TITLE: B-298110, Bristol Group, Inc.--Union Station Venture, June 2, 2006
BNUMBER: B-298110
DATE: June 2, 2006
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B-298110, Bristol Group, Inc.--Union Station Venture, June 2, 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-298110
Date: June 2, 2006
Robert C. MacKichan, Jr., Esq., Kristen E. Ittig, Esq., and Stuart W.
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
In solicitation for leased space, requirement that offered building be
located within 2,500 walkable linear feet of various amenities is not
unduly restrictive; requirement is reasonably aimed at ensuring that
tenant federal employees will be able to walk to and from eating
establishments and conduct other errands within the time allotted for
lunch.
DECISION
Bristol Group, Inc.--Union Station Venture protests the location amenities
requirement in solicitation for offers (SFO) No. 4DC0275, issued by the
General Services Administration (GSA) for office space for the Department
of Veterans Affairs (VA). Bristol asserts that the requirement is unduly
restrictive and that the agency intends to apply undisclosed evaluation
criteria that could preclude Bristol from receiving award.
We deny the protest.
The SFO sought 88,000 rentable square feet for VA, to be located in the
Central Employment Area of Washington, D.C. The SFO, as amended, provided
as follows regarding the location amenities:
A variety of inexpensive fast food and moderately priced sit-down
cafeteria or table service restaurants must be located within 2,500
walkable linear feet [WLF]; and a variety of other employee services
such as retail shops, cleaners, banks, etc., must be located within
2,500 [WLF]. To meet this requirement, amenities must be existing or the
offeror must demonstrate to the reasonable satisfaction of the
Government (i.e. through evidence of signed leases, construction
contracts, etc.) that such amenities will exist by the Government's
required occupancy date.
SFO, para. 1.3(A)(3). [1]
Bristol submitted an offer for its building at One NoMa Station (NMS) on M
Street, N.E., in Washington, D.C. However, Bristol also filed this
protest, asserting that the proximity requirements in the location
amenities clause are unduly restrictive of competition.
A contracting agency has the discretion to determine its needs and the
best method of accommodating them; we will review the agency's judgment
for reasonableness. Parcel 47C LLC, B-286324, B-286324.2, Dec. 26, 2000,
2001 CPD para. 44 at 7. An agency may include geographic restrictions if
they are reasonably necessary for the agency to meet its minimum needs.
NFI Mgmt. Co., B-240788, Dec. 12, 1990, 90-2 CPD para. 484 at 2. The fact
that a requirement may be burdensome or even impossible for a particular
firm to meet does not make it objectionable if the requirement properly
reflects the agency's needs. Computer Maint. Operations Servs., B-255530,
Feb. 23, 1994, 94-1 CPD para. 170 at 2.
GSA has established that the location amenities requirement reasonably
reflects its actual needs. GSA explains that the types of amenities
specified in the SFO are common in city locations, and that developers
commonly include retail space inside buildings in central employment areas
to accommodate the ordinary and reasonable needs of their tenants.
Contracting Officer's Statement para. 8; Agency Report (AR) at 6. VA
employees are allowed 30 minutes for lunch and need to be able to walk to
the amenity and back, wait in line, order, and eat their lunch within that
break time. Contracting Officer's Statement paras. 7, 9; AR at 6. GSA also
notes that one of the VA offices to be located in the solicited space
provides training, outreach, and assistance to veterans, including
disabled veterans, and thus will likely have disabled veteran visitors.
Contracting Officer's Statement paras. 5, 7. Because of the length of time
it takes to walk 2,500 feet and back, GSA concluded that eliminating the
maximum distance or allowing some greater distance would leave employees
with insufficient time to eat or accomplish errands during their lunch
break.[2] AR at 6. Despite the 2,500 WLF restriction, [deleted] offerors,
including Bristol, submitted proposals by the closing time. Moreover,
Bristol's own proposal asserts that it meets the agency's requirements. In
this regard, its proposal refers to the [deleted]. Bristol Proposal at 1.
We find that the agency reasonably determined that some proximity
restriction is required to assure that VA employees and visitors will have
adequate time for eating and errands during lunch. An approximately 1-mile
round-trip restriction seems reasonable given the 30 minutes allowed for
lunch, and Bristol has not shown otherwise. Accordingly, we find nothing
unduly restrictive in the 2,500 WLF requirement for the location of
amenities.
In its comments in response to the agency report, Bristol for the first
time asserts that [deleted] would meet the agency's minimum needs, even
though the amenities lay outside the 2,500 WLF from its building. Initial
Comments at 3-4. Our Regulations do not contemplate the unwarranted
piecemeal presentation or development of protest issues. Midwest
Contractors, Inc.; R.E. Scherrer, Inc., B-231101, B-231101.2, Aug. 8,
1988, 88-2 CPD para. 118 at 4. The SFO's reference to 2,500 WLF clearly
indicated that the agency's concern was on the "walkability" of the
distance to amenities; if Bristol believed the agency also, or instead,
should have considered [deleted], it should have so asserted in its
original protest. In any event, given the obvious benefit of having
amenities within reasonable walking distance, we think the agency
reasonably could require that the building be within a walkable distance
to amenities even if a shuttle or other conveyances also are available.
Bristol asserts that VA has advised GSA that it requires [deleted], and
that it considers the neighborhood in which Bristol's building is located
unacceptable. Since the SFO does not specify these restrictions, the
protester asserts that its offer could be rejected on the basis of
undisclosed evaluation criteria.
While an agency does not have the discretion to announce one evaluation
scheme in a solicitation and then make source selection decisions based on
another--Hattal & Assocs., B-243357, B-243357.2, July 25, 1991, 91-2 CPD
para. 90 at 7--there is nothing to suggest that GSA has changed the
evaluation scheme here from that set forth in the amended SFO, or that it
intends to apply undisclosed criteria. In this regard, although VA
expressed a "requirement" for [deleted], the contracting officer explains
that, based on a market survey, she determined that [deleted] would not be
considered a special requirement and that VA both understood this and
approved the SFO without the requirement. Supplemental Contracting
Officer's Statement para. 3. In any case, Bristol's allegations in this
regard constitute mere speculation as to the manner in which GSA will
evaluate the offers, which is insufficient to sustain a protest. See Delta
Ventures, B-238655, June 25, 1990, 90-1 CPD para. 588 at 4.[3]
The protest is denied.
Anthony H. Gamboa
General Counsel
------------------------
[1] An earlier version of the location amenities clause called for
employee services amenities to be located within four blocks of the
offered building. Bristol alleged in its initial protest that referring to
food amenities in terms of WLF and other amenities in terms of a number of
blocks rendered the clause ambiguous. GSA amended the provision after the
protest was filed and Bristol withdrew this issue.
[2] In response to another protest filed by Bristol, which involved a
similar 2,500 WLF requirement, GSA explained that the average person could
walk 2,500 feet in approximately 7.5 minutes, making for a potential
roundtrip of 15 minutes to travel and leaving only 15 minutes for eating
or carrying out other errands. Bristol Group, Inc.--Union Station Venture,
B-298086, B-298086.3, May 30, 2006, 2006 CPD para. __ at 4.
[3] Bristol's allegation of a VA bias is based on a declaration from VA's
management analyst that "[a]fter a site visit to [Bristol's] building . .
. I again expressed the requirement that both employees and visitors to
the VA location be able to have easy access to amenities that would allow
them to meet their 30 minute lunch allotment." Declaration of Management
Analyst para. 5. This communication simply restates the importance of the
location amenities requirement to VA; it in no way indicates a bias on the
part of VA or GSA.