TITLE: B-310548, Cornell Companies, Inc., December 3, 2007
BNUMBER: B-310548
DATE: December 3, 2007
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B-310548, Cornell Companies, Inc., December 3, 2007

   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: Cornell Companies, Inc.

   File: B-310548

   Date: December 3, 2007

   Ruth E. Ganister, Esq., Rosenthal and Ganister, for the protester.

   Alex D. Tomaszczuk, Esq., Orest J. Jowyk, Esq., and Daniel S. Herzfeld,
   Esq., Pillsbury Winthrop Shaw Pittman, LLP, for Dismas Charities, Inc., an
   intervenor.

   Tracey L. Printer, Esq., Department of Justice, for the agency.

   Eric M. Ransom, and Christine S. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preperation of the decision.

   DIGEST

   1. Assessment of a weakness against the protester's proposal was not
   improper where the considerations on which the assessment was based were
   encompassed by the evaluation criteria.

   2. Assessed weakness was not required to be raised in discussions where
   the weakness was not considered significant, and did not prevent the
   proposal from meeting the solicitation requirements or having a reasonable
   chance of award.

   DECISION

   Cornell Companies, Inc. protests the award of a contract to Dismas
   Charities, Inc. by the Federal Bureau of Prisons (BOP) under request for
   proposals (RFP) No. 200-0953-SC, for Residential Reentry Center (RRC)
   services in El Paso County, Texas. Cornell asserts that the agency failed
   to follow the evaluation criteria set forth in the solicitation, failed to
   hold meaningful discussions, and made a flawed source selection decision
   (SSD).

   We deny the protest.

   The BOP issued the RFP on December 21, 2006, requesting proposals to
   provide RRC services for male and female Federal offenders. The RFP
   contemplated award of a fixed-price requirements-type contract with a base
   period of 2 years and 3 option years. Award was to be made to the offeror
   whose proposal was determined to represent the best value to the
   government under three evaluation factors: past performance,
   technical/management, and price. RFP sect. M.5. The RFP stated that
   technical/management and past performance, when combined, were
   significantly more important than price, and that in the non-price areas
   past performance was more important. Id. Proposals were to be evaluated
   using a color/adjectival rating system: blue/very good; green/acceptable;
   yellow/poor; and red/unacceptable. Id.

   Timely proposals were received from Cornell and Dismas. In accordance with
   the solicitation, technical/management proposals were submitted to a
   three-person source selection evaluation board (SSEB), which was to review
   the proposals under the technical/management factors stated in the
   solicitation: site location,[1] accountability, programs, facility, and
   personnel. RFP sections M.3, M.5, at 2.0. After initial review, the SSEB
   chairperson requested that the contracting officer conduct discussions
   with the offerors based on needed clarifications and deficiencies
   identified in the proposals. Agency Report (AR), Tab 5, Request to Open
   Discussions. Written discussions were then conducted with both offerors.
   AR, Tab 6, Discussions with Offerors.

   After discussions, the SSEB evaluated the revised technical/management
   proposals and the contracting officer performed the past performance and
   price evaluations. After these evaluations, Cornell's revised proposal
   received a rating of blue/very good under the past performance factor,
   green/acceptable under the technical/management factor, and had an
   evaluated price of $14,794,571.88. AR, Tab 11, SSD, at 17. Dismas' revised
   proposal received a rating of blue/very good under the past performance
   factor, blue/very good under the technical/management factor, and had an
   evaluated price of $16,140,846.48. Id.

   In the SSD, the source selection authority (SSA) summarized the past
   performance evaluation and reviewed the SSEB's technical/management
   evaluation. The SSA concurred with the SSEB that, although both offers met
   the requirements of the statement of work (SOW), the technical/management
   proposal submitted by Dismas was most advantageous to the government. Id.
   at 19. The SSA then concluded that "[f]rom the business point of view, the
   value of Dismas' program (non-cost factor) warrants the payment of a
   premium of $1,346,274.60 over the lower price offered by Cornell." Id. The
   SSA selected Dismas' proposal as the best value to the government and
   Dismas received the award on September 17, 2007. Cornell received a
   debriefing on September 21 and filed this protest on October 1.

   Cornell first contends that its proposal was improperly rejected based on
   an unstated requirement that proposed site locations be within 1 mile of
   public transportation. The agency argues that Cornell's proposal was not
   "rejected" for its site location, but that Cornell's proposed site
   location was properly considered to be a weakness in its proposal.

   The record shows that Cornell's proposed facility was located
   approximately 13 miles outside of El Paso and 10 miles from public
   transportation. AR, Tab 8, SSEB Evaluation at 3. It was located in an
   isolated area, near an operating secure jail facility. Id. Due to the
   facility's distance from public transportation, and in accordance with the
   solicitation, Cornell proposed to provide offenders with no-cost
   transportation to and from a main El Paso bus terminal. AR, Tab 17,
   Cornell Technical Proposal, at 20.

   From the first site inspections, the SSEB evaluators noted that the
   proposed facility's distance from town and public transportation, and its
   isolated location, represented a weakness under the site location
   factor/site validity and suitability subfactor. See, e.g., AR, Tab 5,
   Working Papers of Evaluator Kristen Brown, at 2. These concerns were
   adopted in the technical/management evaluation and in the SSD. AR, Tab 8,
   SSEB Evaluation, at 3; Tab 11, SSD, at 13. However, from the SSEB
   consensus evaluation through to the SSD, Cornell's proposal was found to
   meet the requirements of the solicitation, and was assigned a
   green/acceptable, low risk rating from the first stages of the evaluation.

   In reviewing a protest of an agency's evaluation and SSD, we will not
   re-evaluate proposals; we will only review the record to determine whether
   the evaluation was reasonable and consistent with the stated evaluation
   criteria, and with applicable procurement laws and regulations. Raytheon
   Co., B-291449, Jan. 7, 2003, 2003 CPD para. 54 at 7.

   The record reflects that, contrary to Cornell's assertion, its proposal
   was never evaluated against an absolute public transportation requirement,
   and was at no point found deficient or unacceptable. Throughout the
   evaluation process, Cornell's proposed site location was found to meet all
   solicitation requirements, and its proposal was included in the
   competitive range and received a green/acceptable rating under the
   technical/management factor. The record shows that Cornell's proposal was
   merely assessed a weakness based on concerns about its proposed facility's
   distance from El Paso and public transportation routes, and isolation from
   the community. As such, Cornell's protest on the ground that its proposal
   was rejected for its site location is factually mistaken.

   Cornell also makes the argument that, to the extent its proposal was
   downgraded, it was improperly downgraded on the basis of a site location
   criterion not stated in the solicitation, namely, proximity to public
   transportation. The agency argues that it followed the stated evaluation
   criteria in assessing a weakness for Cornell's proposed site location. We
   agree.

   A solicitation must inform offerors of the basis for proposal evaluation,
   and the evaluation must be based on the factors and significant subfactors
   set forth in the solicitation. Federal Acquisition Regulation (FAR) sect.
   15.304. However, while agencies are required to identify evaluation
   factors and significant subfactors, they are not required to identify all
   areas of each factor or subfactor which might be taken into account,
   provided that the unidentified areas are reasonably related to or
   encompassed by the stated criteria. MCA Research Corp., B-278268.2, Apr.
   10, 1998, 98-1 CPD para. 129 at 8.

   The solicitation here included "site location" as an evaluation factor
   under the general technical/management factor, and "site validity and
   suitability" as a subfactor that "evaluates the proposed site location and
   considers the validity of the offeror's Right-To-Use and Zoning approval."
   RFP sect. M.5, at 2.1.1. The solicitation also stated that the evaluation
   under this subfactor would consider "the suitability of the site location
   with regards to . . . responsiveness to proximity requirements defined in
   the SOW. . . ." Id. In this regard, the SOW stated the requirement that
   "the contractor shall locate the facility within one mile of public
   transportation, or the contractor shall provide transportation for
   offenders to seek employment, work, and participate in program activities
   at no cost to the offender." RFP, SOW, at 25.

   The solicitation thus clearly anticipated an evaluation of the proposed
   site locations, and we think the proximity considerations evaluated by the
   agency are both reasonably related to, and encompassed by, the site
   location evaluation factor in the solicitation. As such, the agency was
   not required to individually identify those proximity concerns as areas of
   evaluation, see MCA Research Corp., supra; Bank Street College of Educ.,
   B-213209, June 8, 1984, 84-1 CPD para. 607, and the agency's assessment of
   a weakness in Cornell's proposal under the site location
   technical/management factor was reasonable.

   Cornell next argues that, because the agency had "serious concerns about
   the location offered by Cornell from the time that the site visit was
   performed," Comments at 7, the agency was required by the FAR to raise
   those concerns in discussions. When discussions are held they must at
   least address deficiencies and significant weaknesses in the proposals.
   FAR sect. 15.306(d)(3). However, the agency is not required to discuss
   every area where a proposal could be improved, and the scope and extent of
   discussions is a matter within the contracting officer's discretion. Id.
   In this regard, we review the adequacy of discussions to ensure that
   agencies point out weaknesses that, unless corrected, would prevent an
   offeror from having a reasonable chance of award. Brown & Root, Inc. and
   Perini Corp., a joint venture, B-270505.2, B-270505.3, Sept. 12, 1996,
   96-2 CPD para. 143 at 6.

   As discussed above, the record demonstrates that Cornell's site location
   was never considered to be a significant weakness or deficiency, and never
   prevented Cornell from having a reasonable chance for award. Nowhere in
   the SSEB working papers, the SSEB consensus papers, the
   technical/management evaluation memorandum, or the SSD was the weakness of
   Cornell's site location characterized as significant or as a deficiency.
   [2] Further, Cornell's proposed site location was found to meet the
   requirements of the solicitation at every stage of the evaluation. Because
   there is no evidence to suggest that Cornell's site location ever kept its
   proposal from being rated acceptable under the site location or
   technical/management factor, or otherwise prevented Cornell from having a
   reasonable chance of receiving award, the agency was not required to raise
   the issue in discussions. See Northrop Grumman Info. Tech. Inc., B-290080
   et. al., June 10, 2002, 2002 CPD para. 136 at 6; Brown & Root, Inc. and
   Perini Corp., a joint venture, supra.

   Cornell's final argument is that the SSD is flawed, in that the SSA had an
   incorrect understanding of the technical/management evaluation's results.
   Cornell bases this argument on the SSA's statement, in the SSD, that
   "Dismas' higher rating and strengths in the factors of Site Location,
   Accountability, and Programs justifies paying a premium." AR, Tab 11, SSD,
   at 19. Cornell interprets this statement to suggest that the contracting
   officer understood Dismas' proposal to be higher rated under the site
   location, accountability, and programs factors when, in fact, the two
   proposals were equally rated under the programs factor.

   In our view, the SSA's statement simply reflects her determination that
   the Dismas proposal's higher rating in the overall technical/management
   factor, and its strengths in site location, accountability and programs,
   justified the payment of a premium over Cornell's lower-priced, lower
   technically rated proposal. While reliance on erroneous information in the
   SSD is a basis for reevaluation of proposals, see Ashland Sales and Serv.
   Co., B-291206, Dec. 5, 2002, 2003 CPD para. 36 at 7, we fail to see any
   erroneous information in the SSA's statement here. The record reflects
   that Dismas' proposal was higher rated in the technical/management factor,
   and was found to have more strengths than Cornell's proposal under the
   site location, accountability, and programs factors. AR, Tab 11, SSD, at
   13-17. In addition, the SSD explicitly recognized that Cornell's proposal
   was regarded as exceeding the solicitation requirements under the programs
   factor. Id. at 13. Accordingly, we see no basis to conclude that the SSD
   relied on erroneous information, and we see nothing unreasonable about the
   selection of Dismas' proposal as the best value to the government.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] The site location factor had two subfactors, site validity and
   suitability and community relations program.

   [2] The contracting officer, in the debriefing, disclosed the site
   location weakness in response to Cornell's request for "the government's
   evaluation of significant weaknesses or deficiencies in Cornell's
   proposal." AR, Tab 14, Debriefing Request and Written Debriefing at 1, 5.
   However, the issue was referred to simply as a "weakness" in the
   debriefing, as it was in all other documentation in the record. Id.