TITLE:  Dismas Charities, Inc., B-289575.2; B-289575.3, February 20, 2004
BNUMBER:  B-289575.2; B-289575.3
DATE:  February 20, 2004
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Dismas Charities, Inc., B-289575.2; B-289575.3, February 20, 2004

   DOCUMENT FOR PUBLIC RELEASE                                                
The decision issued on the date below was subject to a GAO Protective      
Order.  This redacted version has been approved for public release.        

   Decision
    
Matter of:   Dismas Charities, Inc.
    
File:            B-289575.2; B-289575.3
    
Date:              February 20, 2004
    
Alex D. Tomaszczuk, Esq., and Daniel S. Herzfeld, Esq., Shaw Pittman, for
the protester.
Joseph A. Camardo, Jr., Esq., and  Kevin M. Cox, Esq., for Bannum, Inc.,
an intervenor.
Katherine A. Day, Esq., Bureau of Prisons, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
1.  Protest that agency improperly failed to accord past performance
factor greater weight in evaluation than other factors--as provided in
solicitation--is denied where record shows that agency did give past
performance greater weight than other factors--in the form of 100 more
possible evaluation points--but determined that, despite protester*s
scoring advantage for past performance, proposals were equal under all
technical factors combined, leading to award based on awardee*s lower
price.
    
2.  Agency was not required to perform price realism analysis where
solicitation contemplated award of a fixed-price, rather than a
cost-reimbursement, contract and did not provide that such an analysis
would be performed.
DECISION
    

   Dismas Charities, Inc. protests the award of a contract to Bannum, Inc.
under request for proposals (RFP) No. 200-0669-SE, issued by the Bureau of
Prisons (BOP) for Community Corrections Center services for federal
offenders held in Savannah, Georgia. Dismas complains that BOP failed to
make award in accordance with the solicitation, and improperly evaluated
Bannum*s prices.
    

   We deny the protest.
    
The solicitation, which contemplated the award of a fixed-price contract,
provided for a *best value* award based on an evaluation under four
factors:  past performance, technical, management and price.  Past
performance was identified as the most important factor, with the
remaining three factors being equal in weight.  The non‑price
factors combined were significantly more important than price. 
    
Four proposals, including Dismas*s and Bannum*s, were received.  A source
selection evaluation board (SSEB) evaluated the technical and management
proposals by assigning them point scores under each factor, and the
contracting officer evaluated price and past performance.  Following
multiple rounds of discussions and the submission of final proposal
revisions (FPR), Dismas*s proposal received [DELETED] (of 1,000 possible)
points, with [DELETED] (of 325) for past performance, [DELETED] (of 225)
for the technical factor, [DELETED] (of 225) for the management factor,
and [DELETED] (of 225) for price.  Bannum*s proposal received [DELETED]
points, with scores of [DELETED] for past performance, [DELETED] for the
technical factor, [DELETED] for the management factor, and [DELETED] for
price.  The agency determined that the two offerors* non-price proposals
were technically equal, and thus made award to Bannum based on its lower
price.  This protest followed.
    
Dismas raises a number of issues concerning the evaluation and award
decision.  We have considered each issue and find them all to be without
merit.  We discuss several examples below.
    
PAST PERFORMANCE
    
Dismas asserts that the agency failed to give appropriate evaluation
weight to past performance, as evidenced by the agency*s determining that
Dismas*s and Bannum*s proposals were technically equal despite the fact
that Bannum*s proposal score was lower than Dismas*s for past performance
and for all non-cost factors combined.  Dismas asserts that, had past
performance been weighted properly, its [DELETED]-point advantage over
Bannum for that factor would have led the agency to conclude that Dismas*s
proposal was superior, rather than equal, to Bannum*s. 
    
This argument is without merit.  While the RFP provided that past
performance was the most important factor, this was reasonably reflected
in BOP*s assigning past performance 325 possible points, and the technical
and management factors only 225 points each.  Further, while Dismas
enjoyed a [DELETED]-point advantage over Bannum for past performance, the
results of the overall point-scoring show that most of this advantage was
offset by Bannum*s superiority under the other factors.   In any case,
point scores are only guides to assist source selection officials in
evaluating proposals; they do not mandate automatic selection of a
particular proposal.  The question ultimately is whether the record
supports the agency*s conclusions regarding the relative merits of the
proposals.  SDS Int*l, Inc., B‑291183.4, B-291183.5, Apr. 28, 2003,
2003 CPD P: 127 at 9.  Here, the record shows that the source selection
authority (SSA) was aware of the differences in Dismas*s and Bannum*s past
performance scores, and the substantive reasons for those differences,
Source Selection Document at 4, 5, 7, but ultimately concluded that the
proposals were equal overall under all non-price factors.  Dismas has not
established that this conclusion was unreasonable. 
    
TECHNICAL AND MANAGEMENT FACTORS
    
In its comments in response to the agency report, Dismas argues that the
scoring system was flawed because it resulted in Dismas*s proposal
receiving a lower weighted score than Bannum*s under the technical and
management factors, even though it received a higher raw score.  Dismas
also argues that one of the evaluators improperly lowered her score for
Dismas* proposal after the fourth round of discussions.
    
Under our Bid Protest Regulations, protest arguments, such as these, that
do not involve an apparent solicitation impropriety, must be raised within
10 days after the bases of protest were, or should have been, known.  4
C.F.R. S: 21.2(a)(2) (2003).  Where, as here, a required debriefing is
provided, protests raising arguments based on information known prior to,
or learned at, the debriefing must be filed within 10 days after the
debriefing.  Id.  BOP reports, and Dismas does not dispute, that Dismas
was provided with the scores on which these arguments are based no later
than October 2, 2003, during litigation initiated by Bannum in the United
States Court of Federal Claims with respect to the solicitation under
protest here.  Agency Report at 5; Supp. Agency Rept. at 4-5; Supp.
Comments at 1-2.  Dismas therefore was aware of these bases of protest
when it filed its initial protest on December 3, following its
debriefing.  Since Dismas did not raise these issues until January 12,
they are untimely. 
    
Dismas argues that these evaluation arguments are timely because it
challenged the evaluation under the technical and management factors in
its December 3 protest.  This argument is without merit.  In its initial
protest, Dismas*s argument with respect to the technical and management
factor evaluation consisted solely of the following general statement: 
*Upon information and belief, BOP improperly conducted the evaluations
under the Technical and Management factors.  In particular, BOP failed
properly to score the evaluations of Dismas and Bannum.*  The protest
included no details explaining why the evaluation was unreasonable, or why
Dismas believed the proposals were improperly scored.  Dismas first
provided specifics in its comments, where it asserted that its higher raw
score improperly resulted in a weighted score lower than Bannum*s, and
that one of the evaluators improperly lowered Dismas*s score after the
fourth FPR.  Where a protester presents a general allegation in its
initial protest, it does not render timely subsequently submitted specific
examples of the alleged general flaws in the evaluation.  CAE USA, Inc.,
B-293002, B-293002.3, Jan. 12, 2003, 2004 CPD P:__ at 11 n.9; see LeBoeuf,
Lamb, Greene & MacRae, B‑283825, B‑283825.3, Feb. 3, 2000,
2000 CPD P: 35 at 11-12.  Accordingly, Dismas*s specific arguments
regarding the evaluation, first raised in its comments, are untimely and
will not be considered.  Battelle Mem*l Inst., B-278673, Feb. 27, 1998,
98-1 CPD P: 107 at 24 n.32.
    
PRICE EVALUATION
    
Dismas maintains that BOP improperly failed to assess the realism or
reasonableness of Bannum*s proposed price, or to consider that Bannum*s
price is unbalanced between the base and option years. 
    
These arguments are without merit.  First, price realism is not required
to be considered in the evaluation of proposals for the award of a
fixed-price contract unless the solicitation provides for a price realism
analysis to assess an offeror*s understanding of the requirements or the
risk of poor performance inherent in a proposal.   AllWorld Language
Consultants, Inc., B-291409, B-291409.2, Dec. 16, 2002, 2003 CPD P: 13 at
2.  Here, as the solicitation did not require a price realism analysis,
the agency was not required to perform one.
    
Dismas*s argument regarding price reasonableness is based on the agency*s
alleged failure to use Bannum*s revised prices in a comparison with the
government estimate.  According to Dismas, BOP used prices of $73.00 for
Bannum*s base period and $64.00 for the two option periods, instead of
Bannum*s revised prices of $72.50 for the base period and $63.00 for the
option periods.  This argument is without merit.  The purpose of a price
reasonableness evaluation, is to determine whether offered prices are
higher, not lower, than warranted.  Efficiency Mgmt.
& Eng*g Co., Norcor Techs. Corp., B‑292676, B-292676.2, Oct. 31,
2003, 2003 CPD
P: __.  Since the agency found that prices higher than Bannum's revised
prices were reasonable, using Bannum*s lower revised prices in the
comparison obviously would not affect the price reasonableness
determination.
    
Dismas argues that Bannum*s prices of $73.00 for the base year and $64.00
for the option years are unbalanced and should be rejected.  However, the
difference in Bannum*s base and option year prices--approximately 14
percent--is not so extreme as to render the offer unbalanced.  See Laidlaw
Envt*l Servs. (GS), Inc., B-261603, Oct. 11, 1995, 95‑2 CPD P: 171
at 4 (pricing not unbalanced where base year price is 36 percent higher
than option year price).
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel