[Congressional Record Volume 157, Number 27 (Friday, February 18, 2011)]
[Extensions of Remarks]
[Pages E305-E307]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   GAO DOCUMENT ON PORT OF BELLINGHAM

                                 ______
                                 

                           HON. JIM McDERMOTT

                             of washington

                    in the house of representatives

                       Friday, February 18, 2011

  Mr. McDERMOTT. Mr. Speaker, I submit the following Report for the 
Record which I referenced during debate on my Amendment No. 99 to H.R. 
1.

                                Decision

       Matter of: Port of Bellingham.
       File: B-401837.
       Date: December 2, 2009.
     Lee P. Curtis, Esq., Troy E. Hughes, Esq., and Maggie L 
         Croteau, Esq., Perkins Coie LLP, for the protester.
     James H. Roberts, III, Esq., Van Scoyoc Kelly PLLC, for Port 
         of Newport, an intervenor.
     Mark Langstein, Esq., Lynn W. Flanagan, Esq., and Diane M. 
         Canzano, Esq., Department of Commerce, for the agency.
     Glenn G. Wolcott, Esq., and Ralph O. White, Esq., Office of 
         the General Counsel, GAO, participated in the preparation 
         of the decision.


                                 DIGEST

       1. Agency had no reasonable basis to determine that 
     awardee's proposed pier was located outside a designated 
     floodplain area and therefore complied with the 
     solicitation's limitations regarding lease of property 
     located within a base floodplain.
       2. Where awardee's proposed pier construction was within a 
     designated floodplain area, agency failed to properly 
     consider whether there was any practicable alternative to 
     selecting awardee's proposal, as was required by the terms of 
     the solicitation.


                                DECISION

       Port of Bellingham, of Bellingham, Washington, protests the 
     award of a lease by the Department of Commerce, National 
     Oceanic and Atmospheric Administration (NOAA), to Port of 
     Newport, of Newport, Oregon, pursuant to solicitation for 
     offers (SFO) No. 09WSA0200C to provide office, warehouse, and 
     related space for NOAA's Marine Operations Center-Pacific 
     (MOC-P).
       We sustain the protest.


                               BACKGROUND

       The SFO at issue here was published in November 2008, and 
     contemplated the award of a long-term operating lease to 
     support the activities of NOAA's MOC-P.\1\ Among other 
     things, the solicitation sought offers to provide 31,000 
     square feet of office, warehouse and related space, 1,960 
     linear feet of pier space, and 20,000 square feet of 
     equipment laydown space. Agency Report (AR), Tab 7, SFO, at 
     5. The solicitation provided that the lease award would be 
     based on the offer determined to be most advantageous to the 
     government based on application of the following evaluation 
     factors: location of site; site configuration and management; 
     quality of building and pier, availability; past performance 
     and project financing; quality of life; and price. AR, Tab 7, 
     SFO amend. 3, at 2. The solicitation also provided that: ``An 
     award of contract will not be made for a property located 
     within a base flood plain or wetland unless the Government 
     has determined that there is no practicable alternative.'' 
     SFO at 7.
       In February 2009, five offers were submitted by four 
     offerors, including Newport and Bellingham.\2\ Upon review 
     and evaluation of the offers, the agency determined that four 
     of the five offers were in the competitive range.\3\ By 
     letters dated April 20, 2009, the agency advised each of the 
     offerors of their inclusion in the competitive range and 
     identified various issues for discussions.
       Concurrent with its ongoing evaluation of proposals, the 
     agency contracted with an engineering firm to perform an 
     environmental assessment (EA) of the various offers, as 
     required by the National Environmental Policy Act of 1969 
     (NEPA).\4\ In June 2009, the agency published a draft EA that 
     provided in-depth environmental analysis regarding each of 
     the four offered sites; the final EA was published in July 
     with no substantive changes. Among other things, both the 
     draft and final EA stated, under the heading ``Floodplains,'' 
     as follows:

       [Newport's] proposed dock would be within the 100-year 
     [base] flood plain[\5\] (Zone A2),[\6\] and is therefore 
     likely to be impacted by flooding, particularly if the 
     finished level of the dock is below an elevation of nine feet 
     NGVD [National Geodetic Vertical Datum].[\7\] Additionally, 
     there is some potential for the structure to affect the 
     characteristics of flooding in the area, by trapping debris 
     against the piles of the dock and/or altering the way in 
     which floodwaters circulate/flow within the bay.[\8\]

       AR, Tab 20, Final EA, at 5-96.
       During discussions with Newport, the agency brought the 
     floodplain matter to Newport's attention, stating:

       It appears that the offered site and pier are in the 100 
     year flood plain.[\9\] This would be all parts of the site 
     lower than 9 feet National Geodetic Vertical Datum (NVGD) . . 
     . are within the 100-year floodplain (Zone A2 on the FEMA 
     map, base flood elevation of 9 feet NVGD). Please confirm in 
     your Final Revised Proposals (FRP's) that the finished site 
     level and structures will be above the 100 year flood plain 
     (see SFO Section 1.7).

       AR, Tab 15, Letter from Contracting Officer to Newport, May 
     14, 2009, at 1.
       In response, Newport did not alter the location of its 
     proposed pier, nor did it provide any meaningful explanation 
     as to why the pier should be considered to be outside of the 
     floodplain area.\10\ Nonetheless, Newport concluded its 
     response to the agency by stating: ``all proposed facilities 
     and structures will be

[[Page E306]]

     designed above the BFE.'' AR, Tab 15, Engineer's Memorandum, 
     May 22, 2009, at 3.
       Following submission of final proposals, the agency's 
     source evaluation board (SEB) evaluated the competing offers 
     and concluded: ``As all four offerors met the requirements of 
     the solicitation each offer was analyzed on both its 
     technical and financial merits to determine the awardee of 
     this procurement.'' AR, Tab 22, SEB Final Revised Proposal 
     Summary Report, at 54. With regard to evaluation under the 
     non-price evaluation factors, the SEB concluded that ``Port 
     of Newport's technical proposal was determined to be the most 
     technically sound'' and that ``Port of Bellingham's technical 
     proposal received the second highest ranking.'' Id. at 55. 
     With regard to total evaluated price, the agency determined 
     that Bellingham offered an annual lease price that was 
     significantly higher than Newport's annual lease price of 
     $2,533,439. Id. at 65. Based on this evaluation, the agency 
     concluded that ``Port of Newport has met all requirements 
     outlined in the solicitation, has been evaluated as the most 
     technically proficient offer, and offers the Government the 
     lowest price.'' Id. at 58-59.
       Newport's proposal was selected for award on August 4. This 
     protest followed.


                               DISCUSSION

       Bellingham protests that the agency failed to comply with 
     the SFO provision that stated: ``An award of contract will 
     not be made for a property located within a base flood plain 
     or wetland unless the Government has determined that there is 
     no practicable alternative.'' See SFO at 7. More 
     specifically, Bellingham protests that Newport's proposed 
     pier was clearly within a designated floodplain area; that 
     the agency had no reasonable basis to conclude otherwise; and 
     that the agency was, therefore, required to make a 
     determination as to whether there was a practicable 
     alternative to Newport's offer.
       The agency responds that it ``properly concluded that 
     Newport's offered property is not located within the base 
     floodplain,'' and that, having so concluded, that the agency 
     ``was not required to and properly did not conduct a 
     practicable alternative analysis.'' AR, Tab 2, at 15. In 
     maintaining that Newport did not propose property within the 
     designated floodplain area, the agency refers to the fact 
     that the ``finished level'' of Newport's proposed pier is 
     projected to be higher than 9 feet NGVD (the applicable BFE) 
     asserting: ``[I]f the finished level of the pier were built 
     below 9 NGVD it would be located within the base floodplain 
     and likely impacted by flooding; if it were built above 9 
     NGVD it would not be in the base floodplain.'' Agency 
     Response to Protester's Comments, Oct. 16, 2009, at 2. The 
     agency also references Newport's conclusory representation, 
     provided in response to the agency's discussion question, 
     quoted above, that ``all proposed facilities and structures 
     will be designed above the BFE.'' \11\ On this basis, the 
     agency maintains that it reasonably concluded that Newport's 
     proposed pier was outside the designated floodplain area and, 
     accordingly, maintains the agency had no obligation to--and 
     did not--consider whether there was any practicable 
     alternative.
       Our Office has previously considered whether, in leasing 
     real property, an agency has properly considered the 
     particular floodplain requirements that are at issue here. 
     See, e.g., Ronald Brown, B-292646, Sept. 20, 2003, 2003 CPD 
     para. 170; Vito J. Gautieri, B-261707, Sept. 12, 1995, 95-2 
     CPD para. 131; Alnasco. Inc., B-249863, Dec. 22, 1992, 92-2 
     CPD para. 1430; Wise Inv., Inc., B-247497, B-247497.2, 92-1 
     CPD 480; Oak Street Distribution Ctr., Inc., B-243197, July 
     2, 1991, 91-2 CPD para. 14; Western Div. Inv.; Columbia Inv. 
     Group, B-213882, B-213882.2, Sept. 5, 1984, 84-2 CPD para. 
     258. In this regard, we have noted that the floodplain 
     requirements flow from Executive Order (EO) No. 11988, 42 
     Fed. Reg. 26,951 (1977), which precludes a federal agency 
     from providing direct or indirect support of flood plain 
     development when there is a practicable alternative. We have 
     further noted that the purpose of EO No. 11988 is to minimize 
     the impact of floods on human health and safety, as well as 
     to minimize the impact on the environment.\12\ See Vito J. 
     Gautieri, supra., at 2-3. In considering compliance with 
     these floodplain requirements, we have held that an agency 
     must, at a minimum, consider whether a proposed structure 
     will be located within a designated floodplain area. See, 
     e.g., Ronald W. Brown, supra., at 1-2 (agency reasonably 
     concluded that floodplain provisions did not bar award of 
     lease where proposed building was not located within the 
     floodplain area, even though the periphery of the site was 
     within the floodplain); see also Oak Street Distribution 
     Ctr., supra., at 3-4 (agency properly awarded lease where 
     proposed building was not within floodplain); cf. Wise Inv.. 
     Inc., supra., at 2-4 (award of lease not prohibited where 
     ground level of site had been elevated by filling).
       Here, based on the record discussed above, there can be no 
     reasonable doubt that Newport's offer proposed to build its 
     pier structure within the designated floodplain area. 
     Further, as noted above, Newport's construction of the pier 
     was a significant aspect of its offer in that the 
     solicitation required offerors to provide a minimum of 1,950 
     linear feet of pier space.\13\ AR, Tab 7, at 7. Finally, it 
     is clear that the pier structure may have an environmental 
     impact on the floodplain area within which it is to be 
     located.\14\
       As discussed above, Newport's proposed pier construction 
     within the designated floodplain area was expressly presented 
     to the agency by the very engineering firm the agency 
     retained to, among other things, inform the agency on 
     floodplain matters.\15\ Consistent with that notification, in 
     conducting discussions with Newport, the agency requested 
     that Newport address the floodplain issue in the context of 
     the location of its proposed pier, yet, Newport did not.\16\ 
     Finally, the fact that the ``finished level'' of the pier may 
     be above the BFE has no bearing on the clearly apparent fact 
     that the pier structure itself is to be constructed within 
     the designated floodplain area, which will, among other 
     things, require Newport to drive hundreds of concrete piles 
     ``approximately 15 feet below the mudline.'' \17\ See AR, Tab 
     20 at 4-18. In this regard, neither Newport's proposal nor 
     the agency's contemporaneous evaluation documents, address 
     the specific environmental issues identified in the EA 
     report, including the potential for debris to be trapped 
     against the concrete pier piles or the pier's alteration of 
     the way floodwaters circulate and flow within the bay.
       On this record, there was no reasonable basis for the 
     agency to conclude that Newport's proposal did not fall 
     within the scope of either the solicitation's express 
     floodplain limitations or EO No. 11988's limitations 
     regarding potential environmental impacts. Accordingly, the 
     agency was required to consider the environmental impact of 
     Newport's proposed pier structure and to determine whether 
     there was a practicable alternative to Newport's offer, the 
     record is clear it did not.
       The protest is sustained.\18\


                             RECOMMENDATION

       Since the contract award to Newport failed to comply with 
     the solicitation requirements regarding lease of property 
     within a base floodplain, we recommend that the agency comply 
     with those requirements. Specifically, the agency should 
     consider, and document, whether there was a practicable 
     alternative to Newport's offer. In the event the agency's 
     analysis identifies a practicable alternative, as 
     contemplated by the solicitation, we recommend that the 
     agency implement such alternative, if otherwise feasible. In 
     the event the agency's analysis concludes there is no 
     practicable alternative, it should comply with the procedural 
     requirements established in EO No. 11988, as set out above. 
     Further, the agency should provide a copy of its 
     documentation regarding this matter to the parties. Finally, 
     we recommend that the protester be reimbursed its costs of 
     filing and pursuing this protest, including reasonable 
     attorneys' fees. The protester should submit its certified 
     claim for costs, detailing the time expended and costs 
     incurred, directly to the contracting agency within 60 days 
     after the receipt of this decision. 4 C.F.R. Sec. 21.8(f)(1) 
     (2009).
                                                   Lynn H. Gibson,
                                           Acting General Counsel.
       \1\ The MOC-P, which has been located in Seattle, 
     Washington, for more than 60 years, provides centralized 
     management for 10 NOAA ships and is the permanent homeport 
     for 4 of those ships. In July 2006, a fire destroyed a 
     significant portion of MOC-P's facilities, forcing NOAA to 
     reduce the scope of its current lease and distribute some of 
     its ships to alternative locations; what remains of the 
     ongoing lease expires in June 2011.
       \2\ Bellingham submitted two proposals.
       \3\ Bellingham's second proposal was excluded from the 
     competitive range.
       \4\ The agency states that the EA ``was performed by 
     personnel from various technical disciplines including, but 
     not limited to, those with background in port engineering, 
     environmental planning, water resources, wetlands, geology, 
     and marine species and habitats.'' AR, Tab 2, at 15.
       \5\ The agency explains that a ``base floodplain'' is an 
     area that is likely to be flooded once every 100 years or, 
     described in the alternative, an area that has a 1 percent 
     chance of flooding during a given year. AR, Tab 2, at 16.
       \6\ The agency further notes that base floodplains are 
     designated by the Federal Emergency Management Agency (FEMA) 
     as ``Zone A2'' where FEMA has established a ``base flood 
     elevation'' (BFE)--that is, the level of water surface 
     elevation resulting from a 100-year flood. Id.
       \7\ There is no dispute that the BFE applicable to 
     Newport's proposed site is 9 feet NGVD.
       \8\ In addition to identifying the location of Newport's 
     proposed pier as being within the designated floodplain area, 
     the EA describes various aspects of Newport's proposed pier 
     structure, stating:

       A new pier for NOAA use is to be constructed to the west of 
     where the existing piers are currently situated. . . .
       Preliminary conceptual design undertaken by the offeror . . 
     . estimated that the new pier would require the following 
     piles:
       70 vertical pier piles (60 edge, 10 middle), which are 18 
     inch diameter, 0.375 inch ASTM 500, filled with concrete to 
     approximately 15 feet below the mudline.
       210 batter pier piles (60 edge, 150 middle), of same 
     construction as the vertical pier piles.
       240 fender piles, which are 12.75 inch diameter, 0.5 inch 
     wall
       22 vertical small boat mooring piles 16 or 18 inches in 
     diameter, 0.375 inch ASTM 500.

       It is anticipated that vibratory methods would be used to 
     drive the new piles, although jetting could used, if allowed 
     by the relevant agencies. . . .

       It is anticipated that approximately 42,000 cubic yards 
     would need to be dredged from the proposed pier site. . . .


[[Page E307]]


       AR, Tab 20, at 4-18 to 4-19.
       \9\ In addition to Newport's proposed pier, the EA noted 
     some potential that Newport's proposed buildings containing 
     office and warehouse space might be constructed below the 
     BFE.
       \10\ In contrast to Newport's failure to provide any 
     meaningful information regarding the apparent location of 
     Newport's proposed pier within the designated floodplain 
     area, Newport's response did address the other structures on 
     its proposed site.
       \11\ Despite the agency's purported reliance on Newport's 
     conclusory representation, the contracting officer expressly 
     acknowledges that Newport's response provided no meaningful 
     information regarding the location of its pier, summarizing 
     Newport's response as follows:

       The Port of Newport provided a response [to the floodplain 
     discussion question] with its FRP that included a statement 
     an[d] analysis dated May 22, 2009, by a professional engineer 
     with KPFF Engineering, that except for the pier, Newport's 
     proposed site was not in a 100-year or base floodplain. [Bold 
     added.]

       AR, Tab 1, Contracting Officer's Statement, at 10.
       \12\ Specifically, EO No. 11988 states:

       [I]n order to avoid to the extent possible the long and 
     short term adverse impacts associated with the occupancy and 
     modification of floodplains and to avoid direct or indirect 
     support of floodplain development whenever there is a 
     practicable alternative, it is hereby ordered as follows:
       (1) Before taking an action, each agency shall determine 
     whether the proposed action will occur in a floodplain. . .
       (2) If an agency has determined to, or proposes to, 
     conduct, support, or allow an action to be located in a 
     floodplain, the agency shall consider alternatives to avoid 
     adverse effects and incompatible development in the 
     floodplains. If the head of the agency finds that the only 
     practicable alternative consistent with the law and with the 
     policy set forth in this Order requiring siting in a 
     floodplain, the agency shall, prior to taking action, (i) 
     design or modify its action in order to minimize potential 
     harm to or within the floodplain, consistent with regulations 
     issued in accord with Section 2(d) of this Order, and (ii) 
     prepare and circulate a notice containing an explanation of 
     why the action is proposed to be located in the floodplain.

       Protesters Comments on Agency Report, exh. 1, at 1-2.
       \13\ In this regard, in defending against this protest, the 
     contracting officer has stated: ``Pier structures are 
     essential to meet the operational requirements of the Marine 
     Operations Center-Pacific.'' AR, Tab 1, at 11.
       \14\ As noted above, in addition to concluding that the 
     pier would ``likely be impacted by flooding,'' the EA stated 
     that the pier could potentially affect the area ``by trapping 
     debris against the piles of the dock and/or altering the way 
     in which floodwaters circulate/flow within the bay.'' AR, Tab 
     20, at 5-96.
       \15\ As the agency points out, there can be no question as 
     to the qualifications of the personnel that prepared the EA. 
     Specifically, as described by the agency, the EA ``was 
     performed by personnel from various technical disciplines 
     including, but not limited to, those with background in port, 
     engineering, environmental planning, water resources, 
     wetlands, geology, and marine species and habitats.'' AR, Tab 
     2, at 15.
       \16\ Indeed, as summarized by the contracting officer, 
     Newport's response to the agency's discussion question 
     regarding the floodplain matter addressed all of Newport's 
     proposed site ``except for the pier.'' AR, Tab 1, at 9.
       \17\ Although not specifically addressed by the parties, we 
     note that FEMA has discussed this issue in connection with 
     the National Flood Insurance Program (NFIP). In a booklet 
     titled ``Answer to Questions About the NFIP,'' FEMA has 
     stated:

       75. Does elevating a structure on posts or pilings remove a 
     building from the Special Flood Hazard Area (SFHA)?

       Elevating a structure on posts or pilings does not remove a 
     building from the SFHA. If the ground supporting posts or 
     pilings is within a floodplain, the building is still at 
     risk. The structure is considered to be within the 
     floodplain, and flood insurance will be required as a 
     condition of receipt of Federal or Federally related 
     financing for the structure. The reason for this, even in 
     cases where the flood velocity is minimal, is that the 
     hydrostatic effects of flooding can lead to the failure of 
     the structure's posts or pilings foundation. The effects of 
     ground saturation can lead to decreased load bearing capacity 
     of the soil supporting the posts or pilings, which can lead 
     to partial or full collapse of the structure. Even small 
     areas of ponding will be subject to the hydrodynamic effects 
     of flooding; no pond or lake is completely free of water 
     movement or wave action. This movement of water can erode the 
     ground around the posts or pilings and may eventually cause 
     collapse of the structure.

       FEMA Internet Website at wwvv.fema.gov/businesss/nfip/
     fidmanre.shtm.
       \18\ In defending against this matter, the agency has 
     requested that we dismiss Bellingham's protest for various 
     reasons, including the agency's assertions that it was 
     legally precluded from awarding the lease to Bellingham due 
     to Bellingham's price and/or that Bellingham's proposal 
     should be similarly viewed as offering a structure within a 
     designated floodplain area. We have declined to dismiss the 
     protest based on the agency's post-protest assertions, since 
     it is not clear that, during the acquisition process, the 
     agency considered either of these matters as a mandate for 
     rejecting Bellingham's proposal. While these matters may be 
     proper considerations by the agency in determining if there 
     are practicable alternatives, in the context of the agency's 
     dismissal requests we view the agency's post-protest 
     assertions as being made ``in the heat of litigation,'' and 
     we will not rely on them as bases for dismissing the protest. 
     See Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, 
     Sept. 29, 1997, 97-2 para. 91 at 15.

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