Dismas Charities, Inc.

B-292091, Dismas Charities, Inc., June 25, 2003

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:

including reasonable attorneys' fees. 4 C.F.R. 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. 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 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 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. 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 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. 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.