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-�-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-�-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.