BNUMBER:  B-277375; B-277375.2 
DATE:  October 8, 1997
TITLE: Mecca Investments, L.L.C., B-277375; B-277375.2, October 8,
1997
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Matter of:Mecca Investments, L.L.C.

File:     B-277375; B-277375.2

Date:October 8, 1997

Lawrence P. Block, Esq., Doyle & Bachman, for the protester.
Joel D. Malkin, Esq., General Services Administration, for the agency.
Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that evaluation of offers and agency's subsequent award of a 
lease for office space were improper because awardee's offer failed to 
meet material requirements of the solicitation is denied where 
awardee's offer reasonably was found acceptable and record shows that, 
even if agency did relax minimum space requirement for awardee, as 
protester contends, protester was not competitively prejudiced by 
agency's actions. 

DECISION

Mecca Investments, L.L.C. protests the award of a lease by the General 
Services Administration (GSA) to ARC Construction under solicitation 
for offers (SFO) No. GS-05B-16162 for space for Social Security 
Administration (SSA) offices in Evansville, Indiana.  Mecca contends 
that ARC's offer should have been rejected for failure to comply with 
material requirements of the SFO regarding public transportation, 
location/amenities, and minimum occupiable space.

We deny the protest.

The agency evaluated the acceptability of potential sites in the 
Evansville area for the SSA office space and issued the SFO to 
prospective offerors whose sites were deemed acceptable.  The factors 
for consideration in assessing a site's acceptability were set out in 
the SFO, which provided, among other things, that "[a]dequate public 
transportation is required to the proposed location."  The following 
property location requirements (for properties located outside of the 
city center area) were also set out in the SFO:

     Space must be located in an office, research, technology, or 
     business park that is modern in design with a campus-like 
     atmosphere, or on an attractively landscaped site containing one 
     or more modern office buildings that are professional and 
     prestigious in appearance with surrounding development 
     well-maintained and in consonance with a professional image. . . 
     .  Adequate eating facilities are to be located within 2 city 
     blocks and other employee services, such as retail shops, 
     cleaners, banks, etc. should be located within 2 city blocks.

The SFO advised offerors that GSA was interested in leasing 
approximately 10,929 square feet of net rentable space and that the 
rentable space "must yield a minimum of 9,935 occupiable square feet 
to a maximum of 10,432 occupiable square feet."  The SFO defined 
"rentable space" as "the area for which a tenant is charged rent" and 
listed those areas within a proposed building that may or may not be 
included in the calculation of rentable space.  "Occupiable space" was 
defined in the SFO as:

     that portion of rentable space that is available for a tenant's 
     personnel, equipment and furnishings and is the method of 
     measurement for the area for which the Government will evaluate 
     offers.  Net usable [space] and [occupiable space], for purposes 
     of this solicitation, are identical.

The SFO provided that for space on a single tenancy floor, occupiable 
space was to be determined by computing "the inside gross area by 
measuring between the inside finish of the permanent exterior building 
walls," and then deducting, among others, the following areas and 
their enclosing walls from the gross area:  equipment/service areas; 
corridors in place or required for access or safety; vestibules; and 
visitor rest rooms.  For price evaluation purposes, the SFO provided: 
     Offerors are required to submit plans and any other information 
     to demonstrate that the rentable space yields occupiable space 
     within the required occupiable range.  The Government will verify 
     the amount of occupiable square footage and convert the rentable 
     prices offered to occupiable prices, which will subsequently be 
     used in the price evaluation.

The SFO provided that an award of the 10-year lease would be made to 
the responsible offeror whose proposal conformed to the requirements 
of the SFO and offered the lowest price.
  
Mecca's and ARC's offers were among those submitted in response to the 
SFO and each proposed to construct a new building on its offered site.  
Mecca, on its best and final offer's (BAFO) GSA Form 1364 (entitled 
"proposal to lease space"), offered 10,432 square feet of "net usable" 
(i.e., occupiable) space at a square foot rate per year of $24.34, for 
a total amount of $253,914.88.  ARC, on its BAFO's GSA Form 1364, 
proposed 10,418 square feet of net usable space at a square foot rate 
per year of $23.50, for a total amount of $244,823.  Having found both 
offerors' proposed sites and facilities acceptable, the agency awarded 
a lease to ARC on June 18, 1997, on the basis of that firm's lower 
proposed price.  This protest followed.

Mecca initially protests the evaluation of the awardee's proposed 
site.  Mecca contends that the site proposed by the awardee, ARC, does 
not comply with the transportation and location requirements of the 
SFO and thus should not have been considered for award.  The 
evaluation of offers is primarily within the discretion of the 
contracting agency, and our Office will review the evaluation to 
ensure that it was reasonable and consistent with the stated 
evaluation factors.  Buffalo Central Terminal, Ltd., B-241210, Jan. 
29, 1991, 91-1 CPD  para.  82 at 5.  Here, the record provides no basis to 
question the agency's determination of the acceptability of the 
awardee's proposed site.

The protester first contends that since the bus stop that GSA 
considers to provide "adequate public transportation" to ARC's site is 
difficult to locate, is two blocks away from the awardee's site, is on 
a block without sidewalks, and requires passengers visiting the SSA 
offices at ARC's site to cross a street with heavy vehicular traffic, 
the offer did not meet the SFO requirement for "adequate public 
transportation."  The agency points out that the SFO did not define 
the phrase "adequate public transportation," and that all proposed 
sites were to be evaluated only on a pass/fail basis for compliance 
with this transportation requirement.  GSA reports that the bus stop 
(marked with an appropriate sign) is on the city's bus route and that 
vehicular traffic on that street during SSA office hours (which are 
not heavy traffic commuter hours) is reasonable.

Our review of the record supports the reasonableness of the agency's 
evaluation of ARC's offer and the determination that "adequate public 
transportation" was provided.  The SFO describes the transportation 
requirement in broad terms only--"adequate public 
transportation"--without specifying any particular features.  Thus, to 
take one example of the features Mecca points to as lacking from ARC's 
site--sidewalks--while a sidewalk at the bus stop may be beneficial, 
it was not required.  Given the SFO's generally worded pass/fail 
transportation requirement, and since it is undisputed that the city 
bus transportation system services the area of the proposed site, we 
see no basis to question the agency's determination that ARC's offer 
was acceptable in this regard. 

The protester next alleges that ARC's proposed site does not meet the 
location and eating facilities requirements of the SFO since the 
neighboring area is not attractive or professional in appearance and 
since the one eating facility (a Chinese restaurant) in the required 
two-block range of the site cannot satisfy the SFO's requirement for 
more than one such facility (since the SFO requires "adequate eating 
facilities").  In its report responding to the protest, the agency 
submitted photographs of the ARC site surroundings (as well as of 
Mecca's proposed site).  Our review of the record confirms the 
reasonableness of the agency's determination that the location 
requirements were met by the ARC offer.  As the agency reports, the 
photographs show that there are attractive, professional-looking 
buildings within the vicinity of the ARC site which reasonably meet 
the stated location requirement.  Further, the record shows that a 
neighboring grocery store has a delicatessen.  We believe the 
delicatessen could reasonably be considered (in addition to the 
referenced restaurant) in the evaluation of eating facilities since 
food availability is the crux of the generally worded SFO requirement, 
rather than eating accommodations with seating, as the protester 
suggests.[1]  The record thus does not support Mecca's contentions 
that the agency's evaluation and acceptance of the ARC site's location 
were unreasonable or inconsistent with the SFO requirements.

Mecca next protests the acceptance of ARC's offer of occupiable space, 
contending that:  forms and drawings submitted with the offer were 
ambiguous regarding rentable versus occupiable space proposed; the 
contracting officer improperly failed to verify that a drawing 
submitted with the ARC offer supported the awardee's statement of its 
proposed amount of occupiable space; and since ARC's preliminary 
drawing shows that ARC did not offer the requisite minimum occupiable 
space, the offer must be rejected for failure to comply with a 
material requirement.

The SFO included two forms to be completed by offerors--GSA Form 1217, 
which requires each offeror to report the amount of "rentable space" 
in the entire building and the "rentable space" to be leased by the 
government, as well as the lessor's costs associated with those 
building space amounts (to be considered by the agency for comparative 
purposes where a multiple-tenant building is proposed); and GSA Form 
1364, which is entitled "proposal to lease space" and which requires 
the offeror to state the square footage of "net usable" (or 
occupiable) space proposed, the "net usable" (or occupiable) space 
square foot price proposed, and the extended proposed lease price.  
This latter form, GSA Form 1364, which the offeror is required to 
sign, also states that upon acceptance by the government, the offeror 
agrees to provide the stated occupiable space at the amount indicated 
on that form.  Mecca alleges that the ARC offer was ambiguous because 
ARC listed the same square footage (10,418 square feet) on its GSA 
Form 1217 as both the entire building's rentable space and the 
rentable space to be leased by the government, and then listed, on its 
GSA Form 1364, that it was proposing the same amount (10,418 square 
feet) of occupiable space.  Mecca also states that since the 
preliminary drawing submitted with the ARC offer does not verify the 
occupiable space (10,418 square feet) listed on ARC's GSA Form 1364, 
the offer must be rejected as ambiguous.

Our review of the record shows inconsistencies in both offerors' 
forms.  Mecca, on its GSA Form 1217, indicated that the "rentable 
area" to be leased by the government was 10,432 square feet and then, 
on its GSA Form 1364, stated that the same footage was proposed as 
"net usable" (i.e., occupiable) space.  As Mecca contends, pursuant to 
the SFO's terms, rentable and occupiable space footage were to refer 
to different amounts of space.  Mecca's offer was accepted, however, 
despite this flaw.  Mecca's argument that the ARC offer should be 
rejected as ambiguous because of its forms' inconsistent information 
therefore provides no basis to sustain the protest--the protester's 
own offer suffers from the same flaw.  Rather, we believe it was 
reasonable for the agency to discount each of the offeror's GSA Form 
1217s, and to instead consider the proposed occupiable space and price 
information listed on each offeror's GSA Form 1364 "proposal to lease 
space."  As noted above, the information on the GSA Form 1217 was to 
be used for comparative purposes in cases where a multiple-tenant 
building is proposed.   Since both offerors here proposed 
single-tenant buildings which effectively eliminated the agency's need 
for the offerors' GSA Form 1217 pricing information, the GSA Form 1217 
was not material to the award selection.  Instead, the agency 
reasonably relied in its evaluation on the information in the GSA Form 
1364, the signed form on which the offerors agreed to provide a stated 
amount of occupiable space at the price indicated.

As for Mecca's contention that the drawing in ARC's offer is 
inconsistent with its "proposal to lease space" (GSA Form 1364), the 
SFO advised that the requirement for drawings to be submitted with the 
offers (illustrating building layout) was to enable the agency to 
review the drawings to confirm occupiable space for the purpose of 
converting rentable space prices to occupiable space prices.  As the 
protester notes, there is no evidence in the record that the agency 
closely reviewed these drawings for this purpose.  Occupiable space 
prices, however, were already calculated by each offeror in its GSA 
Form 1364.  The record shows that the agency accepted each offeror's 
proposed occupiable space and occupiable space square foot (and 
extended) prices as offered on the GSA Form 1364, and that those 
occupiable space prices served as the basis of the evaluation for 
award, as required by the SFO, without the need for conversion to such 
prices from the drawing information.  In light of the agency's 
across-the-board evaluation of offers on the basis of each offeror's 
GSA Form 1364 information, we cannot conclude that the agency's 
failure to verify that the offeror's drawings supported the occupiable 
space proposed shows that the evaluation was unequal, as the protester 
contends.  In sum, award was made on the basis stated in the SFO--the 
low occupiable space price offered.

To the extent Mecca contends that the agency relaxed or waived for ARC 
a material requirement for minimum occupiable space, Mecca has not 
demonstrated that ARC failed to comply with the stated minimum of 
9,935 square feet occupiable space requirement.  The protester's 
various calculations, for instance, are flawed in regard to an 
allegedly required deduction for a "janitorial room" (not required by 
the SFO or proposed by ARC) and "interior partitions" (the SFO only 
included deductions for enclosing walls of specifically itemized 
areas) and thus do not conclusively show that the minimum requirement 
was not met.  The importance of the claimed inconsistency between the 
awardee's GSA Form 1364 and the drawing in its offer is also minimized 
here since that drawing was only preliminary in nature and can be read 
as offering expansion space to allow for the occupiable space 
proposed.

In any event, even if the awardee's preliminary drawing fails to show 
the requisite minimum occupiable space, and even if the agency had 
relaxed the minimum space requirement to the extent alleged by the 
protester, the record shows that any such relaxation here was de 
minimis (accounting for only 17 square feet of the entire building).   
The protester, although it alleges prejudice because ARC offered to 
construct a lower cost building with slightly less than the required 
minimum occupiable space, has not stated that it would have prepared 
its offer any differently had it known that slightly less then the 
stated minimum occupiable space would be acceptable to the agency.[2]  
See Canberra Indus., Inc., B-271016, June 5, 1996, 96-1 CPD  para.  269 at 
4.  All offerors knew that the basis of award here was low price 
(among conforming offers), and that the minimum occupiable space limit 
was substantially (almost 500 square feet) less than the stated 
maximum amount (which maximum amount was proposed by Mecca).  The 
protester, in its own business judgment, chose to offer a building 
which exceeds the SFO's statement of rentable space sought by the GSA 
(including additional space not required to meet the SFO's occupiable 
space requirements).  In other words, the protester at all times knew 
that it could offer almost 500 square feet less of occupiable space 
and substantially less rentable space than offered, and decrease its 
price accordingly, but instead proposed to construct a larger building 
than required (with higher associated building costs) at a higher 
price, despite the low price basis for award.   Prejudice is an 
essential element of a viable protest and here, the record simply does 
not demonstrate a reasonable possibility that Mecca was prejudiced by 
the agency's actions, that is, there is no demonstration here that, 
had the agency's alleged relaxation of the minimum space requirement 
applied to Mecca as well, the protester would have had a substantial 
chance of receiving the award.  McDonald-Bradley, B-270126, Feb. 8, 
1996, 96-1 CPD  para.  54 at 3; see Statistica, Inc., v. Christopher, 102 
F.3d 1577, 1581 (Fed. Cir. 1996).

The protest is denied.

Comptroller General
of the United States

1. The agency points out that both the ARC site and the Mecca site are 
"less than perfect" but were found to be acceptable.  The record 
confirms that Mecca's site was found to be acceptable despite the 
existence of areas near the site having a less than attractive, 
professional appearance, and despite having only one eating facility 
(a sandwich shop) open to the public (which would include all SSA 
visitors) in the requisite two-block area.  Thus, the record shows 
that the agency in fact relaxed the SFO's location/amenities terms for 
the protester.  Under these circumstances, we fail to see how the 
protester was prejudiced by any alleged relaxation of the terms for 
the awardee.

2. We also note that taking exception to the minimum space requirement 
here was not specifically prohibited by the SFO, which stated only 
that any exceptions taken to stated requirements were to be set forth 
in the offers; the SFO also provided that payment under the lease 
would be made for delivered occupiable space less than agreed to at 
the occupiable square foot rate stated in the lease, suggesting that 
the agency was prepared to allow some flexibility in meeting the space 
requirement.  We also are not persuaded by Mecca's contention that by 
proposing a higher amount of occupiable square feet than is available 
within the gross or rentable space of the building depicted in ARC's 
preliminary drawing, ARC was unfairly able to spread its costs over a 
larger building area and decrease its square foot price, because, as 
stated above, ARC proposed and is obligated by the terms of the lease 
to provide the 10,418 square feet of occupiable space, as defined in 
the SFO, at the firm's offer/lease price.  To the extent that Mecca 
questions whether ARC will comply with the lease terms, the matter is 
one of contract administration not for our review.  See 4 C.F.R.  sec.  
21.5(a) (1997).