BNUMBER:  B-275963; B-275963.2; B-275963.3 
DATE:  April 23, 1997
TITLE: Matter of:Meyers Companies, Inc. 

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Matter of:Meyers Companies, Inc.

File:     B-275963; B-275963.2; B-275963.3

Date:April 23, 1997

Darcy V. Hennessy, Esq., Moore, Brower, Hennessy & Freeman, P.C., for 
the protester.
Christopher M. Crowley, Esq., McDowell, Rice, Smith & Gaar, for Dr. 
William P. Schaetzel, an intervenor.
Richard A. Say, Esq., U.S. Army Corps of Engineers, for the agency.
C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of 
the General Counsel, GAO, participated in the preparation of the 
decision.

DIGEST

Lease requirement that lessee erect and maintain fences to separate 
parcels, one from another, does not constitute a procurement of 
property or services sufficient to establish General Accounting Office 
jurisdiction over dispute concerning award of lease, since there is at 
best a tenuous connection between the need for fences and the agency's 
central mission.

DECISION

Meyers Companies, Inc. protests the award of a lease to Dr. William P. 
Schaetzel under notice of availability No. DACW41-97-B-RE-502, issued 
by the U. S. Army Corps of Engineers for the lease of land at the 
Sunflower Army Ammunition Plant (SAAP) near DeSoto, Kansas.  Meyers 
contends that the awardee submitted a nonresponsive bid; and that, in 
any event, the agency had made an award orally to Meyers at bid 
opening, several days before the award to Dr. Schaetzel.

We dismiss the protests for lack of jurisdiction.[1]

On November 6, 1996, the agency issued a notice that it would accept 
sealed bids for leases on nine parcels of land at SAAP.  In addition 
to a cover sheet, the notice consisted of instructions to bidders; a 
lease form; land use regulations for SAAP and tract management plans 
for each parcel; and a bid form.  Paragraph 5 of the instructions 
advised bidders to submit two signed copies of the lease form, for 
each parcel upon which they desired to bid, as well as a personal 
check or money order as a bid guarantee, with the full rental payable 
"within ten (10) days after notice of acceptance of the bid."[2]  
Paragraph 6b stated that bids were to be submitted in duplicate on the 
attached bid form, along with the two signed lease forms and the 
required deposit.  Paragraph 6f reiterated that no bid would be 
considered without the deposit and that the full annual rental would 
be due "within ten (10) days after receipt of written notice of 
acceptance."  Paragraph 11 provided that notice of award would be 
given "as soon as practicable to the successful bidder personally, to 
a duly authorized representative, or in writing to the bidder at the 
address indicated in the bid."  The instructions advised bidders that 
the agency would award leases to the highest responsive bidders.

The lease form, in pertinent part, provided for payment of a cash 
rental to be "offset by the value of work items which shall be 
accomplished by the [l]essee for the maintenance, protection, repair, 
restoration, and improvement" of the parcels, as described in the SAAP 
land use requirements attached to the notice.  These land use 
requirements governed various lessee activities, including, among 
others, provisions relating to fire safety and chemical storage, 
limits on the number of animals allowed to graze on the leased parcel, 
weed control, and land management.  Paragraph 12 identified existing 
fence structures and advised bidders that pasture and pasture boundary 
fences (as opposed to the plant's security fence) would be the total 
responsibility of the lessee.

The tract management plan for agricultural lease number 10 (AL-10), 
the parcel at issue in the present protest, required the successful 
bidder to remove approximately 3,500 linear feet of fence and replace 
it with new five-strand barbed wire fence and maintain fences 
throughout the lease period.[3]  The plan also advised bidders that 
the agency required a letter of credit in the amount of $4,000 to 
cover all related costs for replacement and repair of fence in AL-10.  
The work was to be completed during the initial year of the lease.

The bid form listed the nine parcels as separate line items.  An 
asterisk preceded five of the line items, including AL-10.  A note at 
the end of the schedule warned bidders that line items marked with an 
asterisk "contain[ed] exceptional tract management requirements."  
These were the requirements spelled out in the tract management plans, 
which were summarized at the bottom of the schedule.  Specifically, 
the schedule noted that AL-10 (as well as AL-9) required extensive 
fence work and a letter of credit, as stated in the tract management 
plan.  Neither the tract management plan nor the bid schedule stated 
that bidders were to submit the letter of credit with the bid, and the 
notice of availability did not otherwise address the issue.

Two bidders submitted bids on AL-10 on December 17, 1996.  Meyers, who 
had submitted the lower bid, immediately asserted that the high bid 
was nonresponsive because it did not include the letter of credit 
required by the tract management plan.  The bid opening officer 
referred the issue to the contracting officer, who, according to the 
different versions of events, either referred the matter to her 
counsel or told the bid opening officer to inform Meyers that its bid 
was successful. The agency subsequently determined that the 
solicitation did not require submission of a letter of credit with the 
bid and that the award should go to the high bidder.  Consequently, by 
letter of January 8, 1997, the agency awarded a lease contract to Dr. 
Schaetzel for parcel AL-10, and these protests followed.  In addition 
to its contention that the high bid was nonresponsive, Meyers asserted 
that the agency was improperly attempting to rescind an oral award 
made to Meyers at bid opening.[4]

As a general rule, protests concerning offers to sell or lease 
government-owned real property are not for consideration under our 
Office's bid protest function.  Under the Competition in Contracting 
Act of 1984 (CICA), 31 U.S.C.  sec.  3551 (1994), our Office is authorized 
to review protests concerning proposed contracts for the "procurement 
of property or services" by a federal agency.  Transactions for the 
lease of federal land do not generally involve a procurement of 
property or services, and therefore are not encompassed by our CICA 
bid protest authority.  Equity Fed. Sav. Bank, 64 Comp. Gen. 697 
(1985), 85-2 CPD  para.  81 at 1.  Although there may be procurement aspects 
to a lease because it imposes certain obligations on the lessee, that 
does not necessarily mean that we have jurisdiction over the matter.  
Trimmer Marina, B-223107, June 23, 1986, 86-1 CPD  para.  578 at 1.  In this 
regard, we have declined jurisdiction where the imposition of 
obligations upon a lessee were collateral to the primary purpose of 
the transaction--the lease of government property.  See North Florida 
Shipyards, Inc., B-243575, May 3, 1991, 91-1 CPD  para.  434.

In the somewhat related area of concessions, our Office has found the 
award of concession contracts to be subject to our bid protest 
jurisdiction where they result in a benefit to the government.  Such 
benefit to the government is measured by whether the transaction in 
question relates to the advancement of the agency's mission, an issue 
that relates, in turn, to whether the agency's work load will be 
reduced or whether the effort is somehow rendered, either directly or 
indirectly, in support of the agency's mission requirements.  Maritime 
Global Bank Group, B-272552, Aug. 13, 1996, 96-2 CPD  para.  62 at 2.  See 
also West Coast Copy, Inc.; Pacific Photocopy and Research Servs., 
B-254044; B-254044.2, Nov. 16, 1993, 93-2 CPD  para.  283 at 5 (jurisdiction 
over award of photocopy concession serving the agency's mission 
requirement of furnishing copies of documents to the public); Gino 
Morena Enters., 66 Comp. Gen. 231, 234-235 (1987), 87-1 CPD  para.  121 at 
4-5, aff'd, B-224235.2, May 13, 1987, 87-1 CPD  para.  501 at 1 
(jurisdiction over award of haircut concession at Air Force basic 
training center, where initial haircuts were an aspect of the training 
experience integral to the agency's mission).  Where any benefit to 
the government is speculative or contingent, jurisdiction is lacking, 
even though earmarks of a procurement are present.  Maritime Global 
Bank Group, supra (no jurisdiction over Navy's execution of an 
agreement with a bank for the provision of on-base banking services).

The protester here has identified no aspect to the lease of benefit to 
the government or the agency's mission.  The protester simply contends 
that there are procurement aspects to the lease in that the agency is 
procuring fencing to separate parcels (and herds) one from another.  
The protester suggests that, in a sense, the agency is paying for the 
fence because lessees receive a credit against rent for the fence 
work.  The agency would not be paying for fences, Meyers argues, 
unless it anticipated a benefit from them.  The agency, on the other 
hand, maintains that the fences serve no purpose of the agency's and 
are solely for the benefit of the lessees.

We are not persuaded, absent evidence of a direct or indirect 
relationship to the agency's mission, that allowing a credit for the 
fence work necessarily makes such work for the benefit of the 
government.  While the fencing may allow the agency to manage the 
leased parcels more efficiently and ensure that a lessee's cattle do 
not stray onto another lessee's parcel, there is no evidence that this 
is work the government would otherwise be obliged to provide, and we 
see no more than a tenuous connection between the repair work on the 
fences and the Army's central mission here, which is to maintain 
production facilities.[5]  The protester has simply failed to 
demonstrate the existence of any palpable benefit to the government 
from the lease agreement.  Accordingly, based on the record here, we 
view the fencing requirement as collateral to the purpose of the lease 
and therefore cannot conclude that the lease transaction is within the 
bid protest jurisdiction of our Office.

The protests are dismissed.[6]

Comptroller General
of the United States

1. Meyers withdrew its second protest, which concerned the agency's 
failure to stay performance during the pendency of that protest, after 
learning that the agency had, in fact, decided to stay performance 
until our Office issued its decision.

2. Paragraph 5f provided for submission of a check in the amount of 
the first years' rent, in the full amount up to $1,000, and a deposit 
equal to 10 percent of that amount.

3. The notice also included maps of the parcels, indicating those 
portions of fence for which each lessor was responsible, as well as 
minimum standards for fences.

4. In subsequent protests, Meyers asserted that the award was improper 
because the awardee did not receive a written notice of award within 
the 10-day acceptance period for which the solicitation provided; and 
that acceptance of Dr. Schaetzel's letter of credit as evidence of 
responsibility constituted bad faith.  We note that our Office has 
consistently held that a formal written extension of a bid acceptance 
period is not necessary where the agency can infer the bidder's intent 
to extend from its actions.  Action Serv. Corp., B-254861, Jan. 24, 
1994, 94-1 CPD  para.  33 at 4.  Further, although an allegation of bad 
faith provides a basis for our Office to review the agency's 
affirmative determination of responsibility, which we normally do not 
do, the protester is required to produce convincing evidence that 
government officials had a specific and malicious intent to injure the 
protester.  Sanstrans, Inc., B-245701, Jan. 27, 1992, 92-1 CPD  para.  112 
at 5.  There is no such evidence here.

5. The land use regulations define the agency's mission as follows:

            " . . . to maintain all facilities required for the 
            production of ammunition propellants and chemicals for 
            department of army and meet all goals of environmental 
            compliance and remediation."

6. We point out that, in any event, the principal protest contentions 
appear to be without merit.  As indicated above, paragraphs 5, 6b and 
6f of the solicitation instructions all list what bidders had to 
submit, including the required deposit, but nowhere do the 
instructions mention the letter of credit required by the tract 
management plan.  The agency thus reasonably views the letter of 
credit as a performance requirement.  With regard to the second issue, 
relating to the oral award, while Meyers contends that paragraph 11 of 
the instructions, quoted above, implies that the agency will make 
award orally, paragraph 6f specifically provides for written notice of 
award, without which the lessee is not obligated to pay rent.