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).