TITLE: Bannum, Inc., B-291503.4, March 17, 2003
BNUMBER: B-291503.4
DATE: March 17, 2003
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Bannum, Inc., B-291503.4, March 17, 2003
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: Bannum, Inc.
File: B-291847
Date: March 17, 2003
Nancy M. Camardo, Esq., Joseph A. Camardo Law Office, for the protester.
Alex D. Tomaszczuk, Esq., Shaw Pittman, for Dismas Charities, Inc., an
intervenor.
Mary E. Carney, 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
Protester's proposal was reasonably eliminated from the competitive range
where, even after protester was informed of proposal's failure to meet
material solicitation requirements during two rounds of discussions,
protester failed to correct the deficiencies.
DECISION
Bannum, Inc. protests the exclusion of its proposal from the competitive
range under request for proposals (RFP) No. 200-0730-MA, issued by the
Bureau of Prisons (BOP) for community corrections center (CCC)[1] services
for federal offenders.
We deny the protest.
The solicitation provided for award of a fixed-priced contract on a *best
value* basis.
The evaluation was to be based on the following factors: past
performance, community relations, technical (reports, policy and
procedures, facility, overall programs approach), management, and price.
Bannum submitted a proposal by the May 28, 2002 due date. BOP found that
the proposal was deficient in that it did not comply with, among other
things, four material RFP requirements: it did not include community
support documentation for the proposed program site; it did not include
evidence of a written agreement from a licensed general hospital,
physician or clinic to ensure that emergency medical service would be
available 24 hours per day; it did not clearly indicate that Bannum would
provide a required offender supervision staff position during the 8 a.m.
to 4 p.m. shift, contrary to the requirement that the position be staffed
on a 7-day, 24-hour basis; and it did not include the environmental
assessment required where new construction was proposed.
BOP pointed out the first three deficiencies to Bannum during discussions
in July, and Bannum did not provide the required information in its
revised proposal. BOP again pointed out these three deficiencies during a
second round of discussions on October 31, and also noted that Bannum had
failed to include the required environmental assessment report. In its
second proposal revision, instead of providing the required documentation,
Bannum informed the BOP that it was in the process of obtaining the
community support documentation and the hospital agreement, and that, due
to the expense of providing an environmental assessment, it would provide
the assessment after being notified that it was the apparent awardee or
after it received the award. Bannum also stated that it would add a staff
member for the 8 a.m. to 4 p.m. shift, but the staffing chart included
with the revised proposal showed an additional staff member for the 4 p.m.
to 12 a.m. shift instead of the 8 a.m. to 4 p.m. shift. Based on these
remaining deficiencies, BOP removed Bannum's proposal from the competitive
range.
Bannum primarily argues that its proposal should not have been eliminated
from the competitive range because the deficiencies were minor, and could
have easily been corrected through further communications with the agency,
or after Bannum received the required documentation. [2]
The determination of whether a proposal is in the competitive range is
principally a matter within the discretion of the procuring agency, and we
will review such a determination only to ensure that it was reasonable and
consistent with the solicitation and applicable statutes and regulations.
D S Inc., B-289676, Mar. 12, 2002, 2002 CPD P: 58 at 3.
The decision to exclude Bannum's proposal from the competitive range was
reasonable. The solicitation specifically required offerors to provide
documentation showing community support for the proposed site, RFP S:
L.8(i); an environmental assessment where, as in Bannum's case, new
construction was contemplated, RFP S:S: L.13, J, att. 2; an agreement with
a hospital for 24-hour emergency service, statement of work (SOW) at 91;
and a staff position to supervise offenders 24 hours a day, 7 days a
week. SOW at 11. Clearly stated RFP requirements are considered material
to the needs of the government, and a proposal that fails to conform to
material terms is unacceptable and may not form the basis for award.
Beckman Coulter, B-281030, B‑281030.2, Dec. 21, 1998, 99-1 CPD P: 9
at 6. (The agency also has explained why the requirements are material,
pointing out, for example, that it required a hospital agreement because
it wanted assurance that inmates would have appropriate access to
emergency medical services. Agency Report at 7-8.) Despite the clearly
stated requirements, and despite being told in each of two rounds of
discussions (one in the case of the environmental assessment) that its
proposal did not meet the requirements, Bannum never submitted a compliant
proposal.[3] Under these circumstances, BOP's decision to eliminate
Bannum's proposal from the competitive range was reasonable.
Bannum argues that the community support documentation and hospital
agreement were unnecessary because Bannum received zoning approval by
right--i.e., without the need for evidence of community support--and
hospitals must treat all patients who enter, with or without a hospital
agreement. Bannum further argues that, due to the expense involved, the
environmental assessment should not have been required with the proposal,
but only after notice of award. Under our Bid Protest Regulations,
protests of alleged deficiencies on the face of a solicitation must be
filed no later than the closing time for receipt of initial proposals. 4
C.F.R. S: 21.2(a)(1) (2003). Since the requirements in question were
included in the initial solicitation, its arguments here that they were
unnecessary or ill-advised had to be raised prior to the May 28 closing
time. Infrared Tech. Corp., B-282912, Sept. 2, 1999, 99-2 CPD P: 41 at 7
n.3. Because Bannum did not raise the arguments until after rejection of
its proposal, they are untimely and will not be considered.
The protest is denied.
Anthony H. Gamboa
General Counsel
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[1] CCC contractors provide services, including employment and residence
development, to assist federal offenders in becoming law-abiding citizens.
[2]Bannum also argues that it met the community support requirement by
forwarding two letters of community support to BOP on November 25.
However, this was well after the November 14 due date for Bannum's second,
and final, proposal revision.
[3] To the extent Bannum contends BOP should have permitted the firm to
correct the deficiencies during another round of discussions, its argument
is without merit. Procuring agencies are not required to conduct
successive rounds of discussions. OMV Med., Inc., B‑281490, Feb.
15, 1999, 99-1 CPD P: 38 at 7.