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.