TITLE:  R. L. Sockey Real Estate & Construction, Inc., B-286086, November 17, 2000
BNUMBER:  B-286086
DATE:  November 17, 2000
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R. L. Sockey Real Estate & Construction, Inc., B-286086, November 17, 2000

Decision

Matter of: R. L. Sockey Real Estate & Construction, Inc.

File: B-286086

Date: November 17, 2000

Belva Brooks Barber, Esq., Barber & Barber, for the protester.

Lynn W. Flanagan, Esq., Department of Agriculture, for the agency.

Christina Sklarew, Esq., and Michael R. Golden, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest alleging unfairness and bias in evaluation of firm's proposal for
rental of office space is denied where the record shows the agency
reasonably downgraded firm's proposal, consistent with evaluation factors,
for weaknesses regarding the building proposed for lease to the agency.

DECISION

R. L. Sockey Real Estate & Construction, Inc. protests the award of a lease
by the Natural Resources Conservation Service (NRCS), an agency of the
United States Department of Agriculture (USDA), to Cagle & Nobles under
solicitation for offers (SFO) No. 57-7335-0-3.

We deny the protest.

BACKGROUND

Together with another Department of Agriculture agency, the Farms Service
Agency (FSA), NRCS has been leasing office space from Sockey under a lease
whose initial 5-year term expired at the end of September 1999. This lease
included a 5-year renewal option, with the rental rate to be negotiated at
the time of renewal. Agency Report (AR) exh. 4, Sockey Lease. In August
1999, FSA began negotiating with Sockey for lease renewal terms, but was not
willing to accept Sockey's offer at $14.80 per square foot. In October, the
contracting officer concluded that Sockey's final offered rate of $14.00 per
square foot was unreasonable and terminated the negotiations with Sockey. AR
exh. 2, Memorandum of Law, at 3.

THE CURRENT SOLICITATION

On February 18, 2000, NRCS issued the current SFO under simplified lease
acquisition procedures, requesting offers for a 5-year lease of
approximately 4,675 square feet of office space in the vicinity of Poteau,
Oklahoma. AR exh. 12, SFO. Only two offers were submitted by the established
closing date, both from Sockey. In one offer, Sockey offered the existing
space, which did not meet the SFO's usable square footage requirement, and
in the other, it offered to construct an additional room to expand the
existing space. Sockey offered a price of $12.75 per usable square foot in
each offer. AR exh. 13 and 14, Sockey Offers.

In an attempt to increase competition for the lease, NRCS decided to amend
the solicitation. The amendment replaced the simplified real property lease
form with the standard real property lease form, which includes clauses
applying to construction of space. The use of the standard form was intended
to encourage offers of new construction as well as offers of existing
buildings from firms that could have believed the simplified lease form and
procedures favored the incumbent. AR exh. 2, Memorandum of Law, at 4-5. The
solicitation was amended on May 17. The amended SFO in section 2.3 provided
that the lease would be awarded to the firm whose offer "will be most
advantageous to the Government, price and other award factors which follow
considered," and stated that price would be of equal importance to the
combination of the other award factors. The SFO listed the following award
factors, in descending order of importance: quality/physical
characteristics; accessibility and location; layout capability; safety;
parking; first floor space; fixed rate, fully serviced lease; and energy
conservation.

The agency received four offers, including two submitted by Sockey. A
technical evaluation team reviewed and scored the technical and price
proposals, with the following results:

 Offeror            Price          Price       Tech.       Total
                                   Pts.        Pts.

 Cagle & Nobles     $57,268.75     42.3        48.3        90.6

 Sockey 1 [1]       $50,102.50     50          36.3        86.3

 Sockey 2           $57,158.50     43.8        38.3        82.1

 Firm A             $75,000.00     32.5        45.3        77.8

AR, Tab 22, Evaluation Chart at 1.

Sockey's two offers were again based on providing the space currently being
leased and, alternatively, on providing that space as expanded by an
additional room. Cagle & Nobles offered to construct a new building to suit
the agency's requirements.

In evaluating the offered prices, the real property leasing officer added
$9,500 for moving costs to Cagle & Nobles's price, which resulted in an
increase of $1,900 per year, for an annual lease price of $59,168.75. The
same amount was added to the highest-priced offer. Sockey's offers were not
adjusted in this manner because it offered the same space currently being
occupied.

Based on the technical and price evaluation results, the real property
leasing officer recommended award to Cagle & Nobles; the USDA Source
Selection Authority concurred, and the contracting officer awarded the lease
contract on July 10.
After protesting to the agency on July 21, Sockey filed its protest in our
Office on August 15.

Sockey challenges the evaluation of the proposals and the resulting award
decision, alleging that the technical scoring does not reflect the quality
and physical characteristics of the building Sockey offered. Sockey also
alleges that the contracting officer was biased against Sockey, and that the
adjustments that were made to pricing were unrealistic. [2]

We will review an agency's evaluation of proposals to ensure that it is
fair, reasonable, and consistent with the evaluation criteria stated in the
solicitation and with applicable statutes and regulations. Wind Gap
Knitwear, Inc., B-261045, June 20, 1995, 95-2 CPD para. 124 at 3.

The evaluation record provides reasonable support for the scores assigned to
Sockey's proposal. Sockey's technically acceptable offer, based on
constructing an additional room and offering a total space of 4,666 square
feet, received a technical score of 38.3 points based on averaging the
scores of the three evaluators. Under the first technical evaluation factor,
"quality and physical characteristics," Sockey's offer received
approximately 8.6 (out of 12 maximum available) points. It was downgraded in
this area primarily because, in the agency's experience, the roof had
recurring leaks, the entrance to the building was difficult to see from the
street (which difficulty was exacerbated by highway construction currently
under way), and the office space being proposed to meet the useable space
requirement was actually physically separate, with individual entrances,
rather than offering a contiguous space. Under the "accessibility and
location" factor, Sockey's offers received approximately 7.6 (out of 11
maximum) points. The evaluation reflects the agency's dissatisfaction with
the fact that the building is located behind a motel and is not visible from
the street, and that it is reached by a narrow roadway which is considered
both difficult to find and dangerous to use because of a current road
construction project. Under the "layout capability" factor, Sockey's offer
received an average of 5.3 points on a 7-point scale. This score was based
on the fact that the offered layout uses three separate entrances, rather
than the open-foyer configuration that the agency favors for a service
center, and because the addition that Sockey proposed, as a single room, was
not considered particularly useful in expanding the three separate office
spaces.

Sockey's offer was also downgraded slightly (by 1 point on a 5-point scale)
under the "parking" factor, based on a problem encountered with standing
water in the parking lot, and under the "safety" factor, (by approximately
1.3 points on a 5-point scale) based on concerns about the traffic and
entrance roadway, as noted in connection with the location factor. It was
also downgraded by 1 point (on a 2-point scale) under "energy conservation,"
based on concerns regarding the condition of the space's doors and
difficulty encountered in controlling the temperature in the space. For the
remaining two factors, "first floor space" and "fixed-rate, fully serviced
lease," it received the full 4 points that were available under the
evaluation.

We think the evaluation was consistent with the criteria established in the
SFO. While Sockey asserts that it has timely repaired its roof leaks, it
does not rebut the agency's contentions that the roof has leaked repeatedly
and that the leaks are evidence of the building's condition and need for
maintenance. While Sockey alleges that its proposal was unfairly downgraded
under more than one category for some of its perceived problems, such as the
parking lot (which was mentioned in the evaluation sheets under the factors
of "parking" and "quality/physical characteristics") and the entrance
roadway (which was noted under both "accessibility" and "safety"), we find
no merit to the suggestion that one problem cannot have an impact in several
different areas. Thus, a narrow entrance roadway that is blocked from view
by construction and leads to a building that is not visible from the roadway
can reasonably raise separate concerns regarding the accessibility of the
site (e.g., to service center users unfamiliar with its location) and the
dangerous traffic situation inherent in a blind entranceway.

Sockey also alleges that because the building it is offering is the same one
that the agency has been leasing for the past 5 years, which was built to
suit the agency's needs at that time, it is unreasonable for the agency to
evaluate the space differently now than it did 5 years ago. We find no merit
to this argument. Each procurement action is a separate transaction; thus,
the evaluation conducted under one procurement is not relevant to the
propriety of the evaluation under another for purposes of a bid protest.
Physician Corp. of Am., B-270698 et al., Apr. 10, 1996, 96-1 CPD para. 198 at
13. The evaluation of Sockey's building and acceptance of Sockey's lease
offer under a prior procurement does not demonstrate that the current
evaluation was unreasonable. The fact that the building offered by Sockey
was built to the agency's specifications in 1995 does not necessarily mean
it is best suited to meet the agency's needs 5 years later. For example, the
contracting officer reports that during the course of Sockey's 5-year lease
period, the USDA adopted a "service center" configuration for its offices,
which Sockey's building cannot offer. The protester does not rebut the
contracting officer's statement that layout issues could not be discussed
with Sockey during negotiations because Sockey's representative terminated
the discussions soon after they had begun. The fact that the building is now
older, and, as demonstrated in the record, has had maintenance problems such
as recurring roof leaks, further supports the reasonableness of
distinguishing between the earlier assessment of the building and the
current evaluation.

Sockey also protests that prices were not properly evaluated because moving
expenses that were added to Cagle & Nobles's offer were too low to be
realistic. We need not address the merits of this contention. The SFO simply
did not provide for any adjustment during the price evaluation based on
moving or any other costs; rather, the solicitation only provided that the
agency would evaluate each offeror's proposed lease price. Therefore, the
agency should not have added any costs to the lease prices. [3] The
contracting officer's methodology, however, did not result in competitive
prejudice to the protester, since its effect was to increase the cost of the
awardee's lease compared to the protester's. In fact, the closeness in price
(approximately $100) between the two proposals, when correctly evaluated
(without moving expenses), only lends further support to the reasonableness
of the agency's conclusion that Cagle & Nobles's lease offer was more
advantageous for the government.

Finally, Sockey protests that agency personnel were biased against Sockey,
apparently inferring bias from the agency's decision to amend the SFO after
Sockey had submitted its initial offers, and from the scores assigned to
Sockey's proposal.

Where a protester alleges bias on the part of procurement officials, the
record must establish that the officials intended to harm the protester,
since government officials are presumed to act in good faith. William L.
Menefee, B-279272, May 28, 1998, 98-1 CPD para. 144 at 5. Even where there is
credible evidence of bias, the protester must demonstrate that the bias
translated into action which unfairly affected the protester's competitive
position; that is, the protester must demonstrate that the allegedly biased
official exerted improper influence in the procurement on behalf of the
awardee or against the protester. Id.

Sockey has failed to make that showing. The agency report states that the
SFO was amended for the purpose of expanding the number of offerors and to
better accommodate offers of new construction; the reasonableness of the
agency's actions is supported by the fact that the amended SFO did, in fact,
produce an increase in competition. Further, as discussed above, our review
of the record confirms the reasonableness of the agency's evaluation. In
these circumstances, where the protester has neither alleged, let alone
provided evidence of, any specific acts that were intended to harm the
protester, much less resulted in competitive harm, we find no basis to
support Sockey's protest in this regard.

The protest is denied.

Anthony H. Gamboa

Acting General Counsel

Notes

1. The record shows that Sockey's first offer did not comply with the SFO's
space requirement, and the agency did not consider the offer in selecting
the most advantageous lease. AR exh. 2, Memorandum of Law, at 13.

2. Sockey also alleges a variety of improprieties in the solicitation,
arguing for example that the square footage requested in the SFO does not
accurately reflect the agency's actual needs, and questioning the need to
amend the solicitation after Sockey had submitted its initial offers. Our
Bid Protest Regulations require that, to be timely, a protest based on
alleged improprieties in a solicitation that are apparent prior to the time
set for initial proposals shall be filed prior to the time set for initial
proposals; where the alleged impropriety does not exist in the initial
solicitation, but is subsequently incorporated into the solicitation, the
impropriety must be protested not later than the next closing date. Bid
Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2000). Sockey did not object to
the square footage requirement or amendment until after award. Accordingly,
these bases of protest are dismissed as untimely. In addition, Sockey raises
a number of complaints concerning the solicitation and evaluation process
that do not allege any violation of regulation or statute, and thus do not
state a valid basis of protest for our consideration. 4 C.F.R. sect. 21.5(f).

3. Any post-closing time protest that the solicitation should have provided
for consideration of these costs is untimely. See Aero Realty Co., B-250985,
Mar. 2, 1993, 93-1 CPD para. 191 at 8-9.