TITLE: B-298276, King Construction Company, Inc., July 17, 2006
BNUMBER: B-298276
DATE: July 17, 2006
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B-298276, King Construction Company, Inc., July 17, 2006

   Decision

   Matter of: King Construction Company, Inc.

   File: B-298276

   Date: July 17, 2006

   James E. Krause, Esq., Regan Zebouni & Walker, PA, for the protester.

   Gary F. Davis, Esq., General Services Administration, for the agency.

   Kenneth Kilgour, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging terms of solicitation for lease of build-to-suit
   office space as unduly restrictive of competition is denied where agency
   demonstrates a reasonable basis for required approach.

   DECISION

   King Construction Company, Inc. protests as overly restrictive the terms
   of solicitation for offers (SFO) No. PKY-01-LO-06, issued by the General
   Services Administration (GSA) for lease of build-to-suit office space for
   the Federal Bureau of Investigation (FBI) in Louisville, Kentucky. The
   protester asserts that the SFO is overly restrictive because it requires
   experience constructing Class A office space, to the exclusion of other
   relevant experience; it requires experience with Leadership in Energy and
   Environmental Design (LEED)[1] projects; and it contains redundant
   qualifications for an offeror's team members.[2]

   We deny the protest.

   The procurement in this case is being conducted using the two-phase
   design-build procedures authorized under 41 U.S.C.A. sect. 253m (West
   Supp. 2006) and set out in Federal Acquisition Regulation (FAR) subpart
   36.3, which contemplate issuance of two different solicitations for phase
   I and phase II of a project. Consistent with those procedures, the
   solicitation here, for phase I of the project, calls for submission of
   proposals limited to addressing the offeror's technical approach and
   qualifications. After evaluation of those proposals, the agency will
   select three to five offerors considered the most highly qualified, who
   then will be invited to submit proposals under phase II, addressing the
   specific design of the project and price.

   The solicitation was based on a model SFO jointly developed by the FBI and
   GSA for 56 prospective lease construction projects for the FBI to be
   delivered over 5 years, using a standardized evaluation scheme for what,
   square footage variations aside, the agency considers well-defined and
   repeatable requirements. This requirement was for 120,197 rentable square
   feet of Class A office space[3] and 115 parking spaces on a pre-selected
   site.

   The SFO lists the following evaluation factors in descending order of
   importance: development team and key personnel experience; management
   plan; development team's past performance; and design approach narrative.
   The SFO requires the offeror's "development team" (which includes the
   principals of the offering entity who will have primary management or
   supervisory responsibilities, the architectural and/or engineering
   firm(s), and the general contractor) and key personnel (i.e., those
   individuals who "are employed by these firms and who will have direct
   responsibility for hands-on activities required in relation to this
   project and its resultant lease") to submit information regarding their
   respective experience. SFO sect. 2.5(A)(1)(a). A "more favorable
   evaluation" will be given to each team member who "demonstrate[s]
   experience in performing projects of the size, nature and complexity
   required by the SFO." SFO sect. 2.5(A)(1)(b). Similarly, the SFO called
   for submission of past performance information regarding the offeror and
   its key personnel, with "more favorable evaluations" to be given to those
   who "demonstrate successful past performance in delivering and managing
   projects of the size, nature and complexity described in the SFO." SFO
   sect. 2.5(C)(1)(b). With regard to the types of projects to be considered,
   section 2.3(B) of the SFO states as follows:

     The following types of work are not considered similar in nature for
     purposes of past performance and experience that can be applied to any
     of the minimum requirements of this project or to the past performance
     submission requirements: distribution, warehouse, manufacturing or
     processing facilities; prison, jail, correctional facilities, or
     detention centers; hospitals, residential projects (e.g., housing,
     hotels, dormitories, etc.), sports facilities, retail project[s],
     laboratories, schools and university classroom buildings.

   The protester alleges that the solicitation contains several overly
   restrictive requirements. The first is that the solicitation unreasonably
   excludes from consideration of an offeror's experience or past performance
   construction types that are more complex than Class A office space, while
   specifically requiring past experience designing and constructing Class A
   office space, which, the protester argues, is "irrelevant to the needs of
   the Government." Protest at 4.

   An agency has the discretion to determine its needs and the best way to
   meet them. USA Fabrics, Inc., B-295737, Apr. 19, 2005, 2005 CPD para. 82
   at 4. Agency acquisition officials have broad discretion in selecting
   evaluation factors that will be used in an acquisition, and we will not
   object to the absence or presence of particular evaluation factors or an
   evaluation scheme so long as the factors used reasonably relate to the
   agency's needs in choosing a contractor that will best serve the
   government's interests. Olympus Bldg. Servs., Inc., B-282887, Aug. 31,
   1999, 99-2 CPD para. 49 at 3; ViON Corp., B-256363, June 15, 1994, 94-1
   CPD para. 373 at 10-11.

   When a protester challenges a specification as unduly restrictive, the
   procuring agency has the responsibility to establish that the
   specification is reasonably necessary to meet its needs. See 41 U.S.C.
   sect. 253a(a)(1)(A), (2)(B) (2000). The adequacy of the agency's
   justification is ascertained through examining whether the agency's
   explanation is reasonable, that is, whether the explanation can withstand
   logical scrutiny. 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.,
   supra, at 4-5.

   Here, contrary to the protester's assertion, there is no requirement in
   the SFO that offerors demonstrate experience with constructing Class A
   office space; rather, the SFO provides that offerors with experience with
   projects of the "size, nature and complexity" of the project described in
   the SFO will be evaluated more favorably. As further explanation, section
   2.3(B), quoted above, states that experience with certain types of
   facilities will not be considered similar for evaluation purposes.

   The agency argues that the work required to successfully complete an
   office building of the type called for here is unique to that type of
   construction, and, beyond its initial general challenge, the protester has
   not contested the agency's assertion. Providing that offerors that have
   office space construction experience are evaluated more favorably, the
   agency reasonably contends, will help ensure that the awardee's
   performance meets the agency's needs. See Leon D. Matteis Constr. Corp.,
   B-276877, July 30, 1997, 97-2 CPD para. 36 at 5. In fact, the design-build
   procedures in the FAR used here expressly call for phase I solicitations
   to set out the technical qualifications sought, including specialized
   experience. FAR sect. 36.303-1(a)(2)(ii)(A). We think the agency's
   decision to evaluate favorably those offerors who proposed teams and
   individuals with experience that more closely corresponded to the
   requirements of the SFO was reasonable.

   The protester also alleges that the solicitation unreasonably "require[s]
   LEEDs experience by all Offeror's Team Members." Protest at 6. King argues
   that the relative newness of the LEED certification process means that few
   firms will have had experience with the design and construction of such
   facilities, and thus the requirement unreasonably limits competition.

   The agency notes at the outset that the solicitation does not set LEED
   experience as a minimum standard for any firm or individual. Rather, the
   requirement is that the building itself must be designed and constructed
   to achieve at least a LEED rating of certified. SFO sect. 1.5(A)(3). The
   architectural and engineering firms and the general contractor must
   address their individual firm's experience with and approach to LEED
   projects; firms and individuals with greater LEED experience will be
   evaluated more favorably. SFO sect. 2.5(C).

   The agency argues that its requirement that the building obtain LEED
   certification is a reasonable method for ensuring that the agency's new
   construction meets certain environmental standards which the agency must
   achieve. As the agency notes, Executive Order 13,123 requires
   build-to-suit lease solicitations to "contain criteria encouraging
   sustainable design and development, energy efficiency, and verification of
   building performance." Exec. Order No. 13,123 at 7, 64 Fed. Reg. 30,8521,
   30,855 (June 3, 1999). Similarly, the FAR, citing other relevant
   legislation and Executive Orders, establishes environmental requirements
   for acquiring a variety of products and services, including those commonly
   used in office space construction and management. See FAR sections
   11.002(d)(1), 23.202. As a means of complying with these mandates, GSA
   adopted the LEED program; all GSA new construction projects and
   substantial renovations must be LEED certified.

   The agency has reasonably explained how the requirement that the building
   obtain LEED certification enables the agency to ensure that it meets
   certain mandated standards. While the requirement might place the
   protester at a competitive disadvantage, the fact that a requirement may
   be burdensome or even impossible for a particular firm to meet generally
   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. Given that the agency's requirement that
   this new build-to-suit construction be LEED-certified is reasonably
   related to meeting the agency's needs, it likewise is reasonable for the
   SFO to call for offerors to describe their experience with LEED projects
   and to provide that offerors with more LEED experience will be more
   favorably evaluated.

   The protester also alleges that the SFO is overly restrictive in that it
   requires all individual offeror team members to provide "unnecessary and
   duplicative" experience. If any team member fails to meet his or her
   minimum requirements, then the team will be found ineligible to compete in
   the phase II solicitation.

   The agency argues that, inasmuch as each team member performs a different
   function, the government has a need to ensure that each of the team
   members meets some minimum standards. The agency asserts that the primary
   issue is risk mitigation and that it can more successfully mitigate risk
   by imposing minimum requirements for experience on each of the members of
   the teams.

   We find that the agency has made a reasonable determination that the
   possibility for success in the project is enhanced if the individual
   members -- the principals, the architect/engineer, and the general
   contractor -- have experience with projects similar to the project called
   for under this SFO. Further, as noted above, the FAR design-build
   procedures used here specifically contemplate that phase I solicitations
   will call for specialized expertise on the part of individuals comprising
   the offeror's team. FAR sect. 36.303-1(a)(2(ii)(A), (C) (requiring Phase I
   solicitations to include technical qualifications such as "[s]pecialized
   experience and technical information" and "[p]ast performance of the
   offeror's team (including the architect-engineer and construction
   members)").

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] According to the U.S. Green Building Council, the LEED Green Building
   Rating System promotes "[d]esign and construction practices that
   significantly reduce or eliminate the negative impact of buildings on the
   environment and occupants." To be LEED certified, buildings must meet
   standards providing specialized criteria for particular types of projects.
   The lowest of four levels of certification is "certified." U.S. Green
   Building Council, An Introduction to the U.S. Green Building Council and
   the LEED Green Building Rating System, October 2005 at 4, 27-28,
   https://www. usgbc.org/FileHandling/show_general_file.asp?DocumentID=742>.

   [2] A final ground in the original protest, challenging the terms of
   section 2.7(D) of the solicitation, has been rendered academic by the
   agency's decision to delete the challenged provision in its entirety.
   Further, the protester asserts for the first time in its comments on the
   agency report that "[t]he Solicitation is overly restrictive in that it
   restricts Small Business contractors from effectively competing . . . ."
   Protester's Comments, June 16, 2006, at 2. Because this issue was not
   raised before the time set for receipt of proposals under the SFO (May 9),
   it is untimely. Bid Protest Regulations, 4 C.F.R. sect. 21.2(a)(1) (2006)
   (protests based upon alleged improprieties in a solicitation must be filed
   before the time set for receipt of initial proposals).

   [3] The SFO defines this term as follows:

     The space shall be designed and constructed as a prime "Class A"
     commercial office building with attractive, professional surroundings. .
     . . "Class A" buildings are designed for good appearance, comfort and
     convenience as well as the element of prestige. The quality of
     furnishings and fixtures is high and electrical outlets and services,
     plumbing, etc. are above average.

   SFO sect. 1.5(C).