TITLE: B-298082, Paramount Group, Inc., June 15, 2006
BNUMBER: B-298082
DATE: June 15, 2006
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B-298082, Paramount Group, Inc., June 15, 2006

   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: Paramount Group, Inc.

   File: B-298082

   Date: June 15, 2006

   Kevin P. Mullen, Esq., and David E. Fletcher, Esq., DLA Piper Rudnick Gray
   Cary LLP, for the protester.

   Robert C. MacKichan, Jr., Esq., Stuart W. Turner, Esq., and Kristen E.
   Ittig, Esq., Holland & Knight LLP, for Bristol Group, an intervenor.

   Edith Toms, Esq., and Elizabeth A. Hall, Esq., General Services
   Administration, for the agency.

   Jonathan L. Kang, Esq., and Michael R. Golden, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging solicitation's terms as unduly restrictive of
   competition is denied where agency demonstrates a reasonable basis for
   required approach to lease of office space and information provided in the
   solicitation is adequate to allow for submission of offers.

   DECISION

   Paramount Group, Inc. protests the terms of solicitation for offers (SFO)
   No. 06-011, issued by the General Services Administration (GSA) for the
   lease of office space to be occupied by the Department of Homeland
   Security (DHS), Immigration and Customs Enforcement Agency (ICE). The
   protester contends that the solicitation is unduly restrictive of
   competition.

   We deny the protest.

   BACKGROUND

   The SFO seeks offers for the lease by GSA of up to 403,847 square feet of
   office space in Washington, DC on behalf of ICE. GSA currently leases
   office space for ICE in the Chester A. Arthur Building (CAB), 425 I
   Street, N.W., Washington, DC.[1] Paramount is the current owner of the CAB
   and the incumbent lessor to GSA.

   The SFO states that offers will be evaluated on the basis of three
   non-price technical factors, in descending order of importance: building
   characteristics, location, and key personnel and past performance. SFO
   sect. 2.3. The SFO states that the award will be made to the offeror
   "whose offer will be most advantageous to the Government and provides the
   best value to the Government." Id. In selecting the successful offer,
   "price is of significantly less importance than the combined weight of the
   technical factors." Id. The SFO anticipates a lease of 10 years, with an
   option for lease extension by the government after the eighth year. SFO at
   7.

   The SFO requires offerors to propose office space located within specified
   boundary areas in Washington, DC, that provides parking and access to
   metrorail and other amenities. SFO sections 1.2, 1.3. The competition will
   take place in two phases. In the first phase of the competition, offerors
   must submit offers for office space provided as a building shell with
   basic construction elements, but without tenant improvements such as
   completed interior office space. SFO sect. 1.9. The parties refer to this
   standard by the common commercial term "warm lit shell." Offerors are
   required to propose the office space with the following features:

     Base structure and building enclosure components shall be complete. All
     common areas accessible by the Government, such as lobbies, fire egress
     corridors and stairwells, elevators, garages, and service areas, shall
     be complete. Restrooms shall be complete and operational. All newly
     installed building shell components, including but not limited to
     heating, ventilation, and air conditioning (HVAC), electrical, ceilings,
     sprinklers, etc., shall be furnished, installed, and coordinated with
     Tenant Improvements.

   SFO sect. 1.9.A.1.

   In their offers for the warm lit shell, offerors must propose a basic
   price per square foot for space, with an allowance for tenant
   improvements. This allowance is an established rate of $38.30 per square
   foot set by the SFO for all offerors, and will be used by the lessor to
   build the tenant improvements, as directed by the agency, prior to
   occupancy. SFO sections 1.10, 1.15; Supplemental Agency Memorandum of Law
   at 6-7. Based on the initial offers for the warm lit shell, GSA will
   select offerors for a competitive range. SFO sect. 1.8(B)(2).

   In the second phase of the competition, offerors selected for the
   competitive range will be provided additional information, including the
   program of requirements (POR), and will be required to conduct "test fits"
   of their space to determine which offeror provides the most efficient
   utilization of space for the government's needs. Id.; Contracting
   Officer's Statement para. 15.

   The SFO also contains provisions that apply only to Paramount, as the
   lessor of ICE's current office space in the CAB. The "Renovation of
   Current Location Alternative" provisions state that the CAB may be
   proposed as office space, provided that the building meets the
   requirements of the SFO. SFO sect. 1.21. These provisions require
   Paramount to renovate the CAB by demolishing existing tenant improvements,
   thereby providing the CAB as a warm lit shell in accordance with the SFO.
   Id. As part of the renovation process, Paramount must provide "swing
   space" for ICE, that is, provide temporary space for ICE during the
   renovation of the CAB, and conduct the required office moves for ICE
   personnel to and from the swing space during that time. Id.

   Paramount submitted an agency-level protest on January 18, 2006, prior to
   the solicitation closing date, alleging that various SFO requirements and
   the lack of the POR placed it at a competitive disadvantage. The agency
   denied that protest on February 28, 2006, and Paramount then filed a
   timely protest with our Office.

   WARM LIT SHELL REQUIREMENT

   The protester contends that the warm lit shell requirement and the
   "Renovation of Current Location Alternative" provisions place it at a
   competitive disadvantage. The protester argues that the agency has not
   reasonably justified its requirement for a warm lit shell in a way that
   should require Paramount to demolish the existing tenant improvements in
   the CAB. In this regard, Paramount argues that the SFO unreasonably
   prevents it from offering the CAB with its existing tenant improvements
   and from reconfiguring the CAB to satisfy ICE's needs, thereby saving time
   and costs; as a result, the protester contends that the SFO is unduly
   restrictive of competition.

   While a contracting agency has the discretion to determine its needs and
   the best method to accommodate them, those needs must be specified in a
   manner designed to achieve full and open competition. Mark Dunning Indus.,
   Inc., B-289378, Feb. 27, 2002, 2002 CPD para. 46 at 3-4. Solicitations may
   include restrictive requirements only to the extent they are necessary to
   satisfy the agency's legitimate needs. 41 U.S.C. sections 253a(a)(1)(A),
   (2)(B) (2000). Where a protester challenges a specification as unduly
   restrictive of competition, the procuring agency has the responsibility of
   establishing that the specification is reasonably necessary to meet the
   agency's needs. Chadwick-Helmuth Co., B-279621.2, Aug. 17, 1998, 98-2 CPD
   para. 44 at 3. A protester's mere disagreement with the agency's judgment
   concerning the agency's needs and how to accommodate them does not show
   that the agency's judgment is unreasonable. USA Fabrics, Inc., B-295737,
   B-295737.2, Apr. 19, 2005, 2005 CPD para. 82 at 5.

   The agency cites two primary rationales for its requirement for a warm lit
   shell: flexibility for GSA client agencies and facilitation of evaluation
   of competing offers. With regard to the first rationale, the agency
   explains that a warm lit shell standard provides relatively uniform office
   space that allows GSA client agencies, such as ICE, to "focus their design
   efforts on their individual adjacency requirements and on other interior
   layout requirements," rather then "redesign, from scratch, the MEP
   [mechanical, electrical, plumbing] systems, the common areas, standard
   finishes, any fire and life safety related systems, etc." Supplemental
   Agency Memorandum of Law at 4. The warm lit shell also provides a standard
   level of quality that allows agencies to "know[] generally what to expect
   in the way of minimum quality standards in a Government leased location."
   Declaration of GSA Senior Realty Specialist para. 6. The agency states
   that the warm lit shell approach "is the only method of obtaining space
   that will permit ICE to actually design its interiors around its own
   operational needs so that it functions in accordance with its own mission,
   as opposed to functioning around the incumbent's constraints."
   Supplemental Agency Memorandum of Law at 5. In this regard, the agency
   explains that because ICE is comprised of portions of numerous predecessor
   agencies, it now requires the flexibility to reorganize the agency in new
   office space configurations. Contracting Officer's Statement paras. 4,
   8-9.

   With regard to the second rationale, the agency explains that GSA's
   adoption of the warm lit shell standard stems from the agency's efforts in
   the early 1990s to bring the government's leasing practices in line with
   commercial practices, with the goal of attracting increased competition
   from potential commercial offerors. Declaration of GSA Senior Realty
   Specialist para. 5. The agency contends that requiring all offerors to
   offer a basic warm lit shell, without tenant improvements such as
   completed interior office space construction, allows the agency to more
   easily compare offers: "By requiring a uniform `warm, lit shell' and a
   uniform Tenant Improvement allowance (set based on individual tenant needs
   for a given procurement), it is very easy to price compare between offers
   in a procurement." Id. para. 6. The agency contends that allowing
   Paramount to propose its current space without demolition, instead of the
   warm lit shell, would require the agency to provide for a much more
   detailed and complicated competition that specifically evaluates and
   compares the design of each offeror's proposed building and tenant
   improvements. Id. para. 7.

   We believe that the agency has reasonably explained the basis for
   requiring offerors to provide a warm lit shell. Although the protester
   contends that it may be able to provide a more efficient or less costly
   alternative to the warm lit shell requirement, the agency need only
   provide a reasonable basis for its procurement approach, and the
   protester's mere disagreement with the agency's solicitation approach does
   not render the agency's judgment unreasonable.[2] USA Fabrics, supra, at
   5.

   In any event, the government is not required to perpetuate a competitive
   advantage that an offeror may enjoy as the result of its performance of
   the current, or a prior, government contract. Inventory Accounting Serv.,
   B-286814, Feb. 7, 2001, 2001 CPD para. 37 at 4. Conversely, an agency is
   not required to neutralize a competitive advantage that a potential
   offeror may have by virtue of its own particular circumstances where the
   advantage does not result from unfair action on the part of the
   government. Military Waste Mgmt., Inc., B-294645.2, Jan. 13, 2005, 2005
   CPD para. 13 at 4. As long as an agency reasonably identifies its needs
   and allows offerors the opportunity to meet those needs, the fact that an
   offeror may have an advantage based on its ability to more readily meet
   the government's needs, as compared to the protester, does not mean that
   the solicitation is unduly restrictive of competition. See HG Props. A,
   L.P., B-280652, Nov. 2, 1998, 98-2 CPD para. 104.[3]

   In sum, because the agency has demonstrated a reasonable basis for
   requiring offerors to propose a warm lit shell, and because the protester
   does not demonstrate that any competitive disadvantage it might incur is
   based on unfair government action, we deny this ground of protest.[4]

   POR DISCLOSURE

   The protester next argues that the agency unreasonably withheld the POR
   from offerors, and that Paramount is disadvantaged because the absence of
   this information will make it more difficult for the protester to develop
   its offer for a warm lit shell and also to meet the unique requirements of
   the CAB renovation provisions of the SFO.

   The agency contends that offerors do not need the POR to be able to submit
   their offers, stating that the SFO "contain[s] detailed construction
   specifications for the base building and certain generic aspects of the
   tenant improvements, as well as detailed criteria for the evaluation of
   the quality of the building architecture, systems, and construction."
   Contracting Officer's Statement at 6. The POR, in contrast, provides some,
   although not all, of the specifications for the actual tenant
   improvements, such as office space layout and configuration. Contracting
   Officer's Statement at 6-7. With regard to the SFO provisions that apply
   to the renovation of the CAB, the agency also states that there is
   sufficient information for the protester to submit an offer:

     The SFO contains all of the information needed for Paramount to develop
     a plan for the renovation and re-positioning of the base building to
     meet the minimum requirements of the SFO and to improve the competitive
     standing of the building in the procurement, as well as to develop a
     plan for the relocation of a portion of the building occupants into
     temporary swing space and for the phasing of tenant improvement
     construction.

   Contracting Officer's Statement at 6-7.

   Thus, the agency argues, because offerors will be evaluated in the first
   stage of the procurement based on their offers for the warm lit shell in
   accordance with the information contained in the SFO, there is no need for
   offerors to have access to the POR. Furthermore, the agency notes that
   offerors do not need access to the POR to determine their proposed prices
   because the lease rate must be based solely on the warm lit shell, and all
   offerors are required to include the same tenant improvement allowance.
   SFO sections 1.10, 1.15; Supplemental Agency Memorandum of Law at 6-7.

   Although offerors are required to describe their general approach to
   providing the completed office space, and the CAB renovation requirements
   impose additional requirements for Paramount, we believe that it is
   speculative at this point to conclude that Paramount might be evaluated
   based on information that could not have been known without the POR (e.g.,
   downgraded for insufficiently detailing the completed office space or
   phasing of swing space and tenant improvements). The agency has not
   conducted its evaluation of offers or indicated that the protester's offer
   will not be included in the competitive range or otherwise excluded from
   award consideration; thus its protest merely anticipates prejudicial
   agency action and is, therefore, speculative and premature. See Computer
   Assoc. Int'l, Inc., B-292077.2, Sept. 4, 2003, 2003 CPD para. 157. We
   assume that agencies, such as GSA, will conduct procurements in a fair and
   reasonable manner in accordance with the terms of the solicitation, and
   our Office will not consider a protest allegation which speculates that an
   agency will not evaluate proposals in the manner set forth in the
   solicitation. Walmac, Inc., B-244741, Oct. 22, 1991, 91-2 CPD para. 358.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] ICE is the DHS agency with responsibility for investigating threats to
   border security, and for enforcing economic, transportation, and
   infrastructure security laws and regulations. Prior to the creation of
   DHS, the CAB was occupied by one of ICE's predecessor agencies, the
   Immigration and Naturalization Service (INS). In 2003, INS and other
   agencies were reorganized and consolidated into ICE, which assumed INS's
   office space at the CAB.

   [2] Paramount also contends that the SFO provisions affect it more than
   other offerors, because the existing tenant improvements of the CAB could
   have been offered by the protester without incurring the costs of
   demolition. The agency notes, however, that any offeror who has office
   space with current tenant improvements will also be required to demolish
   them to provide a warm lit shell. Thus, Paramount is not uniquely
   disadvantaged by the requirement.

   [3] In HG Properties, our Office concluded that an SFO for leased property
   did not unduly restrict competition merely because it had some provisions
   favoring award to offerors who proposed new construction where the agency
   justified its preference for new construction, and the SFO did not
   preclude the protester, the incumbent lessor, from offering its existing
   property; the fact that the property owned by the incumbent lessor would
   require additional work to meet the agency's requirements did not mean
   that the SFO was unduly restrictive of competition. HG Props. A, L.P.,
   supra, at 4-5.

   [4] Although Paramount challenged in its agency-level protest other SFO
   provisions that apply only to the CAB, such as the swing-space
   requirement, it does not do so in its protest to our Office. Rather,
   Paramount generally refers to these provisions as examples of the
   additional burdens it will bear because of the warm lit shell and
   demolition requirements.