BNUMBER:  B-277572; B-277572.2; B-277572.3 
DATE:  October 29, 1997
TITLE: HG Properties A, L.P., B-277572; B-277572.2; B-277572.3,
October 29, 1997
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Matter of:HG Properties A, L.P.

File:     B-277572; B-277572.2; B-277572.3

Date:October 29, 1997

Thomas W. Rochford, TRS Design & Consulting Services, for the 
protester.
Lisa A. Hallenbeck, Esq., Poore, Roth & Robinson, for Mountain States 
Leasing-Libby, an intervenor.
Richard Salazar, U.S. Forest Service, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

In a negotiated procurement for the lease of office and related space, 
the agency unreasonably found that the awardee's proposed layout 
satisfied all solicitation requirements and was entitled to a high 
evaluation score, where the layout was inconsistent with the stated 
requirement that the computer room be located "away from areas housing 
microwave equipment and radio transmitters."

DECISION

HG Properties A, L.P., protests the award of a lease by the U.S. 
Forest Service to Mountain States Leasing-Libby (MSL) under 
solicitation for offers (SFO) No. R1-97-04.  

We sustain the protest.

The SFO requested offers for a 10-year lease with two 5-year options 
for a minimum of 20,728 to a maximum of 21,000 occupiable square feet 
(sq. ft.) of office and related space in a new or existing building 
for a Forest Service supervisor's office within the city limits, or up 
to 2.5 miles outside the city limits, of Libby, Montana.  A formula 
was provided for calculating occupiable space, which the SFO defined 
to be that portion of rentable space that is available for a tenant's 
personnel, equipment, and furnishings.  The SFO stated that the space 
must be ready for occupancy by March 1, 1998, and informed offerors 
that if a different occupancy date were proposed, the contracting 
officer would determine if that date would reasonably fulfill the 
Forest Service's needs.

The SFO provided specifications detailing the architectural, 
mechanical, electrical, plumbing, utilities, maintenance, and service 
requirements.  One "special requirement" of the specifications was 
that the computer room space must be located "away from areas housing 
microwave equipment and radio transmitters."  A "conceptual" drawing 
of a floor plan for the required space was provided with the SFO to 
graphically indicate desired spatial relationships and traffic 
patterns, not to "dictate design" requirements.  The SFO stated that, 
if there were an inconsistency between the written requirements and 
the conceptual drawing, the written requirements would govern.

The SFO provided for a best value basis for award and stated that 
technical evaluation factors were of equal importance to price.  
Offerors were informed that the price evaluation would be on the basis 
of the total annual price per square foot for occupiable space, 
including any option periods; that the price for parking and 
"wareyard" areas would be evaluated; and that relocation costs would 
be added to those offers that would require relocation.  The proposal 
preparation instructions required offerors to provide, among other 
things, plans illustrating the space offered, and site plans showing 
the placement of the building on-site, proposed parking, and 
landscaping.  The SFO, as amended, provided the following technical 
evaluation factors and subfactors in descending order of 
importance:[1]

        A.  Potential for Efficient Layout
        B.  Energy Efficiency 
        C.  Location
          (1)  Public Visibility/Accessibility
          (2)  Size, Configuration, and Flexibility
          (3)  City Utilities (water and sewer)
        D.  Physical Characteristics
          (1)  Environment
          (2)  Safety of Visitors and Occupants
        F.  Past Performance

The SFO provided that award would be made by either the agency's 
notification of unconditional acceptance of the offer or the execution 
of the lease document by the contracting officer.  Offerors were also 
informed that the executed lease would include all the required 
clauses, representations and certifications, and pertinent provisions 
of the SFO and successful offer.

Offers were received from five firms, including HG and MSL.  HG, the 
incumbent contractor, offered its existing space within the Libby city 
limits, while MSL offered space in a building to be constructed 
outside the Libby city limits.  Discussions were conducted with the 
offerors, and best and final offers (BAFO) received.  Because HG's 
BAFO excluded floor receptacles, the agency decided to reopen 
discussions with, and obtain revised BAFOs from, HG, MSL, and two 
other offerors.  HG's and MSL's proposals were evaluated as follows:

                                MSL       HG

           Potential for Efficient Layout
            (250 Maximum Points)225       175

           Energy Efficiency
           (210 Max. Pts.)      189       168

           Location
           (190 Max. Pts.)      152       152

           Physical Characteristics
           (180 Max. Pts.)      144       126

           Past Performance
           (170 Max. Pts.)      136       136

           TOTAL POINTS
           (1,000 Maximum)      846       757

           Price Per Square Foot[2]$12.93 $12.90

           Present Value Analysis[3]   $7.26  $6.70

           Annual Cost[4]       $267,948  $270,900
MSL's higher total point score was primarily based on its high score 
under the potential for efficient layout factor, which reflected its 
offer of newly constructed space that closely followed the layout 
provided in the SFO's conceptual drawing.  In contrast, HG's offered 
existing space was found not to meet all the SFO special requirements; 
for example, HG's proposed layout for the computer room was "not 
conducive to easy movement of supplies and equipment."  The 
contracting officer found that MSL's BAFO was technically superior to 
that of HG.  In this regard, MSL's offer was found to meet "all 
aspects of the SFO," while HG's offer "did not meet the basic floor 
plan in the SFO."  The contracting officer also determined that the 
difference between HG's and MSL's evaluated price per square foot, and 
as discounted in the agency's present value analysis, was "minimal," 
and concluded that MSL's BAFO represented the best value to the 
government.  Acceptance of MSL's offer was mailed to MSL, and this 
protest followed.  Performance of the contract has been stayed pending 
our decision in this matter.

HG complains that the Forest Service failed to evaluate MSL's proposed 
layout in accordance with the stated SFO requirements regarding the 
location of the computer room.  We agree and sustain HG's protest on 
this basis.

In considering protests of an agency's evaluation of proposals, we 
examine the record to determine whether the agency's judgment was 
rational and consistent with stated evaluation criteria and applicable 
statutes and regulations.  Abt Assocs., Inc., B-237060.2, Feb. 26, 
1990, 90-1 CPD  para.  223 at 4.  Such judgments are by their nature often 
subjective; nevertheless, the exercise of these judgments in the 
evaluation of proposals must be reasonable and bear a rational 
relationship to the announced criteria upon which competing offers are 
to be selected.  Southwest Marine, Inc.; American Sys. Eng'g Corp., 
B-265865.3, B-265865.4, Jan. 23, 1996, 96-1 CPD  para.  56 at 10.  

Here, as noted by HG, the SFO provides that the computer room must be 
located away from areas housing microwave equipment and radio 
transmitters.  MSL's proposed layout, however, places the 
telecommunications room within the computer room space, even though 
the telecommunications room is to contain microwave equipment.[5]  
Although this does not appear to satisfy the SFO's written 
requirements, MSL received 225 points of the 250 points available 
under the most important potential for efficient layout factor, under 
which offerors' proposed layouts were evaluated.  The evaluation 
report supporting this score states that "the layout of the building 
is very close to the conceptual drawing in the SFO" and that MSL's 
"offices and areas met size and special requirements shown in the 
SFO."  Notwithstanding these generic conclusions about compliance, the 
contracting officer stated in a telephone hearing conducted by our 
Office that, although she attended all the meetings of the evaluators, 
she did not recall any discussion of MSL's proposed layout regarding 
the location of the computer room.  

As noted by the agency, MSL's proposed layout is nearly identical to 
the layout set forth in the SFO's conceptual drawing, which locates 
the computer room and telecommunications room in close proximity to 
each other.  But, as admitted by the contracting officer during the 
hearing, the written requirement to locate the computer room away from 
areas housing microwave equipment and radio transmitters is not 
consistent with the SFO's conceptual drawing.  Given that the SFO 
specifically provided that, in the event of an inconsistency between 
the written requirements and the conceptual drawing, the written 
requirements would control, the agency had no reasonable basis to find 
MSL's layout fully compliant with the SFO's special requirements.[6]  

In sum, we find that the agency's evaluation of MSL's proposed layout 
was not rational and in accordance with the stated evaluation 
criteria; that is, the Forest Service did not evaluate MSL's proposed 
layout regarding the location of its computer room vis-ï¿½-vis the 
location of the microwave equipment against the SFO's written 
requirements.

HG raises numerous other challenges to the Forest Service's evaluation 
of offers and selection of MSL for award.  We have reviewed each of 
these other protest allegations (although they are not all mentioned 
below) and find them to be either without merit, untimely filed under 
our Bid Protest Regulations, matters of affirmative responsibility not 
reviewable by our Office, or now academic given our protest 
recommendation that the agency reopen negotiations with the 
competitive range offerors.  

For example, HG asserts that MSL failed to offer the 20,728 minimum 
occupiable square footage required by the SFO.  Specifically, HG 
points to MSL's proposed layout, which includes the architect's 
notation that MSL's building would yield 26,764 gross sq. ft. and only 
20,645 rentable sq. ft.  However, the contracting officer explained 
during the hearing that the agency was aware in its evaluation of the 
architect's notation on MSL's layout, but that in the agency's 
judgment MSL's proposed layout, which as noted above was based upon 
the agency's conceptual drawing, would yield the minimum square 
footage required by the SFO.  In this regard, although the Forest 
Service did not calculate the square footage actually offered by MSL 
in accordance with the formula provided by the SFO, the agency 
reviewed the size of the offices and space offered by MSL, concluding 
that it would provide the minimum square footage required; found that 
the gross square footage of MSL's building would reasonably be 
expected to yield the minimum occupiable square footage sought; and 
noted that MSL had unequivocally committed itself to provide the 
minimum occupiable square footage requested by the SFO.  HG neither 
asserts that the agency's judgment was unreasonable nor provides its 
own calculation based upon MSL's layout to demonstrate that MSL will 
not offer the required minimum square footage.

Also, HG challenges the point scores its BAFO received in the agency's 
technical evaluation.  However, we find from our review of the 
agency's evaluation documents and the Forest Service's explanation in 
its report of its evaluation conclusions that the protester's 
allegations are nothing more than mere disagreement with the agency's 
evaluation, which does not demonstrate that the agency's judgment was 
unreasonable.  AVIATE L.L.C., B-275058.6, B-275058.7,  Apr. 14, 1997, 
97-1 CPD  para.  162 at 9-11.

The record belies the various other speculative allegations of HG, 
such as the contention that discussions were reopened for MSL's 
benefit (discussions were reopened primarily because of HG's 
noncompliant BAFO) and that MSL's initial proposal and BAFO may have 
been late.

HG's contention that the occupancy date evaluation factor was deleted 
during the competition without explanation to favor MSL is untimely 
filed under our Bid Protest Regulations because it was not protested 
prior to the closing date for receipt of BAFOs following the 
solicitation amendment, which deleted this factor.  4 C.F.R.  sec.  
21.2(a)(1) (1997).

Other contentions by HG concern MSL's responsibility, such as, for 
example, whether MSL will actually meet the March 1 occupancy date as 
promised and whether it will obtain adequate financing and required 
permits to meet this occupancy date.  We will not review affirmative 
determinations of responsibility absent a showing of possible bad 
faith on the part of government officials or that definitive 
responsibility criteria in the solicitation were not met, neither of 
which circumstance exists here.  4 C.F.R.  sec.  21.5(c). 

Finally, HG challenges the Forest Service's selection of MSL's BAFO 
for award because MSL failed to return all the required clauses, 
representations, and certifications with its BAFO.  We need not 
address this allegation, given our recommendation below to reopen the 
competition whereunder MSL can complete its offer.

The protest is sustained.

We recommend that the Forest Service amend its SFO to state its actual 
minimum requirements regarding the location of the computer room 
vis-ï¿½-vis the microwave equipment and radio transmitters, and reopen 
negotiations with the competitive range offerors to allow them an 
opportunity to respond to the amended solicitation.  In the event that 
an offeror other than MSL is selected for award as a result of these 
new negotiations, the Forest Service should terminate MSL's award and 
make award to that offeror.  We also recommend that the Forest Service 
reimburse HG its costs of filing and pursuing its protest, limited to 
the contention as to which we sustain this protest.  HG must submit 
its certified claim, detailing the time expended and costs incurred, 
directly to the Forest Service within 60 days of its receipt of this 
decision.  4 C.F.R.  sec.  21.8(f)(1).

Comptroller General
of the United States

1. Occupancy date was originally the second to least important 
technical evaluation factor, but was deleted by amendment during the 
competition.

2. This is a composite rate for occupiable space, including all 
           services.

3. In accordance with the SFO price evaluation criteria, the Forest 
           Service discounted offerors' gross annual per sq. ft. 
           prices annually at 8 percent to yield a gross present value 
           cost per sq. ft.

4. The difference in MSL's and HG's annual costs reflects HG's offer 
           of 272 more square feet of office space than MSL's offer.

5. The SFO provides that the telecommunications room will contain 
microwave and telephone equipment and must be located within 100 feet 
of a radio antenna tower.

6. The Forest Services does not state what its minimum needs actually 
are in this regard, or whether it is the written specification or 
conceptual drawing that actually reflects those minimum needs.