TITLE: B-295911; B-295911.2, Public Facility Consortium I, LLC; JDL Castle Corporation, May 4, 2005
BNUMBER: B-295911; B-295911.2
DATE: May 4, 2005
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B-295911; B-295911.2, Public Facility Consortium I, LLC; JDL Castle Corporation, May 4, 2005

   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.

   Decision

   Matter of: Public Facility Consortium I, LLC; JDL Castle Corporation

   File: B-295911; B-295911.2

   Date: May 4, 2005

   Richard L. Moorhouse, Esq., Dorn C. McGrath III, Esq., David T. Hickey,
   Esq., and Pang Khou Yang, Esq., Greenberg Traurig LLP, for Public Facility
   Consortium I, LLC; Victor G. Klingelhofer, Esq., Andrew J. Mohr, Esq.,
   David S. Cohen, Esq., and Catherine K. Kroll, Esq., Cohen Mohr, LLP, for
   JDL Castle Corporation, the protesters.

   James H. Roberts, III, Esq., and Carrol H. Kinsey Jr., Esq., Van Scoyoc
   Kelly PLLC, for Damon Harwood Company, Inc., the intervenor.

   Harry E. Hamilton, Esq., and Robert J. McCall, Esq., General Services
   Administration Service, for the agency.

   Paula A. Williams, Esq., and Michael R. Golden, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Evidence of compliance with zoning laws relates to ability of
   successful offeror to perform, rather than whether offer is acceptable
   and, therefore, is a matter of responsibility.

   2. A definitive responsibility criterion is established where solicitation
   requires specific zoning so that requirement itself is an aspect of
   contract work; thus, general requirement for zoning approval does not
   constitute definitive responsibility criterion.

   3. Allegation that contracting officer improperly made affirmative
   determination of responsibility does not raise serious concern that
   contracting officer failed to consider available relevant information
   where record shows, contrary to the protesters' assertions, that
   contracting officer did not ignore or disregard any available relevant
   information in making his responsibility determination.

   DECISION

   Public Facility Consortium I, LLC (PFC) and JDL Castle Corporation protest
   the award of a lease to Damon Harwood Company, Inc. under solicitation for
   offers (SFO) No. 2VA0401, issued by the General Services Administration
   (GSA) for the lease of a building to be constructed for use by the Social
   Security Administration (SSA) in Roanoke, Virginia. The protesters both
   assert that the award was improper because Harwood's offered site was not
   compliant with the solicitation's zoning requirements.

   We deny the protests.

   As amended, the SFO anticipated the award of a 10-year lease for
   approximately 67,314 rentable square feet of office and related space to
   the offeror that submitted the offer found to be most advantageous to the
   government considering price and non-price evaluation factors, which were
   approximately equal in weight. The SFO advised that price could become
   more important than the non-price evaluation factors as the offers became
   more technically equivalent. SFO, amend. 2, sect. 3.0. As it relates to
   these protests, the SFO, in a section entitled "Evidence of Capability to
   Perform," stated that offerors must submit with their initial offers
   evidence of "[c]ompliance with local zoning laws or evidence of variances,
   if any, approved by the proper local authority." SFO sect. 3.16.A.4. This
   section was entirely separate from the section identifying the evaluation
   factors and basis for award.

   Twelve firms submitted offers in response to the SFO by the extended
   closing date. The offers were evaluated, discussions were conducted, and
   best and final offers were requested, received, and evaluated. The agency
   found that the offers submitted by Harwood and JDL were technically
   equivalent and determined that Harwood's offer was most advantageous to
   the government in that it offered the lowest price. Subsequently, the
   agency awarded the lease to Harwood. Contracting Officer's (CO) Statement
   of Facts at 2.

   PFC and JDL argue that it was a material SFO requirement that each offeror
   submit with its initial offer evidence that the offered site was properly
   zoned and, therefore, capable of being leased by the agency. Both
   protesters contend that Harwood failed to comply with this requirement in
   that, by its own admission, Harwood's offered site was not in compliance
   with the zoning laws of the City of Roanoke, and required special use
   approval as an administrative office building before the offered site
   could be used for the solicitation's intended purpose. In support of their
   arguments, PFC and JDL point out that Harwood did not provide evidence of
   an approved special use exception with its initial offer and, in fact, did
   not seek or receive, prior to award, special use approval from the City of
   Roanoke's zoning board. According to the protesters, Harwood submitted its
   application for a special use exception to the zoning board only after the
   firm had received the award and that application was subsequently denied
   by the zoning board. The protesters conclude that Harwood was ineligible
   for award on the basis that the zoning requirement quoted above
   established a definitive responsibility criterion with which Harwood did
   not provide evidence of compliance prior to award. See PFC's Comments at
   2-4; JDL's Comments at 9-22.

   The protesters' arguments are premised on the assumption that the SFO's
   zoning provision established a definitive responsibility criterion that
   required each offeror to have obtained the necessary approval prior to
   award so as to ensure that zoning would not be an impediment to contractor
   compliance with SFO performance requirements. We need not consider the
   specifics of the protesters' arguments concerning Harwood's alleged
   failure to meet the solicitation's zoning requirements because we find
   that, contrary to the protesters' contentions, the provision does not
   establish a definitive responsibility criterion.

   A definitive responsibility criterion is a specific and objective
   standard, qualitative or quantitative, that is established by a
   contracting agency in a solicitation to measure an offeror's ability to
   perform a contract. In order to be a definitive responsibility criterion,
   the solicitation provision must reasonably inform offerors that they must
   demonstrate compliance with the standard as a precondition to receiving
   award. SDA, Inc.--Recon., B-249386.2, Aug. 26, 1992, 92-2 CPD para. 128 at
   2-3.

   Here, the zoning provision cited by the protesters is not, in our view,
   sufficiently specific to establish a definitive responsibility criterion;
   rather, the provision essentially requires, in general terms, that each
   offeror comply with unspecified and unidentified "local zoning laws."
   Further, the provision does not in any way reasonably inform offerors that
   the SFO imposes on offerors mandatory compliance with a specifically
   identified zoning law as a definitive precondition for award. SDA,
   Inc.--Recon., supra. Rather, as GSA and the intervenor argue, this zoning
   provision concerns the agency's determination of the general
   responsibility of the awardee, that is, its ability to perform the
   contract consistent with all legal requirements. In this regard, it is
   clear that the SFO provision is not a matter of technical acceptability,
   since evidence of compliance with zoning laws was not a technical
   evaluation factor; compliance with the solicitation's general requirement
   for zoning approval could be satisfied by the offeror as late as the time
   of performance. VA Venture; St. Anthony Med. Ctr., Inc., B-222622,
   B-222622.2, Sept. 12, 1986, 86-2 CPD para. 289 at 4-5.

   The real question, then, is whether GSA should have found Harwood to be
   nonresponsible. Because the determination that an offeror is capable of
   performing a contract is largely committed to the contracting officer's
   discretion, GAO generally will not consider protests challenging
   affirmative determinations of responsibility except under limited,
   specified exceptions. Bid Protest Regulations, 4 C.F.R. sect. 21.5(c)
   (2005); Verestar Gov't Servs. Group, B-291854, B-291854.2, Apr. 3, 2003,
   2003 CPD para. 68 at 3-4. One specific exception is where a protest
   identifies "evidence raising serious concerns that, in reaching a
   particular responsibility determination, the contracting officer
   unreasonably failed to consider available relevant information or
   otherwise violated statute or regulation." Id. This includes protests
   where, for example, the protest includes specific evidence that the
   contracting officer may have ignored information that, by its nature,
   would be expected to have a strong bearing on whether the awardee should
   be found responsible. Verestar Gov't Servs. Group, supra, at 4; Universal
   Marine & Indus. Servs., Inc., B-292964, Dec. 23, 2003, 2004 CPD para. 7 at
   2.

   While both protests were sufficient to satisfy the threshold requirement
   that a protest raise serious concerns that the contracting officer may
   have failed to consider relevant responsibility information suggesting
   that Harwood would not be able to obtain the necessary special exception,
   the fully developed record in this case shows that the protesters'
   challenge is unfounded; the record shows that the contracting officer did
   consider the available information furnished in Harwood's offer and
   reasonably determined Harwood's capability to perform.

   In this regard, the record shows that the contracting officer was aware
   of, and specifically considered, the fact that, although Harwood's offered
   site currently was zoned for light manufacturing permitting office space
   no greater than 20,000 square feet, local zoning laws permitted use of the
   site for the proposed SSA building with special exception. In this
   connection, Harwood's proposal disclosed the zoning status of Harwood's
   proposed site, and Harwood described the process it intended to follow to
   obtain the special exception from the City of Roanoke. The contracting
   officer reports that he considered the likelihood of Harwood obtaining the
   special exception approval in the context of Harwood's representations of
   a probable rezoning by the City of Roanoke of its offered site from light
   manufacturing to industrial permitted use development, such that office
   buildings larger than 20,000 square feet would be permitted as of right.
   The contracting officer therefore concluded that Harwood had submitted
   acceptable evidence of its capability to perform. CO Statement of Facts at
   2.

   There simply is nothing in the record here to suggest that there was
   countervailing information reasonably known to the contracting officer at
   the time he was making his responsibility determination that should have
   created doubt as to Harwood's ability to obtain all necessary and
   applicable zoning approvals for its offered site. Under these
   circumstances, given all of the information available to the contracting
   officer, it is clear from the record not only that the contracting officer
   considered the information in Harwood's offer that PFC and JDL argue was
   ignored, but also that its significance was reasonably considered in
   conjunction with the overall information he obtained supporting the firm's
   responsibility. Further, we will not consider the protesters' claim that
   the post-award denial by the local zoning board of Harwood's application
   for special exception establishes that the contracting officer's
   affirmative responsibility determination was unreasonable; whether a
   contractor in fact  performs in accordance with solicitation requirements
   is a matter of contract administration that is the responsibility of the
   contracting agency and is not for consideration by our Office. 4 C.F.R.
   sect. 21.5(a); see AJT & Assocs., Inc., B-284305, B-284305.2, Mar. 27,
   2000, 2000 CPD para. 60 at 5-6.

   The protests are denied.

   Anthony H. Gamboa
   General Counsel