BNUMBER: B-270518 et al. , Mar. 15, 1996, 96-1 CPD ¶ 156 at 4. Even where there is credible evidence of bias, the protester must demonstrate that the bias translated into action which unfairly affected the protester's competitive position; that is, the protester must demonstrate that the allegedly biased official exerted improper influence in the procurement on behalf of the awardee or against the protester. Id.
DATE: May 28, 1998
TITLE: William L. Menefee, B-270518 et al., Mar. 15, 1996, 96-1 CPD
¶ 156 at 4. Even where there is credible evidence of bias, the
protester must demonstrate that the bias translated into action
which unfairly affected the protester's competitive position; that
is, the protester must demonstrate that the allegedly biased
official exerted improper influence in the procurement on behalf of
the awardee or against the protester. Id., May 28, 1998
**********************************************************************
Matter of:William L. Menefee
File:B-279272
Date:May 28, 1998
William L. Menefee III, for the protester.
Lynn W. Flanagan, Esq., Department of Agriculture, for the agency.
Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
General Counsel,
GAO, participated in the preparation of the decision.
DIGEST
Selection of offer with higher combined technical and price scores
than that
proposed by the protester is unobjectionable where the evaluation was
conducted
in accordance with solicitation, and the record supports the agency's
view
that the protester's proposed building site was less desirable than
the
awardee's.
DECISION
William L. Menefee protests the award of a lease to Cook Carson, Inc.
(Carson)
under solicitation for offers (SFO) No 57-7335-79, issued by the
Department of
Agriculture for office space in Pauls Valley, Oklahoma. Menefee
argues that the
award to Carson at a rent higher than that proposed by Menefee is
based on
USDA's continued bias against Menefee, which translated to an
unreasonable
evaluation of its offer.
We deny the protest.
As amended, the SFO calls for 7,550 square feet (sq. ft.) of
occupiable space in a new or existing building of sound and
substantial construction, along with 50 on-site, paved parking spaces
to house the offices of the Farm Service Agency (FSA), Rural Economic
Community Development Service (RD), and the National Resources and
Conservation Service (NRCS).[1] The SFO contemplated award of a
5-year lease with one 5-year option to the responsible offeror whose
offer, conforming to the solicitation, was most advantageous to the
government, price and other factors considered.
Offers were to be evaluated on the basis of the following eight
technical factors,
worth a maximum of 50 points,[2] and listed in descending order of
importance:
(1) quality/physical characteristics (including the age and physical
condition of the
building, interior and exterior appearance of the space,
attractiveness of grounds,
landscaping and approaches); (2) accessibility and location
(accessibility to primary hard-surfaced roads, compatibility with
surrounding area, and proximity of eating facilities); (3) layout
capability (layout efficiency of space); (4) safety (including fire
and structural safety, and surrounding area); (5) parking; (6) first
floor space;
(7) fixed rate, fully serviced lease; and (8) energy conservation.
With regard to
price, also worth a maximum of 50 points, the offeror proposing the
lowest annual rental would receive the maximum number of points for
price. Other offerors would receive a percentage of these points
based on a ratio of the low offeror's annual rental to the other
offerors' annual rental.
Menefee's and Carson's offers were among those submitted in response
to the SFO
by the September 22, 1997 extended due date. Menefee submitted offers
for two
locations--for the existing space currently occupied by the three USDA
agencies,
and space in a building to be constructed on its offered site; Carson
proposed to
construct a new building on its offered site. Menefee's and Carson's
initial
proposals were evaluated as follows:
Menefee
Existing Space Menefee
New Space Carson
New Space
Quality/Physical Characteristics
(12 Maximum Points) 9 11 11
Accessibility and Location (11 Max. Pts.)9 10 10
Layout Capability (7 Max. Pts.) 6 7 7
Safety (5 Max. Pts.) 3 5 5
Parking (5 Max. Pts.) 3 4 5
First Floor Space (4 Max. Pts.) 4 4 4
Fixed Rate, Fully Serviced Lease (4 Max. Pts.)44 4
Energy Conservation (2 Max. Pts.) 2 2 2
TOTAL TECH. PTS. (50 Max.) 40 47 48
PRICE POINTS[3] (50 Max.) 50 39.3 46.3
TOTAL POINTS (100 Max.) 91 86.3 94.3
On November 12, based on the initial evaluation results and site
visits, the real
property leasing officer (RPLO) recommended award to Carson on the
basis of
initial proposals. The SAC and the county administrative committee
(CAC)
reviewed the offers received and the technical evaluations and
concurred with the
RPLO's recommendation that award should be made to Carson. Later that
same
day, the RPLO notified Carson by telephone that it had been selected
for the
proposed contract award.
On November 13, the RPLO received a telephone call from Menefee
questioning the
agency's decision to make award to Carson without requesting best and
final offers
(BAFO). Upon review of the SFO, the RPLO concluded that offerors
should have
been given an opportunity to submit BAFOs; discussions were then
conducted with offerors on November 13 and 14. During discussions
with Menefee concerning its offer for the existing space, the RPLO
addressed the SFO's parking requirements and was assured by the
protester that 50 parking spaces would be available for the agency's
use at this location. Regarding its proposed newly constructed space,
the RPLO discussed the lot size and whether the lot could accommodate
a suitable building and 50 on-site parking spaces. In response,
Menefee at first reported the lot size as 200 x 200 ft., which Menefee
stated could amply accommodate the agency's needs as specified in the
SFO. The next day, November 14, Menefee informed the RPLO that the
lot size was 160 x 200 ft., not 200 x 200 ft. as Menefee had
previously indicated; nonetheless, the protester stated that the 160 x
200 ft. lot could satisfy the agency's needs.
Thereafter, the RPLO, with the assistance of an agency resource
engineer, searched
the courthouse records to verify the lot size; the courthouse records
indicated that
the lot actually measured 140 x 200 ft. The RPLO consulted with a
leasing
officer at the General Services Administration (GSA) to determine
whether
Menefee's 140 x 200 ft. lot was big enough to construct a building
with 7,550 sq. ft. of occupiable space along with 50 parking spaces.
GSA raised concern about how the proposed lot size of 140 x 200 ft.
(the equivalent of 28,000 gross sq. ft.) could be adequate for a
building of approximately 7,600 sq. ft. (approximately 8,000 gross sq.
ft.) plus 50 parking spaces. According to GSA, surface parking for 50
vehicles would normally require 15,000 sq. ft. and, depending on the
width of setbacks around the perimeter of the site for sidewalks and a
buffer zone, Menefee's proposed site might accommodate only a building
of approximately 8,040 gross sq. ft. and parking spaces for 42
vehicles. In GSA's opinion, the ideal lot size for a building that
would meet USDA's needs and provide 50 parking spaces would be 42,600
sq. ft., and not 28,000 sq. ft., which was the size of Menefee's lot.
BAFOs were received on November 19. In its BAFO, Menefee
significantly reduced the proposed annual rent for its newly
constructed space, while Carson reduced its annual rental to $94,375.
Following the evaluation of BAFOs, Carson's technical score, 48 out of
a possible 50 points, remained unchanged. Its high technical score
was primarily based on its score under the quality/physical
characteristics factor and the accessibility and location factor,
which reflected its offer of newly constructed space in a good
location, with unlimited room for expansion, that will closely follow
the layout sought by the agency.
In contrast, Menefee's BAFO earned a technical score of 39 out of a
possible 50 points; Menefee's BAFO earned lower technical scores for
the quality/physical characteristics of its proposed site (9 out of a
possible 12 points) due to traffic safety concerns because the site
was located near a highway. In addition, Menefee's score was lowered
because the large trees presently on the site would have to be removed
to accommodate the building and parking areas, thereby diminishing the
overall attractiveness of the site. As to the accessibility and
location of the site, the protester's score was reduced (9 out of a
possible 11 points) because the proposed site is surrounded by a car
wash to the east, an old wood building that is a seasonal garden
center to the west, and an older, lower income residential area to the
north. Under safety, Menefee's technical score was reduced (4 out of
a possible 5 points) because of the surrounding area; under parking,
its score was reduced to zero (out of a possible 5 points) because
adequate space was not available to provide the number of parking
spaces called for in the solicitation.
Because Menefee's BAFO price was low, its BAFO received the maximum 50
price points, for a combined technical and price score of 89 points.
Carson's BAFO received 45.9 points for price, for a combined technical
and price score of 93.9 points. Based on her evaluation of BAFOs, the
RPLO recommended award to Carson as the offeror submitting the most
advantageous proposal. The SAC and the CAC both concurred with her
recommendation and the lease was awarded to Carson on December 5.
Following denial of its agency-level protest, Menefee filed this
protest with our Office on February 17.
Menefee's primary criticism of this procurement is that USDA is biased
against it
since "being falsely accused of bid fixing by their Pauls Valley
employee in 1996." Essentially, Menefee argues that USDA's
evaluation of proposals was tainted by
ongoing bias, resulting in the selection of Carson's proposal as the
most advantageous to the government even though its own proposal
offered a lower rental rate.
To support its allegation of bias, Menefee refers to an October 10,
1996 conversation between Mr. Menefee and Mr. Thomas Roberts, the
Community Development Manager for RD. Mr. Menefee had visited Mr.
Roberts's Pauls Valley office after learning that he had been accused
of "bid fixing." According to the protester, during this
conversation, Mr. Roberts purportedly disclosed that the "real reason"
why the SAC canceled the 1996 SFO was that certain procurement
officials were "mad" with the CED for FSA because the CED had not
given them more input in the selection of the leased space to be
acquired under the 1996 procurement. In addition, Menefee further
contends that the same bias arises from dissatisfaction on the part of
certain procurement officials with the current leased space in his
building.
Where a protester alleges bias on the part of procurement officials,
the record must
establish that the officials intended to harm the protester, since
government
officials are presumed to act in good faith. Executive Sec. & Eng'g
Techs., Inc.,
B-270518 et al., Mar. 15, 1996, 96-1 CPD para. 156 at 4. Even where there
is credible
evidence of bias, the protester must demonstrate that the bias
translated into action
which unfairly affected the protester's competitive position; that is,
the protester
must demonstrate that the allegedly biased official exerted improper
influence in
the procurement on behalf of the awardee or against the protester.
Id.
Menefee has failed to make that showing. Although Menefee relies on
the October 10, 1996 conversation regarding the SFO cancellation that
occurred a year prior to the issuance of this SFO to show bias against
the protester, even if the conversation as represented by Menefee is
factually correct, Menefee has made no showing that the RPLO who
performed the evaluation and made the
recommendation for award to Carson was biased, or improperly
influenced in any way by other procurement officials. We therefore
have no basis to conclude that USDA has acted improperly or
unreasonably in its evaluation of proposals under the instant
solicitation. The kinds of action to which Menefee points, such as
the cancellation of the 1996 solicitation, the alleged tenant
dissatisfaction with the currently leased space in his building, and
the initial decision by the RPLO to award the lease to Carson on the
basis of initial proposals, do not demonstrate bias against Menefee or
that any possible bias on the part of the Pauls Valley employees
translated into improper action. Consequently, we see no evidence in
the record supporting bias in this award decision.
Moreover, our review of the record confirms the reasonableness of the
agency's determination concerning which proposal was the most
advantageous to the government, thus further underscoring the absence
of bias. The SFO clearly states that price was of equal importance as
the combination of the other eight technical factors. Although
Menefee's BAFO was lower priced than Carson's, the record shows that
Menefee's proposed site was considered less desirable and was rated
lower in the technical areas involving quality/physical
characteristics, accessibility and location, safety, and parking.
While the protester argues, for example, that its proposal was
"rejected" because its proposed lot size was less than "42,000 square
feet" and could not therefore accommodate the proposed building and
parking spaces, the evaluation record contradicts this claim.[4]
The record shows that Menefee's proposal was not rejected because of
insufficient parking; rather, its proposal was merely downgraded under
the parking factor. More specifically, under the evaluation scheme
set forth in the amended SFO, the maximum possible points an offeror
could earn under the parking factor was 5 points. The
record shows that Menefee's BAFO received 0 points under the parking
factor because the RPLO determined, in consultation with the agency's
own engineer and a leasing official at GSA, that Menefee's proposed
site was not large enough to accommodate both a suitable-sized
building and 50 on-site parking spaces. In its comments submitted in
response to the agency report, Menefee does not rebut the RPLO's
finding, but merely states that its proposal was not fairly evaluated.
The record does not support Menefee's allegation of misevaluation.
Moreover, since Menefee does not contest the agency's evaluation under
the technical areas of quality/physical characteristics,[5]
accessibility and location, and safety, we find no basis to conclude
that the technical evaluation of proposals were unreasonable. The
evaluations were properly based on the review of the offerors'
proposals and site visits which resulted in a higher overall score for
Carson's proposal. Menefee's general disagreement with the agency's
evaluation does not establish that the evaluation was unreasonable.
Peterson Constr. Co., B-256841, Aug. 3, 1994, 94-2 CPD para. 55 at 3.
The protest is denied.
Comptroller General
of the United States
1. Previously, in connection with a different SFO issued in early
1996, Menefee was the lowest-priced offeror with the highest technical
evaluation score for existing space to house the USDA Service Center
in Pauls Valley. The offers were rejected and the SFO canceled
because the State Administrative Committee (SAC), which is made up of
employees from each of the three agencies--FSA, RD, and NRCS,
questioned how the older renovated building offered by Menefee could
receive a higher technical evaluation score than the newly constructed
space offered by the other two offerors. Further, the SAC was
concerned that there was an appearance of a conflict of interest
because the county executive director (CED) for FSA (who subsequently
evaluated the offers received under the canceled SFO) was observed
leaving the county office with Mr. Menefee on the same day proposals
were due. A second SFO, issued later that year, was also canceled
when a lease moratorium was imposed on the FSA.
2. The points assigned to each award factor were not listed in the
SFO, but were listed in USDA's evaluation plan.
3. In order to protect potentially proprietary information, we are not
disclosing the offerors' proposed prices.
4. In this regard, the protester alleges that during a site visit he
had advised the RPLO that he and his wife own the adjoining property;
consequently, additional space was available if more than 50 parking
spaces were needed. However, the agency was not interested in
additional parking spaces; rather, the agency was evaluating whether
Menefee's proposed site would provide 50 on-site parking spaces.
5. The agency reports that during one of the RPLO's trips to Pauls
Valley the RPLO visited the local police department and discussed
Menefee's proposed location with a police officer who told her that
there had been a few car accidents where the cars did not complete the
curve off the interstate highway and ended up in an area where the
proposed building or parking lot would be constructed. In its
comments on the agency report, the protester provides a statement from
the chief of police for the Pauls Valley police department in which
the chief of police states that he had not spoken with the RPLO
regarding traffic or criminal problems at Menefee's proposed location.
The chief of police's statement did not dispute the veracity of the
RPLO's conversation with an (unnamed) police officer who had informed
her of the few accidents that had occurred in that area. Under these
circumstances, we have no basis to question the accuracy of the
agency's account.