BNUMBER:  B-276959; B-276959.2 
DATE:  August 12, 1997
TITLE: Arsenault Acquisition Corporation; East Mulberry, LLC, B-
276959; B-276959.2, August 12, 1997
**********************************************************************

DOCUMENT FOR PUBLIC RELEASE
A protected decision was issued on the date below and was subject to a 
GAO Protective Order.  This version has been redacted or approved by 
the parties involved for public release.
Matter of:Arsenault Acquisition Corporation; East Mulberry, LLC

File:     B-276959; B-276959.2

Date:August 12, 1997

Richard L. Moorhouse, Esq., and Michael L. Martinez, Esq., Holland & 
Knight, for the protester.
Leigh Ann Holt, Esq., General Services Administration, for the agency.
Scott Riback, Esq., and John M. Melody, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Protest against agency's elimination of proposal from further 
award consideration is dismissed as untimely where not filed at 
General Accounting Office (GAO) within 10 days after protester was 
advised that proposal would no longer be considered.

2.  Protest that agency improperly eliminated offeror's proposal from 
competitive range is denied where record shows that firm's proposal 
was properly ranked [deleted] out of [deleted] received and had no 
reasonable chance of being selected for award. 

DECISION

Arsenault Acquisition Corporation (AAC) and East Mulberry, LLC protest 
the elimination of their proposals from the competitive range under 
solicitation for offers (SFO) No. 97-07, issued by the General 
Services Administration (GSA) for the lease of approximately 102,000 
occupiable square feet of office and related space in Fort Collins, 
Colorado.  

We deny the protests.

The SFO, issued on February 11, 1997, called for the submission of 
initial offers by March 21.  Among other things, the SFO required that 
any proposed lease space be in a newly constructed building with a 
maximum floor plate size of 41,000 square feet.  In addition, the 
building was to be located on a 29-35 acre "government campus"-type 
site.  As the acquisition is a two-step negotiated procurement, the 
SFO advised that no price proposals were to be submitted initially, 
and that a competitive range would be established among the initial 
proposals based on an evaluation applying three criteria:  Development 
Team Past Performance, Building Site, and Building Location.

GSA received [deleted] offers.  GSA reviewed the offers initially for 
broad compliance with the SFO's technical requirements and, on the 
basis of this review, eliminated Mulberry's proposal for failure to 
meet several requirements.  Specifically, Mulberry offered a 
preexisting building (as opposed to the required new structure) that 
did not meet the 41,000 square foot floor plate requirement and was 
not located on a  29-35 acre "government campus" site, as required.[1]  
Mulberry was advised of the elimination of its offer as unacceptable 
on March 31.  Thereafter, on April 21, Mulberry attempted to submit a 
second proposal; by the terms of this proposal, Mulberry offered to 
divide its preexisting building in order to meet the 41,000 square 
foot floor plate limitation, and offered to purchase nearby--but not 
adjacent--land in an effort to satisfy the 29-35 acre "government 
campus" site requirement.  GSA advised Mulberry on April 26 that its 
second proposal was rejected as late, because it was submitted beyond 
the March 21 deadline for submission of offers.

As for AAC, GSA's source selection panel eliminated that firm's 
proposal from the competitive range.  AAC did not request a formal 
debriefing but was advised informally that the central basis for 
eliminating the proposal from the competitive range was the agency's 
conclusion that AAC's proposed development team and construction 
contractor did not have adequate experience in designing and 
constructing a facility of the size and type contemplated by the SFO.

MULBERRY'S PROTEST

Mulberry maintains that the agency improperly rejected both its 
initial and second proposals.[2]  

Under our Bid Protest Regulations, allegations such as Mulberry's 
challenge to the rejection of its initial proposal must be raised no 
later than 10 days after the basis of protest was, or should have 
been, known.  4 C.F.R.  sec.  21.2(a)(2).  As noted above, GSA advised 
Mulberry on March 31 that its initial proposal was unacceptable as 
submitted.  This written notice specifically identified the two 
primary deficiencies in the firm's offer--the lack of enough land to 
satisfy the agency's 29-35 acre site requirement and the failure of 
its offered building to meet the 41,000 square foot floor plate 
limitation--and stated that Mulberry's offer "is considered 
non-responsive to the SFO and will not be further considered."  As 
this March 31 notice provided Mulberry all the information necessary 
to raise its protest allegations, it was required to protest within 10 
days, or no later than April 10.  Since the protest was not received 
by that date, it is untimely and will not be considered.[3]  

We also conclude that the agency properly rejected Mulberry's second 
proposal.  Under the terms of the SFO, offers received after the March 
21 due date for initial proposals could not be considered (except in 
circumstances not relevant here), and the agency therefore properly 
rejected the second proposal, which was submitted a month after that 
date.   

AAC'S PROTEST

AAC contends that its proposal was improperly scored under the 
Development Team Past Performance criterion.  In particular, the 
protester maintains that one of the evaluators assigned an 
unreasonably low score to its proposal in this area and caused its 
overall consensus score to be improperly "skewed."  

Where a protester challenges an evaluation, we will review the 
agency's actions to ensure that they are reasonable and consistent 
with the solicitation's evaluation scheme and applicable statutes and 
regulations; we will not independently reevaluate proposals or 
otherwise substitute our judgment for the agency's.  Techniarts Eng'g, 
B-271509, July 1, 1996, 96-2 CPD  para.  1 at 3.

The evaluation in this area was reasonable.  Under the Development 
Team Past Performance criterion, proposals were assigned a raw score 
of [deleted] points.  The four evaluators assigned AAC's proposal 
scores of [deleted] points, [deleted] points, [deleted] points and 
[deleted] points, and reached a consensus score of [deleted] points.  
AAC maintains that the score of [deleted] points assigned by one 
evaluator was unjustified.  However, the record shows that the 
evaluator assigned this reduced score for two primary reasons.  First, 
the evaluator noted as a "major weakness" that AAC's proposed general 
construction contractor had no experience performing on a job of the 
size contemplated by the SFO, and that the contractor's largest 
"similar" project involved performing only approximately 26 percent of 
a project requiring the building of an addition and completing 
renovations on a preexisting structure (as opposed to construction of 
an entirely new building, as required under the SFO here).  Second, 
the evaluator noted as a "major deficiency" that AAC had provided no 
references for any of the development team members other than the 
general construction contractor.

AAC has neither alleged nor shown that the evaluator's conclusions 
regarding the proposal weaknesses and deficiencies are factually 
erroneous, and we see no basis for reaching such a conclusion.  AAC 
essentially merely disagrees with the evaluator's judgment as to how 
many points should have been deducted for the deficiencies.  However, 
we find nothing inherently unreasonable in the evaluator's 
determination that 4 points reasonably reflects the merits of AAC's 
proposal under this criterion.  In this regard, we have recognized 
that evaluators may have different judgment as to a proposal's merits, 
and that one evaluator's scoring is not unreasonable merely because it 
is based on judgments different from those of other evaluators.  See 
Household Data Servs., Inc., B-259238.2, Apr. 26, 1995, 95-1 CPD  para.  281 
at 4 n.2.  We conclude that, given the absence of any substantive 
rebuttal showing that the evaluator's findings as to the merits of 
AAC's proposal were unfounded, there is no basis for questioning the 
scoring of AAC's proposal in this area.

AAC also objects to the agency's establishment of a competitive range 
using what GSA described as a "natural breakpoint" among the total 
scores of the [deleted] proposals of [deleted] points.  According to 
the protester, the average overall proposal score was [deleted] 
points, and since its proposal was found technically acceptable and 
assigned an above-average score of [deleted] points, it should have 
been included in the competitive range.

The protester's argument ignores the fundamental principle that 
agencies are to include in the competitive range only those proposals 
that have a reasonable chance of receiving award.  Techniarts Eng'g, 
supra, at 3-4.  A proposal's standing in relation to a mathematical 
average is immaterial where, as here, the record shows that it has no 
reasonable chance of being selected for award, relative to the other 
proposals included in the competitive range.  The evaluators 
recommended inclusion of [deleted] proposals in the competitive range 
as the proposals with a "high probability of success" and which either 
met or exceeded the evaluation criteria outlined in the solicitation.  
AAC's proposal, while rated "good" overall, was ranked only [deleted] 
out of the [deleted] received, and the agency explains that it did not 
rise to the quality level of the higher-scored proposals.  As 
discussed above, AAC does not challenge the agency's substantive 
conclusions regarding the merits of its proposal, and the numeric 
break point used by the agency does not affect the underlying 
rationale for the rejection of its proposal, namely, that, given the 
comparative weakness of its proposal, AAC did not stand a reasonable 
chance of receiving award.  Id.  We therefore have no basis for 
objecting to GSA's elimination of AAC's proposal from the competitive 
range.

AAC raises numerous arguments that relate to alleged solicitation 
improprieties; because they were not raised prior to the deadline for 
submitting proposals, they are untimely and will not be considered.[4]  
4 C.F.R.  sec.  21.2(a)(1).  AAC also contends that the SFO's evaluation 
scheme was "latently" ambiguous because it was unclear that price 
would not be evaluated in connection with the step-one evaluation.  
This contention is specious; the fact that AAC did not submit a price 
proposal belies any assertion that it believed that price would be 
evaluated during step one. 

The protests are denied.

Comptroller General
of the United States

1. Mulberry's proposal explicitly acknowledged that it did not comply 
with various SFO requirements.  The cover letter accompanying the 
proposal stated that "[w]e recognize that our submission does not meet 
the full requirement established in your solicitation, we believe, 
however, this proposal represents a viable alternative to your 
request, at a greatly reduced cost."

2. Mulberry also argues that its proposed "alternate" approach is 
adequate to meet the agency's needs, and that its failure to meet the 
SFO requirements therefore did not warrant rejecting its offer.  This 
is essentially a challenge to the agency's requirements as stated in 
the SFO.  As such, Mulberry had to raise this issue prior to the 
deadline for receipt of initial offers.  4 C.F.R.  sec.  21.2(a)(1) (1997).

3. Mulberry requests that our Office consider this issue under the 
significant issue exception to our timeliness requirements.  4 C.F.R.  sec.  
21.2(c).  We decline to apply the exception here since we have 
frequently considered the propriety of an agency's rejection of a 
technically nonconforming offer.  See, e.g., Triple P Servs., Inc.,       
B-271777, July 24, 1996, 96-2 CPD  para.  39. 

4. Thus, AAC challenges the propriety of the SFO provision stating 
that a competitive range would be established as part of the step-one 
evaluation, when price proposals had not yet been submitted; AAC also 
alleges that, under GSA's acquisition regulations, the agency was 
required to disclose the evaluation weighing scheme it intended to use 
as well as the maximum number of firms that would be included in the 
competitive range.