Appeal from the United States Court of Federal Claims in No. 1:13-cv-00403-MBH, Judge Marian Blank Horn.
ANTHONY HAWKS, Hawks Law Office, Alexandria, VA, argued for plaintiff-appellant.
WILLIAM JAMES GRIMALDI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented by STUART F. DELERY, ROBERT E. KIRSCHMAN, JR., DEBORAH A. BYNUM.
Before LOURIE, PLAGER, and WALLACH, Circuit Judges.
Plager, Circuit Judge.
This is a post-award bid protest case. Of the two questions raised, one is of first impression in this court--whether the Government Printing Office (" GPO" ), before declining to award a contract to a small business concern, must, as part of its bid-evaluation process, refer the responsibility determination to the Small Business Administration (" SBA" ). The other question is a familiar one--whether the deciding official's determination was arbitrary or capricious as tested by the law relating to contract awards.
Because we decide that the GPO is not required to refer such determinations to the SBA, and because we decide that the GPO's actions in awarding the contract at issue in this case were not arbitrary or capricious, we affirm the judgment of the United States Court of Federal Claims.
GPO Bid Solicitation and Award
In June 2012, the GPO issued an invitation for bids for a printing order for the Department of Health and Human Services--Centers for Medicare and Medicaid Services (" HHS" ). The printing order involved the production of sixty-three versions of English and Spanish separate-covered, perfect bound publications entitled " Medicare and You" in English, and " Medicarey Usted" in Spanish. The contract was for a term beginning on the date of award and ending on January 31, 2014, with four optional twelve-month extension periods.
The GPO received nine bids in response to its solicitation. Appellant Colonial Press International, Inc. (" Colonial Press" ) was the lowest bidder with a discounted bid of $2,418,443.54, while Fry Communications, Inc. (" Fry Communications" ) was the second lowest bidder with a discounted bid of $2,502,545.05. Colonial Press was a small business concern for purposes of the Small Business Act, 15 U.S.C. § § 631 et seq. (" Act" ).
As part of its solicitation and evaluation process, the GPO followed the protocols in its Printing Procurement Regulation (" PPR" ), found in GPO Publication 305.3 (Rev. 2-11). Under the PPR, the GPO can award contracts only to " responsible" bidders. A responsible bidder must meet certain minimum standards:
Prospective contractors must affirmatively demonstrate their responsibility. This may be achieved through satisfactory performance on prior similar awards or through the presentation of evidence of their ability to satisfy the contract requirements. 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.
PPR, Ch. I, § 5.5(a).
As part of the minimum standards, a bidder must:
(b) be able to comply with the proposed delivery schedules, taking into consideration other existing commitments, commercial as well as governmental;
(c) have a satisfactory record of performance in regard to both quality and
timeliness on previously awarded contracts.
Id. § 5.4.
If these standards are not met, or if there is doubt as to the bidder's productive capacity or financial strength that cannot be resolved affirmatively, then the bidder must be deemed non-responsible. Id. § 6.
Determinations of non-responsibility with respect to contracts worth more than $100,000 must be documented in a Determination and Findings (" D& F" ) document. Id. § 6(a). The D& F:
constitutes a special form of approval or exercise of judgment required as a prerequisite to taking certain actions by procurement officials. A D& F must stand alone on its own merits and should ideally be confined to a single page, containing all available findings, concisely stated, to support the determination.
Id. § 3.5(a).
In Colonial Press's case, and in accordance with the PPR, the GPO reviewed Colonial Press's compliance history with respect to past GPO contracts. The GPO prepared a Preaward Survey relevant to Colonial Press's responsibility, including information on its performance history, quality samples, program history, correspondence history, and investigation factors.
The Preaward Survey included a performance history covering the prior thirteen months, on a month-by-month basis. Over the thirteen-month period, Colonial Press was late on just under 6% of the deliveries. During the three months prior to the date of solicitation, Colonial Press had three late deliveries in November ...