BNUMBER:  B-281342 
DATE:  January 26, 1999
TITLE: Lance Ordnance, Inc., B-281342, January 26, 1999
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DOCUMENT FOR PUBLIC RELEASE
The decision issued on the date below was subject to a GAO Protective 
Order.  This redacted version has been approved for public release.
Matter of:Lance Ordnance, Inc.

File:     B-281342

Date:January 26, 1999

Nancy M. Camardo, Esq., and Joseph A. Camardo, Jr., Esq., Joseph A. 
Camardo Law Office, for the protester.
Richard P. Castiglia, Jr., Esq., Patrick K. O'Keefe, Esq., and Thomas 
C. Papson, Esq., McKenna & Cuneo, for Fireworks by Grucci, an 
intervenor.
Craig E. Hodge, Esq., and Terese M. Harrison, Esq., Department of the 
Army, for the agency.
Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protester's contention that awardee received an unfair competitive 
advantage over other offerors because the awardee leases facilities at 
the Radford Army Ammunition Plant pursuant to the Armament Retooling 
and Manufacturing Support Initiative is denied where the record shows 
that the awardee:  leases the facilities not from the government, but 
from a prime contractor; pays fair market rental value for the 
facilities; and has not received an unfair advantage from Army 
expenditures necessary to make the facility habitable for the life of 
the awardee's 10-year lease, which began before this solicitation was 
issued, and will extend beyond performance of this contract.

DECISION

Lance Ordnance, Inc. protests the award of a contract to Fireworks by 
Grucci by the Department of the Army, pursuant to request for 
proposals (RFP) No. DAAA09-98-R-0068, for the manufacture and delivery 
of 420,400 ground burst projectile simulators and 212,600 hand grenade 
simulators.  Lance argues that Grucci received an unfair competitive 
advantage through its proposed use of government facilities at the 
Radford Army Ammunition Plant, in Radford, Virginia, and that the Army 
conducted an unreasonable evaluation of Grucci's past performance.

We deny the protest.

The RFP, issued April 2, 1998, anticipated award of a fixed-price 
contract to the offeror whose proposal represented the best value to 
the government.  The RFP identified two evaluation factors--past 
performance and price, and advised that past performance would be 
slightly more important than price.  RFP, Amend. 0001,  sec.  M-1.  This 
procurement was reserved for small business participation only.  

The Army received six proposals in response to the RFP, with prices 
and past performance ratings[1] as set forth below:
  
        OFFEROR               PRICE          PAST PERFORMANCE
                                                  RATING

Offeror A                 $ 4.7 million           Neutral

Offeror B                 $ 4.8 million       Unsatisfactory

Fireworks by Grucci       $ 5.0 million          Excellent

Lance Ordnance            $ 5.4 million          Excellent

Offeror C                 $ 5.6 million          Excellent

Offeror D                 $ 7.9 million            Good
Source Selection Statement, Sept. 10, 1998, at first and second 
unnumbered pages.  Based on the past performance ratings of the two 
lowest-priced offerors, the contracting officer concluded that the 
proposal submitted by Grucci offered the best value to the government.  
Id. at third unnumbered page.  Lance's protest followed.  

Lance argues that Grucci received an unfair price advantage because 
Grucci proposed to use facilities at the Radford Ammunition Plant, 
which were not made available to other offerors.  According to Lance, 
the Army should have either adjusted Grucci's price to compensate for 
the competitive advantage, or advised other offerors of the 
availability of space at the arsenal.

As Lance contends, it is a fundamental principal of government 
procurement that competition must be conducted on an equal basis; that 
is, offerors must be treated equally and be provided with a common 
basis for the preparation of their proposals.  Meridian Management 
Corp.; Consolidated Eng'g Servs., Inc., B-271557 et al., July 29, 
1996, 96-2 CPD  para.  64 at 5.  Based on our review of the record, however, 
we do not agree that Grucci has received an unfair advantage over 
other offerors by virtue of its lease at the Radford Ammunition Plant.

Grucci leases space at the Radford Ammunition Plant pursuant to the 
Armament Retooling and Manufacturing Support (ARMS) Initiative, 
authorized by the ARMS Act of 1992, 10 U.S.C.A.  sec.  2501 (West Supp. 
1998) (Notes).  From fiscal year 1993 through 1998, this Act 
authorized the Army to enter into prime contracts for the operation 
and management of unused or underused Army ammunition production 
facilities.  Id.  sec.  194(a)(1).  The prime contractor was permitted to 
negotiate and enter into multiyear leases with other contractors for 
the commercial use of the facilities.  Id.  sec.  194(a)(2).

Grucci learned of the availability of space at the Radford Ammunition 
Plant in early 1995 from advertisements and notices widely distributed 
to industry.  Affidavit of Felix J. Grucci, Dec. 9, 1998, paras. 3-6.  
After contacting the Army's prime contractor, Alliant Techsystems, 
Inc., about leasing space at the underutilized facility, Grucci and 
Alliant jointly prepared a proposal to the Army for Grucci's 
commercial use of certain Radford buildings.  The proposal estimated 
that improvements and repairs of approximately $1.5 million would be 
necessary to render the buildings habitable for commercial use.  
Concept Proposal, June 2, 1995, at 2.  On September 30, 1995, the Army 
approved the proposal, and agreed to make the requested improvements.  
On March 1, 1997, Grucci and Alliant entered into a facility use 
agreement for a period of 10 years, under which Grucci is to pay 
Alliant a total of $950,000 (which, the parties agree, equals $3.90 
per square foot), plus utilities, security costs and general 
maintenance expenses.  Grucci is one of 20 ARMS Initiative tenants at 
Radford. 

The essence of Lance's complaint is that Grucci is receiving an unfair 
competitive advantage over other offerors by its tenancy at the 
Radford Ammunition Plant.  Based on our review of the record here, we 
conclude that Lance's assertions are not supported by the results of 
the competition, and that Lance has misunderstood the facts 
surrounding Grucci's lease.  First, Lance's claims of unfair price 
advantage are undercut by the proposed prices received.  Grucci did 
not submit the lowest proposed price for the explosive simulators 
here, and, in fact, its proposed price was squarely in the middle of 
the range of submitted prices.

Second, Grucci's lease of these facilities was not tied to this 
solicitation.  Grucci leased the facilities approximately 18 months 
prior to the date this solicitation was issued, and its lease extends 
for a total of 10 years--well beyond the performance period of this 
contract.  In addition, Grucci's lease is not from the government but 
from a prime contractor for the government.  The prime contractor 
established its lease prices based on an appraisal intended to discern 
the fair market rental value of the property.  Thus, on its face, 
Grucci is receiving no more benefit from the Army than it would 
receive if it rented space in an entirely commercial industrial park.

In its comments on the agency report, Lance argues that our Office 
should overturn the Army's selection of Grucci because there is no 
contemporaneous evidence in the record that the Army considered 
whether Grucci received an unfair advantage here.[2]  In addition, 
Lance argues that the appraisal used by the prime contractor fails to 
establish a fair market value for the Grucci-leased property, and that 
Grucci was unfairly benefitted by improvements made to the property in 
anticipation of its occupancy.

The contracting officer's statement provided with the agency report 
explains that the Army did not conduct an analysis of whether there 
was an unfair advantage to Grucci because the lease was a matter 
between Grucci and the prime contractor implementing the ARMS 
Initiative.  Since, as discussed below, there is no evidence of an 
unfair advantage from the Army, there was no requirement for the Army 
to look beyond the terms of the lease, as Lance contends.  

With respect to Lance's challenges to the appraisal, and its 
contentions that the improvements made to the property were solely for 
Grucci's benefit and provided Grucci an unfair advantage, we reviewed 
each of Lance's arguments and conclude that there is no evidence in 
the record of an unfair competitive advantage.    

For example, Lance argues that the appraisal was flawed because of 
disclaimers regarding the unique nature of the Radford Ammunition 
Plant properties which could have a positive or negative affect on the 
appraisal's assessments.  Real Estate Market Survey, Transmittal 
Letter, July 13, 1995, at 1.  Among other things, the appraisal notes 
the possibility of explosion hazards at the site, id., presumably as a 
basis for distinguishing between the Radford Ammunition Plant 
buildings and other more traditional commercial sites.  While Lance is 
correct about the presence of the disclaimer, and is correct in 
observing that the facts requiring inclusion of the disclaimer could 
have consequences on the appraisal values reached, the disclaimers 
appear to be a reasonable caveat for a commercial appraiser to add to 
a report about unique properties such as these.  Simply put, there may 
be no clear commercial counterpart for properties such as these 
located within the midst of an aging and underutilized ammunition 
plant.  In our view, given the unique circumstances of leasing 
property within an ammunition plant, we find nothing inherently flawed 
about the commercial appraisal used by Alliant to set the rental rates 
for Grucci's lease.

A second example of Lance's challenges involves the nature of the 
improvements made to these buildings before Grucci moved in.  As 
stated above, the Army agreed to spend approximately $1.5 million to 
prepare these buildings for occupation, as they were in various states 
of disrepair.  Despite Lance's contention to the contrary, there is 
little evidence of work done to Grucci's sole benefit; instead, the 
work identified appears necessary to make the facilities habitable, 
and to relocate Army equipment.  For example, the work includes 
general repairs to windows, doors, and walls; removing and relocating 
several types of excess equipment; and installation of meters and 
additional perimeter fencing.[3]  Although one item on the worklist 
arguably supports Lance's claim--installation of contractor 
equipment--there is no evidence that this work represents a 
significant effort, and all the other items appear to be necessary for 
any lessee to use the premises.  Accordingly, we see no basis to 
conclude that Grucci was given an unfair advantage in this procurement 
by virtue of the improvements made to its Radford Ammunition Plant 
space at the start of its 10-year lease.  

The protest is denied.

Comptroller General 
of the United States

1. The past performance ratings shown in this decision are derived 
from separate ratings assigned for each of two past performance 
subfactors; the evaluation materials did not include a combined 
rating.  Ultimately, the past performance ratings are not relevant to 
Lance's protest because although the Army report addressed in detail 
the agency's decision to rate Grucci's past performance as excellent, 
Lance elected, in its comments, not to reply to the agency's 
explanation.  Accordingly, Lance has provided our Office with no basis 
to reject the agency's past performance rating for Grucci.  
Appalachian Council, Inc., B-256179, May 20, 1994, 94-1 CPD  para.  319 at 8 
n.8.

2. This argument differs from Lance's initial contention that the 
Army's evaluation violated Federal Acquisition Regulation (FAR)  sec.  
45.201, which requires agencies to quantify the advantage accruing to 
any offeror possessing government-furnished equipment or government 
property, in order to allow offerors to compete on a common basis.  
Suncoast Scientific Inc., B-240689, Dec. 10, 1990, 90-2 CPD  para.  468 at 
6.  However, as the Army pointed out in its response to the protest, 
FAR Part 45, on its face, does not apply to property provided pursuant 
to statutory leasing authority.  FAR  sec.  45.000.  Since the ARMS 
Initiative is clearly a statutorily-based leasing program, FAR Part 45 
does not govern this situation.  Nonetheless, the inapplicability of 
FAR Part 45 does not bar a protester's general claim of unfair 
advantage.

3. The worklist of repairs to be financed by the Army is set forth in 
paragraph 8 of a Mandatory Checklist included within Alliant's Concept 
Proposal submitted to the Army.