Colonial Press Int'l, Inc. v. United States
| Decision Date | 03 December 2013 |
| Docket Number | No. 13-403C,13-403C |
| Parties | COLONIAL PRESS INTERNATIONAL, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | Court of Federal Claims |
Post-Award Bid Protest; Government
Printing Office; Statutory
Construction; Responsibility
Determination; Small Business
Administration Certificate of
Competency Program.
Anthony W. Hawks, Hawks Law Office, Bethany Beach, D.E., for the plaintiff. Philip H. Hecht, Law Office of Philip H. Hecht, Washington, D.C., of counsel.
J. Byran Warnock, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, D.C., for the defendant. With him were Bryant G. Snee, Acting Director, Commercial Litigation Branch, and Stuart F. Delery, Assistant Attorney General, Civil Division, Washington, D.C. Roy Potter, Associate General Counsel, United States Government Printing Office, Washington, D.C., of counsel.
Plaintiff, Colonial Press International, Inc. (Colonial Press), filed a post-award bid protest in this court, challenging the United States Government Printing Office (GPO) award of a contract under a United States Department of Health and Human Services (HHS) initiative known as Program 199-S to Fry Communications, Inc. (Fry Communications).2 Plaintiff alleges that, "[a]s the actual low responsive bidder on the GPO Program 199-S contract, Colonial Press would have received the award but for thenon-responsibility determination and thus has an obvious direct economic interest in the award having been made to Fry Communications." Colonial Press argues that the GPO Contracting Officer's determination of plaintiff's nonresponsibility for the purposes of the 199-S contract was arbitrary, capricious, and lacked a rational basis. Plaintiff seeks an injunction with instructions from this court that the GPO correct the alleged errors in its nonresponsibility determination process and re-evaluate the responsibility determination made with respect to Colonial Press. Colonial Press also seeks an injunction precluding the GPO from ordering work for Program 199-S from Fry Communications, the awardee of the 199-S contract.
On June 26, 2012, the Department of Health and Human Services - Centers for Medicare and Medicaid Services (DHHS-CMS) submitted a requisition for Program 199-S to the GPO. Subsequently, the GPO issued an invitation for bids under Program 199-S in order to complete a printing order for DHHS-CMS. Program 199-S involved the "production of 63 versions of English and Spanish separate-covered, perfect bound publications," titled in English, "Medicare and You," and in Spanish, "Medicare y Usted," respectively, with the possibility that the number of versions could increase from year to year. The invitation for bids was for a contract with a term beginning on the "Date of Award" and ending on January 31, 2014, with four optional twelve month extension periods. The product quality levels required for the books to be produced under the contract varied, with Quality Level II required for the printing and finishing of the covers, and Quality Level III required for the printing and finishing of the text pages.3 The invitation for bids specified that orders under the 199-S contract would consist of approximately twelve orders throughout the year, usually on a monthly basis, with approximately 300,000 total orders estimated per month. Each order would consist of approximately 275,000 to 375,000 copies in English, and approximately 3,500 to 4,000 copies in Spanish. Although, generally, orders would be placed monthly, according to the invitation for bids, there was potential for months when no orders would be placed, and for orders requesting up to a three months order at a time. The solicitation also included the possibility of supplemental bulk copy orders. The GPO amended the invitation for bids twice, once on January 28, 2013 and again on January 30, 2013, in order to make minor changes to the specified standards, the binding instructions, and the lists of qualified paper.4
Bids for the 199-S solicitation could be submitted beginning February 4, 2013 and plaintiff submitted its bid on that day. In addition to the bid submitted by Colonial Press, the GPO received eight other bids in response to the invitation for bids. The nine offerors5 were as follows:
Bidders
Non-Discounted Bid
Discounted Bid6
Colonial Press
$2,442,872.26
$2,418,443.54
Fry Communications
$2,553,617.40
$2,502,545.05
NPC, Inc.
$2,510,716.20
$2,504,439.41
Publishers Press
$2,651,591.84
$2,519,012.25
Gateway Press, Inc.
$2,637,452.16
$2,558,328.60
Bind-Rite Robbinsville
$2,626,813.80
$2,574,277.52
R.R. Donnelly & Sons, Inc. Dba Von Hoffman
$2,599,581.80
$2,599,581.80
Brown Printing Company
$4,282,202.92
$4,068,092.77
The D.B. Hess Company
$7,302,687.84
Colonial Press was the low bidder in response to the invitation for bids for the 199-S contract, with a discounted bid of $2,418,443.54. Fry Communications was the second lowest bidder, with a discounted bid of $2,502,545.05.
The GPO followed the protocols set forth in its Printing Procurement Regulation (PPR), found in GPO Publication 305.3 (Rev. 2-11),7 when it solicited and evaluated the bids for the 199-S contract. The PPR addresses the printing procurements for theGPO's federal agency clients, and "is issued to: (i) prescribe uniform policies and procedures for the procurement of printing, binding, related supplies, and related services; and, (ii) provide guidance to Agency Publishing Services (APS) personnel in applying those policies and procedures." PPR, Chapter I, §§ 1.1, 1.3. Chapter XII of the PPR, "Certification and Award," governs the certification and evaluation of bid responses received by the GPO in response to invitations for bids. Section 1.1 of Chapter XII states:
After opening and abstracting bids, Printing Services Specialists shall evaluate all responses to determine the lowest responsive bid, the responsibility of the low responsive bidder, and whether the price bid is fair and reasonable to the Government.
With respect to a contractor's "responsibility," the PPR at Chapter I, § 5.4 sets forth minimum standards that a prospective contractor must meet in order to receive a favorable responsibility determination:
PPR, Chapter I, § 5.4. According to Chapter I, § 5.5: "A Contracting Officer, prior to making an affirmative responsibility determination, shall be satisfied that the available information sufficiently demonstrates that the prospective contractor meets the minimum standards set forth in subsection 4."
In accordance with the PPR, upon receipt of the bid from Colonial Press, the GPO reviewed the compliance history of Colonial Press with respect to past GPO contracts. A GPO Printing Specialist, Marty Janney, prepared a summary, one-page "PREAWARD SURVEY" relevant to Colonial Press' responsibility, including information on the contractor's performance history, quality history, quality samples, program history, correspondence history, and investigation factors. In the summary, the GPO identified Colonial Press as satisfactory in the eleven following factors: mechanical capability; plant facilities and equipment; purchasing; transportation; labor resource; ability to meet schedule; production capability; financial capability; quality assurance capability; security clearance; and performance record. The only qualifying comment in the Preaward Survey was that "CONTRACTOR HAS NOT PROVEN THE ABILITY TO MATCH PROOFS ON WEB PRINTING - LEVEL 2 IS FOR SHEETED ONLY . . . ."
Included with the Preaward Survey was the backup support for the summary in the form of the "CONTRACTOR PERFORMANCE HISTORY - PRIOR 13 MONTHS TO PRESENT," in which the GPO developed a "contractor performance history" for Colonial Press covering the prior thirteen months, on a month by month basis from February 2012 to February 2013.8 The Contractor Performance History included a chart of the total jobs performed as well as the number of late deliveries by Colonial Press over the prior month, the prior three months, the prior twelve months, and the prior twelve months with the addition of the then current month. The Contractor Performance History also provided the percentage of late deliveries out of the total number of deliveries for the prior month, prior three months, and prior twelve months periods, rounded to the nearest whole number. Over the thirteen-month period identified in the Contractor Performance History, out of 117 orders, Colonial Press was late on seven deliveries, or late on just under 6% of the deliveries. During November 2012, December 2012, and January 2013, the three months prior to the date of the solicitation for the 199-S contract,...
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