Continental Transport & Moving, Inc., B-280538, October 15,

B-280538 Oct 15, 1998 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protest challenging nonresponsibility determination is denied where record provides reasonable basis for contracting officer's conclusion that protester's performance record was unsatisfactory based on seriously deficient recent past performance. S-KZ100-98-M-0376 to Interdean International Movers by the Department of State for packing and shipping goods belonging to a foreign service officer who was being transferred. Principally objects to the agency's determination that it is nonresponsible. The agency requested Interdean and Continental to provide "packing-out" estimates for the effects of a foreign service officer who was being transferred from Kazakstan to Cyprus. The General Services Officer (GSO) in charge at the time advised the Embassy Customs and Shipping Assistant that Continental was not a responsible offeror because it had recently undergone a change in management. View Decision Matter of: Continental Transport & Moving, Inc. File: B-280538 Date: October 15, 1998 DIGEST Attorneys DECISION Continental Transport & Moving, Inc. protests the issuance of purchase order No. S-KZ100-98-M-0376 to Interdean International Movers by the Department of State for packing and shipping goods belonging to a foreign service officer who was being transferred. Continental, which submitted a lower quotation than Interdean, principally objects to the agency's determination that it is nonresponsible. We deny the protest. On June 15, 1998, the agency requested Interdean and Continental to provide "packing-out" estimates for the effects of a foreign service officer who was being transferred from Kazakstan to Cyprus. Although Continental quoted a lower price, the General Services Officer (GSO) in charge at the time advised the Embassy Customs and Shipping Assistant that Continental was not a responsible offeror because it had recently undergone a change in management, fired its chief local employee and had not paid its employees in several months. As a result, the assistant telephonically informed Interdean that it would receive the purchase order. Upon her return to the embassy in Almaty, the present GSO (and contracting officer) issued the protested purchase order to Interdean on June 29, essentially ratifying the earlier nonresponsibility determination. This protest was filed on July 7 after Continental learned that it had not received the purchase order. Subsequently, the contracting officer obtained written confirmation of Continental's recent financial and performance problems in Almaty. Continental raises various issues and questions about the propriety of the procurement process; however, the principal focus of our analysis is its challenge to the nonresponsibility determination /1/ since competitive prejudice is an essential element in every viable protest, Sytel, Inc., B-277849.2, B-277849.3, Jan. 8, 1998, 98-1 CPD Para. 21 at 11, and we, therefore, need not consider the other issues if the nonresponsibility determination was reasonably based because Continental could not have received the purchase order in any event. 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). 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 determination, since the determination is essentially a matter of business judgment and encompasses a wide degree of discretion. Schenker Panamericana (Panam ) S.A., B-253029, Aug. 2, 1993, 93-2 CPD Para. 67 at 2-3. The contracting officer may base her or his 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. The agency has detailed confirming evidence which supports its nonresponsibility determination in its report on the protest. The first document is a July 17 letter from the Almaty office of Sea-Land--a transportation firm from which Continental booked shipping containers. That letter states that a container en route to the U.S.