TITLE: B-299486.3, Liberty Street East Associates, June 15, 2007
BNUMBER: B-299486.3
DATE: June 15, 2007
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B-299486.3, Liberty Street East Associates, June 15, 2007

   Decision

   Matter of: Liberty Street East Associates

   File: B-299486.3

   Date: June 15, 2007

   Robert P. Yoder for the protester.

   Elin M. Dugan, Esq., Department of Agriculture, 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

   1. Where agency report rebuts protester's allegations with regard to price
   evaluation, and protester fails to respond to agency's rebuttal in its
   comments on the agency's report, issues are considered abandoned and will
   not be considered; abandoned issues also will not be considered when
   reasserted in supplemental comments, as Bid Protest Regulations do not
   contemplate piecemeal development of protest issues.

   2. Protest allegations challenging agency's evaluation of protester's
   proposal are denied where alleged evaluation errors did not result in
   competitive prejudice to protester; even if protester's evaluation score
   were increased to level asserted by protester, awardee's score would
   remain higher and, when combined with its lower price, would still
   reasonably support award.

   DECISION

   Liberty Street East Associates protests the award of a lease to
   Ashford/Warren Associates, LP under solicitation for offers (SFO) No.
   R9-6-1, issued by the Department of Agriculture (USDA) for office and
   related space in Warren, Pennsylvania. Liberty asserts that the agency's
   technical evaluation of its proposal was flawed.

   We deny the protest.

   The SFO sought a minimum of 20,300 usable square feet for USDA, for use by
   the Allegheny National Forest Supervisor's Office. All offers were
   evaluated under five factors--site; building image and physical
   characteristics; efficient layout and interior space; high performance
   features; and price. The technical factors combined were equal in weight
   to price. Award was to be made to the firm whose offer was considered most
   advantageous to the government.[1]

   Four firms, including Liberty and Ashford, submitted offers. The
   evaluation panel members individually reviewed the offers and made site
   visits, and the panel then reached consensus scores for each offer.[2] All
   four offers were placed in the competitive range and the agency conducted
   written discussions with the offerors before requesting final proposal
   revisions. Out of a possible 660 points, Ashford's proposal received a
   final consensus score of 340 points, with a rental rate of $17.50 per
   square foot, and Liberty's received a score of 190 points, with an
   evaluated rental rate of $18.91.[3] Based on the respective offers'
   technical scores and prices, the contracting officer, as source selection
   authority (SSA), determined that Ashford's offer was most advantageous to
   the government and awarded it the lease. After a debriefing and
   unsuccessful agency-level protest, Liberty filed this protest with our
   Office.

   Liberty first asserts that its offer would have been evaluated as most
   advantageous to the government if the agency had properly considered the
   offerors' respective heating and cooling costs in the price evaluation.
   Based on its proposal of a geothermal system, Liberty maintains, its
   heating and cooling cost would be only $1.02 per square foot throughout
   the lease period, while, it infers, Ashford's would start at $3.50 to
   $4.50 per square foot and would increase each year. Had these costs been
   added onto the square foot rental prices of each offer, Liberty asserts,
   its price would be lower than Ashford's.

   In its report, the agency responded that low price alone would not make an
   offer the most advantageous, since price and technical factors were equal
   under the SFO's evaluation scheme; that Liberty did not propose the
   lowest-price lease; and that Liberty's argument was based on speculation
   as to Ashford's heating and cooling costs. Agency Report (AR) at vi.

   Liberty's initial comments on the agency's report focused on its technical
   evaluation and provided no rebuttal to the agency's position. Where, as
   here, an agency specifically addresses an issue raised by the protester in
   its initial protest, and the protester fails to rebut the agency response
   in its comments, we consider the issue abandoned by the protester and will
   not consider it.[4] Analex Space Sys., Inc.; PAI Corp., B-259024,
   B-259024.2, Feb. 21, 1995, 95-1 CPD para. 106 at 8. In any event, it
   appears from the agency's source selection documentation that the SSA took
   into account the protester's stated advantage in this area. In this
   regard, in determining that Ashford's offer was most advantageous, the SSA
   considered the apparent superiority of Liberty's geothermal unit in
   comparison to other offers and the SFO's requirements, but noted that the
   projected savings were not established and that there were uncertainties
   as to whether it would provide significant savings. AR, Tab D, at 16.

   Liberty asserts that the technical evaluation was flawed in that it was
   overly subjective, was biased against urban locations, and failed to
   provide its proposal with appropriate credit for its offered building's
   features under each of the technical factors.[5] For example, Liberty
   asserts that the agency improperly downgraded its building under the image
   and physical characteristics factor because its "overstated timbered
   entrance" and other interior features were "too opulent an image" to
   present to the public; under the efficient layout factor, due to an
   interior design that wasted space and limited the ability to modify the
   floor plan; and under the high performance features factor, for failing to
   provide high quality HVAC and high efficiency light fixtures. Liberty
   asserts that, if the agency had properly evaluated its proposal as
   technically acceptable under the building image and efficient layout
   factors, and had added appropriate credit under the site and high
   performance factors, its proposal would have received a score of 375
   points--higher than the awardee's. The agency concedes that it should have
   scored Liberty's offer 20 points higher for its proposal of
   high-efficiency light fixtures, but maintains that its evaluation was
   otherwise accurate and fair.

   Our Office will not sustain a protest unless the protester demonstrates a
   reasonable possibility that it was prejudiced by the agency's actions,
   that is, unless the protester demonstrates that, but for the agency's
   actions, it would have had a substantial chance of receiving the award.
   McDonald-Bradley, B-270126, Feb. 8, 1996, 96-1 CPD para. 54 at 3; see
   Statistica, Inc. v. Christopher, 102 F.3d 1577, 1581 (Fed. Cir. 1996).
   While Liberty asserts that various adjustments to the evaluation would
   increase its evaluation score to 375 points, our calculations show that,
   in fact, the requested adjustments would result in a total score of only
   330 points.[6] Thus, even if Liberty's proposal had received all points to
   which it now claims it was entitled, its technical score would remain 10
   points lower than Ashford's score of 340. Since Ashford's rental rate also
   was lower than Liberty's--$17.50 versus $18.91 per square foot--Ashford's
   offer would remain in line for award. In other words, there is no
   reasonable possibility that the SSA would have determined that Liberty's
   offer was most advantageous to the government. It follows that Liberty was
   not competitively prejudiced by any errors in the technical evaluation of
   its proposal.

   The protest is denied.

   Gary L. Kepplinger

   General Counsel

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

   [1] The SFO also provided that award was to be made to the firm submitting
   the lowest priced, technically acceptable offer, but Liberty did not
   protest this inconsistency, and the agency disregarded this language in
   evaluating proposals.

   [2] Under the evaluation plan, offers generally received additive points
   for exceeding the SFO requirements, no points for meeting the
   requirements, and deductive points for deficiencies and weaknesses.

   [3] In accordance with the SFO evaluation scheme, Liberty's proposed rate
   of $19.40 was evaluated with a 2.5 percent reduction based on its location
   in an historic area.

   [4] Liberty reasserted this argument in its supplemental comments, and
   also argued for the first time that official travel between the Allegheny
   National Forest and the Ashford site would be more expensive than travel
   to Liberty's site. However, by failing to raise these arguments in its
   initial comments on the agency report, Liberty deprived the agency of the
   opportunity to provide a timely, appropriate response in its supplemental
   report, and additional submissions now would be required to resolve them.
   Where a protester has abandoned an issue and then reasserts it along with
   new arguments in a supplemental filing, those issues must independently
   satisfy our timeliness rules. 4 C.F.R. sect. 21.2(a)(2) (2007). Our
   Regulations do not envision a piecemeal presentation of evidence,
   information, or analysis. RC 27th Ave. Corp.--Recon., B-246727.2, May 20,
   1992, 92-1 CPD para. 455 at 3.

   [5] Liberty also asserted that the agency did not properly credit its
   proposal for offering a building in an historic area. Again, however, the
   agency responded to this argument in its report--in part, noting that
   Liberty's proposal was given price evaluation credit for its location--and
   Liberty did not rebut the agency's response in its comments. We thus
   consider the issue abandoned. Analex Space Sys., Inc.; PAI Corp., supra.

   [6] As observed by the agency, and conceded by Liberty in its supplemental
   comments, 30 of the incorrectly calculated points are attributable to an
   arithmetical error under the building image factor. The other 15 points
   already were assigned Liberty's proposal under the site location factor.