TITLE:  Great South Bay Marina, Inc., B-296335, July 13, 2005
BNUMBER:  B-296335
DATE:  July 13, 2005
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   Decision

   Matter of: Great South Bay Marina, Inc.

   File: B-296335

   Date: July 13, 2005

   Dominic S. Rizzo, Esq., for the protester.

   Anthony R. Conte, Esq., Department of the Interior, for the agency.

   Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
of the General Counsel, GAO, participated in the preparation of the
decision.

   DIGEST

   1.  Government Accountability Office (GAO) has jurisdiction over protest
of award of National Park Service concession contract where prospectus, in
addition to authorizing contractor to furnish concession services,
requires contractor to furnish construction and rehabilitation services
valued at over $1 million to the government.

   2.  Where agency refuses to furnish an agency report responding to a
protest, GAO will decide protest on the basis of the documents available,
even if that record is limited to documents submitted by protester.

   3.  Protest challenging agency's conclusion that awardee's proposal
represented the best value to the government is denied where protester
generally asserts that its offer is superior to awardee's but offers no
specific or detailed argument, beyond a description of its proposal in one
area (financial capability), to establish that the agency unreasonably
concluded that its proposal did not represent the best value.

   DECISION

   Great South Bay Marina, Inc. protests the National Park Service's (NPS)
award of a concession contract to Fire Island Concessions, LLC under
prospectus No. CC-FIIS007-05, for concession services at Fire Island
National Seashore.

   We deny the protest.

   JURISDICTION

   The Department of the Interior notified our Office 1 day prior to the due
date for submission of the agency's report on Great South Bay Marina's
protest that it is the agency's position that NPS "concession contracts
are not procurement contracts for goods or services," and, as such, are
outside the scope of our bid protest jurisdiction under the Competition in
Contracting Act of 1984 (CICA), 31 U.S.C. Sections 3551-3556 (2000),
amended by the Ronald W. Reagan National Defense Authorization Act for
Fiscal Year 2005, Pub. L. No. 108-375, Section 326, 118 Stat. 1811
(2004).  Letter from the Department of the Interior to GAO, May 26, 2005,
at 1.  The agency, relying on its analysis of our Office's jurisdiction,
therefore declined to submit a report responding to the protest, a matter
that we address separately below.  For the reasons set out here, we
disagree with the agency regarding our jurisdiction over the protest.

   In support of its position that we lack jurisdiction, the agency asserts
that concession contracts do not procure goods or services for the benefit
of the government, as required for exercise of our jurisdiction pursuant
to CICA, but rather authorize third parties to provide services to park
visitors.  We agree that our Office lacks jurisdiction to consider a
protest challenging the award of a "pure" concession contract--that is,
one that merely authorizes a concessionaire to provide services to park
visitors.  We have long recognized, however, that some NPS "concession"
contracts are hybrids, and require the delivery of goods and/or services
to the government, in addition to authorizing the contractor to provide
services to park visitors.  See, e.g., Shields & Dean Concessions, Inc.,
B-292901.2, B-292901.3,

   Feb. 23, 2004, 2004 CPD Paragraph 42, recon. denied, B-292901.4, Mar. 19,
2004, 2004 CPD

   Paragraph 71 (concessionaire required to provide maintenance, repair and
other services for government facility as well as facility improvement
valued at over $800,000); Starfleet Marine Transp., Inc., B-290181, July
5, 2002, 2002 CPD Paragraph 113 (concessionaire for ferryboat services
required to provide janitorial services for agency's docks and piers,
equip ferries with public address systems for use by Park Ranger, and
provide transportation for Park Ranger).  It has consistently been our
Office's view that a mixed transaction that includes the delivery of goods
or services of more than de minimis value to the government is a contract
for the procurement of property or services within the meaning of CICA. 
Starfleet Marine Transp., Inc., supra, at 6.

   In arguing that we lack jurisdiction, the agency relies on the House and
Senate committee reports that accompanied the NPS Concessions Management
Improvement Act of 1998, Pub. L. No. 105-391, Sections 401-419, 112 Stat.
3503-18 (1998), which expressed the view that concession contracts do not
constitute "contracts for the procurement of goods and services for the
benefit of the government or otherwise."  S. Rep. No. 105-202, at 39
(1998); H. R. Rep. No. 105-767, at 43 (1998).  As we noted in Starfleet
Marine Transp., Inc., supra, at 7, however, committee report language is
not binding legal authority.  Further, it is not clear that in stating
that concession contracts are not contracts for the procurement of goods
or services for the government, the committees envisioned the sort of
"concession-plus" contract at issue here, i.e., mixed transactions that
include the delivery of goods or services to the government.

   The agency also points to the fact that NPS regulations provide that
"concession contracts are not contracts within the meaning of 41 U.S.C.
601 et seq. (the Contract Disputes Act) and are not service or procurement
contracts within the meaning of statutes, regulations or policies that
apply only to federal service contracts or other types of federal
procurement actions."  36 C.F.R. Section 51.3.  Again, we have previously
considered this argument, noting in Starfleet that NPS cannot by
regulation limit the authority of our Office to decide protests and that
it is our Office, not NPS, that has interpretive authority over the bid
protest provisions of CICA.  Starfleet Marine Transp., Inc., supra, at 7. 
Further, regarding the agency's argument that both the U.S. District Court
and the Court of Appeals upheld this regulation against a facial
challenge, see Amfac Resorts, LLC v. Dept. of the Interior, 142 F. Supp.
2d 54 (D.D.C. 2001) and Amfac Resorts, LLC v. Dept. of the Interior, 282
F. 3d 818 (D.C. Cir. 2002), we note that the decision of the Court of
Appeals was subsequently vacated by the Supreme Court--and that the
Supreme Court pointed out that NPS was not the agency empowered to
administer the procurement statute at issue in the case (the Contract
Disputes Act) and that the NPS regulation was therefore "nothing more than
'a general statemen[t] of policy' designed to inform the public of NPS'
views on the proper application of the [Contract Disputes Act]."  National
Park Hospitality Ass'n v. Dept. of the Interior, 538 U.S. 803, 809 (2003).

   We continue to be of the view that where a contract authorizing the
provision of concession services also requires the delivery of goods or
services of more than de minimis value to the government, the contract is
one for the procurement of property or services within the meaning of
CICA, and, as such, is encompassed within our bid protest jurisdiction. 
Great South Bay Marina, Inc., B-293649, May 3, 2004, 2004 CPD Paragraph
108 at 2.  At the same time, it has always been--and remains--our view
that concession contracts that do not require the delivery of goods or
services to the government (or that require the delivery of goods or
services of only de minimis value to the government) are not contracts for
the procurement of property or services within the meaning of CICA and do
not fall within our Office's bid protest jurisdiction.  White Sands
Concessions, Inc., B-295932, Mar. 18, 2005, 2005 CPD Paragraph 62, recon.
denied, B-295932.2, Apr. 12, 2005; Crystal Cruises, Inc.,

   B-238347, Feb. 1, 1990, 90-1 CPD Paragraph 141 at 2, aff'd, B-238347.2,
June 14, 1990,

   90-1 CPD Paragraph 560.

   In this case, in addition to authorizing the contractor to furnish
concession services on Fire Island, the prospectus requires the contractor
to invest not less than $1,259,000 in building rehabilitation and
improvements over the first 5 years of the contract.  The scope of the
required rehabilitation and improvement work and the timetable on which it
is to be performed are spelled out in great detail in the prospectus; the
work includes, for example, the replacement of dock sections (4,096 square
feet per year for the first 5 years of the contract) at the NPS marina and
the replacement of roofs, siding, and doors on concession facilities (all
work to be completed in first year of contract).  Prospectus at Exhibit B,
p. 16.  Since the prospectus here clearly requires the concessionaire to
furnish goods and services of more than de minimis value to the government
in addition to authorizing it to provide concession services, we find that
Great South Bay Marina's protest falls within our jurisdiction.

   THE AGENCY'S FAILURE TO FURNISH A REPORT

   Our authority under CICA encompasses written objections by interested
parties to an award or proposed award of a contract for the procurement of
property or services.  31 U.S.C. Section 3551(1).  CICA requires that when
such a protest is filed with our Office, the contracting agency submit a
complete report on the protested procurement to our Office within 30 days
after receiving notice of the protest from us.  31 U.S.C. Section
3553(b)(2).  We find that the NPS's failure to submit a report to our
Office in this matter violated CICA.

   CICA requires that our Office decide protests timely filed by interested
parties, so long as the protests state a valid basis and are within our
Office's jurisdiction.  The agency's report to our Office is a key element
in our Office's resolution of bid protests.  A contracting agency is free
to request that our Office dismiss a protest on the basis of a lack of
jurisdiction, or for failure to state a valid basis, untimeliness, or
other reasons, and agencies do that regarding hundreds of protests each
year.

   It was improper for the agency here to refuse to provide a report to our
Office.  It is for our Office, not the contracting agency, to determine
whether a protest is within our jurisdiction, just as it is for our
Office, not the contracting agencies, to determine whether a protest is
timely and states a valid basis.  CICA requires contracting agencies to
furnish a report to our Office, 31 U.S.C. Section 3553(b)(2), and we
therefore conclude that the NPS's failure to do so violates CICA. 
Moreover, the NPS's improper action impedes our Office's ability to
fulfill the adjudicatory function mandated by CICA.  For this reason, we
are, by letters of today, reporting the agency's improper action to the
Senate Committee on Homeland Security and Governmental Affairs, the Senate
Appropriations Committee, the House Committee on Government Reform, and
the House Appropriations Committee.

   Given the agency's refusal to submit a report in response to the protest,
CICA's mandate that we resolve protests filed by interested parties means
that we are deciding this case based on the documentation submitted by the
protester.[1]  Alliance Properties, Inc., B-217544, Oct. 16, 1985, 85-2
CPD Paragraph 413 at 2.  While, as explained below, we are denying this
protest, where a protest indicates that a contracting agency has violated
procurement law to the prejudice of the protester, and the agency provides
no rebuttal or documents supporting its action, our Office will sustain
the protest.  See, e.g., Alliance Properties, Inc., supra.  Moreover,
where we have sustained a protest in these circumstances, we are not
inclined to reconsider the matter where the contracting agency bases a
request for reconsideration on information that it could have presented
during our initial consideration of the protest but chose not to do so. 
Department of the Navy--Recon., B-220991.2,

   Dec. 30, 1985, 85-2 CPD Paragraph 728.

   PROTEST MERITS

   The protester asserts generally that rejection of its proposal was
arbitrary and irrational.  The protester further contends that award to
Fire Island Concessions will give that firm an improper monopoly over
business conducted on Fire Island since the principal of Fire Island
Concessions also has the concession for ferry transportation to the
island.

   In its letter notifying the protester of the award to Fire Island
Concessions, the agency explained the basis for its determination that
Fire Island Concessions' proposal represented the best offer as follows:

   [Fire Island Concessions] showed great detail in their plans to minimize
the impact upon the environment, commitment to save fresh water and a more
comprehensive risk management plan.  Fire Island Concessions also
demonstrated a more thorough understanding of the Maintenance Plan and
also provided Best Management Practices for recycling, and submitted
better evidence in support of their principals' credit worthiness and
experience.

   Letter from Agency to Protester, Apr. 18, 2005.

   In support of its general assertion that the evaluation of its proposal
was arbitrary and irrational, the protester states only that "[a]ll issues
raised in the letter rejecting [Great South Bay Marina's] bid were not
bona fide concerns as it was clear in the bid that the finances were
committed by [the president of Great South Bay Marina] and that the
required capital improvements were, likewise, committed to as well as the
full expenditure of the required amount for capital improvements at Fire
Island." Protest at 3.  In its subsequent comments, the protester again
discusses the financial condition of Great South Bay Marina and its
principal owner, and asserts generally that it "is confident that its bid
was superior to the bid submitted by Fire Island Concessions, LLC, and
disclosure of the grading sheets and additional comments of the review
panel would substantiate such fact."[2]  Comments at 6.  We recognize that
Great South Bay Marina lacks access to the evaluation record here due to
the agency's failure to respond to the protest.  Even under these
circumstances, however, to prevail in its protest Great South Bay Marina
must at a minimum offer some explanation as to why its proposal, rather
than the awardee's, represents the best value to the government.  In this
regard, our Bid Protest Regulations require that a protest set forth a
detailed statement of the legal and factual grounds of protest.  4 C.F.R.
Section 21.1(c)(4) (2005).  The information providing the basis for such a
statement (i.e., the prospectus and its proposal) is in the protester's
possession.  Nevertheless, Great South Bay Marina has offered no
discussion of its proposal beyond a description of the firm's financial
condition, and has made no attempt to tie the features of its proposal to
the numerous technical evaluation factors set out in the prospectus.[3] 
Similarly, while the agency's letter to Great South Bay Marina announcing
the award decision lists a number of areas in which the awardee's proposal
was found superior to the protester's, Great South Bay Marina has not
attempted to explain why the agency's conclusions are unreasonable. 
Accordingly, given the protester's failure to address with any level of
detail the merits of its proposal, there simply is no basis to conclude
that the selection of the awardee's proposal instead of Great South Bay
Marina's as the best value was improper.

   Finally, as noted above, the protester asserts that the award of this
concession contract gives rise to an illegal monopoly because the awardee
also has the concession contract for ferry service to Fire Island.  The
protester does not explain the precise basis for its contention that the
award of both contracts to the same firm is improper, but to the extent
that Great South Bay Marina is asserting an antitrust violation, such
matters are for review by the Department of Justice, not our Office
pursuant to our bid protest function.  The Nat'l Bank of Fort  Sam 
Houston, B-212719, Feb. 14, 1984, 84-1 CPD Paragraph 192 at 7.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] Upon receipt of the agency's letter declining to furnish a report, we
gave both parties the opportunity to supplement the record.  The protester
furnished us with copies of the prospectus and its proposal, as well as
its comments; the agency did not furnish anything additional.

   [2] Great South Bay Marina also describes at length the efforts of Great
South Bay Marina's principal to provide assistance in New York City on
September 11, 2001.  While laudable, these efforts are not relevant to the
evaluation of Great South Bay Marina's proposal here.

   [3] The prospectus set out five "principal selection factors" and one
"secondary selection factor."  The factors called for evaluation of
proposals in many areas, including the offeror's plans for protecting the
natural resources of the park area, its maintenance plan, its risk
management plan, the past performance and experience of the offeror and
its personnel, and its financial capability.