BNUMBER:  B-275803; B-275803.2 
DATE:  March 31, 1997
TITLE: Dorris, Helen, and William McMurtry, B-275803; B-275803.2,
March 31, 1997
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This version has been approved for public release.
Matter of:Dorris, Helen, and William McMurtry

File:     B-275803; B-275803.2

Date:March 31, 1997

Mark S. Sifferman, Esq., Norling, Kolsrud, Sifferman, Svejda & Davis, 
for the protester.
Thomas A. McCarville, Esq., for McCarville, Cooper & Vasquez, an 
intervenor.
Emily C. Hewitt, Esq., Donald R. Jayne, Esq., and Marilyn M. Paik, 
Esq., General Services Administration, for the agency.
Henry J. Gorczycki, Esq., and James A. Spangenberg, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

1.  The issuance of an unsigned lease document by a contracting 
officer to an offeror does not constitute an award of a contract to 
that offeror where the letter accompanying the lease clearly indicates 
that no contract will arise unless the government signs the lease and 
the government never signed the lease.

2.  An agency properly reopened discussions to address existing 
proposal deficiencies with, and obtain proposal revisions from, all 
offerors in the competition where no proposal is acceptable under the 
solicitation and eligible for award, and the solicitation has been 
amended in a material manner; under such circumstances, there is no 
improper technical leveling in reopening discussions.

3.  Where a solicitation for leased space defines a late proposal as 
one received after the due date for submission of best and final 
offers (BAFO), a protest alleging that a proposal is late if received 
after the date for submission of initial proposals, but before the 
BAFO date, constitutes a protest based upon an alleged impropriety in 
a solicitation apparent prior to the time set for receipt of initial 
proposals, which is untimely if not filed prior to the time set for 
receipt of initial proposals.

4.  An ambiguity concerning the identity of an offeror or the possible 
improper transfer of the offeror's proposal during the course of an 
ongoing procurement may properly be resolved during discussions prior 
to award.

DECISION

Dorris, Helen, and William McMurtry protest solicitation for offers 
(SFO) No. RAZ- 95816, issued by the General Services Administration 
(GSA), for leased space for use by the Social Security Administration 
(SSA).  The McMurtrys protest the reopening of discussions and award 
to any offeror other than the McMurtrys.

We deny the protest.

The SFO, issued September 6, 1995, contemplated the award of a firm, 
fixed-price lease for 15 years to the lowest-priced, technically 
acceptable offeror.[1]  The date established for submission of initial 
proposals was November 9.  

The SFO stated that negotiations would be conducted, proposal 
revisions would be permitted, and award would be based on best and 
final offers (BAFO).  The SFO incorporated by reference GSA Form 3516, 
which included selected solicitation provisions from the Federal 
Acquisition Regulation (FAR) and the GSA Acquisition Regulations 
(GSAAR), including GSAAR  sec.  552.270-3, "Late Submissions, 
Modifications, and Withdrawals of Offers (AUG 1992)" which stated in 
pertinent part:

     (a) Any offer received at the office designated in the 
     solicitation after the exact time specified for receipt of 
     [BAFOs] will not be considered unless it is received before award 
     is made and it [satisfies one of four possible exceptions.]

GSA received initial proposals by November 9 from the McMurtrys and 
from McCarville, Cooper & Vasquez.  GSA also received requests for 
clarification of the solicitation from Mr. William O'Connor, the 
incumbent lessor.  The contracting officer opened negotiations with 
the McMurtrys and McCarville, and corresponded with Mr. O'Connor 
concerning the requested clarification.  On March 1, 1996, the 
contracting officer requested submission of BAFOs by March 29; 
however, after learning that neither the McMurtrys nor McCarville was 
prepared to submit BAFOs, she canceled the BAFO request.

On May 5, Mr. O'Connor submitted his initial proposal.  By letter of 
May 23, the contracting officer requested submission of BAFOs by June 
10.  The McMurtrys and McCarville submitted BAFOs.  By letter of July 
29, the contracting officer reopened negotiations and requested 
receipt of revised BAFOs by August 9, in response to which all three 
offerors submitted BAFOs.  

The McMurtrys proposed constructing a new building; the other two 
offerors proposed modifying existing buildings.  The McMurtrys's BAFO 
was the highest- priced offer. 

By letter of August 22, the McMurtrys filed a protest with GSA, 
alleging that "the competing offeror" did not comply with certain SFO 
requirements and that the successive rounds of negotiations may have 
constituted technical leveling in favor of "the competing offeror."

By letter of September 10, the contracting officer sent an unsigned 
lease agreement to the McMurtrys.  The letter stated:

     Execution of this contract by you constitutes your offer to the 
     Government.  The offer shall be interpreted as remaining open 
     until either accepted by the Government or withdrawn by you.  
     Execution of this contract by the Government shall constitute 
     acceptance of the offer.  No contract is established until this 
     agreement is executed by the Government. . . .

This letter also included new "special space requirements" applicable 
to the lease. [2]  The revisions included the addition of certain 
lump-sum reimbursable items, such as push-button automatic doors, 
peepholes, chair rail, bracing cabinets, a barrier wall between the 
reception and work areas, and a folding wall in the multi-purpose 
room, as well as certain changes to the space to accommodate a 
different computer system.  By letter of October 4, the McMurtrys 
returned the lease with a few corrections and their signatures as the 
lessors under the lease agreement.  The lease was never executed by 
the government.

Meanwhile, by letter of September 24 to McCarville, the contracting 
officer advised McCarville that it would not receive the award because 
the offered space:

     would not lend to an efficient layout for systems furniture, 
     which SSA plans to install at their new lease location.  The 
     [SFO] - Space Efficiency, Paragraph 4.4 states, "The design of 
     the space offered must be conducive to efficient layout and good 
     utilization."

By letter of September 25, McCarville filed a protest with GSA 
challenging the rejection of its BAFO.[3]  In pertinent part, the 
protest alleged that although the agency had raised concerns about a 
center wall in the existing structure and floors having more than one 
level, McCarville had addressed the concerns, prior to the last BAFO, 
by offering to remove the wall and explaining that its renovation 
plans always included bringing all of the floors to a single level.

By letter of October 17 to McCarville, the contracting officer 
referenced a July 24 letter from that firm stating that a central wall 
in the existing structure is not load bearing and can be easily 
removed.  The contracting officer requested a certification from a 
structural engineer regarding the structural integrity of the building 
with the removal of the entire wall, including certification that the 
building conforms to applicable seismic requirements.

The record also indicates that Mr. O'Connor's proposal was not 
considered acceptable because it appeared that he did not propose 
sufficient available space, and that certain discussions had been held 
with Mr. O'Connor on the matter.  

In November, the contracting officer's supervisor reviewed the entire 
procurement and determined that the procurement should be reassigned 
to another contracting officer.  On November 19, a replacement 
contracting officer was assigned to the procurement.

The replacement contracting officer reviewed the proposals, and 
determined that areas of concern and deficiencies still existed in 
each proposal and that the record did not document that these matters 
had been sufficiently brought to each offeror's attention for 
resolution.  By letter of November 29, the replacement contracting 
officer reopened negotiations with all offerors, identified areas of 
concern and proposal deficiencies for each offeror, and scheduled a 
site inspection with each offeror.  The replacement contracting 
officer also issued amendment No. 1 revising the terms of the SFO, 
which included changing the required occupancy date from "June 1996" 
stated in the initial SFO to "120 days after receipt of the 
GSA-approved layout," and replacing the SSA special space requirements 
with the latest revised version (which had been previously provided to 
the McMurtrys).[4]  Another round of BAFOs was contemplated.

By letter of December 4, the replacement contracting officer denied 
the McMurtrys's protest, stating, among other things, that the 
McMurtrys's proposal was not technically acceptable, and thus an award 
could not be made to that firm.  Among the reasons that the 
McMurtrys's proposal was not considered acceptable were that its price 
was considered too high, its proposed space had windows only on one of 
the four exterior walls,[5] and it proposed an occupancy date of 210 
days after award and receipt of the GSA-approved layout.

The McMurtrys's protest to our Office followed.  The agency has not 
obtained revised BAFOs. 

The McMurtrys first allege that the lease document sent to it on 
September 10 is a legally binding contract and further competition is 
therefore improper.  We disagree.

It is a fundamental rule that in order for the government to enter 
into a contract with an offeror, the government must clearly, 
unequivocally, and unconditionally accept the offer.  American 
Management Co., B-228279; B-228280, Jan. 15, 1988, 88-1 CPD  para.  38 at 3.  
The facts here clearly establish that GSA never entered into a lease 
contract with the McMurtrys.  The letter accompanying the lease stated 
that the offeror was to execute the lease, which would constitute the 
offer, and return it for execution by the government.  The letter 
explicitly stated that acceptance of the offer by the government would 
not occur until the government executed the lease.    Indeed, the 
McMurtrys's October 4 letter returning the lease, stating that the 
McMurtrys were awaiting commencement of the contract "upon receiving 
the final lease approval from [the contracting officer]," recognizes 
this.   Since the lease remains unsigned by the government, there has 
been no acceptance of  the McMurtrys's offer.  Thus, a lease contract 
between the McMurtrys and GSA does not exist.  Id.; TSCO, Inc., 65 
Comp. Gen. 347, 349 (1986), 86-1 CPD  para.  198 at 4.

Alternatively, the McMurtrys object to the reopening of discussions 
with any offeror other than themselves, arguing that to do so would 
result in improper technical leveling in view of the repeated rounds 
of discussions previously held with the other offerors.[6]

In response, GSA states that none of the proposals is technically 
acceptable and thus an award cannot be made without further 
discussions.  We agree.  In negotiated procurements, any proposal that 
fails to conform to the material terms and conditions of the 
solicitation is unacceptable and may not form the basis for award.  
Team One USA, Inc., B-272382, Oct. 2, 1996, 96-2 CPD  para.  129 at 8.  

Here, the McMurtrys do not dispute that their proposal was 
inconsistent with the delivery date and window requirements stated in 
the SFO.  The McMurtrys also have not shown that the replacement 
contracting officer's determination that the McMurtrys's proposed 
price is too high was unreasonable. 

Nevertheless, the McMurtrys allege that the initial contracting 
officer waived these terms and conditions of the SFO in prior 
discussions with the McMurtrys (e.g., she acceded to the McMurtrys's 
proposed deviation to the window requirement), and determined that the 
protester's proposed price was reasonable, so that GSA cannot now 
conclude that the McMurtrys's proposal is unacceptable for failing to 
meet these requirements or for offering an unreasonably high price.  
In essence, the McMurtrys assert that GSA should be estopped from now 
applying these requirements against the McMurtrys's proposal or 
determining that their price is unreasonable.  

An equitable estoppel will be found only where, among other things, 
the party asserting the estoppel has relied to its detriment upon the 
conduct of the party to be estopped.[7]  Koch Corp.--Recon., 
B-212304.4, July 31, 1984, 84-2 CPD  para.  132 at 2.  Here, since the 
McMurtrys's proposal remains in the competition and they will have the 
opportunity to correct the deficiencies identified for them by the 
replacement contracting officer, the McMurtrys have not suffered any 
injury from relying on the alleged waiver of SFO requirements.  
Furthermore, there exists no basis under the legal doctrine of 
estoppel for requiring the government to consider for award a proposal 
which does not meet the government's minimum needs.  Eastern Marine, 
Inc., B-213945, Mar. 23, 1984, 84-1 CPD  para.  343 at 9.  Thus, there is no 
basis to find the GSA estopped from determining the McMurtrys's 
proposal to be unacceptable.

Additionally, the SSA's revisions to its special space requirements, 
which are clearly material, were not provided to GSA until after the 
last round of BAFOs were submitted and were not incorporated into the 
SFO until the November 1996 amendment.  In such cases, the government 
generally must issue an amendment and provide offerors an opportunity 
to revise their proposals, as GSA is in the process of doing here.  
See FAR  sec.  15.606; Media Funding, Inc. d/b/a Media Visions, Inc., 
B-265642, B-265642.2, Oct. 20, 1995, 95-2 CPD  para.  185 at 5; United Tel. 
Co. of the N.W., B-246977, Apr. 20, 1992, 92-1 CPD  para.  374, aff'd, 
Department of Energy--Request for Recon. et al., B-246977.2 et al., 
July 14, 1992, 92-2 CPD  para.  20.  Where, as here, the need for revised 
proposals was due to the issuance of a material amendment, it cannot 
be said that improper technical leveling has occurred.  Media Funding, 
Inc. d/b/a Media Visions, Inc., supra, at 5.    

Thus, notwithstanding the previous rounds of discussions, the agency 
is properly requesting revised BAFOs.[8]

The McMurtrys allege that Mr. O'Connor's proposal should not be 
considered in the competition because Mr. O'Connor submitted a "late" 
proposal after the due date for initial proposals.  We disagree.

Under the terms of the solicitation applicable here, an initial 
proposal is late if received after the time set for receipt of BAFOs.  
GSAAR  sec.  552.270-3 (AUG 1992).  Mr. O'Connor submitted his initial 
proposal on May 5, 1 month before the June 10 due date for submission 
of the first BAFOs.  Since GSA received O'Connor's initial proposal 
prior to the due date for BAFOs, it is not a late proposal and may be 
considered by GSA under the terms of the SFO applicable at the time of 
its submission.[9]  LSS Leasing Corp., B-259551, Apr. 3, 1995, 95-1 
CPD  para.  179 at 4.  To the extent the protest challenges the terms of 
GSAAR  sec.  552.270-3 more than 1 year after the time for receipt of 
initial proposals, it is an untimely protest of the terms of the 
solicitation apparent prior to the time set for receipt of initial 
proposals.  Bid Protest Regulations,  sec.  21.2(a)(1), 61 Fed. Reg. 39039, 
39043 (1996) (to be codified at 4 C.F.R.  sec.  21.2(a)(1)); LSS Leasing 
Corp., supra, at 4.[10]

The McMurtrys finally allege that McCarville should be excluded from 
the competition since during the course of the procurement it changed 
the name of the corporate entity identified as the offeror in its 
initial proposal, thus either improperly transferring the proposal or 
rendering the identity of the offeror ambiguous such that award could 
not be made to it.  

The record shows that after the replacement contracting officer 
reopened discussions, McCarville submitted a form identifying a 
different corporate entity (albeit with the same ownership as 
McCarville).  In response to the protest, McCarville resubmitted the 
form with the initial offering entity, McCarville, identified as the 
offeror, and stated for the record that McCarville was and is the 
offeror, and that there was no transfer of the proposal.  Since the 
identity of the offeror is no longer ambiguous and no transfer of the 
proposal has occurred, there is no basis to exclude McCarville from 
the competition.  See Dick Enters., Inc.--Protest and Recon., 
B-259686.3, Nov. 16, 1995, 95-2 CPD  para.  223 (information on offeror 
identity was properly provided after award to address concerns about 
ambiguity of offeror or improper transfer of proposals).  

The protest is denied.

Comptroller General
of the United States

1. The SFO also contained preferences for space in historic buildings 
and handicapped access buildings.

2. The SSA had instructed GSA to make sure that the new special space 
requirements were included in the new lease and replaced the old 
requirements.

3. The McMurtrys protest not receiving notification of McCarville's 
agency-level protest.  However, the failure of an agency to notify an 
interested party of a protest concerns a procedural defect which has 
no substantive remedy; the only remedy would be a rehearing of the 
protest, which essentially has occurred via the present protest.  BDM 
Management Servs. Co, B-211036.2, Apr. 9, 1984, 84-1 CPD  para.  392 at 3; 
Commonwealth Communications, Inc., B-209322.2, June 6, 1983, 83-1 CPD  para.  
606 at 5.

4. The amendment also replaced GSA Form 3516 with the revised version 
(4/96).  The revised form included a revision to GSAAR  sec.  552.270-3, 
which changed the time for determining whether a proposal is late from 
the date for receipt of BAFOs to the date for receipt of initial 
proposals.

5. Paragraph 4.9 of the SFO stated, "Office space must have windows in 
each exterior bay unless waived by the Contracting Officer."

6. Technical leveling arises when, as the result of successive rounds 
of discussions, the agency helps to bring one proposal up to the level 
of other proposals, such as by pointing out inherent weaknesses that 
remain in an offeror's proposal because of the offeror's own lack of 
diligence, competence, or inventiveness after having been given the 
opportunity to correct those deficiencies.  FAR  sec.  15.610(d) (FAC 
90-31); Department of the Navy--Recon., 72 Comp. Gen. 221, 225 (1993), 
93-1 CPD  para.  422 at 3.

7. The other elements required under the doctrine of estoppel are (1) 
the party to be estopped must know the facts; (2) the party to be 
estopped must intend that its conduct shall be acted on or must so act 
that the party asserting the estoppel has a right to believe it is so 
intended; and (3) the party asserting the estoppel must be ignorant of 
the true facts.  Planning Research Corp. Pub. Management Servs., Inc., 
55 Comp. Gen. 911, 931 (1976), 76-1 CPD  para.  202 at 28.

8. In any case, while discussions were evidently conducted with all of 
the offerors, the record contains little documentation that the 
deficiencies in the various proposals were reasonably brought to the 
offerors' attention and their responses properly considered.  Under 
the circumstances, the record does not establish that improper 
technical leveling occurred.  In addition, we note that since the 
McMurtrys's proposal is unacceptable, it is to that offeror's benefit 
to reopen discussions.

9. The fact that the initial proposal submitted by Mr. O'Connor was 
unacceptable did not require its rejection; rather, its inclusion in 
the competitive range for purposes of discussions was permissible.  
See ERA Indus., Inc., B-187406, May 3, 1977, 77-1 CPD  para.  300 at 4; 
Procurement Consultants Inc., B-181779, Dec. 10, 1974, 74-2 CPD  para.  321 
at 3-4.

10. The McMurtrys base their objection to the terms of GSAAR  sec.  
552.270-3 on Aerolease Long Beach v. United States, 31 Fed. Cl. 342, 
366-368 (1994), aff'd on other grounds, 39 F.3d 1198 (Fed. Cir. 1994) 
(GSAAR  sec.  552.270-3 inconsistent with the requirement in 41 U.S.C.  sec.  
253a(b)(B)(ii) and the requirements of FAR  sec.  15.412; GSAAR  sec.  552.270-3 
unfair to offerors who submitted initial proposals at an earlier 
date).  We follow 60 Key Centre, Inc. v. Administrator of Gen. Servs., 
47 F.3d 55, 58-60 (2d Cir. 1995), cert. denied, 116 S. Ct. 50 (1995), 
which rejected the rationale of Aerolease and upheld acceptance of an 
offer submitted after the closing date for receipt of initial 
proposals but prior to the closing date for receipt of BAFOs pursuant 
to GSAAR  sec.  552.270-3.  LSS Leasing Corp., supra, at 4 n.3.