TITLE: Keeton Corrections, Inc., B-293348, March 4, 2004
BNUMBER: B-293348
DATE: March 4, 2004
**********************************************************************
Decision
Matter of: Keeton Corrections, Inc.
File: B-293348
Date: March 4, 2004
John G. DeGooyer, Esq., David T. Ralston, Jr., Esq., and C. Anthony
Trambley, Esq., Foley & Lardner, for the protester.
Alex D. Tomaszczuk, Esq., and Daniel S. Herzfeld, Esq., Shaw Pittman, for
Dismas Charities, Inc., the intervenor.
Tracey L. Printer, Esq., Department of Justice, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
In a negotiated procurement, which provided for award on the basis of a
cost/technical tradeoff and under which past performance was stated to be
the most important evaluation factor, the selection of the awardee's
significantly higher-priced offer based upon that firm's technical
superiority and better past performance was unreasonable, where the
information provided to the source selection authority to support the
awardee's and protester's past performance evaluation did not accurately
reflect the firms' evaluation but instead erroneously conveyed the
impression that the awardee had no evaluated past performance weaknesses
and that the protester's past performance had nearly only weaknesses.
DECISION
Keeton Corrections, Inc. protests the award of a contract to Dismas
Charities, Inc. under request for proposals (RFP) No. 200-0734-MA, issued
by the Federal Bureau of Prisons (BOP), Department of Justice, to provide
a residential Comprehensive Sanction Center (CSC) in Nashville,
Tennessee. Keeton challenges the agency's technical evaluation and source
selection decision.
We sustain the protest.
The RFP provided for the award of a fixed-unit-price requirements contract
to provide a residential CSC (commonly referred to as a "halfway house")
for male and female federal offenders in Nashville, Tennessee for a base
period of 2 years with 4A option years. Among the services the contractor
will provide are "employment and residence development and other
self-improvement opportunities to assist federal offenders in becoming
law-abiding citizens." RFP, Statement of Work (SOW), at 1.
The RFP provided that award would be based upon a cost/technical tradeoff
analysis considering the following evaluation factors: (1) past
performance, (2) community relations, (3) technical, (4) management, and
(5) price. Past performance was the most important evaluation factor,
community relations was next in importance, and the remaining non-price
factors were of equal importance. The RFP also stated that the
nona**price factors together were significantly more important than
price. Offerors were informed that the agency would point score the
proposals.
Detailed proposal preparation instructions were provided. With respect to
the past performance evaluation factor, offerors were instructed to
provide a list of all contracts and subcontracts completed within the last
3 years or currently in process, and to provide references for these
contracts and a description of the contract/subcontract, including
identifying problems encountered and corrective actions taken. Offerors
were informed that "[e]ach offeror will be evaluated on performance under
existing and prior contracts for similar services." RFP S L.11.
The BOP received proposals from three offerors, including Dismas and
Keeton. The proposals were evaluated by the agency's source selection
evaluation panel (SSEP) and contracting officer.[1] All three proposals
were included in the competitive range, and the agency conducted two
rounds of written discussions. The final proposal revisions of Dismas and
Keeton were evaluated as follows:
+------------------------------------------------------------------------+
|A |Dismas |Keeton |
|------------------------------+--------------------+--------------------|
|Past performance |340.00 |324.00 |
| | | |
|(400 maximum points) | | |
|------------------------------+--------------------+--------------------|
|Community relations |247.38 |228.62 |
| | | |
|(350 max. pts.) | | |
|------------------------------+--------------------+--------------------|
|Technical |168.25 |156.47 |
| | | |
|(250 max. pts.) | | |
|------------------------------+--------------------+--------------------|
|Management |165.92 |160.74 |
| | | |
|(250 max. pts.) | | |
|------------------------------+--------------------+--------------------|
|Price |$4,585,533 |$4,074,630 |
|------------------------------+--------------------+--------------------|
|(250 max. pts) |222.15 |250.00 |
|------------------------------+--------------------+--------------------|
|Total Point Score |1,143.70 |1,119.83 |
| | | |
|(1,500 max. pts) | | |
+------------------------------------------------------------------------+
In evaluating the firms' past performance, the contracting officer found
that the offerors all had a "considerable number of completed and active
contracts with the [BOP]," which provided the agency with "more than
enough" information to evaluate the firms' past performance. Hearing
Transcript (Tr.) at 241; Agency Report, Tab 17, Past Performance
Evaluation Memorandum, at 2. Accordingly, in her past performance
evaluation, the contracting officer did not consider performance of
contracts that were not with the BOP. Rather, for each firm, the
contracting officer states that she reviewed the most recent contractor
evaluation form (CEF) on file for each reported contract with the BOP, and
assessed the offeror's past performance in three areas: contract
compliance, customer satisfaction, and business relations. Tr.A at
242-43.
With respect to Dismas, the contracting officer found that of the nine
contracts, which Dismas had performed for the BOP in the past 3 years
(including the prior contract for these services as the incumbent), the
pertinent CEFs reflected excellent performance on four contracts, good
performance on four contracts, and fair performance on one contract.[2]
The contracting officer identified both strengths and weaknesses in
Dismas's past performance, which she derived from the documentation
supporting the CEF for each BOP contract. Tr. at 248. For example, under
the contract compliance area, the contracting officer noted 25 strengths,
including Dismas's food service program, grounds and facility maintenance,
staffing and staff morale, and computerized system for tracking
subsistence payments, and 38 weaknesses, including a deficiency in
conducting alcohol testing (testing device was inoperable and the log did
not reflect whether there was resident cooperation with the test), that
files did not contain individual program plans within established time
frames, and that quarterly file reviews were not being conducted as
required. Agency Report, TabA 17, Contracting Officer's Past Performance
Evaluation Memorandum, at 14-17. The contracting officer's evaluation
did not assess or explain the significance of evaluated strengths and
weaknesses. Tr. at 253. The contacting officer concluded that Dismas
overall past performance was good.
With respect to Keeton, the contracting officer found that of, seven
contracts which Keeton had performed for the BOP within the last 3 years,
the pertinent CEFs reflected excellent performance on two contracts, good
performance on four contracts, and fair performance on one contract. As
she did with Dismas's performance, the contracting officer identified both
strengths and weaknesses in Keeton's performance. For example, under
contract compliance, the contracting officer noted 43 strengths, including
that Keeton had solid staff with low turnover, staff morale was high, all
terminal reports were timely received, and case files were neat and
organized, and noted 29 weaknesses, including monthly billings with a few
discrepancies, terminal reports not timely filed,[3] and individual urine
logs that did not comply with contract requirements. Agency Report, Tab
17, Contracting Officer's Past Performance Evaluation Memorandum, at
22-25. As with the evaluation of Dismas's proposal, the contracting
officer did not assess the significance of the evaluated strengths and
weaknesses in Keeton's proposal. The contracting officer concluded that
Keeton's overall past performance was also good.
At the end of the past performance evaluation memorandum, the contracting
officer prepared a three-page narrative summary of her evaluation
findings. Although the contracting officer found that both Dismas's and
Keeton's past performance warranted a good overall adjectival rating, the
summary identified only the firms' respective average CEF point scores
(4.24 for Dismas and 4.03 for Keeton (out of a possible 5 points)), as
well as the adjectival ratings on the BOP contracts considered in the
evaluation. Also in the summary, the contracting officer identified
numerous strengths but no weaknesses for Dismas, whereas for Keeton the
contracting officer identified a few strengths and many weaknesses.
Agency Report, Tab 17, Contracting Officer's Past Performance Evaluation
Memorandum, at 29-31. The contracting officer testified that although she
relied upon the individual adjectival ratings for each contract derived
from the firms' CEFs to determine that Dismas had better overall past
performance, she prepared the narrative summary of the firms' strengths
and weaknesses to justify the adjectival past performance ratings.
Tr.A atA 253a**54. In this regard, she testified that she only identified
strengths for Dismas and few strengths and almost only weaknesses for
Keeton because she believed that this would point out the areas in which
Dismas was superior. Tr.A atA 255.
The SSEP evaluated the offerors' technical proposals under the remaining
non-price evaluation factors. First, the evaluators independently
assessed proposals against 166 questions. For each question, the
evaluators awarded the proposal a point score ranging from 0 to 5 points
and recorded a brief narrative comment where the proposal was seen as
exceeding the solicitation requirements under a particular question. See,
e.g., Agency Report, Tab 13, SSEP Chairperson's Scoring Sheets for Dismas,
at 5. The SSEP then met to discuss the evaluators' assessments and agree
to evaluated strengths and weaknesses for each proposal; the SSEP's
consensus judgment was not documented, however. Tr. at 117-18, 123, 172.
The evaluators' raw point scores for the evaluation questions were
provided to the SSEP chairperson, who weighted the scores in accordance
with the relative ranking of the evaluation factors identified in the RFP
and calculated a total point score for each offeror.
The SSEP chairperson briefed the SSA on the contracting officer's and
SSEP's evaluation conclusions. With respect to the contracting officer's
past performance evaluation, the SSEP chairperson relied upon the
contracting officer's past performance evaluation memorandum and did not
independently assess the firms' past performance. Tr. at 135. The
briefing was provided orally and was not documented. In this respect, the
SSA testified that he was not provided with any evaluation or other
documentation at the briefing.[4] See Tr. at 18, 23. At the hearing
conducted by our Office in this matter, both the SSA and the SSEP
chairperson had little recall of the specifics of the briefing. See,
e.g., Tr. at 19, 32, 46. The SSEP chairperson recommended that award be
made to Dismas, Tr. at 129, and was directed by the SSA to draft the
source selection decision.
In his source selection decision, the SSA noted that Keeton had submitted
the lowest priced proposal, which was approximately $500,000 lower than
that of Dismas. The SSA noted, however, that Dismas's proposal had
received a higher overall evaluation score and received higher point
scores under each of the non-price evaluation factors. The SSA stated
that "[w]hile adjectival ratings and point scores are useful guides to
decision making, they are not controlling." Agency Report, TabA 7, Source
Selection Decision, at 3. In this regard, the SSA testified that in
making his selection decision he considered the offerors' respective point
scores, underlying strengths and weaknesses, and proposed prices. Tr. at
29.
With respect to past performance, which the SSA recognized to be the most
important evaluation factor, the SSA testified that he accepted the
contracting officer's evaluation and found that Dismas's evaluated
strengths justified its good past performance rating; the SSA was not
aware, however, of Dismas's evaluated weaknesses. Tr. at 32. While the
SSA found that Keeton also had good past performance, the source selection
decision essentially repeated the contracting officer's past performance
summary, which basically mentions only Dismas's strengths and only
Keeton's weaknesses. With respect to the remaining non-price factors, the
SSA found that under each factor Dismas's proposal had higher point scores
than Keeton's, primarily because whereas Keeton's proposals met the
minimum requirements, Dismas's proposal exceeded them in various
respects. The SSA concluded that Dismas's proposal presented less
technical risk of successful performance than did Keeton's proposal.
Although Keeton proposed a significantly lower price than Dismas, the SSA
found that Dismas's higher technical quality justified award to Dismas.
In the SSA's judgment,
[w]hen providing services for the re-entry of convicted felons to their
home communities, it is vital that the best possible services be
provided. This not only helps to ensure the best opportunity for success
to the offenders, but helps to ensure the safest environment is provided
to the community. From a business point of view, providing better
services to felons at re[-]entry may help reduce the possibility of
recidivism which would cost the taxpayers more monies in the future.
Therefore, the payment of the premium to Dismas is warranted.
Agency Report, Tab 7, Source Selection Decision, at 8. Award was made to
Dismas, and this protest followed.
Keeton challenges numerous aspects of the agency's technical and past
performance evaluation and source selection decision, which Keeton argues
is inadequately documented and unreasonable.
In reviewing protests of an agency's evaluation and source selection
decision, our Office will not reevaluate proposals; rather, we review the
record to determine whether the evaluation and source selection decision
are reasonable and consistent with the solicitation's evaluation criteria,
and applicable procurement laws and regulations. Abt Assocs., Inc.,
B-237060.2, Feb. 26, 1990, 90-1 CPD P 223 at 4. Further, where an agency
has made a source selection decision in favor of a highera**priced
proposal that has been ranked technically superior to a lower-priced
proposal, the award decision must be supported by a rational explanation
demonstrating that the higher-rated proposal is in fact superior, and
explaining why the technical superiority of the higher-priced proposal
warrants the additional cost. Federal Acquisition Regulation (FAR) S
15.308. A source selection decision based on inconsistent or inaccurate
information concerning the technical or past performance evaluation or the
relative merits of the offerors' technical proposals or past performance
is not reasonable. See Ashland Sales and Serv. Co., B-291206, Dec. 5,
2002, 2003 CPD P 36 at 7.
In order for us to review an agency's evaluation judgment, the agency must
have adequate documentation to support its judgment. Where an agency
fails to document or retain evaluation materials, it bears the risk that
there may not be adequate supporting rationale in the record for us to
conclude that the agency had a reasonable basis for the source selection
decision. Southwest Marine, Inc.; American Sys. Eng'g Corp., B-265865.3,
B-265865.4, Jan. 23, 1996, 96-1 CPD P 56 at 10.
We conducted a hearing in this case because the evaluation documentation
prepared by BOP did not adequately explain the agency's evaluation and
selection of Dismas's proposal for award. For example, the record did not
contain any documentation of the briefing provided to the SSA or otherwise
identify specifically what the SSA considered in making his decision.
Moreover, it was unclear from the SSA's selection decision whether the SSA
was presented with an accurate report of the firms' respective evaluated
strengths and weaknesses underlying the contracting officer's past
performance evaluation. Based on the hearing testimony and the
documentation in the record, we find that the SSA was not presented with
an accurate summary of the offerors' evaluated past performance to support
his cost/technical tradeoff judgment.
In making his cost/technical tradeoff assessment, the SSA testified, and
the source selection decision document showed, that the SSA believed he
was considering the totality of the record. See, e.g., Tr. at 29, Agency
Report, Tab 7, Source Selection Decision, at 3. That is, the SSA stated
that he considered not only the firms' respective point scores, but also
the adjectival ratings and underlying evaluated strengths and weaknesses.
In this regard, with respect to past performance, which was the most
important evaluation factor, the source selection decision identified
point scores for Dismas (340 of 400A maximum available points) and Keeton
(324A points), identified the overall past performance adjectival ratings
as well as those for the firms' BOP contracts, and provided a narrative
description of what the SSA considered to be the firms' strengths and
weaknesses under three elements of past performance (contract compliance,
customer satisfaction, and business relations).
However, as indicated above, the past performance narrative in the source
selection decision essentially repeated the contracting officer's past
performance summary, which identified only strengths and no weaknesses for
Dismas and nearly only weaknesses (and only three strengths) for Keeton.
See Agency Report, Tab 7, Source Selection Decision, at 3-6. This was not
consistent with the contracting officer's overall evaluation supporting
her good past performance ratings for Dismas and Keeton, which identified
multiple strengths and weaknesses for each firm. Specifically, with
respect to Dismas, the contracting officer identified approximately 70
strengths and 50 weaknesses in that firm's past performance, and
approximately 80A strengths and 40A weaknesses in Keeton's past
performance. See Agency Report, Tab 17, Contracting Officer's Past
Performance Evaluation Memorandum, at 14-20, 22-28. That is, the past
performance evaluation summary, which was repeated in the source selection
document, conveyed the erroneous impression that Dismas's past performance
had no weaknesses while Keeton's past performance had many weaknesses and
few strengths.
The SSA testified that he relied upon this summary of the firms' past
performance and did not independently assess the firms' past performance
in making his source selection decision. Tr.A atA 35a**36. In this
regard, the SSA further testified that he did not know whether this
summary accurately reflected the contracting officer's past performance
evaluation. Tr. at 54. While the contracting officer testified that the
past performance evaluation summary she prepared was drafted to highlight
Dismas's superiority in past performance, this explanation was not
provided to the SSA or SSEP chairperson; instead, the summary was
presented and appeared as a significant part of the basis for the source
selection without the SSA being apprised of, and considering, that there
were actually numerous weaknesses in Dismas's past performance and
numerous strengths in Keeton's past performance.[5] Thus, we conclude
that the source selection decision was based upon a misapprehension of the
offerors' past performance evaluation and therefore the decision lacks a
reasonable basis. See Ashland Sales and Serv. Co., supra, at 8-10.
Given that past performance was the most important evaluation factor and
that Keeton had a more than $500,000 price advantage, we cannot say that
Keeton's proposal would not have been selected for award if the SSA had
been accurately apprised of the firms' evaluated past performance. In
this regard, the SSA stressed in his hearing testimony the importance of
Dismas's superior past performance rating in the SSA's selection of that
firm's proposal for award. See, e.g., Tr. at 25, 30-31, 33, 91.
Accordingly, we find a reasonable possibility that the failure to
accurately inform the SSA of the firms' evaluated past performance
strengths and weaknesses prejudiced Keeton, and we sustain Keeton's
protest on this basis.[6]
Keeton also objects to the agency's failure to consider non-BOP work in
its past performance evaluation and argues that the decision to exclude
non-BOP work from the past performance evaluation was not made by the SSA,
as Keeton asserts would be required by FAR SA 15.305(a)(2)(ii) ("source
selection authority shall determine the relevance of similar past
performance information").[7]
Where a solicitation contemplates the evaluation of offerors' past
performance, the agency has the discretion to determine the scope of the
performance history to be considered, provided all proposals are evaluated
on the same basis and the evaluation is consistent with the terms of the
RFP. USATREX Int'l, Inc., Ba**275592, Ba**275592.2, Mar. 6, 1997, 98-l
CPD P 99 at 3. There is generally no requirement that an agency obtain or
consider all of an offeror's references in the past performance
evaluation. See Systems Mgmt., Inc.; Qualimetrics, Inc., Ba**287032.5,
B-287032.6, Nov.A 19, 2001, 2002 CPD P 29 at 5; Advanced Data Concepts,
Inc., B-277801.4, June 1, 1998, 98-1 CPD P 145 at 10.
Contrary to Keeton's arguments, we do not find that the RFP required the
agency to evaluate every one of Keeton's or Dismas's listed contracts.
Although the RFP stated that the past performance evaluation would be a
"subjective judgment based on consideration of all relevant facts and
circumstances," see RFP S M.5 (emphasis added), this provision did not
limit the agency's discretion in determining which contracts to evaluate,
given that the provision expressly allows the agency to determine which
facts and circumstances are relevant. The protester here has not shown
the agency's determination that each of the firms had sufficient BOP work
to allow the agency to adequately evaluate the firms' past performance was
unreasonable. With respect to Keeton's concern that the SSA was not aware
that non-BOP work was excluded from the agency's past performance
evaluation,[8] given our recommendation below, this issue can be presented
to the SSA for his consideration.[9]
Keeton also complains that the point scores assigned by the SSEP
chairperson for Keeton under the community relations, technical, and
management factors are outa**of-line with the scores provided by the other
evaluators and challenges a number of point scores that its proposal
received under 12 questions (of the 166 questions that were scored to
arrive at point scores for these three evaluation factors).
It is not unusual for individual evaluators to have disparate judgments
regarding a proposal's relative strengths and weaknesses, and disparities
in evaluator ratings alone do not establish that an evaluation process was
flawed. Information Sys. Tech. Corp., B-291747, Mar. 17, 2003, 2003 CPD P
72 at 5. Here, the evaluators' individual point scores for the questions
were averaged to arrive at a panel point score for each question; these
point scores were then weighted to arrive a panel point scores for the
three factors. Also, the SSEP chair testified that the panel reached
consensus judgment with respect to the evaluated strengths and weaknesses
identified for the proposals under each factor. Tr. at 117-18, 172. We
have reviewed each of the 12A examples cited by the protester, each of
which was responded to in detail by the agency, and based on our review of
the record, we find no basis to find the agency's evaluation under these
three technical factors to be unreasonable.[10]
Keeton also complains that the SSA's selection decision relied upon "risk
factors," one of which was assertedly an unstated evaluation criterion.
Specifically, Keeton complains that the SSA identified in his hearing
testimony three risk factors that were important to his selection
decision: (1) ownership, rather than lease, of the building in which CSC
services would be provided; (2) good community relations; and (3) good
past performance. Keeton objects that building ownership was not
identified in the RFP as an evaluation factor. However, "facility" was
identified as a subfactor to the technical evaluation factor, see RFP S
M.5, and the RFP specifically instructed offerors to provide evidence
supporting the offeror's right to use its proposed facility, such as
deeds, leases, bills of sale, options to lease, options to buy,
contingency leases, or contingency deeds. Thus, the agency could
reasonably credit Dismas with ownership of its facility in the evaluation.
The protest is sustained.
We recommend that the agency reevaluate Keeton's and Dismas's past
performance and then make a new source selection decision.[11] If an
offeror other than Dismas is selected for award, we recommend that the
agency terminate Dismas's contract and make award to that other firm, if
otherwise appropriate. We also recommend that the protester be reimbursed
its costs of filing and pursuing the 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 with the agency within 60 days of receiving this
decision. 4 C.F.R. S 21.8(f)(1).
Anthony H. Gamboa
General Counsel
------------------------
[1] The contracting officer evaluated proposals under the past performance
and price factors, and the SSEP evaluated the firms' proposals under the
community relations, technical, and management evaluation factors.
[2] Excellent performance was described as performance without problems,
within the terms of the contract, not needing improvement, and that the
contractor had been extremely responsive to the BOP. Good performance was
described as performance with few, if any problems, generally within the
terms of the contract and only minor improvements were needed. Fair
performance was described as performance with contract compliance
problems, but that the contractor was responsive to the BOP, taking timely
corrective action, and that several improvements were ongoing. Agency
Report, Tab 17, Contracting Officer's Past Performance Evaluation
Memorandum, atA 3.
[3] The record reflects that Keeton received a strength under two
contracts for timely filing terminal reports (for which it received
ratings of excellent and good) and received a weakness under one contract
(for which it received a fair rating) for not timely filing terminal
reports.
[4] The SSEP chairperson testified that typically she would provide the
SSA with the past performance summary prepared by the contracting
officer. Tr. at 127. With respect to this procurement, the chairperson
testified that, although she had the document available at the briefing,
she could not recall whether the SSA took or kept the past performance
summary. Tr. at 128.
[5] The SSEP chairperson testified that she did not specifically discuss
strengths and weaknesses in past performance with the SSA. When
questioned as to the discrepancy in the contracting officer's past
performance evaluation memorandum, which identified numerous weaknesses in
Dismas's performance, and the lack of any weaknesses identified for that
firm's performance in the past performance summary, the SSEP chairperson
testified that could not remember whether she was aware of this
discrepancy at the time of the SSA's briefing. Tr. at 131-32.
[6] In its post-hearing comments, the agency argues that any "inadequacy
in the narrative section of the Past Performance Evaluation Summary
Memorandum did not ultimately affect the Source Selection Decision"
because the SSA, based upon prior procurements in which he served as an
SSA, had a good understanding of Dismas's and Keeton's past performance.
See Agency's Post-Hearing Comments at 4; see also Intervenor's
Post-Hearing Comments at 3-4. Although an SSA may make an independent
assessment of offerors' past performance, based upon the SSA's own
personal knowledge, see TRESP Assocs., Inc.; Advanced Data Concepts, Inc.,
Ba**258322.5, B-258322.6, Mar. 9, 1995, 96-1 CPD P 8 atA 7, the record
does not show that the SSA relied upon his personal knowledge or made an
independent assessment of the firms' past performance. Rather, the SSA
repeatedly testified that he relied upon the past performance information
provided to him by the SSEP Chairperson, seeA Tr.A at 33-34, 36, 92, and
did not at any point state that he relied upon his own knowledge of the
firms' performance. See also Agency Reply to Protester's Comments at 13
("[i]t was not improper for the [SSA] to rely upon the Contracting
Officer's past performance evaluation.") The agency also argues that the
SSA was aware that Dismas may have past performance weaknesses that were
not identified for him because the SSA testified that Dismas did not
receive a perfect score under the past performance factor. Although this
may be true, the SSA did not demonstrate any knowledge of specific
weaknesses and could not say whether any of these unidentified weaknesses
were significant or not. See Tr. atA 93.
[7] Keeton contends that the contracting officer performed two past
performance evaluations, preparing an evaluation document in November 2002
and another document, her past performance evaluation memorandum dated
October 5, 2003. Keeton asserts that the November 2002 evaluation
considered non-BOP work and alleges that Keeton received a higher past
performance rating than Dismas at this time. The contracting officer
testified that the November 2002 evaluation document was a draft document
and that, contrary to Keeton's arguments, Dismas had a higher past
performance rating than Keeton at that time. Tr. at 276, 279.
[8] The SSA testified that he was not aware that non-BOP work had been
excluded from the past performance evaluation, Tr. at 60, but that he
believed that non-BOP used to be considered in the agency's past
performance evaluations, but was now routinely not considered. Tr. at 62.
[9] Keeton also complains that Dismas's numerical score on the CEF for one
of the firm's BOP contracts was improperly increased by the contracting
officer. The agency explained that the score was not increased by the
contracting officer but increased by the BOP South Central Regional Office
in response to an appeal by Dismas, which has responsible for monitoring
Dismas's performance under that contract. Although Keeton continues to
assert that the increase in Dismas's score for this particular contract
was improper, it has not shown that the increase, as a result of Dismas's
appeal, was unreasonable. Keeton also complains that the contracting
officer did not increase the score on one of Keeton's CEFs, where Keeton
also had appealed the score. The agency has not directly addressed this
argument. We think that, given our recommendation to review the past
performance evaluation, the agency should review this matter in evaluating
Keeton's past performance.
[10] For many of the examples, the agency rated Dismas's proposal higher
because it provided more detailed information. For example, proposals
were evaluated with respect to the question "Does the approach demonstrate
that staff will review the [operations] manual at least annually?" (Annual
review of the operations manual by the contractor's staff is a contract
requirement. See RFP, SOW, at 6.) Dismas's proposal received 4 points
(which reflected a satisfactory approach), while Keeton's proposal
received 3 points (which reflected an approach that met the minimum
requirements). Keeton's proposal merely stated in one sentence that its
staff would read this manual during orientation and would annually review
it. See Keeton's Technical Proposal, ch. 1, at 1. In comparison,
Dismas's proposal provided more than a page of information to demonstrate
how it would satisfy this requirement, such as: [DELETED]. SeeA Dismas's
Technical Proposal, ch.A 1, at 1-2.
[11] Keeton requests that, unless we recommend award to Keeton (which we
do not find appropriate here), we should recommend that the agency request
revised proposals from the offerors based upon "BOP's new procedures,"
because of the passage of time (nearly 2 years since the solicitation was
originally issued) and because the agency in more recent halfway house
procurements has been using a more streamlined method to evaluate
proposals. Generally, we would recommend that an agency revise the
solicitation and obtain revised proposals where some defect in the
solicitation impaired the competition or where it has been shown that the
proposals originally received have been seriously affected by the passage
of time. Neither of these situations has been shown to exist here.
Nonetheless, in implementing our recommendation, the agency retains the
discretion to request revised proposals if it believes this is appropriate
to ensure a fair competition.