TITLE: B-310941, Eisenhower Real Estate Holdings, LLC, March 18, 2008
BNUMBER: B-310941
DATE: March 18, 2008
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B-310941, Eisenhower Real Estate Holdings, LLC, March 18, 2008

   DOCUMENT FOR PUBLIC RELEASE

   The decision issued on the date below was subject to a GAO Protective
   Order. This redacted version has been approved for public release.

   Decision

   Matter of: Eisenhower Real Estate Holdings, LLC

   File: B-310941

   Date: March 18, 2008

   Fernand A. Lavallee, Esq. and J. Philip Ludvigson, Esq., DLA Piper, for
   the protester.
   Robert A. Hauser, Esq., General Services Administration, for the agency.

   Susan K. McAuliffe, Esq., and Christine S. Melody, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest of reasonableness of agency's cost-benefit analysis that served as
   basis for agency determination that government cannot expect to recover
   through competition substantial relocation or duplication costs involved
   in award of lease to other than incumbent lessor is denied where record
   shows cost-benefit analysis was reasonably based, and protester provides
   no persuasive support for assertion that a lease for its property would
   provide cost savings exceeding agency's relocation or duplication costs.

   DECISION

   Eisenhower Real Estate Holdings, LLC protests the decision by the General
   Services Administration (GSA) to award a sole-source lease to the
   incumbent lessor of office space for the headquarters location of the Drug
   Enforcement Administration (DEA). The protester, which asserts that it can
   provide an acceptable alternative property offering cost savings to the
   agency, challenges the reasonableness of the cost-benefit analysis cited
   as the basis for GSA's justification for the use of noncompetitive
   procedures and its determination that there is only one responsible source
   that can satisfy the needs of the agency.[1]

   We deny the protest.

   GSA's existing lease for office space for DEA's headquarters location (in
   two buildings constructed 20 years ago for DEA's use) is expiring. The
   current protest involves the agency's plan to award a 10-year lease to the
   incumbent lessor for continued use of the property based on a cost-benefit
   analysis that demonstrated that substantial relocation expenses would not
   be recovered through competition for the award of the lease.[2]

   On June 29, 2006, the agency issued a presolicitation notice seeking
   expressions of interest from potential lessors for a 10-year lease of
   approximately 593,100 rentable square feet (RSF) of office and related
   space in northern Virginia. The notice, which provided general
   requirements for a secured site meeting government safety standards and
   setback distances with proximity to a Metrorail station, was reissued on
   April 2, 2007; both notices specifically advised potential offerors that
   the agency would evaluate expressions of interest in terms of availability
   of alternative properties and the relocation costs involved in moving DEA
   to determine whether the agency would remain at the existing property or
   relocate. Expressions of interest were to describe the potential lessor's
   property and identify the amount of space available, date the property
   will be available, expected rental rate per RSF (capped by the lease
   prospectus at $35 per RSF), cost and amount of available on-site parking,
   tenant improvement allowance, and available services and amenities. Six
   responses were received after the first notice, and two firms, the
   protester and the incumbent, revised their responses after the second
   notice.[3] Both the protester's and incumbent's properties were considered
   acceptable in terms of meeting the minimum requirements set out in the
   notices, and both were found to meet the applicable $35 per RSF rental
   rate maximum.[4]

   The agency, through its broker for the lease acquisition, then performed a
   comparative review of the properties in a cost-benefit analysis evaluating
   the estimated costs of remaining at the present location versus
   relocating. The analysis revealed that relocation costs associated with a
   move to the protester's property (including required security upgrades,
   telecommunications cabling, design fees and build-out costs, fixtures,
   furniture and equipment, and the physical move[5]) would be substantial,
   totaling more than $86 million over the 10-year lease term. The agency
   considered the incumbent's and the protester's comparable rental rates
   (both were evaluated at [deleted] per RSF), as well as the lower parking
   costs at the protester's property (which presented more than [deleted]
   million in savings compared to the cost of parking at the incumbent's
   location over the 10-year lease period), and minor restoration costs for
   required repairs upon departure of the incumbent's site, and concluded
   that the government would save $77 million over the 10-year lease term by
   remaining at the existing location.[6] Based on the cost-benefit analysis
   of the expressions of interest, the agency concluded that it cannot expect
   to recover the substantial relocation costs through competition and thus
   intends to negotiate a sole-source "succeeding" (follow-on) lease with the
   incumbent lessor.

   On October 18, 2007 (later amended on November 9), Eisenhower filed an
   agency-level protest of the proposed sole-source award to the incumbent
   claiming that, since Eisenhower has an acceptable alternative property, it
   was unreasonable for the agency to conclude that only one source exists
   that will satisfy the agency's requirements. In responding to that
   protest, the agency explained to the protester that it decided to award a
   sole-source lease to the incumbent based on the results of the
   cost-benefit analysis which was performed pursuant to the GSA regulations
   (GSAR) regarding succeeding leases, 48 C.F.R. subpart 570.4. Specifically,
   under GSAR sect. 570.402-5(b), "if the cost-benefit analysis indicates
   that the Government cannot expect to recover relocation costs and
   duplication of costs through competition, [the agency is to] prepare a
   justification for approval in accordance with FAR 6.3 and 506.3.[7]" The
   agency further explained that a justification for the proposed sole-source
   award was prepared pursuant to the exception to full and open competition
   requirements at Federal Acquisition Regulation (FAR) sect. 6.302-1 (which
   provision references as statutory authority, the Competition in
   Contracting Act (CICA), 41 U.S.C. sect. 253(c)(1)), since the cost-benefit
   analysis showed that only one responsible source will meet the agency's
   needs. Agency Report in Response to Agency-Level Protest, Nov. 1, 2007, at
   2, 4. The agency-level protest official dismissed the protest as an
   untimely challenge to the terms of the presolicitation notices, and, to
   the extent the protest questioned the proposed sole-source award of a
   succeeding lease to the incumbent, denied the protest on the basis that
   the agency had complied with the requirements of GSAR sect.
   570.402-1(b)(2) for a cost-benefit analysis prior to making the
   sole-source determination for the lease.[8]

   On December 13, Eisenhower filed its protest with our Office, stating that
   it

     protests as unreasonable and contrary to procurement law and regulations
     applicable to leasing the [a]gency's intent to make award to the
     incumbent without competition, the [c]ost-[b]enefit analysis . . .
     purportedly conducted by the [a]gency . . . and the [j]ustification for
     [o]ther than [f]ull and [o]pen [c]ompetition based upon the erroneous
     [cost-benefit] analysis and underlying market survey.

   Protest at 2. In its protest, Eisenhower also only generally contends that
   no exception to full and open competition in the FAR and the GSAR applies
   here, and that "no rational basis exists to justify the [a]gency's
   determination that there is only one responsible source."[9] Protest at 5,
   10, and 11.

   In its comments filed 6 weeks after the protest, Eisenhower, for the first
   time, provided specific challenges to the agency's use of the CICA
   exception at 41 U.S.C. sect.253(c)(1) and its implementing regulations at
   FAR sect. 6.302-1, and contended that the agency's reliance on the
   cost-benefit analysis required by the GSAR is not controlling here, since,
   according to Eisenhower, the GSAR does not authorize the use of the cited
   statutory exception.[10] The agency argues that Eisenhower's protest of
   the legal authority relied on in support of the agency's justification for
   the sole-source award, first advanced with any specificity in its
   comments, should be dismissed as untimely. We agree.

   The record shows that, despite knowing the legal authority relied on by
   the agency for its justification for the sole-source award (information
   shared with the protester as early as in the agency's report in response
   to the firm's agency-level protest), the detailed comments purporting to
   support Eisenhower's earlier broad allegations were not filed until 6
   weeks after the protest. A protester has an obligation to set forth its
   grounds of protest and the factual and legal basis for its complaint
   within the time constraints of our timeliness rules. 4 C.F.R. sect.
   21.1(b) (2007). Our Bid Protest Regulations do not contemplate the
   piecemeal presentation or development of protest issues through later
   submissions citing examples or providing more specific legal arguments
   missing from earlier general allegations of impropriety. The later, more
   specific arguments cannot be considered unless they independently satisfy
   the timeliness requirements under our Bid Protest Regulations. See
   Foundation Eng'g Sciences, Inc., B-292834, B-292834.2, Dec. 12, 2003, 2003
   CPD para. 229 at 6-7. Since Eisenhower did not raise its challenge to the
   legal authority of the sole-source determination with the requisite degree
   of specificity until it filed its comments weeks after learning the basis
   for the challenge, it is untimely and will not be considered.[11] 4 C.F.R.
   sect. 21.2(a)(2); see Advanced Communication Sys., Inc., B-283650 et al.,
   Dec. 16, 1999, 2000 CPD para. 2 at 12.

   We have reviewed each of Eisenhower's challenges to the cost-benefit
   analysis and find that none of them provides a basis to conclude the
   cost-benefit analysis lacks a reasonable basis. For instance, Eisenhower
   initially alleges that its rental rate is [deleted] per RSF lower than the
   rate paid by GSA under the incumbent's current lease; the protester
   estimates that this difference gives it an almost [deleted] million
   advantage in terms of cost savings to the government. The agency reports,
   however, that Eisenhower's initial rental rate of [deleted] is in fact
   higher than the rates paid under the incumbent's lease, and that the
   subsequent rate information provided by the two firms showed their
   properties are indeed comparable in terms of rent. The record supports the
   agency's position.

   The protester next argues that since its expression of interest noted that
   the firm would like to discuss paying for the [deleted] costs, it should
   have received credit against the [deleted] costs amount in the
   cost-benefit analysis. The record supports the reasonableness of the
   evaluation, however, since, despite the firm's failure to quantify its
   claimed credit for such costs, or confirm that it would pay all such costs
   rather than just a portion, the agency applied an industry standard amount
   for such costs [deleted]; the protester has not shown that the standard
   amount is unreasonable. Moreover, Eisenhower has not shown in any way
   that, given the substantial relocation and duplication costs assessed
   against it in the cost-benefit analysis, even if the full amount of the
   [deleted] costs calculated here (approximately [deleted] million) had been
   credited to the firm in the analysis, it would have made any material
   change to the outcome of the analysis.

   Eisenhower also claims that its lease location should be viewed as
   presenting additional benefits exceeding the agency's stated minimum
   requirements, thus warranting cost credits in the comparison of the
   expressions of interest; examples include the ability to provide
   [deleted]; providing space in a newly refurbished building capable of
   supporting state-of-the-art equipment the agency may choose to purchase
   for its new space; providing a convenient location, accessible by highways
   and Metrorail, with more generous setback distances; and the ability to
   design the layout of the space to consolidate office space or accommodate
   growth. As a preliminary matter, to the extent that the protester asserts
   that the value of the additional intangible benefits its location
   allegedly offers was not quantified by the agency, the protester itself
   has provided no support for the dollar value associated with the claimed
   benefits. Further, to the extent Eisenhower suggests that the alleged
   benefits were ignored by the agency, as the agency reports, these
   elements, while not quantified, were considered in the cost-benefit
   analysis.

   For instance, while the agency noted that Eisenhower could provide
   additional [deleted], it considered the current amount [deleted] at the
   incumbent location acceptable as it met the agency's actual needs. While
   Eisenhower asserts that the incumbent's parking presents a greater
   security risk because of its below-building location, Eisenhower is
   essentially disagreeing with the agency's judgment that there is
   sufficient security at the incumbent site. Similarly, while the
   protester's location offers newly refurbished space, the record shows that
   the agency's space and equipment needs are met at its current upgraded
   location. Regarding the claimed convenience associated with the
   protester's location, the agency points out that the incumbent's location
   is also accessible by highways and Metrorail. As to the additional setback
   distance for the protester's property, since the incumbent's property has
   been government-approved for setbacks and apparently otherwise meets the
   agency's security requirements, we do not find persuasive the protester's
   general contention that the shorter setback distance at DEA's current
   location presents a security risk, or one that has not been resolved
   through other effective security measures.[12] In short, there is no
   showing in the record that the cost-benefit analysis challenged by the
   protester was unreasonable.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] Eisenhower also generally asserts that GSA lacks statutory authority
   to use noncompetitive procedures here; as discussed below, this allegation
   is untimely in light of the fact that the specific arguments in support of
   the protester's initial general challenge were not raised until the firm
   filed comments 6 weeks after the protest was filed.

   [2] GSA reports that the existing property has been updated and customized
   for DEA at substantial government expense, that the useful life of the
   upgrades will exceed the expiration of the current lease, and that the
   substantial costs for the upgrades would be duplicated in a relocation to
   the protester's property; noted upgrades include the construction of
   command, communication and conference centers, chambers and courtrooms,
   secured work areas, a museum, cafeteria, fitness center and health unit,
   and an auditorium.

   [3] The other responses received were evaluated but ultimately were not
   considered for award.

   [4] In this regard, the incumbent's rate of [deleted] was found compliant
   with the $35 per RSF cap (and was evaluated at $35 per RSF) due to the
   anticipated application of lease and broker contract terms providing for
   the government to receive the additional [deleted] as commission in the
   form of free rent. [deleted].

   [5] Physical move expenses [deleted] were considered relatively minor
   overall (constituting approximately $1.6 million of the estimated $86
   million relocation costs).

   [6] While the protester suggests that its expression of interest should
   have been evaluated at a rental rate lower than $35 per RSF, Eisenhower
   has not shown that, but for the agency's evaluation on this basis, its
   property would have been found to offer overall cost savings to the
   government compared to the costs of remaining at the incumbent's location.
   In light of the substantial relocation costs for security upgrades and
   customization of the property, as well as telecommunication cabling,
   equipment and services, it is clear that even if Eisenhower's rental rate
   had been calculated as low as [deleted] per RSF (reflecting the
   protester's initial rate of [deleted] with an additional [deleted] credit
   per RSF for commission as free rent), the amount of its evaluated rental
   rate over the 10-year lease period would be reduced by only slightly more
   than [deleted] million, representing a comparatively minor reduction in
   the overall cost savings of $77 million associated with remaining at the
   incumbent's property.

   [7] The reference to "506.3" is to a provision in the GSA Manual (GSAM)
   setting out internal agency acquisition policy. That provision
   (specifically, GSAM sect. 506.303-1), sets out internal procedural steps
   relevant to situations where a justification for the use of other than
   full and open competition is proposed for a class, or is based on
   industrial mobilization issues, national emergency, or the public
   interest. The parties have not suggested that GSAM sect. 506.303-1 is
   relevant here.

   [8] GSAR sect. 570.402-1(b) provides that "[i]f a succeeding lease will
   exceed the simplified lease acquisition threshold, [the agency] may enter
   into the lease [if] . . . (2) [the agency] identify[ies] potential
   acceptable locations, but a cost-benefit analysis indicates that award to
   an offeror other than the present lessor will result in substantial
   relocation costs or duplication of costs to the Government, and the
   Government cannot expect to recover such costs through competition."

   [9] Shortly after the protest was filed, the agency requested dismissal of
   the protest on the ground that that it was an untimely challenge to the
   terms of the presolicitation notice that advised potential offerors of the
   analysis to be performed to determine whether the agency would compete the
   lease requirement; our Office denied the request, since the terms of the
   presolicitation notice did not convey a final determination regarding the
   agency's intention to conduct a sole-source procurement. A copy of the
   justification prepared by the agency in support of the use of
   noncompetitive procedures for the lease was submitted with the agency's
   dismissal request. The justification cited as its legal authority CICA's
   exception to full and open competition at 41 U.S.C. sect. 253(c)(1),
   regarding the availability of only one responsible source that will
   satisfy the agency's requirements. Shortly thereafter, our Office asked
   the parties to discuss the legal authority supporting the use of this
   exception where the determination appeared to be based on cost factors
   alone. As discussed further in this decision, the agency now requests
   dismissal, as untimely, of the protester's challenge to the agency's
   reliance on the exception to full and open competition in 41 U.S.C. sect.
   253(c)(1). The fact that our Office raised the issue during the initial
   development of the protest has no bearing on the timeliness of the issue,
   which instead turns on whether, and if so, when, the protester raised the
   issue as part of its protest.

   [10] For instance, Eisenhower specifically argues for the first time in
   its comments that the agency's determination that leasing space from the
   incumbent will be less costly does not provide a basis for the agency to
   conclude there is only one source that can meet the agency's needs, and
   that CICA's "only one responsible source" exception, as implemented by FAR
   sect. 6.302-1, does not apply to follow-on lease acquisitions.

   [11] Accordingly, we express no view on the propriety as a general matter
   of GSA's reliance on the one responsible source exception to full and open
   competition where, as here, it concludes that award to other than the
   incumbent lessor would result in substantial costs which it cannot expect
   to recover through competition. Rather, our review is limited to the
   matter timely protested with sufficient specificity--the reasonableness of
   the agency's evaluation of the expressions of interest in conducting its
   cost-benefit analysis under GSAR sect. 570.402.

   [12] In its comments, the protester argued that its property appeared more
   advantageous in terms of potential expenses considered under an alternate
   cost-benefit analysis prepared by the agency. The agency explains,
   however, that those cost figures were inaccurate as they were prepared
   under the assumption that the agency would have to pay close to [deleted]
   for repairs to DEA's current leased buildings and move its employees
   between temporary office spaces during those repairs. This assumption is
   factually incorrect, as the lessor is expected to pay for most if not all
   of the repairs and, the agency reports, no additional space for employee
   moves will be necessary during the required repairs.