TITLE: B-310980; B-310980.2; B-310980.3, Fedcar Company, Ltd., March 25, 2008
BNUMBER: B-310980; B-310980.2; B-310980.3
DATE: March 25, 2008
**********************************************************************
B-310980; B-310980.2; B-310980.3, Fedcar Company, Ltd., March 25, 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: Fedcar Company, Ltd.

   File: B-310980; B-310980.2; B-310980.3

   Date: March 25, 2008

   Michele M. Brown, Esq., David S. Black, Esq., Thomas M. Brownell, Esq.,
   Allison V. Feierabend, Esq., and Robert C. MacKichan, Jr., Esq., Holland &
   Knight LLP, for the protester.
   Fernand A. Lavallee, Esq., Jeffrey R. Keitelman, Esq., and J. Philip
   Ludvigson, Esq., DLA Piper US LLP, for the intervenor.

   Carl E. Smith, Esq., General Services Administration, for the agency.

   Nora K. Adkins, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   1. Where an agency bases its source selection decision for the award of a
   lease on incorrectly calculated costs, the source selection is not
   reasonably based.

   2. Source selection document that only discusses strengths of awardee's
   higher-rated, higher-priced proposal but not its weaknesses, or the
   strengths and the weaknesses found in protester's slightly lower-rated,
   lower-priced proposal does not reasonably justify tradeoff decision.

   3. A purported acceptance of a lease offer by the General Services
   Administration that is conditioned on the offeror's assent to terms
   additional to, or different from, those offered is not an acceptance, but
   a counteroffer, and does not create a binding lease contract.

   DECISION

   Fedcar Company, Ltd. protests the award of a lease contract to Duke Realty
   Limited Partnership by the General Services Administration (GSA) under
   solicitation for offers (SFO) No. GS-05B-18064, for the construction and
   lease of a dedicated campus facility in Indianapolis, Indiana, for use by
   the Federal Bureau of Investigation (FBI).

   We sustain the protest.

   On January 17, 2006, GSA issued an SFO for the lease of a site of
   approximately 6 to 9 acres to be developed into a fully-serviced FBI
   campus facility with 110,531 rentable square feet of office and related
   space for a 15-year term. Contracting Officer's Statement (COS) at 1. The
   procurement was to be conducted in two separate phases; Phase I required
   offerors to submit proposals that included information on the offeror's
   technical approach and qualifications, while Phase II addressed design
   concepts and cost proposals. After the evaluation of the Phase I
   proposals, the agency would select the qualified offerors that would
   advance to Phase II. SFO, as amended, at 31.

   The original acquisition plan contemplated that GSA would obtain a
   no-cost, assignable option for a specified land site, which would be
   assigned to the successful offeror, who would then construct a building on
   the site that would be leased to GSA for occupancy by the FBI. However,
   GSA was unsuccessful in its efforts to acquire a no-cost assignable option
   for any of the land sites preferred by the FBI, and on March 16, GSA
   received a request from the FBI to move forward with prospective offerors
   submitting their own sites. GSA thus amended the Phase I SFO on June 19 to
   allow developers to offer their own sites with their Phase II proposals.
   COS at 1.

   The Phase II SFO required offerors to provide land site, technical, and
   price proposals. The SFO specified that the offerors' proposed land sites
   were required to meet certain minimum requirements in order to be
   considered responsive to the solicitation, as follows:

     1.7 UNIQUE LAND SITES REQUIREMENTS

      A. As part of the Phase II offer, each invited team is required to
         submit one or more land sites that meet the criteria listed in
         Paragraph B. The Government will survey the offered sites after
         receipt of Phase II offers. Site elimination shall be based on
         Government Security personnel feedback and noncompliance with the
         minimum site requirements. GSA will not evaluate submitted proposals
         that do not meet the stated criteria.
      B. Sites must comply with the following minimum requirements:[1]

                         *        *        *        *        * 

           5. Site not located in industrial areas, near oil tanks, or
           adjacent to gas stations.

           7. Traffic in/around the site should be limited and a low volume
           of street traffic should pass in front/around the proposed site.

           12. Site should eliminate/minimize exposure or vulnerability to
           overlooking elevations, overlooking buildings, overpasses,
           elevated roadways, or railroad tracks.

   SFO, as amended, at 10-11. The land site requirements were evaluated on a
   "go/no-go" basis. A proposal that did not receive a "go" determination
   would not be considered further for award.

   The Phase II technical evaluation was based upon four evaluation factors
   listed in descending order of importance: appropriateness of facility
   design, appropriateness of building system, appropriateness of
   exterior/interior design, and management plan. Id. at 32. Price was to be
   evaluated based upon the "present value" ANSI/BOMA [American National
   Standards Institute/Building Owners and Managers][2] office area per
   square foot cost of the offers.[3] Id. at 50-51. Award was to be made to
   the offeror whose offer "conforms to the solicitation and is most
   advantageous to the Government" based upon both the technical and price
   evaluations. Id. at 52. The technical evaluation factors, when combined,
   were to be significantly more important than price; however, the SFO noted
   that price would become more important in the best value tradeoff decision
   as the technical proposals became more equal. Id. at 32.

   On June 30, 13 offerors submitted Phase I proposals to GSA. Agency Report
   (AR), Tab 35, Price Negotiation Memorandum (Dec. 17, 2007), at 1. Five of
   these offerors, including Fedcar and Duke, were selected to submit
   proposals on the Phase II SFO. Id. at 2. On November 13, four of the
   offerors submitted a response to the Phase II SFO. Id.[4]

   GSA conducted a go/no-go analysis of each site proposed by the remaining
   offerors, and on January 5, 2007, notified the offerors of their proposed
   sites' status. While seven sites were submitted by the four Phase II
   offerors, only three sites were approved by GSA: a site proposed by Duke,
   a site proposed by both Fedcar and another offeror (offeror A), and a
   third site proposed by yet another offeror (offeror B).

   After technical and price evaluations and discussions and negotiations
   with the four remaining offerors based on the three remaining sites, GSA
   made award to offeror A on March 23.[5] As part of the lease contract,
   offeror A agreed to provide to the contracting officer within 120 days
   after award of the contract (July 21) evidence of the site purchase.
   Offeror A defaulted on its commitment to provide evidence of site purchase
   and the lease was terminated.

   On September 7, the agency reopened negotiations with the remaining three
   offerors by issuing an amendment to the SFO that provided:

     Offerors will have the opportunity to refresh proposed pricing, address
     the weaknesses of the facility design concept and enhance other areas of
     the offer deemed necessary. However, Offerors will not have an
     opportunity to submit an alternate site, an alternate design proposal,
     or significantly redesign the current proposal.

   AR, Tab 1L, amends. 1 and 12, at 1.[6] In response, the remaining three
   offerors submitted final revised proposals. Only the offerors' technical
   and price proposals were evaluated.[7] Offeror B's offer was excluded from
   consideration because its final revised proposal did not comply with key
   requirements of the amended SFO. COS at 4. The source selection evaluation
   board (SSEB) gave Duke's technical proposal a score of [DELETED] points on
   a 100-point scale, while Fedcar received [DELETED] points. AR, Tab 35,
   Price Negotiation Memorandum (Dec. 17, 2007), at 2-3. The contracting
   officer's price analysis resulted in a present value ANSI/BOMA for Duke's
   proposal of [DELETED] per square foot, whereas Fedcar's offer was
   [DELETED] per square foot. Id. In making her best value decision, the
   contracting officer found that Duke's technically superior proposal was
   worth the [DELETED] cents per square foot price difference, and notice of
   the award of the lease was made to Duke on December 17. Id.; AR, Tab 13,
   GSA Award Letter (Dec. 17, 2007). Fedcar was notified of the award and
   protested on December 20. Because of this protest, performance under the
   lease has been stayed.

   In its protest, Fedcar asserts, among other issues, that Duke's site was
   unacceptable and should have been rejected because it failed to meet 3 of
   the 14 requirements, which were minimum requirements of the
   solicitation.[8] Specifically, Fedcar contends that Duke's site did not
   meet the following unique land site requirements: site not located in
   industrial areas, near oil tanks, or adjacent to gas stations; traffic
   in/around the site should be limited and a low volume of street traffic
   should pass in front/around the proposed site; and site should
   eliminate/minimize exposure or vulnerability to overlooking elevations,
   overlooking buildings, overpasses, elevated roadways, or railroad tracks.
   Fedcar alleges that Duke's site is located within an industrial park,
   named Park 100; has heavy traffic along West 79^th street; and is in close
   proximity to both railroad tracks and a highway overpass. Protest at
   11-13.[9]

   In reviewing protests against allegedly improper evaluations, it is not
   our role to reevaluate proposals. Rather, our Office examines the record
   to determine whether the agency's judgment was reasonable and in accord
   with the evaluation factors set forth in the RFP. Abt Assocs., Inc.,
   B-237060.2, Feb. 26, 1990, 90-1 CPD para. 223 at 4. A protester's mere
   disagreement with the agency's judgment does not establish that an
   evaluation was unreasonable. UNICCO Gov't Servs., Inc., B-277658, Nov. 7,
   1997, 97-2 CPD para. 134 at 7.

   As noted, the agency's "go/no-go" site analysis had been previously
   conducted by members of the SSEB on November 16, 2006. The analysis
   included a visit and inspection of the premises of each proposed site.
   Individual evaluators used site tour comment sheets to note each site's
   strengths, weaknesses, and security concerns. The SSEB members reviewed
   the sites as a group and upon conclusion of the visit had one member, the
   GSA Project Manager, collect, organize, and record SSEB members' comments,
   observations, and evaluations, and enter a "Meets" or "Does not meet"
   check on the consensus evaluation sheet. Supplemental AR (Feb. 25, 2008),
   at 4. The consensus evaluation sheet report scored Duke's site as "Meets"
   with regard to each of the three requirements protested by Fedcar. AR,
   Tab 36(10), Duke Site Evaluation Documents.

   In response to the specific concerns noted in the protest, GSA asserts
   that Duke's site is located within a corporate park that is zoned special
   commercial, not industrial; the minimal traffic in the area does not
   travel through or in front of the site; and [DELETED] minimize exposure or
   vulnerability from any overlooking elevations and railroad tracks. COS at
   3. These assertions are consistent with the contemporaneous record,
   including the individual evaluator records that serve as the basis for the
   SSEB's consensus "Meets" rating for Duke's site under the land site
   factor. For example, one evaluator noted that Duke's site was located in a
   "class A office park" and had [DELETED]. Id.[10]

   Based on our review, we find that the agency's evaluation of Duke's site
   was reasonable, in compliance with the SFO's stated evaluation criteria,
   and supported by the record. While Fedcar disagrees, arguing that Duke's
   site is, in fact, in an industrial park and that the agency's evaluation
   documents are insufficient to support a determination that Duke's site met
   the requirements, we find that the record reasonably supports the agency's
   determination that Duke's site satisfied the land site requirements.[11]
   In this regard, the record confirms the agency's assertion that Duke's
   site is near, but not in, an industrial park. COS at 2; AR, Tab 26, Duke's
   Phase II Technical Proposal, at A-7, Official Zoning Status; AR, Tab 8,
   C-S Special Commercial District zoning regulations.[12] Fedcar's mere
   disagreement with the agency's judgment does not establish that the site
   evaluation was unreasonable.[13]

   Fedcar also asserts that the agency's price evaluation was unreasonable
   because the agency inserted incorrect numbers into the price evaluation
   spreadsheet, which resulted in an error in favor of Duke's present value
   ANSI/BOMA office area per square foot price.

   In its report, the agency admits that it erred in calculating the present
   value of the rent being offered by Duke, and that, instead of a price
   difference of [DELETED] per ANSI/BOMA square foot, the actual price
   advantage of the rent offered by Fedcar was [DELETED] per ANSI/BOMA square
   foot. Supplemental AR (Feb. 25, 2008) at 5; AR, Tab 40, Net Present Value
   Recalculation. The agency further admits that this error results in a net
   present value difference of [DELETED] per year, or [DELETED] over the
   15-year life of the lease. Supplemental AR (Feb. 25, 2008), at 6. However,
   the agency dismisses this mistake as inconsequential and asserts that
   Fedcar is not prejudiced by the error because the solicitation stated that
   "the technical evaluation factors, when combined, are significantly more
   important than price." Id.

   We disagree. As indicated above, the record shows the technical evaluation
   of the two proposals was relatively close with Duke's technical proposal
   having only a [DELETED]-point advantage (out of 100 points) over Fedcar's
   proposal. AR, Tab 35, Price Negotiation Memorandum (Dec. 17, 2007), at 3.
   While it is true that the technical evaluation factors were said to be
   significantly more important than price, the SFO also stated, "[a]s
   proposals become more equal in their technical merit, the evaluation of
   price becomes more important." SFO, as amended, at 32. With an initial
   price differential of only [DELETED] per square foot, the source selection
   authority (SSA) could reasonably place greater emphasis on technical merit
   in selecting Duke. Now, however, since the actual price differential
   ([DELETED] per square foot) between the offers is significantly (more than
   [DELETED] times) greater, if the award decision were to be based on this
   revised price difference, price under the SFO's evaluation scheme could
   reasonably become more important and change the award decision.

   While the agency argues that the outcome of the SSA's cost/technical
   tradeoff would be the same regardless of the re-calculated price, our
   Office affords little weight to an agency's post-protest arguments that
   are based on judgments the agency asserts it would have made because such
   judgments made in the heat of litigation and based on facts that were not
   previously considered that are materially different from those on which
   the agency relied in making the original decision may not represent the
   fair and considered judgment of the >agency. Global, A 1^st Flagship Co.,
   B-297235.2, Dec. 27, 2005, 2006 CPD para. 14 at 8. Under the
   circumstances, we give little weight to the agency's assertion that the
   outcome would have been the same, given that Fedcar now has a
   significantly greater price advantage than found by the agency when it
   made its source selection decision. Where a source selection authority
   bases his or her source selection decision on figures that do not
   reasonably represent the differences in costs to be incurred under
   competing proposals, the source selection is not reasonably based. See
   Gemmo Impianti SpA, B-290427, Aug. 9, 2002, 2002 CPD para. 146 at 5-6.
   Thus, Fedcar was prejudiced by the agency's error in calculating the price
   difference between the offers.

   Moreover, as noted by Fedcar, the source selection document selecting Duke
   for award set forth the strengths found in Duke's proposal, but did not
   discuss that proposal's weaknesses nor the strengths found in Fedcar's
   proposal. AR, Tab 35, Price Negotiation Memorandum, at 3-4. The result was
   that the source selection document did not reasonably address the
   differences between the offers. An agency which fails to adequately
   document its source selection decision bears the risk that our Office may
   be unable to determine whether the decision was proper. Johnson Controls
   World Servs., Inc., B-289942, B-289942.2, May 24, 2002, 2002 CPD para. 88
   at 6. Where, as here, the source selection decision is devoid of any
   substantive consideration of the relative merits of the proposals that
   would justify whether a higher rated, higher priced proposal was a better
   value to the government than a lower rated, lower priced proposal, the
   cost/technical tradeoff decision is not reasonably justified. Id. at 6-7.

   We sustain the protest.

   Since the lease does not contain a termination for convenience clause, we
   would customarily find that remedial action that may disturb the award is
   not feasible; in the absence of a termination for convenience clause, we
   would ordinarily not recommend termination of an awarded lease, even if we
   sustained the protest and found the award improper. Peter N.G. Schwartz
   Co. Judiciary Square Ltd. P'ship, B-239007.3, Oct. 31, 1990, 90-2 CPD
   para. 353 at 11.

   Here, however, Fedcar argues that remedial action is appropriate because
   no legally binding lease contract between GSA and Duke was formed.[14]
   Based on our review of the record, we agree with Fedcar that GSA did not
   form a legally binding lease contract with Duke because it did not
   unconditionally accept Duke's offer. In this regard, the record shows that
   on December 17, 2007, when GSA accepted Duke's offer and notified Duke of
   the award, GSA forwarded to Duke a draft lease containing various changes
   from the terms of the SFO and Duke's offer, and requested that Duke
   execute and return the lease. AR, Tab 13, GSA's Award Letter (Dec. 17,
   2007). Fedcar has identified various changes in this draft lease that it
   regards as material deviations from the terms of the SFO and Duke's offer.
   For example, the agency changed a section of the SFO regarding the
   installation of roof antennas by making the agency's right to mount an
   antenna conditional on Duke's consent and added new provisions addressing
   the removal of the antennas. The draft lease also limited the lessor's
   right to negotiate price and imposed a mandatory procedure involving the
   use of appraisals to determine the purchase price. Neither GSA nor Duke
   has asserted that these are not changes from the SFO or Duke's offer, or
   explained why these changes are not material. Based on our review of the
   record, we find these changes are material. Moreover, the record does not
   include the modified draft lease executed by both GSA and Duke, even
   though this document (if it is in existence) was requested to be
   produced.[15]

   A purported acceptance of an offer that is conditioned on the offeror's
   assent to terms additional to or different from than those offered is not
   an acceptance but a counteroffer, and does not create a binding contract.
   1^st Home Liquidating Trust, et al. v. United States, 76 Fed. Cl. 731, 739
   (2007) (citing Restatement (Second) of Contracts sect. 59); Romala Corp.
   v. United States, 20 Cl.Ct. 435, 443 (1990); Climax Molybdenum Co.,
   B-193828, July 3, 1979, 79-2 CPD para. 2 at 4. On this record, we find
   that GSA's conditional acceptance of Duke's offer did not form a legally
   binding lease contract.

   Because GSA has made material changes to the lease agreement from those
   contained in the SFO, we recommend that GSA amend the SFO and obtain
   revised proposals. We also recommend that GSA make a new source selection
   decision taking into account the correct present value ANSI/BOMA office
   area per square foot price of the offers. In so doing, the agency should
   fully document its cost/technical tradeoff, including a comparison of the
   proposals' strengths and weaknesses as well as the evaluated price
   difference. In the event that Fedcar's proposal is found to be the best
   value, award should be made to that firm. We also recommend that Fedcar be
   reimbursed the reasonable costs of filing and pursuing the protests,
   including reasonable attorneys' fees. 4 C.F.R. sect. 21.8(d)(1). Fedcar
   should submit its certified claim for costs, detailing the time expended
   and costs incurred, directly to the agency within 60 days after the
   receipt of this decision.

   Gary L. Kepplinger
   General Counsel

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

   [1] Fourteen requirements are listed, but we list only those requirements
   at issue in this protest.

   [2] GSA recognizes the ANSI/BOMA international standard definition for
   office area, which means "the area where a tenant normally houses
   personnel and/or furniture, for which a measurement is to be computed."
   SFO, as amended, at 57. ANSI/BOMA office area square feet and usable
   square feet are terms that can be used interchangeably. Id. at 7.

   [3] The present value ANSI/BOMA office area per square foot of the offers
   was calculated using a pre-formulated spreadsheet that required the
   contracting officer to enter in numbers from the offerors' proposals to
   calculate the final ANSI/BOMA present value amount. Supplemental COS (Feb.
   7, 2008), at 3.

   [4] One offeror notified GSA that it declined to proceed with a Phase II
   proposal submission because it was not able to secure a site that met the
   criteria set forth in the Phase II SFO.

   [5] Duke protested this award to our Office alleging that offeror A did
   not have site control. This protest was withdrawn by Duke prior to our
   Office issuing a decision.

   [6] Amendment No. 1 and amendment No. 12 to the SFO were published as the
   same document. A new solicitation number was assigned to amendment No. 1
   for the reopened negotiations. Amendment No. 1 corresponds with the new
   SFO number, GS-05B-18064; amendment No. 12 corresponds with the original
   SFO number, GS-05B-17376.

   [7] The three proposed land sites were not reevaluated because the amended
   SFO restricted offerors from proposing an alternate land site, and each
   offeror's previously submitted site was formerly determined to be a "go."

   [8] Initially, the agency and intervenor requested dismissal of Fedcar's
   protest arguing, among other things, that the protest was untimely because
   Fedcar had not diligently pursued information regarding the site proposed
   by Duke by intervening in Duke's earlier protest of the first award
   decision, in which it could have learned the facts on which it now bases
   its protest--that Duke's site was not in compliance with the solicitation
   requirements. However, Fedcar did not have standing to intervene in that
   protest. In this regard, our Bid Protest Regulations define an
   "intervenor" as "an awardee if the award has been made." 4 C.F.R. sect.
   21.0(b)(1) (2007). Since the award had been made to Offeror A, Fedcar was
   not an awardee and, hence, did not have standing in Duke's initial protest
   to intervene. In any event, because Duke was not the awardee, Fedcar would
   have no reason to protest Duke's compliance with the site requirements.
   Given that Fedcar's protest was filed within 10 days of when it was
   apprised of the award to Duke, there is no basis to find that Fedcar did
   not diligently pursue the information on which it bases its protest here.

   [9] To support its claim, Fedcar has presented various photos and
   information on the surrounding buildings, topography, and roadways with
   regard to Duke's proposed site.

   [10] Fedcar contends that the evaluation of its alternate site, which it
   alleges is similarly situated to, and is only a few blocks away from,
   Duke's site, evidences unequal treatment because the Duke site was
   determined to be acceptable, yet Fedcar's alternate site was not. However,
   the evaluation documentation reasonably explains why Fedcar's alternate
   site was rejected. Specifically, one evaluator noted, regarding Fedcar's
   alternate site, "industrial park setting," "on busy intersection,"
   "traffic concerns," "water concern at south end of site," "lot appears
   narrow," and "heavy truck traffic." A second evaluator commented, "more of
   an industrial park, possibly a Class `B' or `C' office park," "narrow
   site," "busy intersection adjacent to propose[d] property," and "amount of
   truck traffic." The consensus evaluation document rates the site as "Does
   not meet" under criterion number 5, "site not located in industrial areas,
   near oil tanks, or adjacent to gas stations," and under criterion number
   7, "traffic in/around the site should be limited." AR, Tab 36(10), Fedcar
   Alternate Site Evaluation Documents. Thus, we find no evidence of unequal
   treatment, as asserted by Fedcar, in GSA's evaluation of these two sites.

   [11] Implicit in the requirement that the agency's judgment be reasonable
   is the requirement that these judgments be documented in sufficient detail
   to show they are reasonable. Advanced Tech. Sys. Inc., B-296493.6, Oct. 6,
   2006, 2006 CPD para. 151 at 9. While the agency's "go/no-go" evaluation
   record here is a compilation of notes and comments, it is sufficient to
   support the agency's determination.

   [12] In contrast, Fedcar's rejected site located several blocks from
   Duke's site was, in fact, located within an industrial park. The two
   site's respective zoning classifications support the agency's evaluation
   judgments here. COS at 2; AR, Tab 5, I-2-S Light Industrial Suburban
   description.

   [13] Except for the price evaluation issue and the insufficiently
   documented source selection decision discussed below, we find Fedcar's
   numerous other arguments provide no basis to object to the evaluation and
   award. For example, Fedcar argues that the agency waived or relaxed the
   solicitation requirements as to Duke's proposal by accepting site plan
   drawings that did not identify access and exit ramps and roads by
   directional arrows, did not show restaurants or other amenities, and
   failed to identify structures as required by the solicitation. However,
   based on our review, the agency reasonably determined that the requested
   information was ascertainable from elsewhere in Duke's proposal. (Our
   review of the record indicates that Fedcar's proposal had similar minor
   omissions that did not affect the evaluation.) We find that Fedcar's
   arguments that the agency's discussions with Duke were improperly unequal
   also had no merit, based on our review of the agency's transcripts of the
   discussions, which showed both offerors received meaningful discussions.

   [14] GSA argues that its award notice to Duke constitutes the acceptance
   necessary to form a binding contract, and points to the language of the
   SFO for support. The SFO, as amended, states, "The acceptance of the offer
   and award of the lease by the Government occurs upon notification of
   unconditional acceptance of the offer (i.e. award letter). This acceptance
   establishes a binding contract." AR, Tab 1L, para. 3.8(D). Here, however,
   Fedcar asserts that GSA never unconditionally accepted Duke's proposal,
   but instead unilaterally modified various material terms of the SFO in
   making the award, which cannot result in a binding contract.

   [15] We also note that contract performance was stayed shortly after the
   award was purportedly made because of the filing of Fedcar's protest.