B-298390, Aug 21, 2006
Dismas Charities protests the award of a contract to Bannum, Inc. under request for proposals (RFP) No. 200-0861-SC, issued by the Federal Bureau of Prisons (BOP), to procure Comprehensive Sanctions Center (CSC) services for federal offenders in Austin, Texas. Dismas argues that the agency failed to follow the evaluation criteria set forth in the solicitation and that the agency failed to make the award based on best value.
We deny the protest.
B-298390, Dismas Charities, August 21, 2006
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.
Dismas Charities protests the award of a contract to Bannum, Inc. under request for proposals (RFP) No. 200-0861-SC, issued by the Federal Bureau of Prisons (BOP), to procure Comprehensive Sanctions Center (CSC) services for federal offenders in
The solicitation, issued
The award was to be made to the offeror whose proposal was determined to represent the best value to the government under three evaluation factors: technical/management, past performance, and price. The solicitation stated that the technical/management and past performance evaluation factors, when combined, were significantly more important than price, and that of the two non-price evaluation factors, past performance is more important. Solicitation sect. M.5, Agency Report, Tab 1. However, the solicitation also advised that price, though of lesser importance than the technical/management and past performance evaluation factors, could contribute substantially to the award decision.
Timely proposals were received from three offerors, including Dismas and Bannum. After an initial review, the SSEB determined that none of the proposals met the solicitation's minimum requirements and the agency therefore conducted two rounds of written discussions. After discussions, Dismas's revised proposal received a blue/very good rating in the technical/management area, a blue/very good rating in the past performance area, and offered an evaluated price of $[DELETED]. Bannum's revised proposal received a green/acceptable rating in the technical/management area, a blue/very good rating in the past performance area, and offered an evaluated price of $[DELETED]. The third offeror's revised proposal received a green/acceptable rating in the technical/management area, a blue/very good rating in the past performance area, and offered an evaluated price of $[DELETED].
The CO reviewed the SSEB's evaluation and independently considered the subfactor strengths and weaknesses that contributed to each proposal's overall color/adjectival ratings. The CO noted that Dismas's technical/management proposal was rated higher than the other proposals, but also that all three proposals met the minimum solicitation requirements and represented a low risk to the government. After evaluating the ratings, risk factors and price, the CO determined that, from the business point of view, the value of Dismas's program (non-cost factor) did not warrant payment of a premium of $[DELETED] over the lowest priced offeror. Agency Report, Tab 13, at 13. The CO then selected Bannum's proposal as the best value to the government. The agency notified the other offerors that Bannum had been selected for the award on
Dismas raises three bases of protest. First, Dismas alleges that the agency failed to follow the evaluation criteria with regard to Bannum's technical/management evaluation and that Bannum's proposal failed to meet the minimum technical/management requirements of the solicitation. Second, Dismas alleges that the agency improperly evaluated Bannum's past performance by overlooking outside negative past performance information that Dismas maintains was too close at hand to ignore. Third, Dismas alleges that the agency conducted a flawed best value determination by turning a best value procurement into a lowest-cost technically acceptable procurement.
With regard to Dismas's allegation that the agency failed to follow the evaluation criteria in evaluating Bannum's technical proposal, Dismas specifically alleges that the proposal failed to meet two solicitation requirements. First, Dismas argues that Bannum's zoning documentation was not legally valid and could not meet the solicitation requirements regarding zoning and ordinance approvals. Second, Dismas argues that Bannum's proposed site location did not meet the solicitation's minimum requirement for parking spaces. We find no merit in Dismas's allegations.
Initially, we point out that in reviewing protests of allegedly improper evaluations, our Office will not substitute its judgment for that of the contracting agency, but rather will examine the record to determine whether the agency's judgment was reasonable and in accord with stated evaluation criteria, and whether there were any violations of procurement statutes and regulations.
The solicitation required offerors to submit official documentation that demonstrates . . . an approval or plan to obtain zoning and/or an occupancy permit for their proposed site. Solicitation Section J, Agency Report, Tab 1. In the event that discussions were conducted, as was the case here, the solicitation further required offerors to provide the Contracting Officer with valid proof of all zoning and local ordinance requirements necessary for the operation of [the proposed CSC].
Bannum included in its proposal an approved certificate of occupancy (COO) for its proposed site location which stated that there was no limit for the number of residents . . . for transitional housing for halfway houses for adult offenders making the transition from institutional to community living. Agency Report at 6-7; Agency Report, Tab 7. The COO was provided to Bannum by the city of
We agree with the agency that the COO that was provided by the city of
Dismas's other technical evaluation argument, that Bannum's proposed facility failed to meet the solicitation's minimum requirement for parking spaces, is also without merit. To support its allegation Dismas relies on a statement in the source selection decision (SSD) that [o]ther than the parking issue, [Bannum's proposal] met the minimum requirements of the solicitation. Agency Report, Tab 13, at 9. The agency responds that Dismas's interpretation of the SSD is unreasonable because the solicitation itself contained no requirement for a particular number of parking spaces.
While the source selection authority (SSA) may have used a poor choice of words, the record does not support the view that Bannum failed to meet a minimum requirement for a certain number of parking spaces. The solicitation did not include a requirement for a particular number of parking spaces within the statement of work or any other section. The solicitation simply required each offeror to submit a legible and accurate floor plan for the proposed facility, showing the location buildings, roads, fences, parking lots, walkways, and adjacent buildings. Solicitation Statement of
With regard to the past performance evaluation, Dismas alleges that the agency improperly ignored Bannum's negative performance on a previous contract with the BOP. The solicitation required each offeror to submit the 5 most relevant contracts and/or subcontracts that were, or are currently being, performed in the past 3 years. Solicitation sect. L.8; Section J. Dismas's allegation does not involve negative performance on a contract submitted for evaluation in Bannum's proposal. Rather, Dismas references a Court of Federal Claims protest decision, Bannum, Inc. v. United States, 69 Fed Cl. 311 (2006), in which the Court makes reference to Bannum's performance of a prior contract during which Bannum fail[ed] to alert the BOP of an escaped prisoner in a timely manner. 69 Fed. Cl. at 316; Protest at 11. Dismas argues that, in light of the negative past performance information referenced by the Court in Bannum, it was unreasonable for the agency to rate Bannum's past performance as blue/very good, asserting that the past performance information referenced in the court decision was too close at hand for the agency to ignore. Protest at 11.
An agency's past performance evaluation is a matter within its discretion and we will not question it unless it is unreasonable or inconsistent with the terms of the solicitation or applicable statutes and regulations. Continental RPVs, B-292768.2, B'292768.3, Dec.11, 2003, 2004 CPD para. 56. There is no legal requirement that all past performance, or even all past performance references listed in an offeror's proposal, be checked or included in a valid review of past performance. See Dragon Servs., Inc., B-255354,
At the outset, we note that the negative past performance discussed by the Court in Bannum appears to have taken place prior to the period contemplated by the solicitation for consideration of past performance activity. As discussed above, the solicitation required each offeror to submit the 5 most relevant contracts and/or subcontracts that were, or are currently being, performed in the past 3 years. Solicitation sect. L.8; Section J. As also noted above, the negative past performance information discussed by the Court, on which Dismas's protest relies, was identified in connection with the agency's evaluation of Bannum's responses to three prior solicitations, the latest of which was issued on April 29, 2002—almost exactly three years prior to issuance of the April 15, 2005 solicitation at issue here. Accordingly, although the record does not precisely establish when the negative past performance occurred, it strongly suggests that the past performance discussed by the Court in Bannum, on which Dismas's protest relies, occurred prior to the 3-year period contemplated by the solicitation for consideration.
In any event, Bannum provided five contracts which met the solicitation requirement for recent and relevant past performance information. Agency Report, Tab 18. Dismas has not questioned the agency's past performance evaluation with regard to those five contracts. In evaluating Bannum's proposal, the agency considered certain prisoner accountability issues similar to those discussed in the court decision, but nonetheless determined that Bannum's past performance was properly rated blue/very good. Agency Report, Tab 18, at 7. Accordingly, even if the record were to establish that the negative past performance information discussed by the Court in Bannum took place during the period contemplated by the solicitation, and even if we were to conclude that this information was too close at hand for the agency to ignore, the record does not support Dismas's assertion that it was unreasonable for the agency to rate Bannum's past performance as blue/very good. Accordingly, we find no basis to sustain Dismas's protest challenging the agency's past performance evaluation.
Finally, Dismas alleges that the agency failed to make the award in accordance with the best value methodology identified in the RFP. Dismas alleges that the CO gave more weight to price than to the technical evaluation factors, ignoring the solicitation and converting this best value procurement into a lowest cost/technically acceptable procurement. In support of its allegation, Dismas points to its debriefing letter, in which the CO stated that [t]here were no tradeoffs used in determining the award of the contract to Bannum. Protest, Exh. 3, at 3. Dismas takes this statement to mean that the agency did not consider awarding the contract to a higher priced, but technically superior offeror and simply awarded the contract to the lowest priced acceptable offeror. We disagree with Dismas's assertion.
Where a solicitation provides for award on a best value basis, it is the function of the SSA to determine whether one proposal's technical superiority is worth a higher price and that decision is governed only by the test of rationality and consistency with the stated evaluation criteria. See Chenega Technical Prods., LLC, B-295451.5,
Notwithstanding the information in the debriefing letter suggesting that no tradeoff was made, the SSA provided a well-documented SSD that demonstrated a detailed comparison of each offeror's strengths and weaknesses and a rationale for the best value award to Bannum. Agency Report, Tab 13, at 8-12. The SSA substantiated the SSEB's ratings and risk assessments and acknowledged that Dismas received a higher technical/management rating than the other offerors.
The protest is denied.
 The COO authorized not only occupancy but also a specific use, transitional housing. As the intervenor points out, the Austin City Code provides that a COO may not be issued unless the development has been completed in accordance with the released site plan, construction plans, and other ordinance requirements. Austin City Code sect. 25-1-363; Intervenor's Comments at 2. Where, as here, the COO contained approval of the given use, we believe the agency was reasonable in accepting it as proof of the required approvals.
 Dismas also argues that the agency had an obligation to further assess the legality of Bannum's COO, and has presented evidence that the present owner of Bannum's proposed site location applied for additional zoning approvals during the evaluation process. Dismas has not, however, presented evidence to demonstrate that the tendered COO was revoked at any point during the evaluation, nor does the record indicate that the COO was otherwise invalid. Where, as here, the solicitation required offerors to submit official documentation demonstrating an approval or plan to obtain zoning and/or an occupancy permit, the agency's reliance on the COO submitted by Bannum was reasonable and sufficient.
 The past performance information referenced by the Court in Bannum had been provided by Bannum in response to three solicitations, which had been issued on April 29, 2002, January 2, 2002, and August 6, 2001, respectively.
 Here, one of the