BNUMBER:  B-270499.3; B-270499.4; B-270499.5
DATE:  April 18, 1996
TITLE:  Schleicher Community Corrections Center, Inc.

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Matter of:Schleicher Community Corrections Center, Inc.

File:     B-270499.3; B-270499.4; B-270499.5

Date:April 18, 1996

Kent C. Dugmore, Esq., Parsons, Behle & Latimer, for the protester.
Granette Trent, Esq., Federal Bureau of Prisons, for the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Contention that protester's proposal for residential community 
corrections services should have been rated higher in the evaluation 
than other proposals because protester offered the only operational, 
accredited facility, is without merit, where solicitation required 
only that proposed facility be "fully operational and ready for 
performance to begin within 60 days" after award, and the evaluation 
scheme announced in the solicitation did not contemplate rewarding 
proposals which offered an existing, operational facility.

2.  Agency conducted meaningful discussions where the record shows 
that the agency's detailed written discussion items corresponded to 
the deficiencies the evaluators identified in the protester's 
proposal; specifically referenced the applicable sections of the 
solicitation's requirements where the protester's proposal was found 
deficient; and sufficiently alerted the protester to the specific 
areas of its proposal requiring further explanation.

3.  Even if contracting agency should have held discussions with 
protester regarding weaknesses in one area of its proposal, there is 
no basis to object to the award decision where the record shows that 
even if discussions had been held and protester's proposal had been 
awarded the maximum number of points available in that area, the 
protester's proposal would not have displaced the awardee's or another 
offeror's higher rated proposals, both of which were lower priced.

DECISION

Schleicher Community Corrections Center, Inc. (SCCC), the incumbent, 
protests the award of a contract to Cornell Corrections of California, 
Inc. under request for proposals (RFP) No. 200-256-W, issued by the 
Federal Bureau of Prisons for residential community corrections 
services.  The protester argues that the agency improperly evaluated 
its proposal with respect to the facilities offered, and that the 
agency failed to conduct meaningful discussions with SCCC.  The 
protester also requests that we reconsider our dismissal as untimely 
of certain issues it raised in its first supplemental protest.

We deny the protests and the request for reconsideration.

The RFP contemplated the award of a requirements-type, 
indefinite-delivery contract, for a 12-month base period, with up to 
three 1-year option periods.  Section M of the RFP listed the 
following evaluation factors in descending order of relative 
importance (subfactors within each factor are shown in parenthesis):  
technical (reports/policy/procedure; facility; overall programs 
approach); cost; and management (personnel and staffing; experience 
and structure).  Offerors were instructed to submit proposals in two 
separate volumes--volume I, the technical proposal and volume II, the 
business proposal.  Section L of the RFP provided specific, detailed 
instructions on the contents of each volume.

In addition to evaluating written proposals, the RFP explained, the 
agency would also conduct a site visit of the offeror's facility to 
determine whether the proposed facility was in compliance, or capable 
of becoming compliant, with the RFP requirements.  The RFP instructed 
offerors to respond by addressing each chapter of the statement of 
work (SOW) "section-by-section."  Offerors were warned not to merely 
repeat or paraphrase the SOW, or to simply agree to comply with the 
SOW.  Rather, they were to provide direct, concise descriptions of 
their capabilities and proposed approaches to meeting the objectives 
of the SOW.  Award was to be made to the offeror whose proposal was 
determined to be "in the best interest" of the government.

A technical evaluation panel (TEP) rated proposals by assigning 
numerical ratings to the technical and management factors (for a 
maximum of 700 points).  Cost was numerically scored by assigning the 
maximum number of points available (300) to the proposal offering the 
lowest price, with higher priced proposals earning proportionately 
lower scores.  The following is the result of the final evaluation for 
the four offerors whose proposals were retained within the competitive 
range.

         Offeror      Tech.        Scores  Cost       Scores  Total
                                            Proposed Cost

         Cornell        674        300      $3,237,002

           B            665        279      $3,476,625

           C            620        264      $3,671,097

         SCCC           588        258      $3,781,925
Based on these results, the source selection authority concluded that 
Cornell's and offeror B's proposals were technically equal.  Thus, 
Cornell's lower price became the determining factor for award to that 
firm.  The agency informed the protester of the award on October 30, 
1995.  This protest followed.

Although SCCC takes issue with virtually every aspect of the 
evaluation of its proposal, the protester's central contention is that 
the evaluation of SCCC's proposal under the "facility" subfactor was 
unreasonable.  In this connection, the protester asserts that it 
offered the only operational facility accredited by the American 
Correctional Association, and thus its proposal should have been rated 
higher under that subfactor.  SCCC also maintains that the agency 
failed to conduct meaningful discussions with the firm.

ANALYSIS

Technical Evaluation

In reviewing a protest challenging an agency's technical evaluation, 
we examine the record to ensure that the agency's evaluation was 
reasonable and consistent with the stated evaluation criteria.  See 
Abt Assocs. Inc., B-237060.2, Feb. 26, 1990, 90-1 CPD  para.  223.  Based on 
our review of the record, we find no basis to question the TEP's 
evaluation of SCCC's proposal.

Under the "facility" subfactor, out of a maximum possible score of 150 
points, SCCC's proposal earned a total of 143 points--nearly a perfect 
score.[1]  SCCC contends that its proposal should have received a 
higher rating under this subfactor because it proposed an existing 
facility.  The RFP did not require offerors to include in their 
proposals an existing operational or accredited facility; in this 
regard, section F.3 of the RFP required only that the contractor's 
facility be "fully operational and ready for performance to begin 
within 60 days after the date of contract award."  Further, there is 
nothing in the evaluation scheme announced in the RFP to suggest that 
the agency would reward offerors who proposed an existing facility.  
Accordingly, we see no basis to question the evaluation of SCCC's 
proposal under this subfactor.

The protester's proposal lost the most number of points under the 
"overall approach" subfactor, which was worth a maximum of 120 points; 
SCCC's proposal earned a total of 75 points under this subfactor, the 
lowest score earned by any proposal.  The evaluators concluded that, 
for the most part, SCCC's proposal was poorly written and 
disorganized, and contained excessive and irrelevant information.  One 
evaluator noted that it appeared as if SCCC had simply copied sections 
of the SOW.  Primarily as a result of the lack of explanation and 
detail, the evaluators downgraded SCCC's proposal under the "overall 
approach" subfactor.

Our review of the record confirms the agency's conclusion that in 
responding to the RFP's "overall approach" requirement, the 
protester's proposal essentially parrots the SOW, does not explain how 
SCCC proposed to accomplish the RFP's requirements, and lacks 
sufficient detail to allow the agency to determine SCCC's 
understanding of the requirements.  This was not an acceptable 
approach, especially in light of the RFP's specific warning that 
offerors must not merely repeat or paraphrase the SOW, but must 
respond in a direct, concise manner to the RFP's requirements.  See 
Source AV, Inc., B-234521, June 20, 1989, 89-1 CPD  para.  578.  As a 
result, we have no reason to question the TEP's rating of SCCC's 
proposal under the "overall approach" subfactor.[2]

SCCC maintains that to the extent its proposal was disorganized and 
poorly written, this resulted from ambiguities in the SOW, the RFP's 
instructions, and the evaluation scheme.  According to the protester, 
it was simply following the RFP's unclear instructions in preparing 
its proposal.  Our review of the RFP reveals no such ambiguities.  In 
any case, if SCCC objected to the RFP's instructions to offerors or to 
the evaluation scheme, it was required under our Bid Protest 
Regulations  21.2(a)(1) to raise its concerns prior to the time set 
for receipt of proposals.  Engelhard Corp., B-237824, Mar. 23, 1990, 
90-1 CPD  para.  324.  Since SCCC did not raise this issue until it filed 
its protest in our Office, well after the closing time, these 
allegations are untimely and will not be considered.

Discussions

For each evaluation subfactor, the evaluators' individual worksheets 
listed several items which were categorized as either "major" or 
"minor" elements of the respective subfactor.  For each item, 
evaluators were to indicate with a check mark whether that element had 
been satisfied, or enter some notation indicating a deficiency.  SCCC 
contends that the agency failed to conduct meaningful discussions with 
the firm because it failed to apprise the firm of several items 
identified on these worksheets as deficient in SCCC's proposal.

Contracting officials must balance a number of competing interests in 
selecting matters for discussion based on the facts of each 
acquisition.  Federal Acquisition Regulation  sec.  15.610; Matrix Int'l 
Logistics, Inc., B-249285.2, Dec. 30, 1992, 92-2 CPD  para.  452.  They must 
point out weaknesses that, unless corrected, would prevent an offeror 
from having a reasonable chance for award.  Department of the 
Navy--Recon., 72 Comp. Gen. 221 (1993), 93-1 CPD  para.  422.  We have 
reviewed the discussion items here in light of the protester's 
allegations, and, except as explained below, we conclude that the 
agency's approach to discussions was reasonable.

The record shows that by letter dated August 4, 1995, the agency 
informed SCCC that its proposal was acceptable, but that the TEP had 
identified deficiencies in SCCC's proposal that required discussion.  
The letter categorized the various deficiencies noted by the TEP 
according to the evaluation factor and subfactor(s) affected by the 
deficiency, and referenced the specific chapter and SOW section where 
the requirement was explained in detail.  For instance, under factor I 
(technical), the agency's letter to SCCC delineated 12 separate 
deficiencies noted in SCCC's proposal under subfactor I 
(reports/policy/procedure).  Similarly, under subfactor II (facility), 
the letter listed several deficiencies concerning compliance with 
mandatory safety codes and SCCC's proposed plan for handling 
handicapped referrals.  The letter also specifically enumerated 
several deficiencies related to structural components of the building, 
including items directly related to the safety of the residents such 
as exposed beams, gas heaters, fire barriers, and emergency escapes.  
The letter further pointed out to SCCC several areas in its proposal 
requiring clarification or further explanation concerning personnel 
and staffing, and its cost proposal.

For each deficiency identified in the letter to SCCC, the evaluation 
documents contain notations from the evaluators identifying those 
areas of the protester's proposal requiring discussion.  The record 
shows that the protester was able to improve some of its proposal's 
numerical ratings based on the written responses it submitted to the 
agency's discussion items.  SCCC's answers did not overcome all the 
evaluators' concerns, however; in some cases SCCC's answers simply 
consisted of a promise to correct the noted deficiency in the future.  
With respect to these areas found deficient in SCCC's proposal, we 
conclude that the agency's discussion questions accurately reflected 
the TEP's concerns about SCCC's proposal, and adequately pointed out 
those areas of SCCC's proposal requiring further clarification or 
explanation.  See ITT Fed. Servs. Corp., B-250096, Jan. 5, 1993, 93-1 
CPD  para.  6.  The fact that SCCC's scores did not improve as significantly 
as SCCC would have liked following discussions does not mean that the 
agency's approach to discussions was flawed.

SCCC argues, however, that the agency improperly failed to raise 
during discussions deficiencies the TEP identified under the "overall 
approach" subfactor, where, as explained above, the protester's 
proposal was significantly downgraded.  SCCC maintains that the 
agency's failure to point out these deficiencies prevented the firm 
from improving its proposal's rating under the "overall approach" 
subfactor.

The agency explains that the "overall approach" subfactor was actually 
a compilation of all SOW chapters and all evaluation factors.  
According to the agency, any deficiencies affecting this subfactor 
were also reflected in the deficiencies noted within each of the other 
evaluation subfactors.  The agency thus maintains that it would have 
been "redundant" to raise during discussions deficiencies identified 
under the "overall approach" subfactor, since those deficiencies were 
identified and discussed under the other subfactors.

We need not decide whether the agency was required to raise these 
issues as separate discussion items since the record shows that SCCC 
was not prejudiced by the agency's failure to do so.  Specifically, 
the record shows that even if SCCC had been able to correct the 
deficiencies the TEP identified under the "overall approach" subfactor 
concerning the organization and overall quality of its proposal, and 
earn the maximum number of points in this area, SCCC's proposal's 
overall technical rating (633 points) would not have displaced the 
awardee's or offeror B's higher-rated (674 and 665, respectively), 
lower price proposals.  Thus, the fact that the agency did not raise 
as separate discussion items the TEP's concerns with SCCC's proposal 
under the "overall approach" subfactor was immaterial to the relative 
standing of SCCC's proposal with respect to the awardee's or offeror 
B's proposal, and to the selection decision.  Accordingly, the lack of 
separate discussions under this subfactor provides no basis to object 
to the award decision.  See Lithos Restoration Ltd., 71 Comp. Gen. 367 
(1992), 92-1 CPD  para.  379 (competitive prejudice is an essential element 
of a viable protest).

REQUEST FOR RECONSIDERATION

In a supplemental protest, SCCC alleged that on August 30, 1995, the 
landlord of the protester's current facility (which SCCC had offered 
under the RFP) conducted an unannounced inspection of the building.  
According to the protester, at that time, the landlord had in his 
possession what the protester believes was a copy of correspondence 
from the agency detailing deficiencies in the building noted by the 
agency's evaluators during an earlier site visit to the facility.[3]  
The protester alleged that the agency improperly disclosed to the 
landlord information concerning deficiencies in SCCC's proposed 
building.[4]

As explained in our earlier decision dismissing these allegations, 
under the Bid Protest Regulations SCCC was required to file its 
supplemental protest within 10 working days of August 30, or by 
September 14.  Since SCCC did not file its supplemental protest in our 
Office until December 1, several months later, the issues raised in 
its supplemental protest were properly dismissed as untimely.[5]

In its request for reconsideration, SCCC argues that we should 
consider the issue raised in its supplemental protest under the 
"significant issue" exception to our timeliness requirements found in 
section 21.2(c) of our Bid Protest Regulations, 60 Fed. Reg. 40,737, 
40,740 (Aug. 10, 1995) (to be codified at 4 C.F.R.  sec.  21.2(c)).  In 
this connection, the protester argues that the SCCC's allegations 
regarding the improper disclosure of procurement-sensitive information 
concern violations of procurement regulations and of the procurement 
integrity provisions of the Office of Federal Procurement Policy Act, 
41 U.S.C.  sec.  423 (1994).

In order to prevent our timeliness rules from becoming meaningless, 
the significant issue exception is rarely used.  Midwest Pipeliners, 
Inc., B-250795, Jan. 12, 1993, 93-1 CPD  para.  40.  The exception is 
limited to untimely protests that raise issues of widespread interest 
to the procurement community and that have not been considered on the 
merits in a prior decision.  DynCorp, 70 Comp. Gen. 38 (1990), 90-2 
CPD  para.  310.  The question of whether an improper disclosure of 
proprietary or procurement-sensitive information has occurred has been 
addressed in numerous decisions by our Office.  See, e.g., CBIS 
Federal Inc., 71 Comp. Gen. 319 (1992), 92-1 CPD  para.  308, recon. denied, 
Telesec Library Servs.; Department of Agriculture--Recon. B-245844.3; 
B-245844.4, Aug. 13, 1992, 92-2 CPD  para.  103; Science Pump Corp., 
B-255737, Mar. 25, 1994, 94-1 CPD  para.  246; Meridian Mgmt Corp., Inc.; 
NAA Servs. Corp., B-254797; B-254797.2, Jan. 21, 1994, 94-1 CPD  para.  167; 
KPMG Peat Marwick, B-251902.3, Nov. 8, 1993, 93-2 CPD  para.  272, aff'd, 
Agency for Int'l Dev.; Development Alternatives, Inc.--Recon., 
B-251902.4; B-251902.5, Mar. 17, 1994, 94-1 CPD  para.  201.  Accordingly, 
there is no basis to invoke the exception here.

The protests and the request for reconsideration are denied.

Comptroller General
of the United States
f:\projects\pl\2704993.wp5

1. The record shows that during the site visit to SCCC's facility, the 
evaluators identified numerous items of concern under the facilities 
subfactor, for example, noncompliance with safety codes, including 
fire safety standards (fire extinguishers, gas heaters); the lack of 
laundry facilities or garbage disposal; and the adequacy of the 
telephones.  The record shows that the evaluators nevertheless 
concluded that SCCC had provided an adequate facility, and in fact 
rated the firm's proposal within the "excellent" range of possible 
point scores (125-150). 

2. The protester also challenges various other aspects of the 
evaluation of SCCC's and Cornell's proposals.  We have reviewed the 
record in light of SCCC's numerous allegations and find nothing 
unreasonable about the TEP's evaluation of proposals.

3. It appears that in addition to SCCC, another offeror also offered 
to house its program in the landlord's building.  Consequently, in 
June 1995, the agency conducted two site visits to that facility--one 
in connection with the evaluation of SCCC's offer and one in 
connection with the evaluation of the other offeror's proposal.

4. The protester also argued that the landlord maintained an allegedly 
improper business relationship with one of SCCC's competitors under 
the RFP.  SCCC further argued that the landlord's unannounced 
inspection of the facility violated the terms of SCCC's current lease.  
These allegations involve disputes between private parties which are 
for resolution by the parties involved through the courts, if 
necessary, not our Office.  See, e.g., Sublette Elec., Inc., B-232586, 
Nov. 30, 1988, 88-2 CPD  para.  540.

5. We also dismissed as untimely several allegations challenging the 
terms of the RFP. SCCC does not take issue with this aspect of our 
decision.