United States Government Accountability Office 

Washington, DC 20548 

Comptroller General

of the United States

 

Decision 

Matter of: Colonial Press International, Inc. 

File: B-403632 

Date: October 18, 2010 

Anthony W. Hawks, Esq., for the protester. 

Roy E. Potter, Esq., and Julie Kelley Cannatti, Esq., Government Printing Office, for 

the agency. 

Cherie J. Owen, Esq., and Glenn G. Wolcott, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision. 

DIGEST 

An agency may properly exclude a defaulted contractor from a reprocurement for 

the remaining work in the defaulted contract, even where the contractor is in the 

process of challenging the default. 

DECISION 

Colonial Press International, Inc., of Miami, Florida, protests the award of a contract 

to Vision Print Communications, of Brooklyn Park, Minnesota, under solicitation 

No. 679-216 by the U.S. Government Printing Office (GPO) for the production of 

75,000 brochures requisitioned by the Department of Agriculture, and titled “North 

Umpqua Trail Brochure.” Colonial Press contends that the agency improperly 

determined that the protester was nonresponsible for purposes of this procurement. 

We deny the protest. 

BACKGROUND 

The protester here was the previous awardee for the requirement, awarded on 

March 15, 2010. The subject reprocurement began after the protester’s contract was 

terminated for default on August 11, 2010. Agency Report (AR), Tab 2, Notice of 

Termination, at 1. The agency contends that the original contract was terminated 

when the protester refused to reprint the brochure, despite numerous quality issues. 
AR at 1-2. The protester has challenged this determination before GAO’s Contract 

Appeals Board. 1

After the termination of the protester’s contract, the agency issued solicitation 

No. 679-216 on August 13 to attempt to reprocure the requirement. Id. at 2. The 

protester submitted the lowest-priced quote, but was determined to be 

nonresponsible due to its default on the original contract, and the agency awarded to 

the second lowest-priced acceptable vendor. Id. This protest followed. 

DISCUSSION 

The protester contends that the agency’s determination of nonresponsibility was 

improper, given that the protester is currently challenging the termination for default 

before GAO’s Contract Appeals Board. Further, the protester attempts to challenge 

the grounds of its termination for default, and contends that a decision from our 

Office should be stayed pending a decision by the Contract Appeals Board regarding 

whether the termination for default was justified. The agency contends that the 

determination of nonresponsibility was a reasonable exercise of the contracting 

officer’s discretion. 

Generally, the statutes and regulations governing federal procurements are not 

strictly applicable to reprocurements of defaulted requirements. Essan Metallix 

Corp., B-310357, Dec. 7, 2007, 2008 CPD ¶ 5 at 2. In particular, under the standard 

termination for default clause incorporated into GPO solicitations and contracts, the 

contracting officer may reprocure “under the terms and in the manner the 

Contracting Officer considers appropriate” for the repurchase. GPO Contract Terms, 

Pub. No. 310.2, Contract Clauses § 20(a)(2)(b).2 We will review a reprocurement to 

determine whether the agency acted reasonably under the circumstances. Bluff 

Springs Paper Co., Ltd./R.D. Thompson Paper Products Co., Inc. Joint Venture, 

B-286797.3, Aug. 13, 2001, 2001 CPD ¶ 160 at 2. With regard to determinations of 

nonresponsibility, we generally will not question a negative determination of 

responsibility unless the protester can demonstrate bad faith on the part of the 

agency or a lack of any reasonable basis for the determination. Bilfinger Berger AG 

Sede Secondaria Italiana, B-402496, May 13, 2010, 2010 CPD ¶ 125 at 3. Further, our 

Office has specifically held that an agency may properly exclude a defaulted 

contractor from a reprocurement for the remaining work in the defaulted contract. 

Essan Metallix Corp., supra, at 3; Montage, Inc., B-277923, Dec. 29, 1997, 97-2 CPD 

¶ 176 at 3 (“although ‘competition to the maximum extent practicable’ must be 

obtained in the reprocurement, that standard does not, in our view, mean that an 

 

1

Colonial Press Int’l, Inc., GAOCAB 2010-10. 

2

 The March 15 purchase order issued to Colonial Press stated that GPO Pub. 310.2 

applies to this contract. AR, Tab 1, March 15 Purchase Order, at 1. 

Page 2 B-403632 
Page 3 B-403632 

agency must consider an offer from a defaulted contractor for the reprocurement of 

the very work for which it was defaulted”). This view is consistent with various 

Board of Contract Appeals decisions reviewing agency’s default terminations, which 

have long held that the contracting officer’s broad discretion in conducting 

reprocurements includes the discretion to exclude the defaulted contractor from the 

repurchase. See Zan Mach. Co., Inc., ASBCA No. 39462, June 4, 1991, 91-3 BCA 

¶ 24,085 at 120,542; Morton Mfg., Inc., ASBCA No. 30716, Oct. 31, 1988, 89-1 BCA 

¶ 21,326 at 107,553; see also Edwards v. U.S., 22 Cl. Ct 411, 417 n.6 (1991). This 

reasoning applies despite the fact that the protester has appealed the default 

termination to a Board of Contract Appeals. See Automated Datatron Inc., B-232048, 

88-2 CPD ¶ 481 at 3; S.A.F.E. Export Corp., B-209491, Aug. 2, 1983, 83-2 CPD ¶ 153 

at 3 (terminations for default are proper matters for consideration in determining a 

contractor’s responsibility despite pending appeals with a Board of Contract 

Appeals). 

In accordance with our prior holdings in Essan Metallix Corp. and Montage, Inc., the 

agency’s decision to exclude Colonial Press from the reprocurement does not 

provide a basis for sustaining the protest.3

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel 

 

3

 To the extent that the protester contends that a decision from our Office should be 

stayed pending a decision by the Contract Appeals Board, we note that under the 

statutory time-frame set forth in the Competition in Contracting Act, 31 U.S.C. 

§ 3554(a)(1), GAO is required to issue a final decision concerning this protest within 

100 days after the date the protest was submitted to GAO. The 100-day deadline for 

issuing a decision on this protest is November 29, 2010. In contrast, GAO’s Contract 

Appeals Board is not subject to a statutory deadline for issuance of its decision. 

Further, the applicable rules for expedited small claims procedure at the Contract 

Appeals Board state that, whenever possible, the Board shall resolve an appeal under 

this procedure within 120 days from the Board’s receipt of the election. The 

protester’s Contract Appeals Board case is expected to be resolved by January 27, 

2011, nearly 2 months after the statutory deadline for the issuance of a decision on 

the instant protest.