TITLE:  DePonte Investments, Inc., B-288871; B-288871.2, November 26, 2001
BNUMBER:  B-288871; B-288871.2
DATE:  November 26, 2001
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Decision

Matter of: DePonte Investments, Inc.

File: B-288871; B-288871.2

Date: November 26, 2001

Richard J. Conway, Esq., and Denis W. Kohl, Esq., Dickstein Shapiro Morin &
Oshinsky, for the protester.

James L. Weiner, Esq., Department of the Interior, for the agency.

Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

1. Protester's offer was not entitled to preference for Indian-owned firms
where
solicitation did not provide for the application of a preference.

2. Protest that agency improperly accepted awardee's offer of a building
constructed with pre-cast masonry facade is denied where solicitation
specifically permitted this construction method; to the extent protester
argues that agency advised it that pre-cast masonry facade would not be
allowed, protester relied on such oral advice, which conflicted with the
solicitation, at its own risk.

3. Agency was not required to evaluate protester's offer more favorably than
awardee's for offering a longer lease term, where solicitation provided for
award of either 10- or 15-year lease, agency determined that flexibility
made 10-year lease preferable, and protester does not rebut agency's
position; likewise, it was proper for agency not to give protester
additional evaluation credit for offering early availability of the space
where solicitation did not provide that early availability was preferable.

DECISION

DePonte Investments, Inc. protests the award of a contract to Opus West
under solicitation for offers (SFO) No. 01-810, issued by the Department of
the Interior to lease office and storage space for the Office of the Special
Trustee for American Indians. DePonte challenges the award on several
grounds.

We deny the protest.

The SFO provided for evaluation on a "best value" basis using the following
factors in addition to price: location; experience in developing first-class
office buildings; general contractor, architecture and engineering firm
experience with similar projects; and building suitability for occupant's
mission. SFO sect. 2.3, adden. 1. The agency received five proposals--including
Opus's and DePonte's--conducted an individual conference with each offeror,
issued two addenda to the SFO, and received best and final offers from four
offerors. Opus's proposal received the highest technical score (10 out of 10
possible points) and offered the lowest price. DePonte's received the lowest
technical score (3.9 points) and offered the third lowest price. Contracting
Officer's Statement (COS) at 2. The agency concluded that Opus's proposal
represented the best value, and made award to that firm.

PREFERENCE

DePonte protests that, although it informed Interior that it was acting as
an agent for an Indian-owned entity, the agency failed to provide DePonte
with the preference for Indian-owned businesses established by the Buy
Indian Act, 25 U.S.C. sect. 47 (2000), and the Indian Self Determination and
Education Act (ISDEA), 25 U.S.C. sect.sect. 450 et seq. (2000). DePonte recognizes
that the solicitation did not provide for application of a preference, but
asserts that, given the strong policy under these statutes in favor of
giving preference to Indian-owned firms, the preference must be applied even
where the solicitation is silent.

This argument is without merit. We have held that the Buy Indian Act does
not mandate that Indian firms be accorded a preference in the award of
contracts, unless the solicitation so provides. Orion Food Servs., Ltd.,
B-233145, Dec. 5, 1988, 88-2 CPD para. 563 at 1. This follows the
well-established principle that the evaluation of offers must be based on
the stated evaluation factors. American Imaging Servs., Inc.--Recon.,
B-250861.2, Jan. 5, 1993, 93-1 CPD para. 13 at 1. Thus, even where there is a
strong policy in favor of applying a preference, if the solicitation is
silent with respect to a preference, a procuring agency cannot properly
apply it. Id. at 2 (procuring agency may not apply small disadvantaged
business preference, despite strong policy in favor of preference, where
solicitation is silent regarding preference). [1] Consequently, since the
solicitation here did not provide a preference for Indian-owned firms, the
agency properly did not apply one in favor of DePonte.

CONSTRUCTION METHOD

DePonte maintains that the award was improper because Opus offered a
building with a pre-cast masonry facade; according to DePonte, the agency
told DePonte that this construction method was unacceptable.

Interior denies telling DePonte that it would not accept a building with a
pre-cast masonry facade. COS at 4. Rather, the agency reports, it told
DePonte that it would not accept tilt-up construction (where an entire
structural wall is prefabricated). In this regard, the agency notes that the
solicitation specifically provides with respect to the building shell, that
"exterior walls are combinations of an aluminum and glass curtain wall
system with aluminum grating, insulated and tinted vision glass and pre-cast
concrete panels, or masonry." SFO sect. 1.12(a)(4).

In its comments in response to the agency report, DePonte does not rebut the
agency's position but, instead, simply "rests on its initial protest." Given
the agency's unrebutted explanation and the indication in the solicitation
that a pre-cast masonry facade was permissible, we have no basis to find
that DePonte was misled. In any case, offerors rely on oral modifications to
the terms of a solicitation, which are inconsistent with the written
solicitation, at their own risk. Occu-Health, Inc.; Analytical Scis., Inc.,
B-258598.2 et al., Feb. 9, 1995, 95-1 CPD para. 59 at 4.

LEASE TERM AND EARLY AVAILABILITY

DePonte argues that the agency improperly failed to give it evaluation
credit for offering a 15-year lease term rather than the 10-year term
offered by Opus, and for offering to have the space available 2 months
sooner than required.

In response, the agency explains that the solicitation provided that the
award would be made for a 10- or 15-year lease term. The agency reports that
it elected to accept a 10-year term because it would provide the agency with
more flexibility, and a 15-year term did not provide any monetary advantage.
COS at 6. With respect to early availability of the space, the agency notes
that this was not an evaluation consideration under the terms of the
solicitation.

DePonte, again, has not provided any substantive response to the agency's
position, relying instead solely on the assertions in its initial protest.
Since the solicitation specifically permitted the agency to choose a 10- or
15-year lease, and DePonte has not challenged the agency's conclusion that a
10-year lease will be more beneficial, there is no basis for questioning the
evaluation of the lease terms. Further, since the solicitation did not
provide that early delivery would be an evaluation consideration, there was
nothing improper in the agency's not giving DePonte evaluation credit based
on its offer of early delivery. [2]

EXPERIENCE/PAST PERFORMANCE

DePonte protests that the agency improperly assigned its proposal zero out
of 10 available points under the office building experience and
architecture/engineering firm experience evaluation factors. DePonte
maintains that these essentially constituted past performance factors and
that, because it did not have any relevant past performance, it was entitled
to a neutral rating under them according to Federal Acquisition Regulation sect.
15.305(a)(2)(iv). DePonte also asserts that the agency should have notified
DePonte during discussions that its past performance information was not
adequate.

Even if we agreed with DePonte's blurring of the distinction between
experience and past performance (we do not reach this question), there is no
basis for sustaining this aspect of the protest. In this regard, we will not
sustain a protest unless the protester demonstrates a reasonable possibility
that it was prejudiced by the agency's actions, that is, that but for the
agency's improper actions, it 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 (Fed. Cir. 1996).
As discussed above, Opus's proposal received the highest technical
score--10 out of 10 available points--and offered the lowest price. Thus,
even if DePonte's score under the experience factors were increased--indeed,
even if its overall proposal score were increased to a perfect 10--DePonte
would not be in line for award due to its higher price. Accordingly, DePonte
was not prejudiced with regard to the evaluation and discussions in this
area. See Ideal Elec. Sec. Co., B-279221, B-279221.2, May 19, 1998, 98-2 CPD
para. 14 at 5 n.2.

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. While we have not specifically addressed this issue with respect to the
ISDEA, since the same principle would apply, there is no basis for reaching
a different conclusion.

2. DePonte also asserts that the debriefing it was given by the agency was
inadequate. We will not review a protest against the adequacy of the
debriefing, since it is a procedural matter that does not affect the
validity of the award. Thermolten Tech., Inc., B-278408, B-278408.2, Jan.
26, 1998, 98-1 CPD para. 35 at 5.