Protest decision RSAT

Phone: 404-656-5514 200 Piedmont Avenue SE Suite 1804 West Tower Atlanta, Georgia 30334-9010 Fax: 404-656-6279 www.doas.ga.gov

Brian P. Kemp Governor

Rebecca N. Sullivan Commissioner

September 6, 2022

Via Electronic Mail

James W. Cobb, Esq.

CAPLAN COBB, LLC

75 Fourteenth Street, N.E.

Atlanta, Georgia 30309 jcobb@caplancobb.com

Re: Bid Protest by GEO Reentry Services, LLC (Solicitation No. GDC0000992)

Dear Mr. Cobb, This letter is in response to the protest submitted by GEO Reentry Services, LLC to the Notice of Intent to

Award (“NOIA”) issued in connection with solicitation number GDC0000992. After careful review of the written submissions, and for the reasons set forth below, the protest is denied.

I. RFP and Procedural History

On January 27, 2022, the Georgia Department of Administrative Services (“DOAS”) issued a request for proposals (“RFP”) on behalf of the Georgia Department of Corrections (“GDC”). The RFP was for a residential substance abuse treatment (“RSAT”) program. The RSAT is a nine-month, highly structured residential substance abuse treatment program that targets offenders nearing release, probationers sentenced by the courts, or GDC-referred offenders who have a need for intensive substance abuse programming.1

After full evaluations, the NOIA was issued to Gateway Foundation, Inc. as the apparent successful offeror on

June 14, 2022.2 After several rounds of requests for records, GEO filed its original protest on June 24, 2022, and an amended protest on July 8, 2022.3 Pursuant to a scheduling order, Gateway submitted its response in opposition to the protest on July 22, 2022, and GEO filed a reply to the response on July 29, 2022. I appreciate the thorough and well-reasoned briefing of the Parties, which has greatly assisted the resolution of this protest.

II. Enumerations of Error

1 RFP § 1.1.

2 The award decision was very close; only six points (out of a possible 1000) separated the two highest scoring suppliers.

3 GEO notes that the amended protest restates its original protest, while also adding new points derived from the documents produced in response to GEO’s open-records request. Amended Protest at n.2. Accordingly, I will treat the amended protest as the operative document.

DocuSign Envelope ID: 5007CA0B-7973-42CE-AE83-D4EC6FD5E031 mailto:jcobb@caplancobb.com

Protest Decision Solicitation No. GDC0000992 Mr. James. W. Cobb, Esq.

As part of its protest, GEO identified eight alleged enumerations of error, which are addressed in turn. In addressing these enumerations, I have applied the principles set forth in law, including but not limited to, Section 6.5 of the Georgia Procurement Manual (“GPM”). In particular, I note that the standard of review of the evaluation of proposals is one of deference to any reasonable judgment of the evaluation team and that a protesting party’s simple disagreement with the evaluation team provides no basis for reversing the evaluation team’s allocation of points.

A. The Evaluation Team Did Not Err in Validating Scores.

GEO first challenges the way in which the technical scores of the suppliers’ responses were validated. Such a challenge is without merit.

Under the terms of the RFP, the suppliers’ responses were evaluated on combination of cost and technical factors and were eligible to receive a total score of 1000 points; a maximum of 300 points were available for cost and a maximum of 700 points for technical/proposal factors.4 The responsive and responsible supplier receiving the highest total combined score is selected for award.5

Section 5.6.3.2.1 of the GPM provides a “general overview of the technical evaluation process.” Under that section, members of the evaluation team independently score each supplier’s technical proposal, which are then submitted to the issuing officer. After the issuing officer assembles the evaluation documents, the scores must be validated. During the validation process, the evaluation team members meet to discuss the results of the independent scoring and, as a result of the discussion, an evaluation team member “may modify his/her scoring.”6 This is exactly what occurred during this solicitation.

GEO’s general complaint is not that there was a validation meeting, but that the validation process continued beyond a single meeting.7 While GEO is correct that the validation process occurred over more than a single meeting, nothing in the GPM prevents the issuing officer or evaluation team from engaging in more than a single validation meeting. To the contrary, the GPM contemplates that the validation is a “process” and notes that the issuing officer will coordinate all “evaluation meetings” (i.e., potentially multiple meetings).8

GEO’s real complaint, however, is not that there was more than one validation meeting, but instead, that the validation process did not stop while it was ahead. (Amended Protest at 5 (noting that if NOIA was awarded based on original validation meeting the contract “should have been awarded to GEO).). However, “[a] protesting party’s simple disagreement with the evaluation team provides no basis for reversing the evaluation team’s allocation of points.”9 GEO’s argument that the validation process should have been arbitrarily stopped at the time in which it may have had the highest scores is not a basis for reversing the decision.

4 RFP § 6.4.

5 RFP § 6.7.

6 See generally GPM § 5.6.3.2.1.

7 Amended Protest at 4-5.

8 GPM § 5.6.3.2.1 (Step 6 noting that “[o]nce the evaluation committee has completed the validation process, the issuing officer will finalize” the evaluation template.).

9 GPM § 6.5.

Finally, as Gateway points out in its response, all of the suppliers’ scores were modified during the validation process. In fact, GEO’s scores actually improved from the time of the initial scoring until the conclusion of the validation process. Given that the same validation process was used as to all suppliers, it was done without prejudice to GEO and cannot serve as a basis for reversal.10

B. DOAS Properly Calculated the Suppliers’ Cost Score.

In its second enumeration of error, GEO argues that DOAS incorrectly calculated Gateway’s cost score. GEO’s argument, however, ignores the clear language of the GPM and applies incorrect math.

Section 5.6.3.2.2 of the GPM sets forth the process and formula for evaluating cost scoring in an RFP. Under that provision, “[t]he supplier deemed to have the most competitive cost response overall . . . will receive the maximum score for the cost criteria,” which, in this instance, was 300 points. There is no dispute that GEO had the most competitive cost response, and was awarded the full 300 points. “[O]ther suppliers’ cost will receive a percentage of the maximum score based on the percentage differential between the most competitive cost proposal and the specific proposal in question.”11 Here, GEO’s cost proposal was $10,109,941.87 and

Gateway’s was $10,449,984.35.

In this instance, the percentage differential between the most competitive cost proposal (i.e., GEO’s) and the specific proposal in question (i.e., Gateway’s) is approximately 96.745% (10,109,941.87/10,449,984.35).

Gateway is entitled to receive the same percentage of the maximum score (i.e., 300 * 0.96745), which equals

290.24, which is the score Gateway received.

The GPM sets forth clearly the application of this calculation in an example set forth on the following page12:

Table 5.7

Cost Scoring Formula

Example

State entity receives responses from two suppliers on an RFP. The RFP assigned 700 possible points for technical scores and 300 possible points for cost scores. Supplier A’s cost proposal is $50, 000.00. Supplier B’s cost proposal is $55,000.00. As Supplier A offered the lowest cost, Supplier A receives 300 points. The issuing officer can calculate the number of cost points to assign to Supplier B’s cost score by using the formula noted above. As shown below, Supplier B’s total cost score is 272.7 points.

L/R x P = Z

($50,000.00/$55,000.00) x 300 = Z

10 GPM § 6.5.

11 GPM § 5.6.3.2.2.

12 GPM § 5.6.3.2.2.

Table 5.7

Cost Scoring Formula

.909 x 300 = Z

The cost-scoring formula was properly used in calculating Gateways’ cost score, so there is no reversible error.

But even if GEO were correct in the application of the formula that it proposes, any error would be immaterial because GEO acknowledges that, under its calculation, Gateway’s cost score would be 289.91 – a difference of less than two points.13 Given that Gateway’s total score was six points higher than GEO’s, any calculation error is immaterial and did not prejudice GEO.14

C. NOIA’s “Estimated Amount” is Not a Basis for Reversal.

GEO’s third enumeration of error asserts that the “estimated amount” on the NOIA ($54,688,750.99) contains a

“significant (and unexplained) discrepancy” when compared to the cost worksheet submitted by Gateway

($10,449,984.35). This alleged “discrepancy” is explainable and immaterial to the contract award. In issuing the NOIA, GDC included the total, maximum cost of the contract if GDC were to exercise its four, one-year optional renewals. The NOIA estimated amount also assumed that all counselling staff were fulfilled by certified staff, who receive a higher hourly rate of pay, than non-certified staff.

Under the terms of the RFP, suppliers are required to have a “minimum of [f]orty percent (40%) of the counselor staff at each program facility” to be licensed as licensed professional counselors.15 As such, the cost worksheet, which was used to evaluate cost score, allowed suppliers to include a reduced hourly rate for the non-certified staff at various positions. However, for purposes of calculating the “estimated amount” on the

NOIA, GDC calculated the potential cost based upon a maximum staff cost assuming every staff member received the higher hourly rate of a certified staff. The same calculation would have been done if GEO had been awarded the NOIA and would have similarly increased the amount listed in the cost worksheet, so there is no prejudice to GEO and the amount on the NOIA is irrelevant to the evaluation done based on the cost worksheet.16

I acknowledge that it would have been useful to explain the calculation on the NOIA more explicitly to avoid the potential for confusion, but GDC elected to use the maximum staff cost out of an abundance of caution in the event it exercised all four renewals and if Gateway were to use more than forty percent of certified staff to fulfil the contract. I cannot say that such an election is erroneous given that the actual cost of the contract will

13 Amended Protest at 7.

14 GPM § 6.5 (“There is no such thing as a perfect procurement. Thus, a protestor must show prejudice, not mere error, for not every error compels the rejection of an award.”) 15 RFP, Attachment B at 23.

16 GEO attempted to calculate a hypothetical cost score based on the amount in the NOIA compared to GEO’s cost set forth in the cost worksheet. Amended Protest at 8. This calculation, however, is not a fair assessment because GEO’s cost does not take into account the assumption of all staff at the certified hourly rate, which is not the basis of the cost evaluation.

likely vary from year to year due to the makeup of certified and non-certified staff and hours that are actually worked, and the estimate is not a basis for reversal.

D. Evaluation of Cost was Proper.

GEO’s final cost-related argument is that the evaluation of cost should have compared the suppliers’ total cost over five years rather than comparing cost of the initial contract term.17 As set forth below, however, this protest is untimely and, even if it were timely, would nevertheless be denied because GDC had the discretion to

“use lowest cost, lowest total cost, total cost of ownership, life cycle costs, or greatest savings to determine the most advantageous or ‘best value’ cost response.” 18

The initial term of the contract is from the date of the award until the end of the State’s current fiscal year (i.e., June 30th). GDC further possesses “four (4) one (1) year option(s) to renew, which options shall be exercisable at the sole discretion of [GDC].”19 (Emphasis added). In order to evaluate the cost of such a contract, the RFP instructed all suppliers to submit a cost proposal on the cost worksheet, which was attachment F to the RFP.20

The cost worksheet clearly defined “total cost” as the sum of five component parts: (1) Annual staffing, (2) annual general and administrative cost, (3) one-time start-up cost, (4) one-time close out cost, and (5) annual conference cost. Each of those components made up the expenses of the initial term of the contract.21 Thus, each supplier was informed that its cost would be evaluated based on the “total cost” as defined in the cost worksheet. The RFP expressly required the suppliers to enter its cost in the format set forth in the cost worksheet and that “[a]dditional alternative cost structures will not be considered.”22

As an initial matter, if GEO desired to protest the way in which the cost was evaluated in the cost worksheet, it should have done so as a challenge to the solicitation itself. Its challenge to the evaluation now is untimely and has been waived.23

But even assuming that GEO’s protest to the cost evaluation criteria was timely, it would still be denied because

GDC had the discretion to “utilize lowest cost, lowest total cost, and total cost of ownership (TCO) or greatest savings to determine the most competitive cost proposal.”24 While in other circumstances it might be equally appropriate to consider the potential five-year cost of a contract, in this instance GDC exercised its discretion in evaluating only the initial year. There is nothing to suggest that GDC abused its discretion in doing so, particularly where the RFP made clear that the initial term was only for one year and could be renewed only in

17 Amended Protest at 9.

18 GPM § 5.6.6.2; see also RFP § 6.3.1.

19 RFP § 1.7.

20 RFP § 5.1.

21 RFP, Attachment F.

22 RFP §5.1

23 See generally GPM §§ 6.5.1 and 6.5.7 (deadline for filing protest to competitive solicitation process is two business days prior to closing date of solicitation).

24 RFP § 6.3.1; see also GPM § 5.6.6.2; GPM § 6.5 (“A state entity maintains discretion to determine its needs and the best method to accommodate them and the responsibility for drafting proper specifications that reflect the state’s needs is the procuring entity’s.”).

GDC’s discretion.25 Accordingly, the fact that the evaluation of cost considered only the initial term rather than the entire (potential) five-year cost is not reversible error.

E. There are no Reversible Errors in Technical Scoring.

GEO’s final enumerations of error relate to the technical scoring of the evaluation committee. While I will address each of the assertions in turn, each enumeration shares a common characteristic in that it challenges or disputes the evaluation team’s analysis of technical scores.26 Importantly, however, the GPM and relevant law prohibit me from substituting my opinion or judgment for that of the evaluation team. Put simply, GEO’s

“disagreement with the evaluation team provides no basis for reversing the evaluation team’s allocation of points.”27 Given those principles, I find no basis for reversing the technical scores.

1. The evaluation committee properly considered the data-collection system.

GEO’s first technical-related argument challenges the evaluation committee’s consideration of the data collection system. Under the technical proposals, Gateway proposed that any data collection would go through its internal and proprietary electronic health records system; GEO indicated its intent to use GDC’s existing system called SCRIBE. GEO asserts that it “has its own proprietary data-collection system that it would have offered if DOAS had not repeatedly referred to and expressed a preference for the use of SCRIBE in the eRFP.”28 Such arguments, however, do not compel the reversal of the NOIA.

As an initial matter, GEO is incorrect that the RFP “expressed a preference for the use of SCRIBE.” To the contrary, the mandatory scored question at issue (i.e., MS 17) contains the following instruction:

Describe the proposed formal data collection system that details supplier’s approach to data collection and documentation. This system shall include collection tools, data, definitions, metrics, and other information needed to prepare required reports. If the Supplier’s proposed solution includes the use of any software or electronic data systems, this response must include a detailed description of how these systems will be secured and what metric will be used for evaluation, pen testing, and maintenance.29

While GEO certainly had the opportunity to answer MS17 and identify its proprietary software, it elected not to do so, and it may not use the protest process to do so at this point. And while the chosen supplier is required to interact and integrate with SCRIBE, suppliers were given wide discretion and flexibility in determining how to structure data-collection efforts.30 Ultimately, however, the evaluation committee scored Gateway’s data-collection proposal higher than GEO, and I see no reason to substitute my judgment for that of the evaluators.

25 RFP § 1.7.

26 Amended Protest at 10-15.

27 GPM § 6.5

28 Amended Protest at 11.

29 RFP, Attachment D.

30 See generally RFP, Attachment B at 25 (“A formal data collection system must be developed in conjunction with GDC and approved by GDC no later than thirty (30) calendar days prior to the Service Commencement Date.”).

2. The remaining technical objections simply dispute evaluator’s determination and do not serve as a basis for reversal.

I have carefully reviewed GEO’s remaining enumerations of error (i.e., errors 6 – 8). GEO’s arguments in each of the enumerations simply ask that I replace my judgment or evaluation for that of the evaluation committee.

As set forth fully above, I lack the authority to substitute my judgment for that of the reasoned judgment of the evaluation committee and I see no basis in reversing. In particular, GEO pinpoints specific evaluators and questions their scoring as to specific evaluations.31 While I have reviewed each of those complaints, it is inappropriate for me to second-guess the evaluations where, as here, I find the scores are neither arbitrary nor capricious. Accordingly, enumerations of errors 6 through 8 do not create a basis for reversal.

III. Conclusion

For all the reasons set forth above, I find GEO’s protest has failed to meet the standard necessary to reverse the decision to issue the NOIA. Therefore, the protest is denied.

Sincerely

Jim Barnaby

Deputy Commissioner

Cc: Toni Owens (toni.owens@doas.ga.gov)

Ross Barrineau (ross.barrineau@gdc.ga.gov)

Josh Belifante (josh.belinfante@robbinsfirm.com)

31 Amended Protest at 12-15.