TITLE:  Security Consultants Group, Inc., B-293344.2, March 19, 2004
BNUMBER:  B-293344.2
DATE:  March 19, 2004
**********************************************************************
Security Consultants Group, Inc., B-293344.2, March 19, 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:   Security Consultants Group, Inc.
    
File:            B-293344.2
    
Date:              March 19, 2004
    
Stephen M. Ryan, Esq., and Holly A. Roth, Esq., Manatt, Phelps & Phillips,
for the protester.
Joseph J. Petrillo, Esq., and Karen D. Powell, Esq., Petrillo & Powell,
for Coastal International Security, Inc., an intervenor.
Aaron T. Marshall, Esq., Department of Homeland Security, for the agency.
Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Agency*s decision to reopen competition, after making award to protester,
in order to correct solicitation defect (failure to accurately disclose
intended weights of evaluation factors), was unreasonable where record
does not establish a reasonable possibility that any offeror was
prejudiced by the defect; reopening of competition thus did not provide
any benefit to the procurement system that would justify competitive harm
to protester from resoliciting after exposure of protester*s price.
DECISION
    

   Security Consultants Group, Inc. (SCG) protests the action of the
Department of Homeland Security (DHS) in canceling a task order awarded to
SCG under request for proposals (RFP) No. GS-07P-03-FCD-0131, issued by
the General Services Administration for security guard services in Texas
and Oklahoma. SCG asserts that the agency erred in reopening the
competition to correct a solicitation defect.
    

   We sustain the protest.
    
The RFP sought proposals to furnish security guard services for DHS*s
Bureau of Immigration and Customs Enforcement at various installations in
Texas and Oklahoma.  The solicitation contemplated the issuance of a
fixed-price task order under the successful vendor*s Federal Supply
Schedule contract for a base period, with 4 option years.  Award was to be
made on a *best value* basis, with proposals evaluated under four
factors--supervision/key personnel, training plan, past performance, and
price.  The three technical factors combined were significantly more
important than price. 
    
[Deleted] offerors, including SCG, CIS, and Southwestern Security
Services, Inc. (SSSI), submitted proposals, which were evaluated by the
source selection team.  Based on SCG*s technical proposal score and its
price, the contracting officer concluded that SCG*s proposal represented
the best value to the government, and awarded it the task order.  SSSI
protested to our Office, challenging the evaluation of its proposal and
the award decision; we ultimately dismissed the protest (along with
similar protests against other awards) for failure to state a valid basis
of protest (B‑293295.2, B‑293344, B-293345, B-293346, Dec. 2,
2003).
    
In reviewing the contract record, the agency realized that the RFP had not
disclosed the relative weights of the three technical factors, leaving
offerors to assume that all three were of equal weight.  Agency Report
at 3; see Maryland Off. Relocators, B‑291092, Nov. 12, 2002, 2002
CPD P: 198 at 5.  Specifically, the evaluation plan--and the actual
evaluation--had assigned past performance a weight of 60 percent, and
weights of 20 percent each to the supervision/key personnel and training
factors.  Accordingly, although the SSSI protest had been dismissed, the
agency decided to take corrective action by amending the RFP to set forth
the factors* relative weights and providing the offerors an opportunity to
revise their technical and price proposals.  After receiving notice of the
agency*s corrective action, SCG filed this protest.  The agency
subsequently modified the task order, effectively terminating SCG*s
contract for this work.
    
SCG asserts that the agency*s corrective action was unwarranted because
none of the offerors was prejudiced by the defect identified by the
agency, and that it will be at an unfair competitive disadvantage in the
reopened competition because its contract price has been disclosed.  The
agency responds that the failure to disclose the relative weights of the
technical factors was a material solicitation deficiency that had to be
remedied by reopening the competition, because it could have affected the
way offerors prepared their proposals, and thus could have affected the
award determination. 
    
Contracting agencies have broad discretion to take corrective action where
they determine that such action is necessary to ensure fair and impartial
competition.  RS Info. Sys., Inc., B-287185.2, B-287185.3, May 16, 2001,
2001 CPD P: 98 at 4.  Where the corrective action taken by an agency is
otherwise unobjectionable, a request for revised price proposals is not
improper merely because the awardee*s price has been exposed.  Strand Hunt
Constr., Inc., B-292415, Sept. 9, 2003, 2003 CPD P: 167 at 6.  We have
recognized a limited exception to that rule where the record establishes
that there was no impropriety in the original evaluation and award, or
that an actual impropriety did not result in any prejudice to offerors,
reopening the competition after prices have been disclosed does not
provide any benefit to the procurement
system that would justify compromising the offerors* competitive
positions.  Hawaii Int*l Movers, Inc., B‑248131, Aug. 3, 1992, 92-2
CPD P: 67 at 6, recon. denied, Gunn Van Lines; Dept. of the Navy--Recon.,
B‑248131.2, B‑248131.4, Nov. 10, 1992, 92-2 CPD P: 336. 
    
Here, while the agency correctly determined that there was a deficiency in
the RFP, there is nothing in the record to establish, and the agency has
not shown, a reasonable possibility that any offeror was prejudiced by the
deficiency.[1] 
    
The most significant difference between the evaluation scheme identified
in the RFP and the one actually used by the agency was under the past
performance factor; rather than being given the same weight as the other
two factors--as was called for by virtue of the RFP*s silence as to
weighting--the past performance factor was assigned three times as much
weight.  As a general proposition, it is true that an offeror may devote
little effort with regard to a particular area in its proposal where it is
led to believe that the area will not be given much weight in the
evaluation; if the area is then given significantly more weight than
indicated to the offeror, this could have prejudicially affected the
offeror*s preparation of its proposal and thus its chances of being
selected for award.  However, past performance, by its nature, is an area
where offerors generally would have no reason not to submit the best
possible information as part of their proposals, regardless of the precise
weight assigned to the past performance evaluation factor.  In this
regard, the RFP here set forth detailed requirements for past performance
submissions, and warned that the failure to submit complete and accurate
information could render the proposal deficient.  RFP at 101-02. 
    
Moreover, here it is clear that the four top-scored offerors (including
SCG) were not misled into devoting fewer resources to proposal preparation
in the past performance area, since they all received [deleted]  under the
past performance factor.  This being the case, we view the record as
clearly establishing that these offerors were not prejudiced by the RFP*s
failure to set forth the actual evaluation weight for the past performance
factor. 
    
Similarly, there is no reason to believe that the four top-rated offerors
were prejudiced with regard to the remaining factors--supervision/key
personnel and training.  These factors were effectively weighted at 33.3
percent each under the RFP, but were assigned only 20 percent weight in
the actual evaluation.  The four offerors with the top scores had
[deleted] under the training factor and [deleted] under the
supervision/key personnel factor.  Since, unlike the past performance
factor, these factors received somewhat less weight in the actual
evaluation than offerors were led to believe from the RFP, logically the
offerors would not have expended extra effort on, or otherwise revised,
these aspects of their proposals had they known the actual weights.  We
also see no reasonable basis for concern that any of these offerors might
have adjusted its proposed prices had it known of the actual weighting of
individual non-price factors.
    
SSSI, the [deleted] offeror, did not have [deleted]  under past
performance.  While SSSI therefore theoretically would have an incentive
to spend more resources in that area if told that it would carry
significantly greater evaluation weight than the RFP indicated, as
discussed above, we do not believe that there is a reasonable basis for
concern that SSSI failed to submit its most complete and best past
performance information because it believed that past performance was
receiving 33.3 percent, rather than 60 percent, of the weight for
non-price factors.  Moreover, even assuming SSSI could improve its
proposal so as to receive a perfect score under the past performance
factor, its lower scores under the supervision/key personnel and training
factors still would leave its proposal some [deleted].  Since SSSI*s
scores were [deleted], and the solicitation defect involved the relative
weight of those three factors (not the relative weighting overall of
technical vis-`a-vis price), we see no basis to find a reasonable
possibility that the limited error regarding the relative weighting of the
three factors could have prejudiced that firm*s lowest-rated proposal*s
chances of winning the competition. 
    
In short, the record does not establish that the defective solicitation
resulted in the reasonable possibility of prejudice to any of the
offerors.  Thus, given that SCG*s competitive position has been
compromised by disclosure of its price, there is no benefit to the
procurement system that would justify reopening the competition.  Hawaii
Int*l Movers, Inc., supra.  Accordingly, we sustain the protest.  By
letter of today to the Secretary of Homeland Security, we are recommending
that SCG*s award be reinstated.  We also recommend that the agency
reimburse SCG its costs of filing and pursuing the protest, including
reasonable attorneys* fees.  4 C.F.R. S: 21.8(d)(1) (2003).  SCG*s
certified claim for costs, detailing the time spent and the costs
incurred, must be submitted to the agency within 60 days of receiving of
our decision.  4 C.F.R. S: 21.8(f)(1).
    
The protest is sustained.
    
Anthony H. Gamboa
General Counsel
    
    

   ------------------------

   [1] A solicitation that does not ensure that all firms are on notice of
how offers are actually to be evaluated, such that they can compete on an
equal basis, is materially deficient.  The Faxon Co., B-227835.3,
B‑227835.5, Nov. 2, 1987, 87-2 CPD P: 425 at 4.