Comptroller General

United States Government Accountability Office

Washington, DC 20548 

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: LIS, Inc. 

File: B-400646.4 

Date: January 4, 2010 

David Z. Bodenheimer, Esq., and Antonio G. Mendoza, Esq., Crowell & Moring LLP, 

for the protester. 

Clay C. Cook, Esq., and William D. Robinson, Esq., Department of Justice, for the 

agency. 

Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

Agency reasonably evaluated proposals for library and information center services 

under the experience, past performance and technical approach factors, where it 

reasonably credited the protester’s incumbent experience, but determined that the 

awardee’s proposal was technically superior to the protester’s under the technical 

approach factor because it had more distinguishable strengths and was technically 

equal to the protester’s under the experience and past performance factors, and 

reasonably made award based on the awardee’s lower-priced, technically superior 

proposal. 

DECISION 

LIS, Inc. of Lafayette, Colorado protests the award of a contract to Labat-Anderson, 

Inc., of McLean, Virginia, under request for proposals (RFP) No. RFPC0B-008, issued 

by the Department of Justice, Federal Bureau of Prisons, for library and information 

center services. LIS challenges the evaluation of proposals and source selection 

decision. 

We deny the protest. 

The National Institutes of Corrections (NIC) provides leadership and assistance in 

the field of corrections with regard to training, technical assistance, research and 

evaluation, policy standards formulation and implementation, and clearinghouse 

services. The NIC contains an information center that “collect[s], prepar[es], and 

disseminat[es]” information on corrections, including information on prisons, jails, 

probation, parole, and community based corrections. The “mission” for these 
Page 2 B-400646.4 

 

services is to “assist in improving current policies, practices, standards and 

procedures through support to correction practitioners and policy makers.” RFP 

at 36. A function of the information center is to maintain and operate the Robert J. 

Kutak Memorial Library in Aurora, Colorado, which houses all of the documents. 

Id. at 37. 

The RFP, issued on June 11, 2008, sought proposals to manage and operate the NIC 

information center and the Robert J. Kutak Memorial Library. The statement of 

work (SOW) described the services to be provided by the selected contractor and 

included requirements for both library and information services. These 

requirements included library services; website hosting, design and maintenance; 

information center services; scheduled reports and publications; and unscheduled 

requirements. Id. at 49-63. The library services required the contractor to perform 

“all customary tasks of maintaining and operating a small specialized library” and 

required the contractor to “identify, acquire, maintain, and catalog new correctional 

materials and relevant management materials;” respond to orders for information; 

provide reference and research services; and provide “customized search service[s]” 

for users in need of assistance. Id. at 49, 57-59. With regard to customized searches, 

the SOW “require[d] Contractor employees conducting searches to be 

knowledgeable in the corrections field in general; specific NIC divisional program 

issues; the similarities and differences between local, state, national, and 

international corrections programs and issues; and the identification of new issues 

and programs in the corrections field.” Id. at 58. 

The RFP contemplated the award of a fixed-price contract for a 1-year base period, 

with 4 option years. Id. at 2-4, 37. The RFP provided for award on a best-value basis, 

considering the evaluation factors of technical approach, project organization and 

firm experience, past performance, and cost or price. The RFP stated that the 

“Technical Factors (A) are more important than Project Organization and 

Experience (B) and Past Performance (C), and when combined they are significantly 

more important than Price (D).” Id. at 17-18. 

Labat and LIS (the incumbent contractor) submitted proposals by the RFP’s July 25 

closing date. After the source selection evaluation board (SSEB) completed initial 

evaluations, the agency held two rounds of discussions, and obtained final price 

revisions. LIS’s final proposal revision had a price of $8,037,361 and Labat’s final 

proposal revision had a price of $5,966,741. Agency Report (AR), Tab 33, Price 

Analysis, at 1. The SSEB recognized that LIS’s technical proposal was slightly better 

technically than Labat’s, but found that this superiority did “not justify paying the 

premium for an almost technically equal proposal.” AR, Tab 13, SSEB Evaluation 

Review Addendum, at 1-2. On September 22, the source selection authority (SSA) 

selected Labat’s proposal for award. 

LIS protested the award on September 29. On October 28, the agency took 

corrective action, stating that it intended to reevaluate the proposals. On 
Page 3 B-400646.4 

 

October 30, our Office dismissed the protest as academic. The SSA, with the 

assistance of the SSEB chairperson, reevaluated the proposals and documented a 

best-value analysis supporting an award to Labat. Award was made on December 12. 

On December 18, LIS again protested that the evaluation and source selection were 

flawed because the agency failed to adhere to the stated evaluation criteria, did not 

properly consider or compare the relative merits of the proposals, and did not 

adequately document the evaluation. 

On March 25, 2009, we issued a decision sustaining LIS’s protest because the agency 

had not performed or documented a reasoned consideration of the relative merits of 

the proposals but instead provided only general conclusions. LIS, Inc., B-400646.2, 

B-400646.3, Mar. 25, 2009, 2010 CPD ¶ __. Among other things, we noted that the 

record, including hearing testimony, did not explain how Labat addressed the 

agency’s concern expressed in the evaluation of the initial proposals that Labat 

lacked corrections experience or explain how Labat’s experience compared to LIS’s 

experience as the incumbent contractor with more than 30 years of relevant 

experience under the relevant evaluation factors.1 Id. at 8. We also found that the 

agency, in its evaluation, had weighted the evaluation factors in a manner that was 

inconsistent with the RFP. Id. at 9. We recommended that the agency decide what 

weight to accord the evaluation factors and amend the solicitation if necessary, and 

that the agency perform a new evaluation consistent with the decision, reopen 

discussions, if necessary, and make a new source selection decision. Id.

In response, the BOP decided that it would reevaluate the proposals of Labat and LIS 

anew with a newly assembled three-member source selection evaluation panel 

(SSEP), composed of individuals currently employed at NIC, and that it would not 

use the previous proposal evaluations.2 See Hearing Transcript (Tr.) at 31, 260-61.3 

 

1

 Although we found the RFP SOW emphasized corrections experience and such 

experience should therefore be considered in the evaluation, we also noted that the 

solicitation did not identify such experience as a minimum requirement that would 

mandate an offeror without such experience being excluded from the competition. 

LIS, Inc., supra, at 8 n.12. 

2

 The BOP also removed one of the subfactors under the technical approach 

evaluation factor, such that the technical approach factor had four subfactors 

(understanding of services (this subfactor had four sub-subfactors), staffing plan, 

key personnel, and personnel), and weighed the project organization and firm 

experience and past performance factors equally in accordance with the evaluation 

scheme set forth in the RFP. 

3

 Our Office conducted a hearing to obtain testimony regarding the evaluation of the 

proposals and award decision. 
Page 4 B-400646.4 

 

On June 3, after the proposals were evaluated by the SSEP, the agency commenced 

discussions with each offeror concerning weaknesses found in their respective 

proposals. Among the areas of concern in LIS’s proposal, which were noted by the 

SSEP and which were brought up in discussions, related to LIS’s staffing plan, which 

was regarded as a proposal weakness because it did not contain sufficient details, 

and the SSEP’s belief that LIS’s price was “too high.” AR, Tab 18, SSEP Evaluation 

Review Report (June 1, 2009), at 16, 27; Tab 19, Discussion Letter to LIS (June 3, 

2009), at 2-3. Among the areas of concern noted in Labat’s proposal and brought up 

in discussions related to Labat’s proposed personnel, given that Labat’s proposal 

named no staff for positions except key personnel. AR, Tab 18, SSEP Evaluation 

Review Report (June 1, 2009), Tab 20, Discussion Letter to Labat (June 3, 2009). In 

response, LIS addressed the agency’s specific concerns and in order “to reduce the 

price of services” eliminated some positions from its proposal and reduced its price 

to $6,998,904. AR, Tab 21, LIS’s Discussion Response (June 17, 2009), at 13. Labat 

also addressed the agency’s concerns and increased its price to $6,039,744.72. AR, 

Tab 22, Labat’s Discussion Response (June 22, 2009), at 12. 

Because LIS reduced its staff hours by 5,262 hours without revising its staffing plan 

to identify the specific positions being cut, the BOP conducted further discussions 

with LIS regarding this change to its proposal to address concerns about LIS’s ability 

to meet the SOW requirements. See Tr. at 43-50. In this regard, the BOP requested 

LIS, “Provide further information regarding the proposed positions that have been 

eliminated from your proposal” and “The revised Staffing Plan reflects a reduction of 

5,262 staff hours. What effect does this reduction have on [LIS’s] ability to meet all 

of the SOW as proposed in [LIS’s] proposal?” AR, Tab 23, Discussion Letter to LIS 

(June 23, 2009), at 1. In addition, both LIS and Labat were invited to revise their 

prices to make them more favorable to the government. Id.; AR, Tab 24, Discussion 

Letter to Labat (June 23, 2009). In response, LIS advised the BOP that the four 

positions being eliminated were the associate web developer, reference specialist, 

multimedia specialist, and administrative support staff, but that the contract 

performance requirements would be met, although LIS’s “staff’s ability to go ‘above 

and beyond’ the scope of the SOW” could be impacted. AR, Tab 25, LIS Discussion 

Response (June 26, 2009), at 4-5. Neither offeror revised its price. 

On July 8, both offerors were requested to update their banking information, Labat 

was requested to update its subcontracting plan, and both offerors were advised that 

this was their final opportunity to revise their prices to make them more favorable to 

the government. AR, Tab 27, Discussion Letter to LIS (July 8, 2009); Tab 28, 

Discussion Letter to Labat (July 8, 2009). The offerors provided the requested 

information and neither revised its prices. 

The SSEP evaluated the proposals and revisions, prepared a well-documented 

consensus report that discussed in detail the various attributes of each proposal and 

identified the respective proposals’ strengths and weaknesses under each evaluation 

factor and subfactor. With regard to each of the evaluation factors, subfactors, and 
Page 5 B-400646.4 

 

sub-subfactors, the SSEP provided color ratings and a detailed comparative analysis 

of the proposals, and each of the offeror’s discussion responses was specifically 

analyzed. 

One of the weaknesses found by the SSEP related to LIS’s staffing plan, particularly 

in view of the staff reductions identified during discussions (discussed above); LIS 

received a “green/acceptable” rating for the staffing plan subfactor of the technical 

approach factor as compared to Labat’s “blue/very good” rating. AR, Tab 31, SSEP 

Final Consensus Report, at 26, 38. In addition, while the SSEP assigned both 

proposals “blue/very good” ratings under the project organization and firm 

experience factor, it identified the following weakness in LIS’s proposal:4

[LIS] has only performed services for this one contract. This can limit 

the contractor from having a broader view of services. NIC is the only 

experience that [LIS] has [and] could limit their ability to have broad 

perspective. 

Id. at 33. 

Both proposals were rated by the SSEP as “blue/very good” overall. Id. at 5. The 

SSEP consensus report concluded that the proposals were rated “virtually equally,” 

but found that Labat’s proposal was technically superior based upon its “stronger 

ability to manage the web development components of the SOW” because it had an 

“award winning” subcontractor for web development while LIS was relying on a 

“single web-developer position.” On the other hand, the SSEP recognized that LIS’s 

strength over Labat was for the letters of intent that it had for staff beyond key 

personnel, although the SSEP believed Labat’s strong corporate support ensured its 

ability to quickly hire and retain qualified staff. Id. at 39. 

In making his source selection decision, the record shows that the SSA performed an 

independent comparative assessment of Labat’s and LIS’s proposals in which the 

SSA sometimes disagreed with the ratings, strengths and weaknesses assigned by the 

SSEP, and explained and documented his evaluation judgments. See AR, Tab 35, 

Source Selection Decision; Tr. at 157, 219-20. In so doing, the SSA testified that he 

did not give controlling weight to the color ratings, but considered the SSEP’s 

supporting narratives, including strengths and weaknesses. Tr. at 220. 

With regard to the technical approach factor, the SSA agreed with the assessment of 

the weakness identified by the SSEP with regard to LIS’s staffing plan5

 and identified 

 

(continued...) 

4

 No weaknesses were identified in Labat’s proposal under the project organization 

and firm experience factor. 

5

 The SSA testified that LIS’s statement regarding its revised staffing plan that it 

would satisfy the SOW requirements and continue at the same level as proposed in 
Page 6 B-400646.4 

 

a weakness in Labat’s proposal under the personnel subfactor of the technical 

approach factor for “lack of corrections [experience] in their proposal” that had not 

been identified as a weakness by the SSEP. These were the only weaknesses 

identified under the technical approach factor for the proposals, although neither 

weakness was regarded by the SSA as “significant.” These weaknesses were found 

by the SSA to be offset by the numerous strengths under this factor in these 

proposals. AR, Tab 35, Source Selection Decision, at 10, 12, 13. While both 

proposals received “blue/very good” ratings under the technical approach factor, the 

SSA rated Labat’s higher than LIS’s under this factor because it had “more 

distinguishable strengths,” including Labat’s use of a subcontractor for web 

development support and “Labat’s headquarters has ‘scanning and document 

conversion capabilities to scan over a million pages a week.’” Id. at 14. 

The SSA found both proposals were equal under the project organization and firm 

experience and past performance factors with “blue/very good” ratings. Id. at 20. 

The SSA concurred and adopted the weakness found in LIS’s proposal under this 

factor that LIS’s only experience is with the NIC library and information center. Id.

at 15. The SSA identified a weakness in Labat’s proposal that was not mentioned in 

the SSEB report--that it had no correctional experience, one of the subject matters of 

the NIC Library and Information Center. Id. 

Since Labat’s price was considered fair, reasonable and realistic,6

 and was lower 

than LIS’s, and since Labat’s proposal was considered to be technically superior, the 

 

(...continued) 

its initial proposal did not satisfy the agency’s concerns regarding its staffing plan 

because LIS did not reasonably explain how it could perform the contract work as 

stated in its technical proposal (for example, web development), particularly given 

that LIS’s proposal offered several service alternatives beyond the SOW 

requirements that were considered strengths in its proposal. The SSA understood 

that LIS’s plan to satisfy the RFP SOW requirements and its proposal promises was 

based on its other proposed staff performing the tasks that would have been 

performed by the eliminated staff and was concerned whether the service 

alternatives offered by LIS would be provided under the staffing plan. The SSA 

considered this to be a weakness in the staffing plan. See Tr. at 62-66. 

6

 A price analysis of the proposals was performed and documented as part of the 

evaluation of proposals under the price factor. This included comparing the prices 

to each other and the government estimate, and considering price proposals to 

determine whether proposals were realistic for the offeror’s technical approaches. 

As noted in our prior decision, this satisfied the RFP requirement for a realism 

analysis. LIS, Inc., supra, at 5 n.9; Team BOS/Naples--Gemmo S.p.A./DelJen, 

B-298865.3, Dec. 28, 2007, 2008 CPD ¶ 11 at 12. Thus, we find no merit to the 

protester’s contentions questioning the propriety of the agency’s evaluation of 

Labat’s price. 
Page 7 B-400646.4 

 

SSA found that no trade-off was necessary and determined that Labat’s proposal 

represented the best overall value. Id.; see AR, Tab 33, Price Analysis; Tab 34, 

Realism Analysis. The award was made to Labat on September 17. After a 

debriefing, this protest followed. 

In large part, LIS’s protest of the reasonableness of the current evaluation and source 

selection is based upon statements and conclusions of prior evaluations and 

testimony of the SSA concerning those evaluations at the GAO hearing on the prior 

protest. LIS essentially argues that because LIS’s proposal was previously 

recognized as technically superior and to contain certain discriminating strengths, 

and because the corrections experience possessed by LIS was regarded as 

important, the agency’s current evaluation that reached different results should be 

regarded as unreasonable. For example, the protester references a note by a prior 

evaluator who found “unmatched” level of detail in LIS’s technical approach as 

compared to Labat’s, yet Labat’s technical approach was now evaluated as superior 

to LIS’s, and the SSA’s testimony at the hearing on the prior protest that 30 years of 

corrections experience was more useful or relevant than no corrections experience. 

However, the prior protest was sustained because the agency failed to adequately 

document or explain its source selection decision, including how certain weaknesses 

in Labat’s proposal, such as its lack of corrections experience, were resolved and/or 

considered. As discussed below, our review of the record does not establish that the 

evaluation and source selection suffered from the same deficiency here. Instead, as 

noted above, the agency evaluated the proposals anew and the award was based 

solely on the reevaluation. Tr. at 31, 260-61. Therefore, we find the prior evaluation 

and the SSA’s prior testimony regarding that evaluation are not relevant here. See

MW-All Star Joint Venture, B-291170.4, Aug. 4, 2003, 2004 CPD ¶ 98 at 2 n.2. 

Turning to the LIS’s remaining contentions, the crux of LIS’s protest is that LIS’s 

proposal should have been rated more favorably than Labat’s proposal under the 

project organization and firm experience and past performance factors because it 

has over 30 years of direct NIC library and information center experience whereas 

Labat has no library experience in the field of corrections, and that the agency’s 

evaluation did not reasonably give sufficient weight to this fact. 

Our Office examines an agency’s evaluation of experience and past performance to 

ensure that it was reasonable and consistent with the stated evaluation criteria and 

applicable statutes and regulations; however, determinations regarding the relative 

merits of offerors’ proposals are primarily matters within the contracting agency’s 

discretion. JVSCC, B-311303.2, May 13, 2009, 2009 CPD ¶ 138 at 5; Kay & Assocs., 

Inc., B-291269, Dec. 11, 2002, 2003 CPD ¶ 12 at 4. In this regard, our Office will not 

question an agency’s determinations absent evidence that those determinations are 

unreasonable or contrary to the stated evaluation criteria. JVSCC, supra. Moreover, 

a protester’s mere disagreement with the agency’s judgment does not establish that 

an evaluation was unreasonable. UNICCO Gov’t Servs., Inc., B-277658, Nov. 7, 1997, 
Page 8 B-400646.4 

 

97-2 CPD ¶ 134 at 7. Based on our review of the record, we find no basis to object to 

the SSEP’s and SSA’s evaluation of the proposals as equal under these two factors. 

Under the project organization and firm experience factor, the RFP stated that 

proposals would be evaluated for “whether contractors have performed similar work 

before” and further stated that “[t]he Project Organization will be evaluated for 

reasonableness, allocation of authority and responsibility and usefulness to NIC.” 

The factor referenced the SOW,7

 and stated that the subfactors that would be 

evaluated in this area were “[t]he description of the offeror’s background and 

personnel expertise . . . relative to performing the proposed project” and “the 

offeror[’s], including any subcontractor relationships . . . capab[ility] of developing, 

managing, and controlling this type of project.” RFP at 18. 

The SSA considered LIS’s and Labat’s proposals to be equal under the project 

organization and firm experience factor with “blue/very good” ratings. The SSA did 

not find a significant distinction between LIS’s 30 years of experience of only 

operating the NIC library and information center and Labat’s broad experience 

operating numerous library and information centers. In this regard, the SSA noted 

that Labat is one of the largest commercial firms in the library support industry and 

its experience was found to include 29 years of experience providing services for 

federal library and information centers during which it supported 58 federal 

government libraries and information centers, including four federal contracts 

involving the same basic tasks required in the RFP SOW. AR, Tab 31, SSEP Final 

Consensus Report, at 34; Tab 35, Source Selection Decision, at 14-16. The agency 

found that Labat’s varied network of libraries in other federal agencies would allow 

for state-of-the art operations and knowledge and the integration of innovative 

approaches and best practices. AR, Tab 31, Final Consensus Report, at 34; Tab 35, 

Source Selection Decision, at 14-16. This was a strength when compared to LIS’s 

experience under one highly relevant contract, which the agency found “would limit 

the contractor from having a broader view of the services.” See AR, Tab 35, Source 

Selection Decision, at 15. The SSA concluded that “although [LIS] is the incumbent 

and their experience is considered a strength, it is no more a strength [than] Labat’s 

vast experience with the numerous projects that they offered.” Id. at 15-16. 

While LIS argues that it was unreasonable for the agency to assign its proposal a 

weakness here because the RFP evaluation factors did not indicate that other than 

corrections experience was required, the fact is that the SOW described a library and 

information center services contract and the agency could reasonably find that LIS’s 

limited experience (that is, only on the incumbent contract) was a relative weakness, 

particularly as compared to Labat, which has a broad range of library experience, 

which could be reasonably regarded as “useful” to the agency and considered to be a 

 

7

 In making the source selection, the SSA defined “similar work” under this factor as 

the work described in the SOW. AR, Tab 35, Source Selection Decision, at 14. 
Page 9 B-400646.4 

 

strength. See Tr. at 135-36, 203-04. Although the protester maintains that it should 

have received a higher rating than Labat because it has the direct experience of 

operating the NIC information center and library, which should have been 

considered more similar and useful to the NIC than Labat’s experience, neither the 

RFP nor this evaluation factor required the agency to assign greater weight to the 

proposal on this basis alone. See University Research Co., LLC, B-294358.6, 

B-2944358.7, Apr. 20, 2005, 2005 CPD ¶ 83 at 16. In this regard, we agree with the 

BOP that the fact that the RFP emphasized corrections experience and that the RFP 

SOW included many tasks related to corrections did not preclude the agency’s 

determination that other experience performing “similar work,” including other 

library experience on federal contracts involving the same basic tasks as required by 

this SOW, would be “useful” to the NIC and could be considered in the evaluation of 

the project organization and firm experience factor. See Tr. at 136, 139, 203-04. 

LIS argues that the evaluation of its contracts operating the NIC library and 

information center should have warranted a higher rating under the past 

performance factor, alleging that Labat not only lacked corrections experience but 

its contracts did not cover all of the services required by the SOW and the 

contemplated NIC library and information center contract. 

The critical question in evaluating proposals under the past performance factor is 

whether the evaluation was conducted fairly, reasonably, and in accordance with the 

stated evaluation terms, and whether it is based upon relevant information sufficient 

to make a reasonable determination of the offeror’s overall past performance rating. 

University Research Co., LLC, supra, at 14. 

The RFP stated that past performance would be evaluated to determine “how well 

the contractors performed the work before.” RFP at 18. Here, the record evidences 

that the SSA, who performed the past performance evaluation, first focused on the 

overall relevance of the contracts as they related to the solicitation, and then 

considered how well the contractors performed the work before, and how the 

ratings on prior contracts would correlate to the NIC library and information center 

services contract. Contracting Officer’s Statement at 7. The SSA testified that he 

determined Labat’s contracts to be relevant because “[he] evaluated what we have in 

the RFP [in the SOW] and . . . looked at the projects that [Labat] offered and . . . 

found them to be relevant because the services that we have in the RFP are similar 

to the services that Labat does” under the contracts that were listed by Labat as past 

performance references. Tr. at 94-95. The SSA admitted that they were not 

“identical” services but stated “they [are] in the realm of library and information 

center services as far as acquisition of materials and cataloging materials and doing 

the basic thing that libraries do.” Tr. at 94-95, 103-04, 113-14. The SSA also testified 

that he did not use corrections experience as a means of determining relevancy, that 

he interpreted relevance to be contracts that involved services that were similar to 

the library and management services outlined in the SOW, and that the RFP did not 

define relevance as “highly relevant versus lowly relevant.” Tr. at 118-21. Since both 
Page 10 B-400646.4 

 

Labat and LIS had successfully performed on their relevant contracts, the SSA 

assigned equal ratings to the proposals for past performance. 

We find the agency’s evaluation of past performance to be reasonable. As noted, the 

RFP did not define relevance or otherwise provide for the evaluation of relative 

degrees of relevance, and the evaluation factor only provided that the evaluation 

would consider how well the contractor had performed. While LIS disagrees with 

the agency’s determination that Labat’s submitted contracts were relevant, we find 

the agency could reasonably determine that library and information center service 

contracts that included many of the same tasks required by this RFP were relevant 

for considering the offeror’s past performance. Where, as here, both offerors have 

relevant past performance, an agency is not required to further differentiate between 

the past performance ratings unless the RFP provides that relative relevance be 

considered. See S4 Inc., B-299817, B-299817.2, Aug. 23, 2007, 2007 CPD ¶ 164 at 9; 

University Research Co., supra, at 16. Since the SSA reasonably found that Labat 

had successfully performed relevant projects, he was not required to draw any 

further distinctions between LIS’s and Labat’s proposals under this factor. 

LIS also argues that it deserved a higher rating than Labat under the technical 

approach factor because it had incumbent staff that had the requisite experience 

performing the tasks required by the SOW, such as customized searches, whereas 

Labat only proposed to hire staff with corrections experience to meet the SOW 

requirements. This issue relates to the personnel subfactor, one of the four 

subfactors of the technical approach factor. The SSA identified the lack of 

corrections experience as a weakness in Labat’s proposal, while identifying the 

letters of commitment provided in LIS’s proposal from its proposed staff (not just 

key personnel) as a strength in LIS’s proposal, and awarded Labat a green/acceptable 

rating for this subfactor as compared to LIS’s “blue/very good” rating. AR, Tab 35, 

Source Selection Decision, at 12. The SSA also found that Labat’s weakness here 

should not hinder contract performance in view of other information provided by 

Labat identifying how this lack of experience can be addressed by “various common 

commercial techniques,” offering “right of first refusal to incumbent staff,” and other 

methods. Id. at 13. Moreover, the record shows that LIS’s advantage under this 

subfactor was offset by its weakness under the staffing plan subfactor (discussed 

above) and by the fact that “Labat had more distinguishable strengths than” LIS 

under the technical approach factor, such that Labat’s proposal was considered 

superior to LIS’s under this factor. Id. at 14. Since the area for which LIS complains 

it should have received a higher rating was given due consideration by the agency 

under the technical approach factor, we find no basis to question the agency’s 

evaluation here. 

LIS finally argues that the agency conducted misleading discussions with it 

concerning LIS’s proposal to reduce the price of services and eliminate staffing 

positions. LIS argues that it was lulled into believing that its proposal did not have 

any weaknesses with regard to staffing, when the agency on July 8 in its last request 
Page 11 B-400646.4 

 

for final proposal revisions only asked for banking information and invited further 

price reductions. LIS argues that by this action the BOP misled LIS to believe that 

that it had sufficiently justified its staffing levels in its June 26 response. 

Discussions, when conducted, must be meaningful; that is, they may not mislead 

offerors and must identify proposal deficiencies and significant weaknesses that 

could reasonably be addressed in a manner to materially enhance the offeror's 

potential for receiving award. Lockheed Martin Corp., B-293679 et al., May 27, 2004, 

2004 CPD ¶ 115 at 7. Here, the agency specifically advised LIS of the weakness in its 

proposal with regard to the staffing plan. The agency then afforded LIS the 

opportunity to respond to the agency’s specific concerns after LIS made the business 

decision to revise its proposal by lowering its price and its staffing level without an 

adequate explanation in the staffing plan. We find the discussions to be meaningful 

because the agency specifically advised the protester of the areas of concern. Where 

an agency has adequately advised an offeror of an area of concern, there is no legal 

requirement that it raise the issue again in a subsequent round of discussions, even 

where the issue continues to be of concern to the agency.8

 USFilter Operating 

Servs., Inc., B-293215, Feb. 10, 2004, 2004 CPD ¶ 64 at 3; cf. Price Waterhouse, 

B-254492.2, Feb. 16, 1994, 94-1 CPD ¶ 168 at 11 (agency failed to conduct meaningful 

discussions when it twice requested best and final offers without advising an offeror 

of a disqualifying deficiency in its proposal). 

In sum, we find that the agency’s evaluation and source selection is reasonably 

supported by the record here. 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel 

 

8

 The SSA testified that he did not feel the need to reopen discussions with LIS 

because LIS had been given two opportunities to address the agency’s concerns 

regarding its staffing plan on which the agency had directly questioned the protester, 

and the protester had stated that it would comply with the SOW requirements and 

was aware of the possible evaluation repercussions of reducing its price and 

reducing its staff. Tr. at 66-67. There is no suggestion that the protester was lulled 

or misled by the agency’s discussions or its failure to again bring its continuing 

concern about the staffing plan to the protester’s attention when proposal revisions 

were invited on July 8.