TITLE: B-298216.2, SDA Inc.--Costs, September 11, 2006
BNUMBER: B-298216.2
DATE: September 11, 2006
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B-298216.2, SDA Inc.--Costs, September 11, 2006

   Decision

   Matter of: SDA Inc.--Costs

   File: B-298216.2

   Date: September 11, 2006

   James H. Roberts, III, Esq. and Carrol H. Kinsey, Jr., Esq., Van Scoyoc
   Kelly PLLC, for the protester.

   Marilyn M. Paik, Esq., General Services Administration, for the agency.

   Paul N. Wengert, Esq., and Glenn G. Wolcott, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Reimbursement of the costs of filing and pursuing protest is not
   recommended where requester has not shown that agency's termination of
   awardee's lease constituted corrective action in response to a clearly
   meritorious protest.

   DECISION

   SDA Inc., a small business, requests that our Office recommend that the
   General Services Administration (GSA) pay the firm the reasonable costs of
   filing and pursuing its protest with respect to solicitation for offers
   (SFO) No. 3CA0140 for a build-to-suit 10-year lease of a federal
   courthouse and facilities for supporting law enforcement agencies in
   Bakersfield, California. We dismissed the protest as academic on May 30,
   2006, on the basis of GSA's statement that it had terminated its lease
   with the awardee, Castle & Cooke California, Inc., and would cancel
   the SFO.[1]

   We deny the request.

   SDA filed a protest with our Office in April 2006, expressly stating that
   its protest presented only a single issue: whether Castle & Cooke's offer
   should have been rejected for failing to comply with a particular SFO
   provision, frequently referred to in these proceedings as the "local
   amenities" provision. SDA Protest, Apr. 13, 2006, at 2-5; Decision on
   Agency-Level Protest, Apr. 12, 2006, at 5. Specifically, SDA's protest
   referred to section 1.3.B.1 of the SFO, which provided that, with respect
   to a site located "Outside of City Center," the proposed space "shall be
   located . . . 2) on an attractively-landscaped site containing one or more
   modern office buildings that are professional and prestigious in
   appearance with the surrounding development well-maintained and in
   consonance with a professional image." SFO at 6. SDA's protest maintained
   that Castle & Cooke was required to comply with this provision "at the
   time of offer." SDA Protest, Apr. 13, 2006, at 4. The agency defended
   against SDA's protest on the basis that SDA's interpretation of the SFO's
   "local amenities" provision was unreasonable. Specifically, the agency
   argued that the SFO, which called for a build-to-suit lease, clearly did
   not contemplate that an offeror's completion of contract performance--that
   is, construction of a modern office building along with attractive
   landscaping--would occur "at time of the offer" or, for that matter, prior
   to contract award. Agency Report, May 18, 2006, at 12.

   On May 24, after GSA had filed its report and shortly before SDA filed
   comments responding to the agency report, GSA and the awardee executed a
   3-page document terminating the lease. According to that "supplemental
   agreement," after award of the lease, significant community opposition to
   the courthouse arose such that "[the awardee's] performance of the
   obligations, including obtaining all necessary and discretionary approvals
   under the Lease will be substantially delayed," and the resulting increase
   in costs will "render[] its performance impracticable under these
   circumstances." GSA Response, exh. B, Supplemental Agreement Number One to
   Lease GS-09B-01777, at 1.

   Our Bid Protest Regulations, 4 C.F.R. sect. 21.8(e) (2006), provide we may
   recommend that an agency pay protest costs where the agency decides to
   take corrective action in response to the protest. We will make such a
   recommendation, however, only where the agency unduly delayed taking
   corrective action in the face of a clearly meritorious protest. CSL
   Birmingham Assocs.; IRS Partners-Birmingham--Entitlement to Costs,
   B-251931.4, B-251931.5, Aug. 29, 1994, 94-2 CPD para. 82 at 3. SDA argues
   that GSA unduly delayed in taking corrective action on what SDA contends
   was a clearly meritorious protest.

   We consider a protest to be clearly meritorious when a reasonable agency
   inquiry into the protester's allegations would show that the agency lacked
   a defensible legal position. First Fed. Corp.--Costs, B-293373.2, Apr. 21,
   2004, 2004 CPD para. 94 at 2. Here, we view the agency's assertion that
   the SFO, reasonably interpreted, did not contemplate that space proposed
   by offerors would meet the SFO's "local amenities" requirements at the
   time offers were submitted, to be a defensible legal position.
   Accordingly, we cannot conclude that SDA's protest, asserting that Castle
   & Cooke's offer should have been rejected for failing to comply with the
   "local amenities" provision prior to award, was clearly meritorious.

   SDA's request for reimbursement of protest costs is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] GSA used a bilateral no-cost termination because the lease agreement
   did not include a clause permitting termination for convenience of the
   government. GSA Response, exh. B, Supplemental Agreement Number One to
   Lease GS-09B-01777.