determination justifying the CO*s determination that Gray was
nonresponsible cites as support only the protester*s own delinquency
problems.  AR, Tab 6.  Accordingly, this argument does not provide a basis
for questioning the determination that Gray was nonresponsible. 

   Gray maintains that six of the seven jobs cited by the agency in fact were
not delinquent, since the delivery dates on those jobs were extended.  The
record shows that, while the protester is correct that the delivery dates
were extended, the extensions were approved only after the CO had made her
nonresponsibility finding on October 15.  AR, Tabs 27-33.  Our review of a
responsibility determination is limited to considering whether the
determination was reasonable when it was made,

   given the information the agency had before it at the time.  Downtown
Legal Copies, B-289432, Jan. 7, 2002, 2002 CPD P 16 at 5.  Thus, the
after-the-fact extensions have no bearing on the reasonableness of the
agency*s determination.[2]

   Gray alleges that, prior to making the nonresponsibility determination,
the CO should have informed it which jobs were considered late, in order
to confirm the protester*s delivery record.  However, GPO was not required
to do this; a contracting officer may base a negative determination of
responsibility on evidence in the record, without affording offerors the
opportunity to explain or otherwise defend against the evidence.  Victor
Graphics, Inc., B-249297, Oct. 19, 1992, 92-2 CPD P 252 atA 3-4. 

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] Gray maintains that the single October delinquency did not provide a
reasonable basis for finding an upward trend in late performance,
asserting that *such an anomalous statistic is obviously skewed by the
short time frame involved and cannot provide a reasonable basis for
determining nonresponsibility.*  Protest at 9.  However, the CO states
that she fully considered the short time frame and, because the total
number of October jobs was small (10), nevertheless concluded that the
delinquency was significant, since it showed that, even with a small
number of jobs, Gray had been unable to provide timely delivery.  CO*s
Statement at 2.  We conclude that the CO reasonably factored this
delinquency into her determination.

   [2] Gray asserts that these jobs nevertheless should not be considered
late because it submitted its modification requests before the
nonresponsibility determination was made, information of which the agency
would have been aware if it had properly verified Gray*s delivery record. 
However, the record shows that the agency investigated each of the late
deliveries by contacting knowledgeable agency officials connected with the
contracts prior to making its nonresponsibility determination.  Since this
information confirmed that deliveries on seven contracts were late, the
agency*s determination based on this information was reasonable.  AR, Tab
18.  Any dispute as to whether the late deliveries were excusable is a
matter outside of our jurisdiction.  Shelf Stable Foods, Inc., B-226111,
B-226112, Apr. 10, 1987, 87-2 CPD PA 400 at 2-3.