BNUMBER:  B-261707
DATE:  September 12, 1995
TITLE:  Vito J. Gautieri

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Matter of:     Vito J. Gautieri

File:          B-261707

Date:          September 12, 1995
                                                            
Robert J. MacPherson, Esq., Postner & Rubin, for the protester.
Scarlett D. Orenstein, Esq., General Services Administration, 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

Rejection of protester's offer of building in flood plain was proper 
where solicitation stated (as provided in applicable administrative 
order, implementing Executive Order No. 11988), that flood plain 
property would be leased only if it was the only practicable 
alternative, and agency reasonably determined that awardee's non-flood 
plain property was a practicable alternative to leasing protester's 
flood plain property.
                                                            
DECISION

Vito J. Gautieri protests the award of a contract to Batavia Big N 
Plaza Associates under solicitation for offers (SFO) No. MNY-94393, 
issued by the General Services Administration (GSA) to lease office 
space in Batavia, New York.  Gautieri asserts that the award to 
Batavia at a rent higher than that proposed by Gautieri, on the basis 
that Gautieri's offered building is in a flood plain, was improper.

We deny the protest in part and dismiss it in part.

The SFO provided that offers would be evaluated under several factors, 
price being less important than the other three factors combined.  The 
solicitation also provided that the contract would not be awarded for 
a property located in a flood plain unless that was the only 
practicable alternative.  In this regard, Executive Order No. 11988, 
42 Fed. Reg. 26,951 (1977) (implemented by GSA Administrative Order 
ADM 1095.2, July 23, 1979), precludes federal agencies from providing 
direct or indirect support of flood plain development when there is a 
practicable alternative.  The purpose of the order is to minimize the 
impact of floods on human safety and health and the wetlands.  A 
practicable alternative to acquiring leased space in a flood plain is 
defined under paragraph 10 of ADM 1095.2 as one which:

     (a) meets justified program requirements;
     (b) is within the legal authority of GSA or client       agency;
     (c) meets technological standards;
     (d) is demonstrated as being cost effective; and
     (e) does not result in unreasonable adverse              
     environmental impacts.

Seven offers, including the protester's, were received.  GSA 
determined that five of the offered properties were acceptable and 
were not located in a flood plain.  Since Gautieri's property was in a 
flood plain, GSA rejected it, and subsequently awarded the lease to 
Batavia for an annual rent of $91,733, compared to Gautieri's offered 
price (for the space GSA was currently leasing) of $50,467.50.

Gautieri protests that, because the rent on Batavia's property is 
higher than Gautieri's, leasing Batavia's property is not cost 
effective, and thus is not a practicable alternative to leasing 
Gautieri's property within the meaning of ADM 1095.2.  Gautieri 
concludes that, under these circumstances, GSA was required to lease 
Gautieri's lower-priced flood plain property.

The protest is without merit.  While Gautieri's offered flood plain 
property was less expensive than Batavia's, there is nothing in the 
orders which dictates that this consideration be determinative of cost 
effectiveness; indeed, neither order defines the term "cost effective" 
at all.  Thus, the determination of cost effectiveness has been left 
largely to GSA's discretion, although ADM 1095.2 does provide some 
guidance--it specifically warns against defeating the purpose of the 
orders by restrictively applying the elements of the practicable 
alternative definition (such as cost effectiveness) to avoid leasing 
non-flood plain property.

GSA was well aware of Gautieri's lower-offered price, but considered 
two measures of the value of Batavia's property as nevertheless 
showing that Batavia's property was a cost effective non-flood plain 
alternative--Batavia's was the lowest-cost, highest technically rated 
non-flood plain property, and an independent appraisal concluded that 
Batavia's offered price was below the fair market value for the lease.  
Both of these considerations clearly bear on the relative value of the 
offered property and, thus, the cost effectiveness of the non-flood 
plain alternative.  There thus simply is no basis for questioning the 
reasonableness of GSA's determination to make award to Batavia.

Gautieri also protests that by awarding the lease without considering 
alternative sites, such as Gautieri's, which would result in 
substantial savings to the government, the agency essentially 
disregarded the requirement that price be considered in the award 
decision.  As noted above, however, GSA did take price into 
consideration; Batavia's was the lowest priced among the five 
acceptable offers.  There is no requirement that award be made to the 
low-priced offeror in a negotiated procurement.  Ameriko Maintenance 
Co., B-250786, Feb. 16, 1993, 93-1 CPD  145.

Gautieri argues that its building is only marginally in a flood plain 
and that its proposal therefore should not have been rejected.  Under 
our Bid Protest Regulations, protests based on other than solicitation 
improprieties must be filed within 10 working days after the protester 
knows or should know the basis of protest.  4 C.F.R.  21.2(a)(2) 
(1995).  GSA informed Gautieri in February 1995, 2 months after offers 
were submitted, that Gautieri would not be considered for award 
because it offered space in a flood plain.  Any challenge to this 
determination had to be filed no later than 10 working days 
thereafter.  Since Gautieri did not raise this issue until it filed 
its protest on June 14, it is untimely and will not be considered.

Gautieri maintains that GSA should have entered into a succeeding 
lease with Gautieri, instead of awarding a new lease, because this 
would have been a more cost effective means of meeting the 
requirement.  This argument ignores the fact that Gautieri's property 
was in a flood plain, contrary to executive policy, as discussed 
above.  In any case, the argument is untimely.  Since it was clear 
when the SFO was issued that GSA intended to award a new lease, not 
extend Gautieri's, any protest on this ground had to be filed no later 
than the closing date; Gautieri did not protest until after award.  4 
C.F.R.  21.2(a)(1).

The protest is denied in part and dismissed in part.

 \s\ Ronald Berger
 for Robert P. Murphy
     General Counsel