TITLE: B-298953.2, GPA-Buffer, LP, March 21, 2007
BNUMBER: B-298953.2
DATE: March 21, 2007
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B-298953.2, GPA-Buffer, LP, March 21, 2007
Decision
Matter of: GPA-Buffer, LP
File: B-298953.2
Date: March 21, 2007
Jeffrey E. Weinstein, Esq., for the protester.
Barry D. Segal, Esq., General Services Administration, for the agency.
Glenn G. Wolcott, Esq., Office of the General Counsel, GAO, participated
in the preparation of the decision.
DIGEST
Request for reimbursement of protest costs is denied where record fails to
establish that the agency delayed taking corrective action in the face of
clearly meritorious protest.
DECISION
GPA-Buffer, LP requests that we recommend reimbursement of the costs
GPA-Buffer incurred in connection with filing and pursuing a protest
challenging the General Services Administration's (GSA) decision to enter
into a sole-source agreement with the state of Florida to lease real
property on which to construct office space for the U.S. Army Southern
Command (SouthCom) headquarters.
We deny the request.
In August 2005, GSA and the state of Florida entered into a memorandum of
agreement under which the state agreed to make a 40-acre site available,
at no cost, for the subsequent construction of office space to house
SouthCom's headquarters.[1] The memorandum provided that the state of
Florida would subsequently conduct a competitive procurement for the
actual construction of the required office space. Agency Report (AR), exh.
22. The memorandum also provided, "it is anticipated that SouthCom will
seek and obtain the required Congressional Title 10 authorization for this
proposed project."[2] Id. at 2.
In November 2005, GSA prepared a Justification for Other Than Full and
Open Competition (JOTFOC) for its plan to non-competitively enter into a
lease agreement with the state of Florida for the 40-acre site.[3] Among
other things, the JOTFOC concluded that "[n]o other source has 40 acres of
available land at no cost."[4] AR exh. 42, at 3.
On April 28, 2006, the Army submitted the statutorily required notice to
the U.S. House of Representatives Committee on Armed Services, providing
various information regarding the proposed acquisition.[5] In its notice
to the Committee, the Army described its requirements, explained that its
needs had outgrown the available space in the various offices located
throughout the greater Miami area, noted that eight of the nine current
locations do not meet DOD anti-terrorism and force protection standards
established after the September 2001 terrorist attacks, and concluded: "No
suitable government-owned or controlled space is available in the Miami
area to satisfy this requirement. Accordingly, the Department of the Army
requests authority to . . . lease the new build-to-suit facility on state
land." AR exh. 50, at 2.
On September 26, 2006, GSA published a "Notice of Intent to Procure Using
Other Than Full and Open Competition" on the FedBizOpps Internet website,
stating: "[GSA] proposes to enter into a noncompetitive lease procurement
using other than full and open competition with the state of Florida for
housing of the long term space needs of the United States Southern Command
. . . in Doral, Florida." GSA Motion to Dismiss, Oct. 16, 2006, exh. 1.
GSA explains that the September 26 notice "was issued to inform the public
of GSA's intent to use the State offered no cost land." Contracting
Officer's Statement at 6.
On October 6, GPA filed a protest challenging the bases for the agency's
determination to obtain the state's 40-acre site as a sole-source
procurement. On November 13, the agency responded to GPA's protest, filing
a report with this Office responding to the protester's various
arguments[6] and maintaining that the agency's sole-source determination
complied with applicable law and regulations.
On November 16, 2006, the U.S. House of Representatives Committee on Armed
Services responded to the Army's earlier notice of the proposed
acquisition, addressing various aspects of the Army's proposed actions.
Among other things, the Committee stated:
After careful review of the proposal, existing facilities, and
headquarters requirements, the Committee believes that a replacement
headquarters facility for USSOUTHCOM is indeed necessary. However,
entering into a lease for a headquarters facility is neither the most
economic nor the most effective means of meeting the needs of the
command.
As such, the Committee recommends pursuit of military construction
funding to meet USSSOUTHCOM headquarters requirements.
Letter from U.S. House of Representatives Committee on Armed Services to
the Army, Nov. 15, 2006, at 1.
On November 30, GSA advised our Office that it was no longer pursuing the
sole-source lease agreement with the state of Florida, referencing the
Committee's directions quoted above. Letter from GSA to GAO, Nov. 30,
2006, at 1. In light of GSA's statement that it was no longer pursuing the
sole-source procurement, we dismissed GPA-Buffer's protest as academic.
Thereafter, GPA-Buffer submitted this request for our recommendation that
GSA "pay [GPA-Buffer] its costs of filing and pursing the protest,
including attorneys fees and bid and proposal preparation costs." Letter
from Counsel for GPA-Buffer to GAO (Dec. 19, 2006).
When an agency takes action which renders a protest moot prior to our
issuance of a decision resolving the merits of the protest, our Office may
recommend, in certain circumstances, that the protester be reimbursed the
reasonable costs of filing and pursuing the protest. 4 C.F.R. sect.
21.8(e) (2006). In this regard, we will generally recommend reimbursement
of protest costs where an agency has delayed taking corrective action in
response to a "clearly meritorious protest." [7] See, e.g., Johnson
Controls World Servs., Inc.--Costs, B-299529.4, Aug. 19, 2005, 2005 CPD
para. 162 at 8. However, not all agency actions that render a protest
academic are "corrective" in nature and, further, even when an agency
takes action that it describes as "corrective," that action does not, of
itself, establish that the protest was "clearly meritorious." Spar Applied
Sys.--Declaration of Entitlement, B-276030.2, Sept. 12, 1997, 1997 CPD
para. 70 at 5.
Here, based on the record discussed above, we are unable to conclude that
the agency took "corrective action" in response to GPA-Buffer's protest,
nor can we conclude that GPA-Buffer's protest was "clearly meritorious."
As discussed above, GSA and the Army abandoned the proposed acquisition of
real property based on the House Armed Services Committees' direction that
"entering into a lease for a headquarters facility is neither the most
economic nor the most effective means of meeting the needs of the
command," and the Committee's recommendation that SouthCom "[pursue]
military construction funding to meet USSSOUTHCOM headquarters
requirements." Based on this record, we are unable to conclude that the
agency's action in abandoning the proposed no-cost sole-source acquisition
was "corrective action" taken in response to GPA-Buffer's protest and,
similarly, based on our truncated protest process, we cannot conclude that
the agency's proposed sole-source acquisition of property on a no-cost
basis constituted a clear violation of procurement statute or regulation
for which there was no "defensible legal position."[8]
Since we are unable to conclude that the agency delayed taking corrective
action in the face of a clearly meritorious protest, we decline to
recommend reimbursement of GPA-Buffer's costs.
The request for reimbursement of costs is denied.
Gary L. Kepplinger
General Counsel
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[1] SouthCom currently occupies office space in nine different locations
in the greater Miami area, including a site owned by the protester. The
purpose of the planned acquisition was to consolidate the SouthCom offices
at a single location.
[2] The provisions of 10 U.S.C. sect. 2662 require the Department of
Defense (DOD) to notify its congressional oversight committees prior to
conducting certain transactions involving real property.
[3] The agency concluded that, to meet SouthCom's consolidated office
requirements, a site of at least 40 acres was required. Prior to executing
the JOTFOC, GSA conducted a market survey during which GSA identified five
potential sites that were at least 40 acres in size, but determined that
none of those sites was available at no cost to the government. AR exh.
10; Contracting Officer's Statement at 2. GSA also obtained data
indicating that the appraised value of the state of Florida's 40-acre site
was between $27 million and $40 million in fiscal year 2005. AR exh. 35.
[4] The protester's site, which is one of the nine sites in the greater
Miami where SouthCom currently has office space, is approximately
25 acres.
[5] The notification was similarly sent to the U.S. Senate Committee on
Armed Services.
[6] Initially, GSA sought dismissal of the protest, arguing that it was
not timely filed. In response, this Office notified counsel for the
parties that we did not intend to dismiss the protest prior to receipt of
a complete agency report. Thereafter, the agency report was timely
submitted to GAO and to the protester.
[7] We have described a "clearly meritorious" protest as one that does not
involve a "close question," or one where a reasonable agency inquiry would
have revealed the "absence of a defensible legal position." See PADCO,
Inc., B-289096.3, May 3, 2002, 2002 CPD para. 135 at 3.
[8] There can be no dispute that the agency acted promptly in responding
to the Committee's directions.