TITLE: Dismas Charities, Inc.�, B-292091, June 25, 2003
BNUMBER: B-292091
DATE: June 25, 2003
**********************************************************************
Dismas Charities, Inc. , B-292091, June 25, 2003
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-292091
Date: June 25, 2003
Alex D. Tomaszczuk, Esq., and Daniel S. Herzfeld, Esq., Shaw Pittman, for
the protester.
J. Mark Taylor, Esq., Moore, Taylor & Thomas, for Alston Wilkes Society,
an intervenor.
Mary E. Carney, Esq., and Aaron T. Marshall, Esq., U.S. Department of
Justice, Federal Bureau of Prisons, for the agency.
Glenn G. Wolcott, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
1. Protest is sustained where agency applied an evaluation scheme other
than that established by the solicitation, failed to evaluate all of
protester's proposal, failed to evaluate past performance in a consistent
manner and as specified by the solicitation, and failed to permit
protester to address adverse past performance information.
2. Where contemporaneous record reflects multiple procurement flaws, and
the agency's post-protest reevaluation of offerors' proposals--which was
conducted *in the heat of an adversarial process*--includes, among other
things, an increase to the awardee's rating which is unsupported by
objective documentation, GAO declines to afford any material weight to the
reevaluation activities and rejects the assertion that the reevaluation
demonstrates that protester was not prejudiced by the agency's errors in
the conduct of the procurement.
DECISION
Dismas Charities, Inc. protests the Department of Justice, Federal Bureau
of Prisons' (BOP) award of a contract to Alston Wilkes Society (AWS)
pursuant to request for proposals (RFP) No. 200-0724-SE to establish,
operate, and maintain a community corrections center for federal offenders
in Charleston, South Carolina.[1] Dismas protests, among other things,
that the agency failed to evaluate proposals in a manner consistent with
the RFP's stated evaluation criteria and failed to conduct meaningful
discussions.
We sustain the protest.
BACKGROUND
The RFP at issue here was published on January 10, 2002 and contemplated
award of a fixed unit-price requirements contract for a 2-year base period
and three 1-year option periods. Offerors were advised that proposals
would be evaluated on the basis of cost/price[2] and the following
non-cost/price factors, listed in descending order of importance: past
performance, community relations, technical, and management.[3] The RFP
further provided that the agency's evaluation under the technical factor
would reflect consideration of three
subfactors--reports/policy/procedures, facility, and overall programs
approach; no relative weights were assigned to these subfactors. Finally,
offerors were advised that the non-cost/price evaluation factors,
combined, were *significantly more important than cost[/price],* and that
cost/price would become a *major factor* only if *evaluations result in
substantially 'technically equal' scores.* Agency Report, Tab 1, RFP,
at 64.
Initial proposals were submitted by three offerors, including Dismas and
AWS, by the June 7, 2002 closing date. These proposals were evaluated by
the agency's source selection evaluation board (SSEB) and, thereafter,
written and oral discussions were conducted with each offeror.[4]
Following discussions, the agency requested that each offeror submit its
final proposal revisions (FPR). The SSEB evaluated the FPRs and assigned
the following scores:
+------------------------------------------------------------------------+
| |AWS |Dismas |Offeror X |
|---------------------------+--------------+--------------+--------------|
|Past Performance[[5]] | | | |
|(400 max.) |[deleted] |[deleted] |[deleted] |
|---------------------------+--------------+--------------+--------------|
|Community Relations | | | |
|(350 max.) |[deleted] |[deleted] |[deleted] |
|---------------------------+--------------+--------------+--------------|
|Technical | | | |
|(250 max.) |[deleted] |[deleted] |[deleted] |
|---------------------------+--------------+--------------+--------------|
|Management | | | |
|(250 max.) |[deleted] |[deleted] |[deleted] |
|---------------------------+--------------+--------------+--------------|
|Cost/Price | | | |
|(250 max.) |[deleted] |[deleted] |[deleted] |
|---------------------------+--------------+--------------+--------------|
|Total | | | |
|(1500 max.) |[deleted] |[deleted] |[deleted] |
+------------------------------------------------------------------------+
Agency Report, Tab 8, at 4.
The contracting officer states that, based on this evaluation, Dismas's
and AWS's proposals were determined to be *substantially equal overall,*
Agency Report, Contracting Officer's Statement, at 12-13, and that, *based
on the overall equality of the technical proposals* AWS's proposal, which
offered the lowest cost/price, was selected for award.[6] Id. This
protest followed.
DISCUSSION
Dismas challenges the agency's evaluation of its and AWS's proposal under
several of the stated evaluation factors. Overall, Dismas protests that
the agency failed to adhere to the RFP's evaluation scheme for evaluation
of the technical factor; failed to consider all of Dismas's proposal
information with regard to the community relations factor; failed to
obtain past performance information in a consistent manner and as
specified by the RFP; and failed to permit Dismas to respond to adverse
past performance information.
The agency acknowledges that it made various errors in conducting this
procurement.[7] Agency Response to Dismas Comments, May 12, 2003, at 8.
For example, the agency acknowledges that, pursuant to the RFP, the
technical evaluation subfactors should have been accorded equal weight;[8]
that the agency actually accorded twice as much weight to the first two
technical subfactors as it accorded the third; [9] and that it was *likely
improper* for the agency to have accorded the subfactors differing
weights.[10] Agency Response to Dismas Comments, May 12, 2003, at 10.
Nonetheless, the agency maintains that, following review of Dismas's
protest, it reevaluated proposals in response to various flaws identified
in the protest (including the agency's failure to accord equal weight to
the technical evaluation subfactors) and, based on those reevaluation
activities, concluded that the initial award decision was proper and,
therefore, that Dismas was not prejudiced by the agency's errors.[11] As
discussed below, we conclude that the agency's evaluation and source
selection decision were fundamentally flawed and not reasonably supported
by the record; further, we are unpersuaded that the agency's post-protest
reevaluation activities provide a credible basis for concluding that
Dismas was not prejudiced by the agency's errors.
In addition to challenging the agency's application of technical subfactor
weights differing from those established by the RFP, Dismas protests that
the agency failed to properly consider all of the information Dismas
submitted with regard to the second most important evaluation factor,
community relations. Regarding this factor, RFP S: M.5 stated that
evaluation would *[p]rimarily consider documentation evidencing community
support or acknowledgement for the location of the [offeror's proposed]
site.* Agency Report, Tab 1, RFP, at 65. The agency specifically raised
the issue of community support letters with Dismas during discussions and,
in response, Dismas submitted [deleted] such letters from community
members within the Charleston, South Carolina area. Agency Report, Tab
5.
Nevertheless, the record indicates that, even after discussions and the
agency's timely receipt of the [deleted] letters, the agency evaluated
Dismas's proposal as containing only [deleted] such letters. The record
further establishes that the agency's ultimate source selection decision
was based, in part, on Dismas's lower level of demonstrated community
support. Specifically, both the SSEB's award recommendation and the
source selection decision expressly compare Dismas's and AWS's
submissions, stating: *AWS provided [deleted] letters of support, Dismas
provided [deleted] letters of support.* Agency Report Tab 8, at 3; Agency
Report, Tab 9, at 5. Finally, the record suggests that the contracting
officer believed Dismas had not submitted any letters of support from the
Charleston, South Carolina area. In this regard, Dismas's debriefing
document states:
Dismas could enhance [its] proposal by providing the following:
. . . . .
Community Support letters from the Charleston, South Carolina area.
Agency Report, Tab 16, at 4.
Thus, based on the documentary evidence, we agree with Dismas that, in
making its source selection decision, the agency failed to consider
information submitted by Dismas demonstrating community support.
The agency responds, in a post-protest submission to our Office, that the
agency's references to Dismas's more limited community support resulted
from a *typographical error in the SSEB's Recommendation Memorandum . . .
which was inadvertently carried over to the Source Selection Decision.*
Agency Response to Dismas Comments, May 12, 2003, at 13. However, the
agency has not identified anything in the contemporaneous evaluation
record that supports this assertion. Accordingly, based on the existing
documentation that addresses this matter, that is,
the SSEB recommendation and the source selection decision, we can only
conclude that the agency failed to consider proposal information submitted
by Dismas that addressed the community relations evaluation factor.
Next, Dismas protests the agency's evaluation of offerors' past
performance, the most heavily weighted evaluation factor, on the basis
that the agency failed to request the same type of information from all
references and in a manner consistent with that specified by the RFP. In
this regard, the RFP stated: *The Contractor Evaluation Form [CEF],
located in Section J, will be used to collect [past performance]
information.* Agency Report, Tab 1, RFP at 61. The CEF requested
references to assign numerical ratings, ranging from 1 to 5,[12] in three
contract performance areas--contract compliance, customer satisfaction,
and business relations. Agency Report Tab 7, CEF, at 2-3. Of
significance, the CEF also contained the following directive to
references: *If performance is over and above the minimum requirements of
the SOW, add either one, two or three points [to the aggregate point
score].* Agency Report Tab 7, CEF, at 2.
The agency does not dispute that it failed to use the RFP-specified CEF
for many of Dismas's references. Rather, for any reference other than the
Bureau of Prisons, the agency states that it prepared a shorter
*letter/questionnaire.* Agency Report, Contracting Officer's Statement,
at 15. Although the letter/questionnaire sought the same
numerical/adjectival ratings for the three contract performance areas
identified in the CEF, it did not direct references to increase an
offeror's rating *[i]f performance is over and above the [SOW] minimum
requirements.* Agency Report, Tab 7, Letter/Questionnaire, at 38.
Following submission of Dismas's protest, the contracting officer,
apparently recognizing that the past performance evaluation was based on
incomplete information, telephonically contacted some (but not all) of the
non-BOP references who had provided information in response to the
letter/questionnaire.[13] According to various memoranda in the file, in
telephone conversations with the references whom the contracting officer
was able to contact, she described the CEF instruction regarding
additional credit for performance over and above SOW requirements, and
asked these references if they wished to increase the ratings given.
Several of Dismas's references stated they would have increased Dismas's
rating had they received the CEF instruction. Supplemental Agency
Documents, Tab 8, at 23-46. The contracting officer similarly contacted
[deleted] of AWS's [deleted] past performance references, who had received
the letter/questionnaire; [deleted] of these references stated they would
not have increased AWS's rating even if they had received the CEF
instruction. Supplemental Agency Documents, Tab 8, at 21-22.
Based on this additional information, the agency performed a
*reevaluation* of Dismas's and AWS's past performance ratings, increasing
Dismas's past performance score by [deleted] points, from [deleted] to
[deleted]. Although none of AWS's references indicated any desire to
increase AWS's ratings, the agency's reevaluation reflects a [deleted]
point increase to AWS's past performance score, from [deleted] to
[deleted].[14] Agency Response to Dismas Comments (May 12, 2003), Attach.
1, at 1. The agency has offered no explanation for this adjustment of
AWS's rating, nor any explanation regarding the significantly differing
numbers on the revised SSEB scoresheet.
Finally, in a matter related to the agency's past performance evaluation,
Dismas protests that the agency failed to comply with the Federal
Acquisition Regulation (FAR) requirement that, in conducting discussions
with offerors following establishment of a competitive range, the
contracting officer must, *at a minimum* discuss *adverse past performance
information to which the offeror has not yet had an opportunity to
respond.* FAR S: 15.306(d)(3). In this regard, the record shows that one
of Dismas's references rated Dismas's past performance as a *[deleted],*
or *[deleted],* with regard to *business relations.*[15] Supplemental
Agency Documents, Tab 7, at 230. The record indicates that this adverse
past performance information was specifically considered by the
contracting officer in making the source selection decision.[16] Agency
Report, Tab 12, at 6.
The agency does not dispute that it failed to provide Dismas an
opportunity to discuss this adverse past performance information.
Further, the record establishes that, had such an opportunity been
afforded, Dismas may well have been able to respond in a meaningful
way.[17] Nonetheless, the contracting officer asserts, without
explanation, that she did not consider this particular past performance
information to be *adverse* and, accordingly, the agency maintains it had
no obligation to advise Dismas of the information during discussions.
Agency Response to Dismas Comments, May 12, 2003, at 6. In any event, the
agency maintains that, due to its post-protest reevaluation, any benefit
that Dismas would have gained through discussing this matter would not
have been enough to *materially alter the outcome of the competition.*
Id.
Based on the record here, we conclude that the agency's activities with
regard to evaluation of offerors' past performance were materially flawed
and contrary to the FAR. As noted above, the past performance references
received materially differing instructions with regard to how to score an
offeror's past performance. Specifically, unlike recipients of the CEF,
the multiple recipients of the letter/questionnaire were not instructed to
assign additional points if the contractor had exceeded minimum
requirements. While it is true, as the agency argues, that the ultimate
issue in this regard is whether the past performance information was
accurately conveyed, see Redcon, Inc., B-285828, Oct. 11, 2000, 2000 CPD
P: 188, here, the information clearly was not. Specifically, while the
RFP clearly contemplated assessment of, among other things, whether an
offeror's past performance exceeded minimum contract requirements, a
majority of Dismas's references were not requested to provide that
information prior to the agency's source selection decision.
Although the agency asserts that its post-protest activities remedied that
error, for the reasons discussed above, we do not find those activities to
credibly establish an absence of prejudice. Our Office has previously
addressed the situation where an agency engages in reevaluation activities
while simultaneously defending against an ongoing protest. Boeing
Sikorsky Aircraft Support, B-277263, B-277263.2, Sept. 29, 1997, 97-2 CPD
P: 91. There, we explained that when an agency re-evaluates proposals
during a pending protest and relies on information and/or analysis that it
has not previously considered, we will generally limit the weight given
the post-protest activities *because they constitute reevaluations and
redeterminations prepared in the heat of an adversarial process,* and *may
not represent the fair and considered judgment of the agency.* Id. at
15. We reach the same conclusion here.
On the record discussed above, we find the agency's post-protest
reevaluation to lack credibility. As discussed above, the agency has
offered no rational support for having increased AWS's past performance
rating. Further, we find this portion of the agency's reevaluation
particularly troubling in light of the multiple, conflicting numbers that
appear in various post-protest documents regarding the adjusted point
scores to be awarded to Dismas's and AWS's proposals. Similarly, the
agency's summary assertions that Dismas was not prejudiced by the agency's
other procurement errors--including the agency's failure to consider all
of Dismas's proposal information, and the agency's failure to permit
Dismas to respond to adverse past performance information--are
substantially without any documented, objective analysis.[18] On this
record, we decline to give any material weight to the agency's
post-protest activities and we reject the assertion that Dismas was not
prejudiced. To the contrary, had a proper evaluation been performed, we
believe there is a reasonable possibility that Dismas's proposal could
have been rated higher than AWS's under a majority of the non-cost/price
evaluation factors, including the most heavily weighted past performance
factor. Since the RFP provided that non-cost/price factors would be
*significantly more important than cost[/price],* we conclude that Dismas
has a substantial chance of receiving the award in the event the agency
properly evaluates Dismas's and AWS's proposals. See McDonald-Bradley,
B‑270126, Feb. 8, 1996, 96-1 CPD P: 54 at 3; see also Statistica,
Inc. v. Christopher, 102 F.3d 1577 (Fed. Cir. 1996).
The protest is sustained.[19]
RECOMMENDATION
In light of the record reflecting multiple procurement flaws, including a
failure to permit Dismas to provide information responding to adverse past
performance information, we recommend that the agency re-open discussions
with Dismas, permit it to address this matter as required by the FAR,
obtain past performance information in a consistent manner and as
specified by the RFP and, thereafter, perform a reevaluation of proposals
that is consistent with the provisions of the solicitation and is based on
consideration of all proposal information; the agency should then make a
new source selection decision based on that reevaluation. In the event
Dismas's proposal is selected for award, the agency should terminate AWS's
contract, and award a contract to Dismas.[20] In light of the record of
problematic adjustments to the offerors' scores, the agency may wish to
conduct the reevaluation using personnel other than those that
participated in the initial evaluation. We also recommend that Dismas be
reimbursed its cost of filing and pursuing this protest
including reasonable attorneys' fees. 4 C.F.R. S: 21.8(d)(1) (2003). The
protester should submit its certified claim for such costs, detailing the
time expended and costs incurred, directly to the agency within 60 days of
receipt of this decision. 4 C.F.R. S: 21.8(f)(1).
Anthony H. Gamboa
General Counsel
------------------------
[1] Community corrections centers are frequently referred to as *halfway
houses.* Agency Report, Contracting Officer's Statement, at 1.
[2] With regard to cost/price, offerors were required to propose a fixed
rate per *inmate day.*
[3] The solicitation provided that technical and management factors were
of equal importance.
[4] By letter dated September 20, 2002, the agency advised Dismas that it
was *within the competitive [r]ange for further discussions and
negotiations.* Agency Report, Tab 4, at 1.
[5] The record shows that the agency based its past performance ratings on
references' responses addressing [deleted] Dismas contracts, [deleted] AWS
contracts, and [deleted] Offeror X contracts. Agency Report, Tab 12, at
1, 3, 5.
[6] In responding to this protest, the contracting officer states that the
determination of *overall equality* was not based on a *mechanical
mathematical evaluation* of point scores. Agency Report, Contracting
Officer's Statement, at 13. Rather, the contracting officer maintains
that the *the entire scoring process rests on the firm foundation of
multiple qualitative assessments of the substance of each proposal,* id.,
and elaborates that, *although numerical scores [were] used, [they were
used] only as a means of illustrating qualitative evaluations.* Agency
Report, Contracting Officer's Statement, at 16.
[7] More specifically, the agency states: *The agency is conceding its
errors outright.* Agency Response to Dismas Comments, May 12, 2003, at
8.
[8] As noted above, the solicitation did not establish differing weights
for the technical evaluation subfactors. Agency Report, Tab 1, RFP at
64. Accordingly, offerors were on notice that the subfactors would be
accorded equal weight. See, e.g., North-East Imaging, Inc., B-256281,
June 1, 1994, 94-1 CPD P: 332 at 2.
[9] The agency acknowledges that it assigned a maximum score of 100 points
to each of the first two subfactors (reports/policy/procedures and
facility) and assigned a maximum score of only 50 points to the third
subfactor (overall programs approach). Agency Report, Contracting
Officer's Statement, at 4.
[10] The agency's evaluation of the technical subfactors was clearly
improper. Procuring agencies are required to evaluate proposals in the
manner established by the solicitation. See, e.g., AIU North America,
Inc., B-283743.2, Feb. 16, 2002, 2002 CPD P: 39 at 7.
[11] As discussed further below, the agency performed and completed its
reevaluation activities, including the creation of various documents
purporting to affirm the initial source selection decision, after the
protest was filed, but before the agency submitted its
statutorily-required report to our Office. Nonetheless, the agency's
report to our Office, filed on April 18, 2003, neither included the
reevaluation documents, nor disclosed their existence.
[12] The CEF associated the various numerical ratings with corresponding
adjectival ratings, as follows: (1) very dissatisfied; (2) dissatisfied;
(3) satisfied; (4) very satisfied; or (5) extremely satisfied.
[13] The record establishes that [deleted] of Dismas's [deleted]
references provided past performance information in response to the
letter/questionnaire. Supplemental Agency Documents, Tab 7, at 229-66.
The additional evaluation documents that the agency, ultimately, provided
indicate that the contracting officer was unable to contact the individual
who had given the initial response regarding [deleted] of Dismas's
contracts. Supplemental Agency Documents, Tab 8, at 23-46.
[14] The documents provided by the agency are in conflict regarding the
number of points the agency ultimately added to AWS's past performance
rating. A revised *source selection decision,* signed more than two weeks
after Dismas filed its protest, states that AWS's past performance score
was increased from [deleted] to [deleted]. Agency Response to Dismas
Comments (May 12, 2003), Attach. 1, at 1. However, a revised *SSEB
Chairperson Scoresheet*(undated), shows that AWS's past performance score
was raised from [deleted] to [deleted]. Agency Response to Dismas
Comments (May 12, 2003), Attach. 2. This revised *SSEB Chairperson
Scoresheet* also indicates that, rather than increasing Dismas's past
performance score by [deleted] points, from [deleted] to [deleted] points,
Dismas's past performance score was increased from [deleted] to [deleted]
points. Id.
[15] As noted above, references were requested to provide
numerical/adjectival ratings for three areas of contract
performance--contract compliance, customer satisfaction, and business
relations. In explaining the *[deleted]* rating, this reference stated:
*[deleted].* Supplemental Agency Documents, Tab 7, at 230.
[16] The contracting officer's memorandum summarizing the proposal
evaluations, stated: *[deleted].* Agency Report, Tab 12, at 6.
[17] The contracting officer acknowledges that she contacted the reference
who provided the above [deleted]. Agency Response to Dismas Comments, May
12, 2003, at 6; Supplemental Agency Documents, Tab 8, at 23.
[18] As noted above, in initially responding to this protest, the
contracting officer emphasized the position that the agency had not relied
on a *mechanical mathematical evaluation* of point scores but, rather, had
performed *multiple qualitative assessments of the substance of each
proposal.* Agency Report, Contracting Officer's Statement, at 13.
Accordingly, we do not view the agency's subsequent assertions, based on
projected point scores that, the agency maintains, would have been
assigned had the evaluation been properly conducted, as constituting a
persuasive basis for concluding that Dismas was not prejudiced by the
agency's various procurement errors.
[19] We are troubled by the manner in which the agency responded to its
statutory obligation to provide a complete report to our Office. In this
regard, the Competition in Contracting Act of 1984 (CICA) requires that,
in responding to a protest, *a Federal agency . . . shall submit to the
Comptroller General a complete report (including all relevant documents)
on the protested procurement within 30 days.* 31 U.S.C. S: 3553(b)(2)
(2000). Here, Dismas filed its protest on March 19, 2003. The Federal
Bureau of Prisons provided its report to our Office on April 18. However,
this initial report neither included--nor disclosed the existence
of--multiple evaluation documents which, according to the dates on the
documents themselves, the agency had already prepared. The agency asserts
that, at the time it submitted the April 18 report, it did not consider
certain documents, including the revised source selection decision
executed on April 4, 2003, to be *relevant.* Letter from Bureau of
Prisons to GAO (May 13, 2003) at 1. Inconsistently, the agency relies on
this same *[ir]relevant* document, filed in response to Dismas's comments
on the initial agency report, as a basis to argue that GAO should deny the
protest for lack of prejudice. On this record, we conclude that the
agency failed to comply with the requirements of CICA regarding submission
of a *complete report* to GAO.
[20] On April 3, 2003, the agency advised our Office that it was
continuing with contract performance, notwithstanding the protest.
Specifically, the agency relied on FAR S: 33.104(c)(2) to determine that
continued performance is *in the best interest of the Government.*
Supplemental Agency Documents, Tab 10, at 2. Accordingly, pursuant to
CICA, we are required to make our recommendations *without regard to any
cost or disruption from terminating, recompeting, or reawarding the
contract.* 31 U.S.C. S: 3554(b)(2). In any event, the record indicates
that AWS began contract performance on June 1, 2003, Supplemental Agency
Documents, Tab 10, at 1; thus, only a small portion of the 2-year base
contract period has been performed.