TITLE:  The New Jersey & H Street Limited Partnership, B-288026; B-288026.2, July 17, 2001
BNUMBER:  B-288026; B-288026.2
DATE:  July 17, 2001
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The New Jersey & H Street Limited Partnership, B-288026; B-288026.2, July
17, 2001

Decision

Matter of: The New Jersey & H Street Limited Partnership

File: B-288026; B-288026.2

Date: July 17, 2001

Robert K. Huffman, Esq., Cameron S. Hamrick, Esq., and David F. Dowd, Esq.,
Mayer, Brown & Platt, and Michael J. Farley, Esq., Miller & Chevalier, for
the protester.

Philip M. Horowitz, Esq., Michael R. Goldstein, Esq., and Amy E. Suski,
Esq., Arter & Hadden, for Louis Dreyfus Properties, LLC, an intervenor.

George C. Brown, Esq., John P. Sholar, Esq., Richard J. Ufford, Esq., and
Angela E. Clark, Esq., Securities and Exchange Commission, for the agency.

Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where protester's proposal was eliminated from competitive range, agency was
not required to provide protester opportunity to submit revised proposal
based on amended requirement; since amendment was not substantial such that
it would not have been reasonably anticipated by offerors, agency also was
not required to provide all interested firms an opportunity to propose on
the amended requirement.

DECISION

The New Jersey & H Street Limited Partnership (NJ&H) protests the award of a
contract to The Louis Dreyfus Property Group of New York under solicitation
for offers (SFO) No. SECHQ-00-R-0030, issued by the U.S. Securities and
Exchange Commission (SEC) for construction and lease of office space.

We deny the protest.

The SFO, issued September 8, 2000, sought proposals to furnish 630,000 to
650,000 rentable square feet of office space to be available not later than
December 31, 2003. Several offerors, including NJ&H and Dreyfus, submitted
proposals, all of which were included in the initial competitive range.
After the SEC conducted discussions and obtained best and final offers
(BAFO), it determined that NJ&H's proposal fell outside the revised
competitive range. On January 29, 2001 the SEC notified NJ&H of this fact
and stated that proposal revisions therefore would not be considered. The
protester requested and, in the form of a letter dated February 22, received
a debriefing in which the agency provided a detailed listing of the
strengths and weaknesses of the firm's proposal, and specifically stated
that NJ&H's BAFO was "eliminated from the competition because it does not
provide the close proximity and dedicated, secure access to transportation
links, metro, and amenities as is found in the revised competitive range."
In response to a March 16 request for an oral debriefing, on May 7 the SEC
provided additional information. On May 29, the contracting officer made
award to Dreyfus. NJ&H filed this protest on June 8.

NJ&H asserts that the evaluation and negotiations were flawed. Specifically,
the protester asserts that the agency improperly considered whether offered
properties had "dedicated access" to transportation and amenities, since
that was not specifically listed as an evaluation factor. NJ&H also asserts
that the agency improperly identified two areas of its proposal (ratio of
perimeter glass to usable square feet and the co-developer's role) as
weaknesses, maintaining that its proposal fully addressed those matters.
Further, NJ&H alleges that the agency improperly failed to discuss these
matters during negotiations.

The agency has requested summary dismissal of the protest as untimely filed.
Having considered the protester's response to the agency's dismissal
request, as well as the supplemental protest (discussed below), we agree
that the protest is largely untimely and that the remaining issue can be
resolved without submission of a full agency report.

Our Bid Protest Regulations require that protests (other than those
challenging solicitation terms) be filed not later than 10 days after the
basis of protest is known or should have been known. 4 C.F.R. sect. 21.2(a)(2)
(2001). More specifically, a protest based upon information provided to the
protester at a debriefing is untimely if filed more than 10 days after the
debriefing. Clean Venture, Inc., B-284176, Mar. 6, 2000, 2000 CPD para. 47 at 4
n.5; TeleLink Research, Inc., B-247052, Apr. 28, 1992, 92-1 CPD para. 400 at 5.
All of the information underlying NJ&H's protest grounds was specifically
identified in the SEC's February 22 written debriefing, and reiterated in
the May 7 letter. Since NJ&H failed to protest any of these matters until
June 8, more than 3 months after learning of them, its protest is untimely
and will not be considered on the merits.

NJ&H maintains that its protest is timely because it did not know it was
eliminated from the competition until it learned the award had been made to
Dreyfus, and it protested within 10 days after receiving that information.
In this regard, NJ&H states that, after reading a February 8 official
statement in which the SEC stated that it had not made an award decision and
that the selection process continued, it telephoned Spaulding & Slye
Services Limited Partnership, the SEC's designee and authorized
representative (SFO sect. 1.14) which, according to the protester, served as the
primary SEC contact throughout the procurement. Protester's Declaration at
para. 3. NJ&H asked the broker for clarification "as to whether [its] original
proposal could still be accepted should negotiations with [Dreyfus] be
unsuccessful." Protester's Declaration at para. 4. While the broker informed
NJ&H "that the SEC would not accept any further revisions to its proposal,"
it allegedly further stated that "the SEC could nonetheless accept the
[NJ&H] proposal as submitted." Id. [1]

Even accepting the protester's version of its February telephone
conversation with the broker, it had no reasonable basis to believe that its
proposal was still under consideration. When a proposal is eliminated from
the competitive range, it is "eliminated from consideration for award."
Federal Acquisition Regulation (FAR) sect. 15.306(c)(3). The January 29 letter,
signed by the contracting officer, clearly stated that the protester's offer
fell outside the revised competitive range and, as noted, the February 22
debriefing letter specifically advised the protester that its proposal was
"eliminated from the competition." The protester was aware of this language,
as it repeated it on the second page of its March 16 letter. The contracting
officer reiterated this language in her May 7 response to the March 16
letter, stating that the "February 22 letter to [NJ&H] . . . fully and
thoroughly summarized the rationale for eliminating [NJ&H] from the
competition." NJ&H could not reasonably ignore this unequivocal notice that
the contracting officer had eliminated its proposal from the competition and
choose instead to assume, based solely on the alleged statement by the
broker's representative, that it remained in the competition. At minimum,
reason dictates that NJ&H should have clarified the status of its proposal
with the contracting officer; in this regard, the agency states that, in the
4 months following the broker's statements, NJ&H never raised the issue of
those statements with the contracting officer.

In a supplemental protest, NJ&H asserts that the SEC improperly permitted
only Dreyfus to revise its proposal to respond to an amended requirement for
a 14-year lease term (instead of the 15-year term it had offered). NJ&H,
which submitted a 15-year offer, argues that it should have been allowed the
opportunity to submit a revised proposal on the basis of the amended term.

This argument is without merit. Under FAR sect. 15.206(c), "[a]mendments issued
after the established time and date for receipt of proposals shall be issued
to all offerors that have not been eliminated from the competition." NJ&H
was not permitted to submit a revised proposal in response to the amended
lease term because, unlike Dreyfus, it had been eliminated from the
competition. Under FAR sect. 15.206(e), where the contracting officer determines
that an amendment to a requirement after offers have been received "is so
substantial as to exceed what prospective offerors reasonably could have
anticipated," the solicitation must be canceled and all interested firms
given an opportunity to respond to the changed requirement. The change in
the lease term falls outside of this provision. Not only does a 1-year
change in the lease term not appear substantial on its face, but since the
RFP expressly permitted offerors to propose lease terms of from 10 to 20
years, a 14-year term clearly was not beyond what offerors reasonably could
have anticipated. Thus, the agency was not required to provide NJ&H an
opportunity to respond to the changed requirement.

In any case, NJ&H has not established competitive prejudice. Rather, it
merely asserts, generally, that revised proposals from all offerors would
result in "steep cuts" in price and that offerors "would have engaged in
aggressive cost-cutting efforts." Supplemental Comments at 5. NJ&H provides
no specifics to establish that any price revisions it would make would be
substantial, and has not explained why--and nothing in the record suggests
that--a 1-year shorter lease term would have a disparate impact on different
offerors' proposed rates. We will not sustain a protest absent a reasonable
possibility of competitive prejudice--that is, a showing that, but for the
agency's actions, the protester would have had a substantial chance of
receiving the award. McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54
at 3; see Statistica, Inc. v. Christopher, 102 F. 3d 1577, 1581 (Fed. Cir.
1996). NJ&H has not made this showing.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. The broker's representative's recollection of this conversation is
different. When asked what the SEC would do if it was unable to complete the
current procurement, he responded that the SEC's options might include
revisiting the market for purposes of negotiating for space beyond the
expiration of the current lease, but that "the SEC would not accept further
revisions from [NJ&H] because it had been removed from the competitive
range." Broker's Declaration at para. 4.