Information Resources Incorporated

Information Resources Incorporated BNUMBER: B-271767; B-271768; B-271769; B-271770 DATE: July 24, 1996 TITLE: Information Resources Incorporated ********************************************************************** Matter of:Information Resources Incorporated File: B-271767; B-271768; B-271769; B-271770 Date:July 24, 1996 Charles E. Marks for the protester. Kerry L. Miller, Esq., Government Printing Office, for the agency. Jerold D. Cohen, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Record does not support the protester's argument that the contracting agency acted in bad faith in finding the protester nonresponsible based on poor past performance while awarding contracts to other firms with poor records where the performance records of the other firms were substantially better than the protester's, who recently had experienced serious performance deficiencies on similar contracts with the same agency. DECISION Information Resources Incorporated (IRI) protests the Government Printing Office's (GPO) determinations that IRI was nonresponsible for purposes of awards under GPO programs B-880S, B-562S, B-354S, and B-532S for microfilm reproduction and distribution. We deny the protests. IRI submitted the lowest bid under each of the four invitations, but was rejected following the contracting officer's determination that IRI was a nonresponsible concern for purposes of any awards. The contracting officer was the same individual in each case, and his determination, concurred in by the GPO Contract Review Board, was made concurrently with the nonresponsibility determinations made regarding IRI's other three bids. IRI protests that the contracting officer's nonresponsibility determinations discriminated against IRI essentially because the companies that ultimately were awarded contracts (and companies previously awarded GPO contracts) had performance records no better than IRI's. We 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 finding, since the determination is essentially a matter of business judgment and encompasses a wide degree of discretion. Triad Mechanical, Inc., B-258129, Dec. 6, 1994, 94-2 CPD para. 224. In reviewing a nonresponsibility determination based on prior performance, we will consider whether the determination was reasonably based on the information available to the contracting officer. Id. Moreover, in order to show bad faith, a protester must present virtually irrefutable evidence that the contracting agency directed its actions with the specific and malicious intent to injure the protester. Schenker Panamericana (Panama) S.A., B-253029, Aug. 2, 1993, 93-2 CPD para. 67. The contracting officer's determination regarding IRI in each case included the following finding: ". . . This firm consistently had production and quality problems for the past 6 months on various similar contracts as evidenced by the attached documentation which shows consistent problems with non compliance with various terms of existing and past contracts. "Over the past 12 month period, of 244 orders performed, 30 orders have been rejected for a rate of 12%. Additionally, the contractor has received 26 cure notices and has been defaulted 4 times[[1]] over the past 12 months." IRI takes issue with some of the contracting officer's decisions in that 12-month period with respect to, for example, whether cure or show cause notices should have been sent, whether performance concerns should have been handled through oral communication (rather than written notices), and whether GPO should have subjected IRI's performance to as many inspections as it did. We will not consider IRI's arguments in that regard, however, since we do not consider as part of our bid protest function the propriety of a contracting agency's decisions about the best way to administer an existing contract. See Bid Protest Regulations, 4 C.F.R. sec. 21.5(a) (1996). In this respect, we point out that we have recognized that a contracting officer may base a nonresponsibility determination on a reasonable perception of inadequate prior performance even where the agency did not terminate a prior contract for default, or where the contractor disputes the agency's interpretation of the facts. See Schenker Panamericana (Panama) S.A., supra. IRI further argues that GPO has a history of awarding contracts to firms with unsatisfactory performance records, including the awardees here.