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Us Gao Decision Dismas Charities Inc 2003

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United States General Accounting Office
Washington, DC 20548

Comptroller General
of the United States
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:

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

1

corrections center for federal offenders in Charleston, South Carolina. 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/price2 and the following non-cost/price factors, listed in descending
order of importance: past performance, community relations, technical, and
3
management. 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:

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.

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AWS

Dismas

Offeror X

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

[deleted]

5

Past Performance[ ]
(400 max.)
Community Relations
(350 max.)
Technical
(250 max.)
Management
(250 max.)
Cost/Price
(250 max.)
Total
(1500 max.)
Agency Report, Tab 8, at 4.

The contracting officer states that, based on this evaluation, Dismas’s and AWS’s
proposals were determined to be “substantially equal overall,” Agency Report,
Contracting Officer’s Statement, at 12-13, and that, “based on the overall equality of
the technical proposals” AWS’s proposal, which offered the lowest cost/price, was
6
selected for award. Id. This protest followed.
DISCUSSION
Dismas challenges the agency’s evaluation of its and AWS’s proposal under several
of the stated evaluation factors. Overall, Dismas protests that the agency failed to
adhere to the RFP’s evaluation scheme for evaluation of the technical factor; failed
to consider all of Dismas’s proposal information with regard to the community
relations factor; failed to obtain past performance information in a consistent
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.

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manner and as specified by the RFP; and failed to permit Dismas to respond to
adverse past performance information.
The agency acknowledges that it made various errors in conducting this
procurement.7 Agency Response to Dismas Comments, May 12, 2003, at 8. For
example, the agency acknowledges that, pursuant to the RFP, the technical
evaluation subfactors should have been accorded equal weight;8 that the agency
actually accorded twice as much weight to the first two technical subfactors as it
9
accorded the third; and that it was “likely improper” for the agency to have
accorded the subfactors differing weights.10 Agency Response to Dismas Comments,
May 12, 2003, at 10.
Nonetheless, the agency maintains that, following review of Dismas’s protest, it
reevaluated proposals in response to various flaws identified in the protest
(including the agency’s failure to accord equal weight to the technical evaluation
subfactors) and, based on those reevaluation activities, concluded that the initial
award decision was proper and, therefore, that Dismas was not prejudiced by the
agency’s errors.11 As discussed below, we conclude that the agency’s evaluation and
source selection decision were fundamentally flawed and not reasonably supported
by the record; further, we are unpersuaded that the agency’s post-protest
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.

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reevaluation activities provide a credible basis for concluding that Dismas was not
prejudiced by the agency’s errors.
In addition to challenging the agency’s application of technical subfactor weights
differing from those established by the RFP, Dismas protests that the agency failed
to properly consider all of the information Dismas submitted with regard to the
second most important evaluation factor, community relations. Regarding this
factor, RFP § M.5 stated that evaluation would “[p]rimarily consider documentation
evidencing community support or acknowledgement for the location of the [offeror’s
proposed] site.” Agency Report, Tab 1, RFP, at 65. The agency specifically raised
the issue of community support letters with Dismas during discussions and, in
response, Dismas submitted [deleted] such letters from community members within
the Charleston, South Carolina area. Agency Report, Tab 5.
Nevertheless, the record indicates that, even after discussions and the agency’s
timely receipt of the [deleted] letters, the agency evaluated Dismas’s proposal as
containing only [deleted] such letters. The record further establishes that the
agency’s ultimate source selection decision was based, in part, on Dismas’s lower
level of demonstrated community support. Specifically, both the SSEB’s award
recommendation and the source selection decision expressly compare Dismas’s and
AWS’s submissions, stating: “AWS provided [deleted] letters of support, Dismas
provided [deleted] letters of support.” Agency Report Tab 8, at 3; Agency Report,
Tab 9, at 5. Finally, the record suggests that the contracting officer believed Dismas
had not submitted any letters of support from the Charleston, South Carolina area.
In this regard, Dismas’s debriefing document states:
Dismas could enhance [its] proposal by providing the following:
.

.

.

.

.

Community Support letters from the Charleston, South Carolina area.
Agency Report, Tab 16, at 4.
Thus, based on the documentary evidence, we agree with Dismas that, in making its
source selection decision, the agency failed to consider information submitted by
Dismas demonstrating community support.
The agency responds, in a post-protest submission to our Office, that the agency’s
references to Dismas’s more limited community support resulted from a
“typographical error in the SSEB’s Recommendation Memorandum . . . which was
inadvertently carried over to the Source Selection Decision.” Agency Response to
Dismas Comments, May 12, 2003, at 13. However, the agency has not identified
anything in the contemporaneous evaluation record that supports this assertion.
Accordingly, based on the existing documentation that addresses this matter, that is,

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the SSEB recommendation and the source selection decision, we can only conclude
that the agency failed to consider proposal information submitted by Dismas that
addressed the community relations evaluation factor.
Next, Dismas protests the agency’s evaluation of offerors’ past performance, the
most heavily weighted evaluation factor, on the basis that the agency failed to
request the same type of information from all references and in a manner consistent
with that specified by the RFP. In this regard, the RFP stated: “The Contractor
Evaluation Form [CEF], located in Section J, will be used to collect [past
performance] information.” Agency Report, Tab 1, RFP at 61. The CEF requested
references to assign numerical ratings, ranging from 1 to 5,12 in three contract
performance areas--contract compliance, customer satisfaction, and business
relations. Agency Report Tab 7, CEF, at 2-3. Of significance, the CEF also contained
the following directive to references: “If performance is over and above the
minimum requirements of the SOW, add either one, two or three points [to the
aggregate point score].” Agency Report Tab 7, CEF, at 2.
The agency does not dispute that it failed to use the RFP-specified CEF for many of
Dismas’s references. Rather, for any reference other than the Bureau of Prisons, the
agency states that it prepared a shorter “letter/questionnaire.” Agency Report,
Contracting Officer’s Statement, at 15. Although the letter/questionnaire sought the
same numerical/adjectival ratings for the three contract performance areas identified
in the CEF, it did not direct references to increase an offeror’s rating “[i]f
performance is over and above the [SOW] minimum requirements.” Agency Report,
Tab 7, Letter/Questionnaire, at 38.
Following submission of Dismas’s protest, the contracting officer, apparently
recognizing that the past performance evaluation was based on incomplete
information, telephonically contacted some (but not all) of the non-BOP references
13
who had provided information in response to the letter/questionnaire. According to
various memoranda in the file, in telephone conversations with the references whom
the contracting officer was able to contact, she described the CEF instruction
regarding additional credit for performance over and above SOW requirements, and
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.

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asked these references if they wished to increase the ratings given. Several of
Dismas’s references stated they would have increased Dismas’s rating had they
received the CEF instruction. Supplemental Agency Documents, Tab 8, at 23-46.
The contracting officer similarly contacted [deleted] of AWS’s [deleted] past
performance references, who had received the letter/questionnaire; [deleted] of
these references stated they would not have increased AWS’s rating even if they had
received the CEF instruction. Supplemental Agency Documents, Tab 8, at 21-22.
Based on this additional information, the agency performed a “reevaluation” of
Dismas’s and AWS’s past performance ratings, increasing Dismas’s past performance
score by [deleted] points, from [deleted] to [deleted]. Although none of AWS’s
references indicated any desire to increase AWS’s ratings, the agency’s reevaluation
reflects a [deleted] point increase to AWS’s past performance score, from [deleted]
to [deleted].14 Agency Response to Dismas Comments (May 12, 2003), Attach. 1, at 1.
The agency has offered no explanation for this adjustment of AWS’s rating, nor any
explanation regarding the significantly differing numbers on the revised SSEB
scoresheet.
Finally, in a matter related to the agency’s past performance evaluation, Dismas
protests that the agency failed to comply with the Federal Acquisition Regulation
(FAR) requirement that, in conducting discussions with offerors following
establishment of a competitive range, the contracting officer must, “at a minimum”
discuss “adverse past performance information to which the offeror has not yet had
an opportunity to respond.” FAR § 15.306(d)(3). In this regard, the record shows
that one of Dismas’s references rated Dismas’s past performance as a “[deleted],” or
15
“[deleted],” with regard to “business relations.” Supplemental Agency Documents,
Tab 7, at 230. The record indicates that this adverse past performance information
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.

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was specifically considered by the contracting officer in making the source selection
decision.16 Agency Report, Tab 12, at 6.
The agency does not dispute that it failed to provide Dismas an opportunity to
discuss this adverse past performance information. Further, the record establishes
that, had such an opportunity been afforded, Dismas may well have been able to
respond in a meaningful way.17 Nonetheless, the contracting officer asserts, without
explanation, that she did not consider this particular past performance information
to be “adverse” and, accordingly, the agency maintains it had no obligation to advise
Dismas of the information during discussions. Agency Response to Dismas
Comments, May 12, 2003, at 6. In any event, the agency maintains that, due to its
post-protest reevaluation, any benefit that Dismas would have gained through
discussing this matter would not have been enough to “materially alter the outcome
of the competition.” Id.
Based on the record here, we conclude that the agency’s activities with regard to
evaluation of offerors’ past performance were materially flawed and contrary to the
FAR. As noted above, the past performance references received materially differing
instructions with regard to how to score an offeror’s past performance. Specifically,
unlike recipients of the CEF, the multiple recipients of the letter/questionnaire were
not instructed to assign additional points if the contractor had exceeded minimum
requirements. While it is true, as the agency argues, that the ultimate issue in this
regard is whether the past performance information was accurately conveyed, see
Redcon, Inc., B-285828, Oct. 11, 2000, 2000 CPD ¶ 188, here, the information clearly
was not. Specifically, while the RFP clearly contemplated assessment of, among
other things, whether an offeror’s past performance exceeded minimum contract
requirements, a majority of Dismas’s references were not requested to provide that
information prior to the agency’s source selection decision.
Although the agency asserts that its post-protest activities remedied that error, for
the reasons discussed above, we do not find those activities to credibly establish an
absence of prejudice. Our Office has previously addressed the situation where an
agency engages in reevaluation activities while simultaneously defending against an
ongoing protest. Boeing Sikorsky Aircraft Support, B-277263, B-277263.2, Sept. 29,
1997, 97-2 CPD ¶ 91. There, we explained that when an agency re-evaluates
proposals during a pending protest and relies on information and/or analysis that it
has not previously considered, we will generally limit the weight given the post16

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.

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protest activities “because they constitute reevaluations and redeterminations
prepared in the heat of an adversarial process,” and “may not represent the fair and
considered judgment of the agency.” Id. at 15. We reach the same conclusion here.
On the record discussed above, we find the agency’s post-protest reevaluation to
lack credibility. As discussed above, the agency has offered no rational support for
having increased AWS’s past performance rating. Further, we find this portion of the
agency’s reevaluation particularly troubling in light of the multiple, conflicting
numbers that appear in various post-protest documents regarding the adjusted point
scores to be awarded to Dismas’s and AWS’s proposals. Similarly, the agency’s
summary assertions that Dismas was not prejudiced by the agency’s other
procurement errors--including the agency’s failure to consider all of Dismas’s
proposal information, and the agency’s failure to permit Dismas to respond to
adverse past performance information--are substantially without any documented,
18
objective analysis. On this record, we decline to give any material weight to the
agency’s post-protest activities and we reject the assertion that Dismas was not
prejudiced. To the contrary, had a proper evaluation been performed, we believe
there is a reasonable possibility that Dismas’s proposal could have been rated higher
than AWS’s under a majority of the non-cost/price evaluation factors, including the
most heavily weighted past performance factor. Since the RFP provided that noncost/price factors would be “significantly more important than cost[/price],” we
conclude that Dismas has a substantial chance of receiving the award in the event
the agency properly evaluates Dismas’s and AWS’s proposals. See McDonaldBradley, B-270126, Feb. 8, 1996, 96-1 CPD ¶ 54 at 3; see also Statistica, Inc. v.
Christopher, 102 F.3d 1577 (Fed. Cir. 1996).
The protest is sustained.

19

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,
(continued...)
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RECOMMENDATION
In light of the record reflecting multiple procurement flaws, including a failure to
permit Dismas to provide information responding to adverse past performance
information, we recommend that the agency re-open discussions with Dismas,
permit it to address this matter as required by the FAR, obtain past performance
information in a consistent manner and as specified by the RFP and, thereafter,
perform a reevaluation of proposals that is consistent with the provisions of the
solicitation and is based on consideration of all proposal information; the agency
should then make a new source selection decision based on that reevaluation. In the
event Dismas’s proposal is selected for award, the agency should terminate AWS’s
contract, and award a contract to Dismas.20 In light of the record of problematic
adjustments to the offerors’ scores, the agency may wish to conduct the reevaluation
using personnel other than those that participated in the initial evaluation. We also
recommend that Dismas be reimbursed its cost of filing and pursuing this protest

(...continued)
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.

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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

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