TITLE: B-298086; B-298086.3, Bristol Group, Inc.--Union Station Venture, May 30, 2006
BNUMBER: B-298086; B-298086.3
DATE: May 30, 2006
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B-298086; B-298086.3, Bristol Group, Inc.--Union Station Venture, May 30, 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: Bristol Group, Inc.--Union Station Venture

   File: B-298086; B-298086.3

   Date: May 30, 2006

   Robert C. MacKichan, Jr., Esq., Kristen E. Ittig, Esq., and Stuart Turner,
   Esq., Holland & Knight LLP, for the protester.

   Sharon Roach, Esq., Edith L. Toms, Esq., and Elizabeth A. Hall, Esq.,
   General Services Administration, 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

   1. Elimination of protester's offer from competitive range was
   unobjectionable where agency reasonably concluded that protester's offered
   building did not meet solicitation requirement for provision of employee
   service-related amenities within stated walkable distance.

   2. Protest that agency improperly rejected protester's offer based on
   undisclosed criteria and tenant's dislike of neighborhood is denied where
   record shows evaluation was conducted in accordance with solicitation
   requirements.

   DECISION

   Bristol Group, Inc.--Union Station Venture protests the rejection of its
   offer for failure to meet the location amenities requirement in
   solicitation for offers (SFO) No. 05-019, issued by the General Services
   Administration (GSA) for office space for the Surface Transportation Board
   (STB). Bristol challenges GSA's evaluation of its proposed amenities.

   We deny the protest.

   The SFO sought up to 74,870 rentable square feet for STB, to be located in
   the Central Employment Area of Washington, D.C. The SFO provided as
   follows regarding the location amenities:

     A variety of inexpensive and moderately priced fast food and/or eat in
     restaurants must be located within 2,500 walkable linear feet [WLF] and
     other employee services such as retail shops, cleaners, banks, etc.,
     must be located within 2,500 [WLF].

   SFO para. 1.3(c).

   Bristol submitted an offer in response to the SFO for its building at One
   NoMa Station, on M Street, N.E., in Washington, D.C. After reviewing
   Bristol's offer, GSA requested additional information as to how the firm
   planned to meet the SFO's requirements, and requested a listing of the
   amenities and their distance from the offered building. Bristol responded
   with a list of amenities that included establishments located at Union
   Station, and stated that all were within 2,500 WLF of its building, but
   did not list the actual distances. GSA performed its own measurements,
   determined that Bristol's building did not meet--and was not capable of
   meeting--the location amenities requirement, and rejected Bristol's offer.
   Bristol challenged the rejection in an agency-level protest, asserting
   that the agency erroneously determined that its building was farther than
   2,500 WLF from the amenities of Union Station. GSA denied the protest,
   noting that its measurements showed that the amenities inside Union
   Station were not within the required 2,500 WLF. Bristol then filed this
   protest with our Office.

   Bristol asserts that GSA improperly rejected its offer based on an
   unreasonable determination that its building did not meet the amenities
   requirement. Specifically, Bristol asserts that its building is within
   2,500 WLF of the amenities located at Union Station.[1]

   The determination of whether a proposal is in the competitive range is
   principally a matter within the reasonable exercise of discretion of the
   procuring agency. In reviewing an agency's evaluation of proposals and
   subsequent competitive range determination, we will not evaluate the
   proposals anew in order to make our own determination of their
   acceptability or relative merits; rather, we will examine the record to
   determine whether the documented evaluation was fair, reasonable, and
   consistent with the evaluation criteria. Ervin & Assocs., Inc., B-280993,
   Dec. 17, 1998, 98-2 CPD para. 151 at 3.

   Bristol's assertions are without merit; the record shows that Union
   Station and its amenities are more than 2,500 WLF from Bristol's building.
   GSA's broker in this procurement--Capitol CREAG, LLC--used a walking-wheel
   to measure the distance from Bristol's building to Union Station and the
   other amenities identified by Bristol. The broker's initial measurement
   was made from the south entrance of Bristol's building, down First Street,
   N.E. Declaration of Managing Director para. 6. The broker reached 2,500
   WLF at the northwest corner of First and G Streets, approximately 200 feet
   from the First Street entrance to the Union Station Metro stop. Id.
   para. 11. The broker repeated its measurements after the protest was
   filed. From Bristol's main entrance to the Union Station Metro entrance,
   the broker recorded 2,985 WLF, plus another 264 feet to reach the first
   Union Station amenity--the Au Bon Pain counter--for a total of 3,249 WLF.
   Declaration of Realty Specialist paras. 7-10. In a subsequent measurement,
   from the rear entrance of Bristol's building to the far northwest Metro
   entrance at Union Station, the broker recorded 2,706 WLF. Id.
   paras. 13-15. From that point, the broker measured an additional 264 feet
   to Au Bon Pain, 325 feet to Sbarro's Pizza, 335 feet to the Corner Bakery,
   and 507 feet to the Station Grill, the first sit-down service restaurant
   in Union Station. Id. paras. 16-17.

   Bristol challenges GSA's method for measuring distances. First, Bristol
   asserts that the measurement should have been to the Union Station
   entrance, rather than to the amenities themselves (within Union Station),
   which Bristol concedes are several hundred WLF from the entrance. First
   Supplemental Protest at 3. This argument is without merit. The plain
   language of the SFO requires that the amenities be within 2,500 WLF. GSA
   explains that the 2,500 WLF requirement was designed to ensure that
   employees and clients of STB could walk to places to eat and/or do errands
   within 30 minutes. Since, by GSA's estimation, it takes an average person
   7.5 minutes to walk 2,500 feet, amenities located at the edge of this
   distance would require a 15-minute round-trip to reach, leaving only
   15 minutes to eat and/or do errands. Contracting Officer's Statement
   para. 7. Particularly in light of the SFO language, we see nothing
   unreasonable in the agency's measuring the applicable WLF up to the
   amenities themselves, rather than to an access door several hundred
   feet--and additional travel time--away.

   Even if the SFO requirement applied only to the entrance to Union Station,
   GSA's measurement, as explained above, indicated that Bristol's building
   was unacceptable. While Bristol asserts that GSA's Union Station
   measurements are suspect, it does not explain how GSA's measurements are
   inaccurate, nor does it provide any alternative measurements that fall
   within the SFO requirements. See Initial Comments at 9. Bristol's agent
   states that it measured using a walking-wheel and found that the distance
   between a "street-level entry door from one of [its building's] two main
   lobbies to the east entrance of Union Station [was] under 2,500 [WLF],"
   Declaration of Agent para. 5, but does not provide any specific
   measurements. In our view, Bristol has not shown that GSA's measurements
   to the entrance of Union Station are incorrect. We conclude that the
   agency reasonably determined that Bristol's building does not meet the SFO
   amenities requirement, and therefore reasonably rejected its offer.[2]

   Bristol also asserts that the agency improperly determined that no
   building in Bristol's neighborhood would be compliant. Specifically, it
   notes that STB had expressed reservations about the area and wanted hotels
   and eat-in restaurants, amenities not required by the SFO. Since the
   contracting officer originally planned to eliminate any buildings in the
   area without evaluating them, Bristol asserts, the rejection of its offer
   on the basis of failing to meet the amenities requirement was only a
   pretext. This argument is not supported by the record. While STB was
   concerned with the number and quality of the amenities and had expressed a
   desire for higher quality amenities than provided for in the SFO, the
   decision to reject Bristol's offer was based on an evaluation that showed
   that Bristol's building did not meet the SFO's requirements.[3]

   Specifically, during the evaluation, the contracting officer first sought
   specific information from Bristol itself on the location and WLF distances
   for any amenities. Even though Bristol did not provide the distances to
   its listed amenities, the contracting officer ordered measurements to be
   made to each of them in order to determine which lay within the required
   2,500 WLF. This investigation revealed that a number of the amenities,
   including those at Union Station, were too far away to meet the SFO's
   requirement. Others were within 2,500 WLF, but were found not to provide
   the variety of food and non-food related amenities required by the SFO.
   For example, while there was a variety of food-related
   amenities--primarily fast food restaurants--there was not a variety of
   other amenities such as retail shops, cleaners, and banks, as required by
   the SFO.[4] In this regard, while there were two bank branches, there was
   no dry cleaner, fitness center or health club, drug or convenience store,
   or any other type of retail establishment. Contracting Officer's Statement
   para. 21. Although there was a daycare center at the FERC offices, there
   was a waiting list of 117 children and only nine openings were available
   in the past year. Id. The contracting officer also considered that Bristol
   proposed to lease space to a vendor that would provide a cafe/sundry/dry
   cleaning shop. However, at the time of its offer, Bristol was still
   searching for "such an amenity" (AR, Tab 13), and the contracting officer
   concluded that this was too speculative to rely upon. Contracting
   Officer's Statement para. 14. In addition, the contracting officer ordered
   a survey of proposed development in the area. Although much new
   construction, including various amenities, was proposed for the area, none
   was expected to be completed by the time STB was expected to take
   occupancy.

   We conclude that the agency's actions establish that Bristol's offer was
   rejected based on a reasonable evaluation; the agency's investigation
   established a lack of sufficient employee service amenities within the
   required proximity of Bristol's building, which fully supports the
   reasonableness of the contracting officer's determination that Bristol's
   offer was unacceptable and not capable of becoming acceptable.

   Bristol asserts that the contracting officer ignored certain proposed
   development in the area, and that his determination therefore was
   unreasonable. We disagree. Nothing in the SFO provided that the agency
   would investigate potential development of amenities, and Bristol's offer
   did not reference or rely on other planned development in the area to
   establish that it met the SFO's requirements. Further, with the exception
   of two restaurants proposed in a nearby building, even Bristol's protest
   submissions fail to establish that any other amenities will be completed
   by the time of STB's projected occupancy. It was Bristol's responsibility
   to establish that it met the SFO's requirements. While agency evaluators
   may consider evidence from sources outside the proposals--Continental
   Maritime of San Diego, Inc., B-249858.2, B-249858.3, Feb. 11, 1993, 93-1
   CPD para. 230 at 6--agencies are not obligated to go in search of
   information that the offeror has omitted or failed to adequately present.
   Source One Mgmt., Inc., B-278044.4, B-278044.6, June 12, 1998, 98-2 CPD
   para. 11 at 10 n.9.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

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

   [1] In its April 20, 2006 comments on the agency report, Bristol for the
   first time asserts that it meets the requirement based on other amenities
   listed in its response to GSA's discussion questions. These included
   amenities planned for its own building (cafe, sundry, and dry cleaning
   shop), as well as fast-food restaurants, banks, and amenities at the
   Federal Energy Regulatory Commission (FERC) building. Under our Bid
   Protest Regulations, protests based on other than solicitation
   improprieties must be filed within 10 days of when the protester knew or
   should have known their bases. 4 C.F.R. sect. 21.2(a)(2) (2006). Further,
   where a protester initially files a timely protest, either with our Office
   or at the agency, and later supplements it with independent grounds of
   protest, the later-raised allegations must independently satisfy the
   timeliness requirements. FR Countermeasures Inc., B-295375, Feb. 10, 2005,
   2005 CPD para. 52 at 9. In its March 6, 2006 denial of Bristol's
   agency-level protest, GSA provided a detailed explanation of its reasons
   as to why these additional amenities did not meet the SFO's requirements.
   Agency Report (AR), Tab 24. Since Bristol did not challenge the agency's
   reasoning until April 20, more than 10 days later, its protest on this
   ground is untimely and will not be considered.

   [2] Our conclusion is not changed by the fact that GSA recently awarded
   Bristol a lease for space in its offered building under an SFO that
   required amenities within 2,000 WLF. GSA explains that, in addition to the
   2,000 WLF amenities requirement in that SFO, the leased space also was
   required to be within 3 to 5 blocks of another building and provide
   approximately 10,000 square feet of raised flooring for the tenant
   agency's backup computer group. Contracting Officer's Statement para. 20.
   Bristol's offer, which certified its intention and ability to meet the
   amenity requirement, was the only one that could meet the 3 to 5 block
   proximity restriction. Id. In any case, each federal procurement stands on
   itsown, so the fact that Bristol was found compliant for the purposes of
   award of a similar lease did not render GSA's evaluation improper in this
   case. Sabreliner Corp., B-275163 et al., Dec. 31, 1996, 96-2 CPD para. 244
   at 2 n.2.

   [3] Bristol notes that the contracting officer's determination to reject
   its offer was not contained in a formal decision document. Comments on the
   Supplemental AR at 3. In reviewing a protest, we will consider, in
   addition to the contemporaneous documentation, all information provided to
   our Office for consideration during the protest, including the parties'
   arguments and explanations, so long as the information is credible and
   consistent with the contemporaneous record. NWT, Inc.; PharmChem Labs.,
   Inc., B-280988, B-280988.2, Dec. 17, 1998, 98-2 CPD para. 158 at 16. Here,
   the agency's post-protest explanations simply fill in previously
   unrecorded details and are consistent with the contemporaneous record.
   Accordingly, we have no basis to conclude that the contracting officer's
   statement is not an accurate representation of the decision-making process
   and determination.

   [4] Bristol also asserts that since the amenities requirement provided for
   a "variety of . . . fast food and/or eat-in restaurants," eat-in
   restaurants were optional, so that it was improper for the contracting
   officer to reject its offer for failure to have a variety of that type of
   restaurant. While the phrasing of the amenities requirement apparently
   makes the provision of either type of restaurant acceptable, Bristol was
   not prejudiced by any error on the part of the contracting officer, since
   the absence of other amenities made its offer unacceptable in any event.