BNUMBER:  B-280652             
DATE:  November 2, 1998
TITLE: HG Properties A, L.P., B-280652, November 2, 1998
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Matter of:HG Properties A, L.P.

File:B-280652            
        
Date:November 2, 1998

Michael S. Craig, C&S Property Services, for the protester. 
Jane S. Converse, Esq., and Philip S. Kauffman, Esq., Department of 
Veterans Affairs, for the agency. 
Adam Vodraska, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that solicitation for offers for the lease of space unfairly 
favors offerors proposing new construction is denied where the 
protester has not shown that the claimed competitive advantages are 
the result of unfair action by the government or do not represent the 
government's actual requirements.

DECISION

HG Properties A, L.P. protests solicitation for offers (SFO) No. 
541-184-003-98 issued by the Department of Veterans Affairs (VA) for 
the lease of space for its outpatient medical clinic in Canton, Ohio.  

We deny the protest.

Since April 1, 1980, the VA has occupied space--currently 47,662 net 
usable square feet--on the first and second floors of a building owned 
by HG in Canton's central business area under a General Services 
Administration (GSA) lease.  Agency Report at 1; Contracting Officer's 
(C.O.) Statement at 1.  The leased space is used as an outpatient 
medical clinic for eligible veterans.  Report at 1.  The current lease 
will expire March 31, 2000.  Id.  

In the Fall of 1997, the VA advertised that it would be conducting a 
competition for alternative space for a new lease term commencing 
April 1, 2000.[1]  Protester Comments, Exhibit 5.  The VA informed 
potential offerors that it would relocate "if advantageous to the 
Government," and that the cost of moving, alterations, and other 
factors would be considered when determining whether to relocate.  Id.  
The VA specified the amount of space it sought and delineated the 
geographic area in which the space is to be located.  Id.  The VA 
requested interested offerors to submit information concerning their 
properties by November 21, 1997.  Id.  In early April 1998, VA again 
advertised its need for the new lease and sent HG a copy of the 
advertisement.  Report at 2; C.O. Statement at 1.  

On May 19, HG sent the contracting officer a complete set of plans and 
a land survey of its facility.  Protester Comments, Exhibit 1.  
According to the contracting officer, on May 27 and 28, a VA market 
survey team conducted a market survey of properties in Canton, 
including the existing HG facility, to determined their suitability as 
a potential location for a new lease.  C.O. Statement at 1.  The 
contracting officer states that potential offerors of those 
properties--including the existing facility--which met or were 
determined to have the potential to meet the VA's basic requirements 
were informed that they would receive the SFO.  Id.  

The VA issued the SFO on June 25 and established July 27 as the due 
date for offers.  Report at 2; SFO at 8.  Under the SFO, VA proposes 
to lease a minimum of 40,680 to a maximum of 42,715 occupiable square 
feet of space located within Canton's central business area.  Report 
at 2; SFO at 8.  The delineated area includes the existing clinic 
location.  C.O. Statement at 2.  The new lease will be for a term of 
15 years with a 5-year renewal option.  SFO at 8.  The SFO further 
specifies that the space must be adjoining and be on no more that two 
contiguous floors, and can be provided by new construction or 
modification of existing space.  Id.  The SFO requires that if the 
space offered is not located in a new or modern office building, it 
must be in a building that has undergone, or will undergo, restoration 
or adaptive reuse so that the office space contains modern 
conveniences.  Id. at 12.  If the restoration work is underway or 
proposed, then architectural plans acceptable to the contracting 
office must be submitted as part of the offer.  Id.

The SFO established that the evaluation of offers and subsequent 
selection of the offer representing the best value to the government 
will be made on the basis of the following factors listed in order of 
descending importance:  (1) the annual price per occupiable square 
foot, including any option period; (2) the quality of the building and 
design concept; (3) the quality of the site; (4) the offeror's 
qualifications and past performance; and (5) the adequacy and 
efficiency of the operation and maintenance plans required to be 
submitted.  Id. at 14.  According to the SFO, when combined, the 
technical evaluation factors ((2) through (5) above) are approximately 
equal to the price factor ((1) above).  Id.

The SFO requires offerors to submit with their offers various 
specified plans, elevations, and drawings, including:

     One-eighth inch (1/8") scale full floor plans of the space 
     offered.  These floor plans and the building sections indicated 
     below shall clearly and accurately convey proposed column spaces 
     and bay configuration; location and number of elevator shafts and 
     stairwells, as required; and location, size and configuration of 
     public corridors, lobbies and similar areas.

Id. at 21.  The VA provided 1/8" scale floor plans with the SFO, which 
states that these floor plans

     are conceptual in nature, and are provided as a visual 
     representation of layout drawings which might be developed for 
     this outpatient clinic facility.  These floor plans provide 
     guidance on functional adjacencies and interior functional 
     requirements desired by the VA.  Other building shapes and size 
     may be proposed, providing that the layout of clinic functions 
     can be adequately designed within the building footprint offered, 
     without compromising the functionality of the outpatient clinic 
     facility. 

Id. at 29.

The SFO requires offerors to submit other detailed information with 
their offers to address the above-listed evaluation factors, including 
a narrative explanation and analysis of the design concept and the 
quality of the site, information on past performance, financial 
resources, and qualifications, and evidence of compliance with local 
zoning laws or variances and documenting ownership or control of the 
site.  Id. at 9, 21-22, 26-28.  The SFO also requires each offeror to 
submit a proposal bond and a performance bond with its offer.  Id. at 
10-11. 

Following issuance of the SFO, the protester submitted a letter to the 
contracting officer dated June 30, requesting that the due date for 
offers be extended so that HG could adequately develop floor plans for 
the existing facility, and obtain estimates for the costs of the 
alterations and improvements to the existing facility necessary to 
implement such plans.  In this letter, HG also questioned whether the 
SFO's bonding requirements apply to the incumbent lessor, requested 
the numerical weighting of the technical evaluation factors, and asked 
that the SFO's price evaluation scheme be amended to include a moving 
cost adjustment.  

On July 6, the protester submitted another letter to the contracting 
officer, this time requesting clarification primarily of numerous 
specification requirements.  In another letter, dated July 20, HG 
reiterated its earlier request to the agency to extend the time for 
offers, to amend the price evaluation scheme and to clarify the 
applicability of the bonding requirements.  HG asked the contracting 
officer to explain how HG has an equal chance of competing with an 
offeror offering new construction when the SFO contains conceptual 
drawings for new construction, but not the existing facility, and the 
weighting of the technical evaluation factors favors a new single 
tenant facility over HG's existing multi-tenant facility.  Finally, HG 
requested that the contracting officer provide a written response, 
including to its previous letters, along with any information provided 
to other offerors in response to their inquiries.  HG stated that, 
while it was continuing to prepare its offer, "until we receive [the 
contracting officer's] written response, we are constructively barred 
from preparing a meaningful proposal."  Protester Comments, Exhibit 1.  
HG received no written response from the contracting officer to any of 
its letters.[2]  Protest at 2; Protester Comments at 2.

The agency received several offers, including HG's, on July 27.  C.O. 
Statement at 1, 2.  HG filed its protest in our Office on July 27, 
prior to the deadline for receipt of offers.

HG first maintains that the solicitation unduly restricts competition 
because the SFO was tailored to favor award to offerors proposing new 
construction, specifically, offerors who propose floor plans which 
replicate the SFO's conceptual floor plans, over the existing facility 
for which no floor plans were provided or approved.  Protest at 2-4, 
Protester Comments at 3.  According to the protester:

     The lack of a conceptual floor plan drawing for the existing 
     facility places the incumbent lessor at a severe time and 
     economic disadvantage with the other offerors.  The incumbent 
     must guess what alternate floor plans will work, go through the 
     time and expense of designing an alternate floor plan within the 
     confines of the existing building footprint and hope that the 
     floor plan concept will be equal to the government provided 
     conceptual floor plan drawings. . . . HG must produce these 
     drawings without the benefit of VA guidance or assistance whereas 
     the offerors proposing a new facility simply adopt the VA 
     conceptual floor plans and submit their proposals accordingly.  
Protest at 2.  HG contends that it will be the only offeror not 
offering the conceptual floor plans contained in the SFO and it seeks 
"specific feedback" from the VA regarding the acceptability of the 
existing building's floor plans.  Protester Comments at 2.  HG 
maintains that, since offerors proposing new construction can rely on 
the conceptual floor plans provided with the SFO in developing their 
offers, HG should be given an equal opportunity to base its offer on a 
layout design acceptable to the VA.

We find that the SFO does not unfairly favor award to offerors 
proposing new construction.  The SFO states that besides new 
construction, the solicited space "can be provided by . . . 
modification of existing space" and allows an offeror to satisfy the 
requirements of the solicitation by offering space in an existing 
building.  See SFO at 8, 12, 22, 34, 55.  Even if firms offering new 
construction do enjoy an advantage, this does not mean that the 
solicitation unduly restricts competition, since certain firms may 
enjoy a competitive advantage over other offerors by virtue of their 
own particular circumstances and HG does not challenge the agency's 
underlying need for the modern facilities it seeks for its medical 
clinic.  See National Customer Eng'g, B-254950, Jan. 27, 1994, 94-1 
CPD  para.  44 at 6-7.

Moreover, as described above, the VA considers that HG's existing 
facility meets, or has the potential to meet, the VA's basic 
requirements.  According to the contracting officer:

     When developing the parameters and requirements of the space 
     procurement for inclusion in the SFO, VA took care to ensure that 
     the building and property currently leased by GSA for the VA 
     outpatient clinic would be able to compete in the space 
     procurement.  The delineated area of consideration was configured 
     so as to include the existing property.  Rather than specify that 
     the entire space be provided on one floor only [as is apparently 
     the usual practice], up to two contiguous floors were allowed.  
     The floor plans for the space currently occupied by the VA were 
     reviewed, to ensure that the space need set forth in the SFO 
     could be provided by the Lessor on the floors currently occupied 
     by the VA, without changing the shape or size of the building.

C.O. Statement at 2.  Although an offeror proposing new construction 
may submit the conceptual floor plans contained in the SFO, and an 
offeror proposing restoration of an existing building will have to 
draw up its own floor plans of its proposed facility, the agency 
asserts--unrebutted by the protester--that HG, as the incumbent 
lessor, already has plans in its possession which meet the 
requirement, and has been so informed.  Report at 6; C.O. Statement at 
3.  Furthermore, notwithstanding HG's complaint that it is at a 
competitive disadvantage because the agency has not provided feedback 
on the relative merits of its proposed floor plans, we are unaware of 
any requirement that the agency pre-approve, before the submission of 
offers, alternate floor plans for offerors unable to propose the 
conceptual floor plans included in the SFO. 

While HG asserts that the SFO, in effect, automatically "gives 
everyone offering the VA's conceptual floor plan [which only a newly 
constructed facility can exactly replicate] a superior technical score 
to that of HG," Protest at 3-4, the agency correctly notes that there 
is no SFO requirement that the building footprint be identical to the 
conceptual plans.  C.O. Statement at 4.  According to the VA, the 
conceptual floor plans merely provide a starting point for offerors to 
design the proposed space and the "VA will not dictate the exact 
layout, and is, in fact, willing to consider any proposed layout that 
would not compromise VA's mission to provide optimal medical care and 
treatment to veterans."  Report at 3.  The contracting officer further 
states that the building footprint and floor plans submitted with an 
offer are judged on their functional and technical merits under the 
evaluation scheme, not on whether they conform exactly to the SFO's 
conceptual plans.  C.O. Statement at 4.  Indeed, an offeror's 
architectural concept will form the basis of the agency's evaluation 
of the flexibility with which VA architects can lay out the interior 
functional requirements of the outpatient clinic and the agency will 
evaluate the extent to which an offeror's building design meets VA 
program needs and goals.  SFO at 15.  Moreover, as described above, 
the quality of building and design evaluation factor under which an 
offeror's floor plans are evaluated is only one of several evaluation 
factors and not even the most important one.  Thus, contrary to the 
protester's contention, a proposal based on the conceptual plans 
included in the SFO should not automatically result in its receiving 
the highest evaluation rating.[3]  

In sum, HG has not shown that any claimed competitive advantage 
enjoyed by an offeror proposing new construction is the result of a 
preference or unfair action by the government, that the SFO provisions 
do not represent the government's actual requirements, or that HG 
could not be the successful offeror under the SFO.[4]

HG next complains that the SFO fails to consider the cost of 
relocating from the existing facility as part of the price evaluation.  
Protest at 3.  The contracting officer responds that "[i]t is entirely 
possible that the cost of moving various VA functions within the 
[existing] building, because it will involve multiple moves to 
accommodate the Lessor's renovation schedule of the existing space, 
will exceed the cost of moving VA activities out of the building 
altogether" and "[t]he cost of moving VA activities is therefore 
considered a neutral factor, and does not prejudice [HG]."  C.O. 
Statement at 4.  Notwithstanding the protester's contention that the 
contracting officer's determination in this regard is undocumented, HG 
does not argue that the contracting officer's determination is 
erroneous, and, accordingly, we have no basis to object to the VA's 
failure to provide for the evaluation of relocation costs. 

HG also protests that the contracting officer failed to provide 
written answers to HG's pre-proposal questions and requests for 
clarification submitted on June 30, July 6, and July 20.  HG maintains 
that the agency's responses and clarifications are needed in order for 
HG and its project team to develop plans and pricing.  Protester 
Comments at 3.

An agency's failure to respond to questions is only prejudicial to a 
protester, so as to warrant sustaining a protest, if a solicitation is 
otherwise inadequate, unclear, or ambiguous.  See National Customer 
Eng'g, supra, at 4-5.  A protester challenging the adequacy of the 
specifications must demonstrate that the solicitation lacked 
sufficient clarity to permit competition on an intelligent and equal 
basis.  Ramirez Enters., B-229636.3, Mar. 28, 1988, 88-1 CPD  para.  313 at 
2.  

The issues raised in HG's June 30, July 6, and July 20 letters have 
either been addressed above, do not explain why the solicitation 
requirements at issue lack sufficient clarity to permit competition on 
an intelligent or equal basis, or are otherwise without merit.  For 
example, as observed by the agency, the numerous questions posed by HG 
pertaining to the SFO's technical requirements requested information 
on how to satisfy various building design and other building 
specifications set forth in the SFO, so that the agency would 
pre-determine whether HG's proposed solutions were satisfactory.  
Report at 5; C.O. Statement at 3.  HG does not contend in its protest 
that these questions pertain to specifications that were unclear or 
overly restrictive, and, as noted above, we are unaware of any agency 
duty to pre-approve HG's particular solutions to the SFO requirements.  
Further, HG has cited no authority that requires the contracting 
officer to disclose the numerical weighting of the evaluation factors, 
as it requested, and the contracting officer's failure to do so cannot 
be regarded as creating any ambiguity in the SFO, which, as described 
above, clearly specifies the relative weights of the evaluation 
factors.[5]  See Federal Acquisition Regulation (FAR)  sec.  15.203(a)(4)
(FAC 97-02).  

Finally, HG sought a time extension from the contracting officer in 
order to develop its own floor plans and obtain estimates for the cost 
of the alterations and improvements to its existing building necessary 
to implement its plans, and protests that the SFO did not permit it 
sufficient time to prepare its proposal.  However, HG has not 
persuaded us that it was disadvantaged by the contracting officer's 
failure to grant an extension because, as described above, HG already 
has presented  acceptable plans to the agency, and the other offerors 
themselves had to obtain estimates for new construction or for 
modification to existing structures.  We note that the SFO allowed at 
least the minimum 30-day response time required by FAR  sec.  5.203(c), and 
HG has not shown that the solicitation response time here is 
unreasonable under the circumstances (especially considering HG's 
early involvement in this acquisition), or that the response time was 
designed or intended to be prejudicial to an offeror who proposes an 
existing building.

The protest is denied.

Comptroller General
of the United States 

1. The VA states that it has been delegated leasing authority from 
GSA.
Report at 4; C.O. Statement at 1.

2. The record does not indicate that other offerors received written 
responses to any of their inquiries.

3. To support its contention that, historically, the offeror receiving 
the highest technical score is the one who proposes the conceptual 
floor plans, the protester submitted a statement from another HG 
representative involved with a different VA SFO.  Protester Comments, 
Exhibit 4.  This individual states that he was told by a 
representative of the same contracting officer involved here that HG 
should follow the conceptual plans in that competition "as closely as 
possible" and that "any departure from those conceptual plans would 
result in a lower technical evaluation."  Id.  Agency actions in 
connection with other procurements are irrelevant since each 
procurement stands on its own.  SEAIR Transp. Servs., Inc.,
B-274162, Nov. 25, 1996, 96-2 CPD  para.  198 at 3 n.2.

4. HG asserts that the SFO's language that "A single tenant building 
is desired" prejudiced HG because the existing facility is a 
multi-tenant building.  Protest at 3.  However, as the agency points 
out, the same SFO provision referred to by HG stated that "if space is 
offered in a multi-tenant building, a separate entrance or other 
accommodation for advising the public of the VA's presence will be 
required" and that HG's existing facility already meets this 
requirement.  Report at 3, C.O. Statement at 3.  HG has not rebutted 
the agency's position in its comments and we consider this contention 
abandoned.  See Terex Cranes, Inc., B-276380, June 10, 1997, 97-1 CPD  para.  
209 at 5-6.

5. In addition, while HG questioned the SFO's bonding requirements, 
its protest does indicate that these requirements were unclear or 
violated any law or regulation.