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Us Gao Decision Dismas Charities Inc 2004

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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-289575.2; B-289575.3

Date:

February 20, 2004

Alex D. Tomaszczuk, Esq., and Daniel S. Herzfeld, Esq., Shaw Pittman, for the
protester.
Joseph A. Camardo, Jr., Esq., and Kevin M. Cox, Esq., for Bannum, Inc., an
intervenor.
Katherine A. Day, Esq., Bureau of Prisons, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO,
participated in the preparation of the decision.
DIGEST
1. Protest that agency improperly failed to accord past performance factor greater
weight in evaluation than other factors--as provided in solicitation--is denied where
record shows that agency did give past performance greater weight than other
factors--in the form of 100 more possible evaluation points--but determined that,
despite protester’s scoring advantage for past performance, proposals were equal
under all technical factors combined, leading to award based on awardee’s lower
price.
2. Agency was not required to perform price realism analysis where solicitation
contemplated award of a fixed-price, rather than a cost-reimbursement, contract and
did not provide that such an analysis would be performed.
DECISION
Dismas Charities, Inc. protests the award of a contract to Bannum, Inc. under
request for proposals (RFP) No. 200-0669-SE, issued by the Bureau of Prisons (BOP)
for Community Corrections Center services for federal offenders held in Savannah,
Georgia. Dismas complains that BOP failed to make award in accordance with the
solicitation, and improperly evaluated Bannum’s prices.
We deny the protest.
The solicitation, which contemplated the award of a fixed-price contract, provided
for a “best value” award based on an evaluation under four factors: past

performance, technical, management and price. Past performance was identified as
the most important factor, with the remaining three factors being equal in weight.
The non-price factors combined were significantly more important than price.
Four proposals, including Dismas’s and Bannum’s, were received. A source
selection evaluation board (SSEB) evaluated the technical and management
proposals by assigning them point scores under each factor, and the contracting
officer evaluated price and past performance. Following multiple rounds of
discussions and the submission of final proposal revisions (FPR), Dismas’s proposal
received [DELETED] (of 1,000 possible) points, with [DELETED] (of 325) for past
performance, [DELETED] (of 225) for the technical factor, [DELETED] (of 225) for
the management factor, and [DELETED] (of 225) for price. Bannum’s proposal
received [DELETED] points, with scores of [DELETED] for past performance,
[DELETED] for the technical factor, [DELETED] for the management factor, and
[DELETED] for price. The agency determined that the two offerors’ non-price
proposals were technically equal, and thus made award to Bannum based on its
lower price. This protest followed.
Dismas raises a number of issues concerning the evaluation and award decision. We
have considered each issue and find them all to be without merit. We discuss several
examples below.
PAST PERFORMANCE
Dismas asserts that the agency failed to give appropriate evaluation weight to past
performance, as evidenced by the agency’s determining that Dismas’s and Bannum’s
proposals were technically equal despite the fact that Bannum’s proposal score was
lower than Dismas’s for past performance and for all non-cost factors combined.
Dismas asserts that, had past performance been weighted properly, its [DELETED]point advantage over Bannum for that factor would have led the agency to conclude
that Dismas’s proposal was superior, rather than equal, to Bannum’s.
This argument is without merit. While the RFP provided that past performance was
the most important factor, this was reasonably reflected in BOP’s assigning past
performance 325 possible points, and the technical and management factors only
225 points each. Further, while Dismas enjoyed a [DELETED]-point advantage over
Bannum for past performance, the results of the overall point-scoring show that
most of this advantage was offset by Bannum’s superiority under the other factors.
In any case, point scores are only guides to assist source selection officials in
evaluating proposals; they do not mandate automatic selection of a particular
proposal. The question ultimately is whether the record supports the agency’s
conclusions regarding the relative merits of the proposals. SDS Int’l, Inc.,
B-291183.4, B-291183.5, Apr. 28, 2003, 2003 CPD ¶ 127 at 9. Here, the record shows
that the source selection authority (SSA) was aware of the differences in Dismas’s
and Bannum’s past performance scores, and the substantive reasons for those

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B-289575.2; B-289575.3

differences, Source Selection Document at 4, 5, 7, but ultimately concluded that the
proposals were equal overall under all non-price factors. Dismas has not
established that this conclusion was unreasonable.
TECHNICAL AND MANAGEMENT FACTORS
In its comments in response to the agency report, Dismas argues that the scoring
system was flawed because it resulted in Dismas’s proposal receiving a lower
weighted score than Bannum’s under the technical and management factors, even
though it received a higher raw score. Dismas also argues that one of the evaluators
improperly lowered her score for Dismas’ proposal after the fourth round of
discussions.
Under our Bid Protest Regulations, protest arguments, such as these, that do not
involve an apparent solicitation impropriety, must be raised within 10 days after the
bases of protest were, or should have been, known. 4 C.F.R. § 21.2(a)(2) (2003).
Where, as here, a required debriefing is provided, protests raising arguments based
on information known prior to, or learned at, the debriefing must be filed within
10 days after the debriefing. Id. BOP reports, and Dismas does not dispute, that
Dismas was provided with the scores on which these arguments are based no later
than October 2, 2003, during litigation initiated by Bannum in the United States Court
of Federal Claims with respect to the solicitation under protest here. Agency Report
at 5; Supp. Agency Rept. at 4-5; Supp. Comments at 1-2. Dismas therefore was aware
of these bases of protest when it filed its initial protest on December 3, following its
debriefing. Since Dismas did not raise these issues until January 12, they are
untimely.
Dismas argues that these evaluation arguments are timely because it challenged the
evaluation under the technical and management factors in its December 3 protest.
This argument is without merit. In its initial protest, Dismas’s argument with respect
to the technical and management factor evaluation consisted solely of the following
general statement: “Upon information and belief, BOP improperly conducted the
evaluations under the Technical and Management factors. In particular, BOP failed
properly to score the evaluations of Dismas and Bannum.” The protest included no
details explaining why the evaluation was unreasonable, or why Dismas believed the
proposals were improperly scored. Dismas first provided specifics in its comments,
where it asserted that its higher raw score improperly resulted in a weighted score
lower than Bannum’s, and that one of the evaluators improperly lowered Dismas’s
score after the fourth FPR. Where a protester presents a general allegation in its
initial protest, it does not render timely subsequently submitted specific examples of
the alleged general flaws in the evaluation. CAE USA, Inc., B-293002, B-293002.3,
Jan. 12, 2003, 2004 CPD ¶__ at 11 n.9; see LeBoeuf, Lamb, Greene & MacRae,
B-283825, B-283825.3, Feb. 3, 2000, 2000 CPD ¶ 35 at 11-12. Accordingly, Dismas’s
specific arguments regarding the evaluation, first raised in its comments, are

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B-289575.2; B-289575.3

untimely and will not be considered. Battelle Mem’l Inst., B-278673, Feb. 27, 1998,
98-1 CPD ¶ 107 at 24 n.32.
PRICE EVALUATION
Dismas maintains that BOP improperly failed to assess the realism or reasonableness
of Bannum’s proposed price, or to consider that Bannum’s price is unbalanced
between the base and option years.
These arguments are without merit. First, price realism is not required to be
considered in the evaluation of proposals for the award of a fixed-price contract
unless the solicitation provides for a price realism analysis to assess an offeror’s
understanding of the requirements or the risk of poor performance inherent in a
proposalA AllWorld Language Consultants, Inc., B-291409, B-291409.2, Dec. 16, 2002,
2003 CPD ¶ 13 at 2. Here, as the solicitation did not require a price realism analysis,
the agency was not required to perform one.
Dismas’s argument regarding price reasonableness is based on the agency’s alleged
failure to use Bannum’s revised prices in a comparison with the government
estimate. According to Dismas, BOP used prices of $73.00 for Bannum’s base
period and $64.00 for the two option periods, instead of Bannum’s revised prices of
$72.50 for the base period and $63.00 for the option periods. This argument is
without merit. The purpose of a price reasonableness evaluation, is to determine
whether offered prices are higher, not lower, than warranted. Efficiency Mgmt.
& Eng’g Co., Norcor Techs. Corp., B-292676, B-292676.2, Oct. 31, 2003, 2003 CPD
¶ __. Since the agency found that prices higher than Bannum's revised prices were
reasonable, using Bannum’s lower revised prices in the comparison obviously
would not affect the price reasonableness determination.
Dismas argues that Bannum’s prices of $73.00 for the base year and $64.00 for the
option years are unbalanced and should be rejected. However, the difference in
Bannum’s base and option year prices--approximately 14 percent--is not so extreme
as to render the offer unbalanced. See Laidlaw Envt’l Servs. (GS), Inc., B-261603,
Oct. 11, 1995, 95-2 CPD ¶ 171 at 4 (pricing not unbalanced where base year price is
36 percent higher than option year price).
The protest is denied.
Anthony H. Gamboa
General Counsel

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B-289575.2; B-289575.3

 

 

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