ALJDEC decisions subject to certification as final
24F-010-ADM · Department of Administration · 2024-12-31
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Another Chance Group Home, Inc.,
Appellant,
v.
ARIZONA DEPARTMENT OF CHILD SAFETY,
Respondent.
No. 24F-010-ADM
ADMINISTRATIVE LAW
JUDGE DECISION
HEARING: December 9, 2024, and the Record was held open until December 11, 2024.
APPEARANCES: Skylar Whitfield appeared on behalf of Appellant. Assistant Attorney General Jennifer Ortman appeared for the Department of Child Safety.
ADMINISTRATIVE LAW JUDGE: Samuel Fox
EXHIBITS ADMITTED INTO EVIDENCE: Judicial notice was taken of the Notice of Hearing. Respondent’s Exhibits 1–10. Appellant’s Exhibits 1–5.
_____________________________________________________________________
FINDING OF FACT
The Notice of Hearing for this matter was issued on October 21, 2024, setting a hearing for December 9, 2024, at 1:00 PM to address the following issue: “regarding the solicitation protest under A.A.C. R2-7-A905 and A.A.C. R2-7-A912 pertaining to Solicitation No. BPM005892 to secure safe and reliable sources of temporary Congregate Care.”
The Arizona Department of Child Safety (DCS) and Another Chance Group Home, Inc. (Appellant) agreed on the following facts:
On December 4, 2023, Request for Proposal (RFP) #BPM005892 Congregate Care Services (Solicitation) was released.
Initial offers were due by January 19, 2024.
Appellant timely submitted its initial offer.
Between January 19, 2024, and March 22, 2024, DCS had at least one discussion and negotiation session with Appellant.
DCS issued a letter requesting best and final offers on March 22, 2024.
Best and final offers were due by April 1, 2024.
Appellant timely submitted its best and final offer.
On April 29, 2024, contracts were awarded, and non-award letters were issued.
Appellant was not awarded a contract.
On May 8, 2024, DCS received a Notice of Protest (Protest) from Appellant regarding the awards under Solicitation.
The Protest was a heartfelt request for reconsideration by DCS of its decision not to issue an award to Appellant. The Protest did not provide any information that could result in an alternative decision or identify a factual or legal error in the decision.
The Agency Chief Procurement Officer’s Decision was issued on May 22, 2024, denying the Protest. It stated that Appellant scored 540.1 points out of 1,000 possible points, which was not sufficient to achieve an award. It also noted that the Protest did not identify a factual or legal basis for the protest, meaning “there [was] no valid basis for sustaining the protest.”
On June 8, 2024, Appellant filed an appeal of the Agency Chief Procurement Officer’s Decision. Appellant identified four reasons for protest in its appeal. (1) “Staff Experience and Qualifications;” (2) “Proven Track Record;” (3) “Community and Relationship Building;” and (4) “Operational Integrity.” It also identified other considerations.
DCS had 21 days to issue its Report pursuant to A.A.C. R2-7-A908. DCS was unable to meet that deadline, so it requested an extension on or about July 26, 2024. The Arizona Department of Administration (ADOA) denied the extension request on or about August 9, 2024. ADOA granted Appellant an additional 10-day period to provide comments.
Appellant submitted additional information on August 15, 2024. The submission included three arguments that the process was not done fairly: (1) Elite Power Group was given an experience score of 137.50 even though it only had 0 to 2 years of experience; (2) some awardees did not have the necessary licenses yet; and (3) Appellant had communication concerns about the protest and appeal processes. It also included one argument that Appellant was improperly scored because it had been providing services for five years and the CEO had 17 years of experience in related fields.
A hearing was held on December 11, 2024. At hearing, Skylar Whitfield, Appellant’s CEO, testified for Appellant. Respondent presented the testimony of Lex Sargento, the Chief Procurement Officer for DCS.
Mr. Sargento explained that the scores were derived from the answers provided to questions in the Solicitation.
Mr. Whitfield explained that he believed the scoring was incorrect. Appellant scored 62.5 out of 250 on Experience, 290.1 out of 400 on Cost, and 187.5 out of 350 on Method.
He disagreed with the score for Experience and History, where Appellant received a “Below Expectations” rating, achieving 25 out of 100 points.
The criteria for scoring “Meets Expectations” were:
3-10 years of providing congregate care or other related human service. Described their specific specialty and/or examples of how they’ve helped children transition to less restrictive placements, back into the community, family like, or independent living and/or prevented a child from returning to Juvenile or Adult justice systems.
In its response to the Question at issue, Appellant did not provide the information needed to achieve a higher rating. However, after discussion about the entity’s experience, Mr. Sargento agreed that Appellant could have received a “Meets Expectations” rating, achieving 75 out of 100 points.
Appellant disagreed with the score for Cultural Competence, where Appellant received a “Below Expectations” rating, achieving 12.5 out of 50 points.
To achieve a “Meets Expectation,” an offer must have “reference[d] specific populations/cultural relevance outlined in the RFP, at least 2, ie LGBTQIA+, ICWA, Non-English speaking children, culturally appropriate and necessary hair care, clothing and practices that supports religious and cultural beliefs.”
In its response, Appellant did not provide examples, it explained company policies and training. Information was not provided to further evaluate this consideration.
Mr. Whitfield testified that he identified two applications that were substantially similar and scored differently, specifically PowerHouse (awarded) and Hearts of Harmony (not awarded). PowerHouse scored 212.5 on Experience, 245 for Cost, and 262.5 on Method; Hearts of Harmony scored 137.5 on Experience, 320 on Cost, and 225 on Method. However, the Tribunal was not provided scores by question, and only the Method responses were provided.
Mr. Whitfield objected to awards given to entities that were not licensed. Mr. Sargento explained that such awards had a process for licensure and contingency if licenses were not attained.
Mr. Whitfield testified that Elite Power Group was given an experience score of 137.50 even though it had between 0 and 2 years of experience. The Tribunal did not have sufficient information to evaluate how Elite Power Group achieved that score through the three points-earning questions; neither party provided the specific scores or the responses. Mr. Whitfield was focused on management’s experience; Mr. Sargento testified that it was the entity’s experience, not staff or management’s experience that was evaluated.
Mr. Whitfield expressed frustration about how the procurement process was run. He stated that he did not fully understand the process and that he did not receive the help he needed to do it, even when he asked the people he believed were supposed to help him.
Mr. Sargento testified that Appellant would have needed approximately 700 points to have received an award.
CONCLUSIONS OF LAW
The Arizona Procurement Code is set forth in A.R.S. § 41-2501 et seq.
The rules adopted under the Arizona Procurement Code are set forth in A.C.C. R2-7-101 et seq.
A.R.S. § 41-2615 provides that the Arizona Procurement Code and the rules adopted under the Code “provide the exclusive procedure for asserting a claim against this state or any agency of this state arising in relation to any procurement conducted under this chapter.”
Appeals of solicitations or contract award decisions are to be resolved as contested cases before the Office of Administrative Hearings.
Pursuant to Arizona Administrative Code R2-19-119, Appellant has the burden of proof; the standard of proof on all issues is the preponderance of the evidence, meaning,
The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.
Statutes should be interpreted to provide a fair and sensible result. Statutes and rules are construed using the same principles.
The last opportunity for Appellant to provide new information to DCS that would be considered in its award was the best and final offer, due April 1, 2024. Accordingly, information provided in the protest or the appeal would not be considered as part of the offer.
The last opportunity for Appellant to provide new information to be considered as part of the protest was within 10 days after the agency chief procurement officer made the procurement file available or public inspection.
“Any interested party may protest a solicitation, a determination of not susceptible for award, or the award of a contract . . . [the protest] shall include . . . [a] detailed statement of the legal and factual grounds of the protest including copies of relevant documents. . . .”
Appellant’s Protest did not include legal and factual grounds for the protest. The Protest requested reconsideration, but it failed to identify any legal reason why the Solicitation or awards should be changed, such as failure to follow the rules or inappropriate behavior.
Even if the Tribunal could consider arguments that were first raised on appeal or at hearing, it would not change the outcome in this matter. Upon review of the record, Appellant’s application should have received an additional 50 points; however, that adjustment would not change the outcome of the award.
The preponderance of the evidence failed to establish that the solicitation and award were factually or legally flawed in any material manner.
Consequently, Appellant’s appeal should be dismissed.
RECOMMENDED ORDER
It is recommended that Appellant’s appeal is dismissed.
In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be forty (40) days from the date of that certification.
Done this day, December 31, 2024.
/s/ Samuel Fox
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Elizabeth Alvarado-Thorson,
Department of Administration
Skylar Whitfield
Another Chance Group Home, Inc
[email redacted]
Lex Sargento
Chief Procurement Officer
[email redacted]
Elizabeth Alvarado-Thorson
Department of Administration
C/O Kimberly Suciu
100 North 15th Avenue, Suite 401
Phoenix, Arizona 85007
By: OAH Staff