TITLE:  Bannum, Inc., B-289707, March 14, 2002
BNUMBER:  B-289707
DATE:  March 14, 2002
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Decision

Matter of: Bannum, Inc.

File: B-289707

Date: March 14, 2002

Nancy M. Camardo, Esq., Joseph A. Camardo Law Office, for the protester.

John J. LoCurto, Esq., and William D. Robinson, Esq., Federal Bureau of
Prisons, for the agency.

Jacqueline Maeder, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that urgent need for halfway-house services was a result of lack of
agency advance planning is denied where agency engaged in planning by
attempting to procure the required services 18 months ago but plans were
disrupted and failed to achieve the expected results.

DECISION

Bannum, Inc. protests the terms of request for proposals (RFP) No.
200-0732-MA (RFP 0732), issued by the Department of Justice, Federal Bureau
of Prisons (BOP) for halfway-house services in Nashville, Tennessee. BOP
conducted the procurement under the limited competition provision of Federal
Acquisition Regulation (FAR) sect. 6.302-2 (unusual and compelling urgency).
Bannum contends that the limited competition was improper because the
agency's urgent and compelling need for these services was due to a lack of
advance planning.

We deny the protest.

BOP initially solicited this requirement (for a 2-year base period with 3
option years) on a competitive basis, under RFP No. 200-0610-MA (RFP 0610),
issued on August 1, 2000, with performance to start September 1, 2001.
Agency Report (AR) at 2. Three offers were received and evaluated. Because
negotiations were prolonged, the agency extended the contract of Keeton
Corrections, Inc. (the incumbent); it thereafter made award to Keeton on
November 15, with performance to begin March 1, 2002. Bannum and the other
disappointed offeror, Dismas Charities, Inc., protested the award. In
response, on December 7, 2001, the agency took corrective action by
canceling the solicitation and terminating Keeton's contract for
convenience. We dismissed the two protests (B-289348 and B-289348.2) as
academic on December 14.

On January 9, 2002, BOP finalized a written Justification and Approval (J &
A) providing that, due to "unusual and compelling urgency," the agency
intended to conduct a limited competition, among the three offerors that
responded to RFP 0610, to obtain halfway-house services for a 1-year interim
period. FAR sect. 6.302-2; AR, Tab D, J & A, at 1. The requirement was deemed
urgent because the current contract was set to expire February 28. A 1-year
contract period was considered necessary to provide the agency with
sufficient time to prepare for and conduct a full and open competition to
meet its long-term needs. Id. at 1-3. All three offerors submitted proposals
by the January 18 due date. By letter of the same date, Bannum filed this
protest with our Office.

Bannum maintains that, notwithstanding that it (as well as Dismas) has been
included in the limited competition, due to the required March 1 start date,
this is a de facto sole-source procurement; only Keeton, with its currently
operating facility, can meet the RFP's preparatory start-up schedule and
performance start date. Protester's Comments at 4, 7. [1] Bannum asserts
that this short timeframe is attributable to the agency's failure to conduct
adequate advance planning. Specifically, the protester contends that
improper actions by the agency under the original procurement--including
delaying award to allow Keeton to find an alternate site instead of making
award to Bannum--and failing to promptly issue the new RFP after terminating
Keeton's contract on December 7, created the urgency on which the J & A is
based. Id. at 3-4. Asserting that the agency does not need a full year to
conduct the procurement for its long-term needs in any case, Bannum
concludes that the contract term under the RFP should be shortened to
6 months.

An agency may use other than competitive procedures where its needs are of
such an unusual and compelling urgency that the government would be
seriously injured if the agency did not limit the number of sources from
which bids or proposals are solicited. 41 U.S.C. sect. 253(c)(2) (1994); FAR sect.
6.302-2(a)(2). A contract may not be awarded using other than competitive
procedures, however, where the urgent need for the requirement has been
brought about by a lack of advance planning by contracting officials. 41
U.S.C. sect. 253(f)(5)(A); see FXC Corp., B-257697.2, B-257973, Dec. 1, 1994,
94-2 CPD para. 216 at 10-11. We will review an agency's determination to use
other than competitive procedures to determine whether it was reasonable.
Abbott Prods., Inc., B-231131, Aug. 8, 1988, 88-2 CPD para. 119 at 6.

The agency's actions here were reasonable. First, there is no evidence of a
general lack of advance planning. As noted, the agency initiated this
procurement 18 months ago, and anticipated acquiring the halfway-house
services before the end of 2001. This planning was thwarted by delays in the
evaluation, the filing of two protests, and the termination of the awarded
contract due to irregularities in the procurement. Thus, while the agency's
planning ultimately was unsuccessful, this was due to unanticipated events,
not a lack of planning. See FXC Corp., supra.

Similarly, there is no evidence of a lack of planning leading to an
unreasonable delay in issuing the new RFP. As noted, the agency terminated
the contract under the initial solicitation on December 7, 2001, and issued
the new RFP on January 7, 2002, approximately 4 weeks later. Although Bannum
notes that only minor revisions were made to the RFP, the agency explains
that time was needed to formulate and implement its new two-stage plan--an
immediate interim procurement followed by a procurement to meet the agency's
long-term needs in the Nashville area. AR at 6-7. We think the agency's
activities were sufficient to justify the relatively small delay following
termination of Keeton's contract; agencies must be accorded a reasonable
amount of time to determine how best to proceed under circumstances such as
those here. In any case, Bannum clearly was not prejudiced by the 1-month
delay. Bannum states that it would require from 3 to 7 weeks to apply for
and receive necessary permits from the city of Nashville; that renovations
can begin only after all permits are received; and that renovations could
take up to 4 months. Protester Comments, attach. 1, Affidavit of D. Lowry,
at 1. Thus, by its own estimate of the time required to prepare for
performance, Bannum could not have met the March 1 start-up date even if the
new RFP had been issued immediately following the cancellation. [2]

We also find nothing objectionable in the 1-year term of the contract under
the new RFP, which reflects the amount of time the agency claims it needs to
conduct a procurement for its long-term halfway-house needs. The
determination of the agency's needs and the best method of accommodating
them is primarily within the agency's discretion and we will not question
that determination unless it has no reasonable basis. Sea-Land Serv., Inc.,
B-278404.2, Feb. 9, 1998, 98-1 CPD para. 47 at 6; Innovative Refrigeration
Concepts, B-272370, Sept. 30, 1996, 96-2 CPD para. 127 at 3. BOP explains that
the 1-year timeframe is necessary based on its experience soliciting
halfway-house contracts; it notes that the prior unsuccessful procurement
required more than 1 year to complete. AR at 7-8. The agency refers us to
BOP Acquisition Policy 7.102-70, Acquisition Lead Times, which provides
minimum lead times, depending on the type and estimated value of the
acquisition. Under these guidelines, an RFP for community corrections
services exceeding the simplified acquisition threshold, as anticipated
here, requires a minimum of 305 days. Agency Submission, Feb. 8, 2002,
attach. 2, at 1. BOP also has furnished a breakdown of the projected major
steps for its long-term procurement; the timeframe for the projected
milestones is 345 days. The agency also lists four factors--including
possible site changes and community opposition--that could prolong the
procurement. The evidence presented is sufficient to support the agency's
determination that a 1-year interim contract period was necessary.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. While Bannum claims that only Keeton can realistically compete, both
Bannum and Dismas (as well as Keeton) submitted proposals in response to the
new RFP, and BOP has advised us, by letter of February 15, that it made
award to Dismas on February 13.

2. Bannum complains that permitting an award under the new RFP will allow
the agency to avoid the consequences of its improper actions under the prior
solicitation. However, there is no basis for penalizing an agency for
procurement errors by subsequently preventing it from meeting its legitimate
needs. Furthermore, BOP already has addressed any errors it made under the
prior procurement, in the form of the termination of the awarded contract.