Dismas Charities, Inc., B-284754, May 22, 2000

B-284754 May 22, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Protester's proposal was reasonably eliminated from competitive range where protester failed to provide valid proof of compliance with zoning requirements by the date of submission of its best and final offer. These services are designed to assist offenders in becoming law-abiding. The MINT program's participants are pregnant offenders who ordinarily spend 2 months before and 3 months after delivery in a "home-like" setting in order to promote maternal bonding and parenting skills. Offerors were required to furnish the necessary facilities. Offerors were required to submit proof of zoning compliance. Or any other program as specified in the Statement of Work applicable to any and all proposed performance sites have been met. View Decision Matter of: Dismas Charities, Inc. File: B-284754 Date: May 22, 2000 DIGEST Attorneys DECISION Dismas Charities, Inc., protests the elimination of its proposal from the competitive range under request for proposals (RFP) No. 200-0499-W, issued by the Bureau of Prisons, Department of Justice for a residential community sanctions center (CSC) and mothers with infants together (MINT) program services facility in Phoenix, Arizona. Dismas contends that the agency had no valid basis for eliminating the Dismas proposal and failed to conduct meaningful discussions with the protester. We deny the protest. The BOP contracts with state and local governments and private organizations to provide a variety of services to federal offenders in the community through CSC facilities. These services are designed to assist offenders in becoming law-abiding, self-sufficient, contributing members of the community. RFP Sec. C.I.B. The MINT program's participants are pregnant offenders who ordinarily spend 2 months before and 3 months after delivery in a "home-like" setting in order to promote maternal bonding and parenting skills. Amended RFP Sec. C.II.23. Offerors were required to furnish the necessary facilities, equipment and personnel to provide for the safekeeping, care, and program needs of persons residing in the CSC and MINT programs, to be provided in the downtown Phoenix area. RFP Sec. C.I.D. With regard to location of a proposed center, offerors were required to submit proof of zoning compliance. The RFP provided: By the submission date for Best and Final Offers [BAFO], offerors shall provide the Contracting Officer with valid proof of all zoning and local ordinance requirements necessary for the operation of Community Corrections Center, Community Sanction Center, or any other program as specified in the Statement of Work applicable to any and all proposed performance sites have been met. An offeror's failure to establish and maintain proof may result in elimination from the competitive range prior to award and termination for default following award. RFP Sec. L.8.i. Two offerors, Dismas, and the incumbent, Behavioral Systems Southwest, Inc., (BSSW) submitted offers by the August 10, 1999 closing date for receipt of proposals. Dismas's proposed facility is located in a commercial area, zoned "C-1." In order to satisfy the RFP requirements that it establish proof of its zoning compliance, Dismas submitted a letter, signed by a City of Phoenix Zoning Administrator, confirming that if Dismas's proposed facility met the definition of "recovery home" and otherwise operated as represented to the administrator, then the facility could be located "by right" in a C-1 area. Protest Tab 1, Letter from Zoning Administrator to Protester (July 12, 1999). On or about November 1, Dismas learned that the administrator had taken the position that Dismas could not operate the facility as planned because it did not qualify as a "recovery home." Protest at 6. Later in November, the agency conducted discussions with Dismas and BSSW and both offerors submitted additional information as requested. The agency did not question the sufficiency of Dismas's proof of zoning compliance during this period. On December 23, Dismas appealed the zoning administrator's decision to the Board of Adjustment. On December 21, the agency requested BAFOs from both offerors, to be submitted not later than December 31. BSSW submitted its final proposal by December 31. Dismas indicates that it did not receive the agency's written request for BAFOs, but after an oral request by the contracting officer on January 5, Dismas submitted its final proposal that same day. While Dismas states that it provided oral notice of its appeals of the zoning administrator's decision both to the contracting officer and to Phoenix BOP personnel, it never provided written notice of the appeal to the agency. /1/ The Phoenix Board of Adjustment upheld the administrator's decision on January 6 and Dismas filed an appeal with the Maricopa County Superior Court on January 18.