TITLE: B-311314.2, Trammell Crow Company, June 20, 2008
BNUMBER: B-311314.2
DATE: June 20, 2008
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B-311314.2, Trammell Crow Company, June 20, 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: Trammell Crow Company

   File: B-311314.2

   Date: June 20, 2008

   Ronald A. Schechter, Esq., Gary E. Humes, Esq., Kara L. Daniels, Esq.,
   Stuart W. Turner, Esq., and Patricia L. Stasco, Esq., Arnold & Porter, for
   the protester.
   Fernand A. Lavallee, Esq., Jeffrey R. Keitelman, Esq., J. Phillip
   Ludvigson, Esq., and Kim K.S. Pagotto, Esq., DLA Piper, for the
   intervenor.
   Elizabeth A. Hall, Esq., General Services Administration, for the agency.
   Peter D. Verchinski, Esq., David A. Ashen, Esq., and John M. Melody, Esq.,
   Office of the General Counsel, GAO, participated in the preparation of the
   decision.

   DIGEST

   1. Protest is sustained where agency improperly credited awardee's
   proposed building with availability of certain future amenities; while
   solicitation required third party evidence that amenities "will exist" by
   date of occupancy, awardee only provided in its proposal its own
   commitment that it would provide the amenities in its building by
   occupancy date.

   2. Protest that agency failed to engage in meaningful discussions with the
   protester is sustained where agency failed to raise significant weaknesses
   associated with protester's key personnel during discussions.

   DECISION

   Trammell Crow Company (TCC) protests the General Services Administration's
   (GSA) award of a lease to CS Master V, LLC (Stonebridge), under
   solicitation for offers (SFO) No. 07-018, for office and related space to
   be occupied by the Department of Justice (DOJ) in Washington, D.C. TCC
   alleges several evaluation and other improprieties in the procurement.

   We sustain the protest.

   The solicitation, which anticipated the award of a 15-year lease, provided
   for a "best value" award based on four evaluation factors (with
   subfactors): location (access to DOJ facilities; access to Metrorail; and
   access to amenities); building characteristics (quality of building
   architecture, building systems, construction, and finishes; planning
   efficiency and flexibility; and access to natural light); key personnel
   and past performance (key personnel and past performance); and price.
   Agency Report (AR) , Tab 5, SFO, at 20-21. The location factor was
   approximately equal in importance to the building characteristics factor,
   and each was significantly more important than key personnel/past
   performance; the technical factors combined were significantly more
   important than price. Id. In addition, the SFO stated that the phased
   occupancy of the building was to begin no earlier than January 1, 2010,
   and was to be completed no later than June 30, 2010. Id. at 8.

   Following the submission and evaluation of initial offers, a round of
   discussions, and the submission and evaluation of final offers,
   Stonebridge's offer was among the highest rated (overall rating of highly
   successful plus) and offered the lowest price (annual present value
   [DELETED] per square foot), while TCC's offer was both lower rated
   (overall rating of successful plus) and higher priced ([DELETED] per
   square foot, for a total price premium of $16.6 million on a net present
   value basis). AR, Tab 24, at 42, 43. The final evaluation ratings were as
   follows:[1]

   +------------------------------------------------------------------------+
   |Factor          |Subfactor            |TCC              |Stonebridge    |
   |----------------+---------------------+-----------------+---------------|
   |Location        |Access to DOJ        |Superior Minus   |Successful Plus|
   |                |                     |                 |               |
   |(45%)           |(20%)                |                 |               |
   |                |---------------------+-----------------+---------------|
   |                |Access to Metro      |Highly Successful|Highly         |
   |                |                     |                 |Successful     |
   |                |(15%)                |                 |               |
   |                |---------------------+-----------------+---------------|
   |                |Access to Amenities  |Highly Successful|Highly         |
   |                |                     |Minus            |Successful     |
   |                |(10%)                |                 |               |
   |                |---------------------+-----------------+---------------|
   |                |FACTOR RATING        |Highly Successful|Highly         |
   |                |                     |                 |Successful     |
   |                |                     |                 |Minus          |
   |----------------+---------------------+-----------------+---------------|
   |Building        |Quality of Building/ |Successful       |Superior       |
   |Characteristics |Architecture (20%)   |                 |               |
   |                |---------------------+-----------------+---------------|
   |(45%)           |Planning Efficiency/ |Marginal         |Highly         |
   |                |Flexibility (20%)    |                 |Successful     |
   |                |---------------------+-----------------+---------------|
   |                |Access to Light (5%) |Highly Successful|Superior       |
   |                |---------------------+-----------------+---------------|
   |                |FACTOR RATING        |Successful Minus |Superior Minus |
   |----------------+---------------------+-----------------+---------------|
   |Key Personnel/  |Key Personnel (5%)   |Successful       |Superior       |
   |Past Performance|---------------------+-----------------+---------------|
   |                |Past Performance     |Highly Successful|Successful     |
   |(10%)           |                     |                 |               |
   |                |(5%)                 |                 |               |
   |                |---------------------+-----------------+---------------|
   |                |FACTOR RATING        |Successful/Highly|Highly         |
   |                |                     |Successful       |Successful     |
   |--------------------------------------+-----------------+---------------|
   |OVERALL RATING                        |SUCCESSFUL PLUS  |HIGHLY         |
   |                                      |                 |SUCCESSFUL PLUS|
   +------------------------------------------------------------------------+

   AR, Tab 23, at 1. Stonebridge's offer was selected as the best value to
   the government, and this protest followed.[2]

   TCC raises numerous arguments concerning the propriety of the evaluation
   and other aspects of the procurement. In reviewing protests of alleged
   improper evaluations and source selection decisions, it is not our role to
   reevaluate submissions; rather, we will examine the record to determine
   whether the agency's judgment was reasonable and in accord with the stated
   evaluation criteria and applicable procurement laws and regulations.
   Panacea Consulting, Inc., B-299307.4, B-299308.4, July 27, 2007, 2007 CPD
   para. 141 at 3. Based on our review of the record here, we find that the
   evaluation was unreasonable in several respects, and we therefore sustain
   the protest. We discuss TCC's meritorious arguments below.

   AMENITIES

   TCC challenges the evaluation under the access to amenities subfactor.
   With regard to evaluating amenities, the SFO provided as follows:

     Offers will be evaluated for amenities within the building or otherwise
     available within 2,000 walkable linear feet . . . Offers will be
     evaluated for both the quantity and variety of the following amenities:
     childcare centers, fitness facilities, postal facilities, restaurants,
     fast food establishments, dry cleaners, banks and ATM's, convenience
     shops, card/gift shops, and drug stores . . . The best rating will be
     given to offers that provide the greatest variety and quantity of
     amenities with the most extensive hours of operation existing at the
     time of occupancy within the building or adjacent to the building.

   AR, Tab 5, SFO, at 21. In determining whether amenities that do not
   currently exist, but which would likely exist in the future, should be
   considered in the evaluation of an offer, the SFO stated as follows:

     Amenities will be considered to be "existing" if they currently exist or
     if the offeror can demonstrate to the reasonable satisfaction of the
     Government (i.e., though evidence of signed leases, construction
     contracts, etc.) that such amenities will exist by the Government's
     required occupancy date.

   Id.

   In support of Stonebridge's proposed future amenities, the awardee
   provided a letter with its final offer revision in which it committed to
   providing [DELETED] in the awardee's building. The agency ultimately
   credited Stonebridge's offer with these amenities, resulting in a rating
   of highly successful for the access to amenities subfactor.[3] AR, Tab 19,
   Location Technical Advisory Report, attach. 2.

   TCC asserts that the agency improperly relaxed the SFO requirements by
   accepting Stonebridge's letter of commitment as sufficient proof that the
   amenities will exist. The protester states that, had it known that a mere
   letter of commitment from the offeror to provide future amenities would
   suffice, it could have used this information to propose new amenities that
   would have increased its score under the amenities subfactor.

   It is a fundamental principle of government procurement that competition
   must be conducted on an equal basis, that is, offerors must be treated
   equally and be provided with a common basis for the preparation of their
   proposals. Continental RPVs, B-292768.2, B-292768.3, Dec. 11, 2003, 2004
   CPD para. 56 at 8; Systems Mgmt., Inc.; Qualimetrics, Inc., B-287032.3,
   B-287032.4, Apr. 16, 2001, 2001 CPD para. 85 at 8. Our Office will sustain
   a protest that an agency improperly relaxed its requirements for the
   awardee where the protester establishes a reasonable possibility that it
   was prejudiced by the agency's actions. Datastream Sys., Inc. B-291653,
   Jan. 24, 2003, 2003 CPD para. 30 at 6. We find that the agency's
   evaluation of Stonebridge's proposed amenities was inconsistent with the
   solicitation.

   As stated above, the SFO provided that "the offeror must demonstrate to
   the reasonable satisfaction of the Government (i.e., through evidence of
   signed leases, construction contracts, etc.) that such amenities will
   exist by the Government's required occupancy date." AR, Tab 5, SFO, at 7.
   We think this language informed offerors that some level of evidence of a
   proposed amenity, beyond a mere promise of its existence by an offeror,
   had to be provided in order for the agency to give credit for the proposed
   amenity. While the agency asserts that Stonebridge's promise here is
   contractually enforceable, and thus the agency was reasonably satisfied
   that the awardee would provide the amenity, there is nothing in the
   solicitation that informs offerors that the agency would accept the mere
   promise of the offeror instead of such evidence from third parties as
   represented by the signed leases or construction contracts cited in the
   SFO. Thus, in accepting something less than the required third party
   evidence for the proposed amenities, the agency relaxed the solicitation
   requirement for the benefit of Stonebridge without furnishing other
   offerors a similar opportunity to benefit from the lesser required proof
   of amenities.[4]

   TCC also asserts that the agency improperly credited Stonebridge with
   amenities relating to a proposed Harris Teeter grocery store, since,
   according to the protester, the store will not be open by the June 30,
   2010 occupancy date, as required by the SFO. In support of this
   allegation, the protester points to the Harris Teeter lease proposal,
   which states that Harris Teeter itself will build the grocery store inside
   the shell provided by the awardee, and that Harris Teeter is not required
   to accept the premises prior to April 1, 2010. TCC asserts that, "[e]ven
   if work begins at the earliest possible time, the amenity will simply not
   exist by the Government's required occupancy date." Protester's Comments
   on AR, Apr. 28, 2008, at 16.

   We find the agency's evaluation of Stonebridge's Harris Teeter amenities
   to be unreasonable. In this regard, neither the intervenor nor the agency
   have refuted the protester's position that the Harris Teeter will not be
   open for business by the required June 30, 2010 occupancy date based on
   its anticipated occupation of the premises on or after April 1, 2010.
   While the intervenor maintains that the Harris Teeter will "exist" within
   the meaning of the SFO due to the fact that, as of April 1, the store will
   be present in the building, even though it will not necessarily be open
   for business until after June 30, we find this broad reading of the term
   "exists" to be unreasonable. The requirement that the amenity exist by the
   required occupancy date clearly was to insure that DOJ employees were able
   to use the amenity when they move into the building. Consequently, we
   conclude that, in specifying the occupancy date as the relevant date for
   purposes of determining whether an amenity would exist, the SFO clearly
   put offerors on notice that the amenity would have to be open for business
   by that date. As for the agency, it simply states that even if the Harris
   Teeter is not open by the occupancy date, it will be open for a
   substantial portion of the 15 year lease term. Agency Response, May 9,
   2008, at 7 n.7. The SFO, however, did not allow the agency to give credit
   for amenities on such a basis. Since nothing in Stonebridge's offer
   indicated that the Harris Teeter would be open for business by the
   required June 30, 2010 occupancy date, we conclude that the agency
   improperly waived this solicitation requirement by crediting Stonebridge's
   offer with the Harris Teeter amenities.

   KEY PERSONNEL

   Discussions with TCC

   TCC asserts that the agency improperly failed to conduct meaningful
   discussions with it regarding the qualifications of its proposed key
   personnel. In this regard, for purposes of evaluating offers under the key
   personnel subfactor, offerors were to provide resumes and other
   information for six key personnel. AR, Tab 5, SFO, at 22. The SFO provided
   that "[o]fferors whose Key Personnel provide the greatest qualifications,
   the most favorable past performance on similar projects, and a proven
   track record of working together as a team on past successful projects
   will be more highly rated." Id. The evaluation team rated offers under
   this factor using six criteria: number of years experience,
   education/training, special skills, experience with similar projects (past
   performance), previous experience working with other key personnel, and
   references for past performance on similar projects. Id.; AR, Tab 20, Key
   Personnel/Past Performance Technical Advisory Report, at 1-2. The team
   then assigned various "preferences" to each criterion. For example, under
   "years experience," the team determined that the property manager should
   have 10 years experience, while both the construction manager-base
   building and construction manager-interiors should have 15 years
   experience. The overall ratings under this factor were then assigned based
   on the number of personnel who met all six preferences--an offeror would
   receive a superior rating if all six personnel met all six preferences, a
   highly successful rating if five personnel met all six preferences, and so
   on, down to a poor rating where two or fewer personnel met all six
   preferences. Id. at 2.

   Stonebridge's offer received a superior rating and TCC's a successful
   rating under the subfactor. While Stonebridge's rating was based on the
   evaluation finding that all of its personnel met each of the six
   requirements, TCC's lower rating reflected the determination that TCC's
   [DELETED] had only 13 (rather than 15) years experience, and that its
   [DELETED] did not meet the past performance preference requiring previous
   successful experience with at least two other comparable federal interiors
   of at least 350,000 square feet in the Washington, D.C. area.

   TCC asserts that the agency improperly failed to advise it during
   discussions that its offer had been downgraded based on the qualifications
   of its proposed key personnel. According to the protester, had it been
   advised of the evaluated shortcomings in personnel experience, it would
   have substituted other personnel that satisfied the agency's preferences.

   When discussions are conducted, they must at a minimum identify
   deficiencies and significant weaknesses in each competitive-range
   offeror's proposal. FAR sect. 15.306(d)(3); Multimax, Inc., et al.,
   B-298249.6 et al., Oct. 24, 2006, 2006 CPD para. 165 at 12; PAI Corp.,
   B-298349, Aug. 18, 2006, 2006 CPD para. 124 at 8. Discussions must be
   "meaningful," that is, sufficiently detailed so as to lead an offeror into
   the areas of its proposal requiring amplification or revision. Smiths
   Detection, Inc., B-298838, B-298838.2, Dec. 22, 2006, 2007 CPD para. 5 at
   12; Symplicity Corp., B-297060, Nov. 8, 2005, 2005 CPD para. 203 at 8.

   We agree with TCC that the agency was required to advise the firm of its
   evaluation findings with regard to the firm's proposed key personnel.
   While the agency termed the failure of the TCC employees to meet the
   experience preferences only "weaknesses," AR, Tab 20, at 25, it is clear
   that, under the agency's evaluation methodology for this subfactor, the
   weaknesses in fact were significant. As described above, under the
   agency's approach, each proposed employee was evaluated as either meeting
   or not meeting the applicable undisclosed preferences. For each employee
   that did not meet all of the preferences, the offeror's rating was reduced
   by one rating--that is, if one employee did not meet all preferences, the
   offeror's rating was reduced from superior to highly acceptable, and so
   on. Because two of TCC's employees did not meet every applicable
   preference, its rating was reduced to successful. This was a significant
   scoring reduction, such that the weaknesses in these areas can only be
   considered significant, and the agency's failure to raise the matters
   during discussions was inconsistent with its obligation to conduct
   meaningful discussions.[5]

   Evaluation of Stonebridge's Offer

   TCC challenges the evaluation of Stonebridge's offer as superior under the
   key personnel subfactor. The protester asserts that the agency improperly
   determined that all six of Stonebridge's proposed key personnel met all of
   the applicable preferences. According to TCC, two of Stonebridge's
   proposed key personnel do not satisfy the preference for previous
   experience working together; since only four of Stonebridge's key
   personnel met all six criteria, its offer should have received a rating of
   only successful.

   Our review of Stonebridge's offer confirms that two of the proposed key
   personnel ([DELETED] and [DELETED]) had not previously worked together,
   and thus failed to satisfy the preference for these particular key
   personnel to have worked together. AR, Tab 30, Stonebridge's Clarification
   to Offer, July 23, 2007, Item 14. Accordingly, under the agency's approach
   to evaluating offers, Stonebridge's offer was improperly rated superior
   under the key personnel subfactor; its rating instead should have been
   only successful based on the agency's evaluation methodology.

   PREJUDICE

   Our Office will not sustain a protest absent a showing of prejudice to the
   protester; 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).

   We find that there is a sufficient showing of prejudice here. While the
   precise effect of the changes that could result from a correct evaluation
   is difficult to determine, we think it is sufficiently clear that a proper
   evaluation could have affected the award decision. In this regard, TCC
   asserts that it could have provided additional amenities in its building
   if it had known that the agency would accept a commitment from the offeror
   without supporting third party evidence. Protester's Reply, May 14, 2008,
   at 27. Had TCC done so, its subfactor rating of highly successful minus
   could have increased, which likewise could have increased its highly
   successful rating under the location factor. Similarly, TCC's rating under
   the key personnel subfactor--and the key personnel/past performance factor
   as well--could have increased substantially had it been provided
   discussions in the area, while the reduction of Stonebridge's rating under
   the key personnel subfactor also could reduce its highly successful factor
   rating. Given the agency's reliance on adjectival ratings in its selection
   decision, there is nothing in the record that would permit us to conclude
   that the evaluation deficiencies would not have affected the outcome of
   the technical evaluation. Thus, even though Stonebridge's price was lower
   than TCC's, given the possibility that TCC's offer could be found
   technically superior to Stonebridge's, a proper evaluation could result in
   the need for the agency to conduct a price/technical tradeoff between the
   offers. We will not speculate as to the result of such a tradeoff,
   particularly in view of the fact that the technical evaluation factors
   were significantly more important than price under the SFO's evaluation
   scheme. AR, Tab 5, SFO, at 20. We thus conclude that TCC was competitively
   prejudiced by the evaluation deficiencies, and therefore sustain the
   protest.

   RECOMMENDATION

   The lease here has been awarded and signed by the agency and awardee, and
   the lease does not contain a termination for convenience clause. AR,
   Tab 33. In the absence of a termination for convenience clause, we
   ordinarily do not recommend termination of an awarded lease, even if we
   sustain the protest and find the award improper. Here, we do not think
   there is any basis to recommend termination. Peter N.G. Schwartz Co.
   Judiciary Square Ltd. P'ship, B-239007.3, Oct. 31, 1990, 90-2 CPD
   para. 353 at 11. Consequently, we recommend here that the protester be
   reimbursed its proposal preparation costs as well as the costs of filing
   and pursuing its protest, including reasonable attorneys' fees. 4 C.F.R.
   sect. 21.8(d)(1) (2008). The protester should submit its certified claim
   for such costs, detailing the time expended and costs incurred, directly
   with the agency within 60 days of receiving this decision. 4 C.F.R.
   sect. 21.8(f)(1).

   The protest is sustained.

   Gary L. Kepplinger
   General Counsel

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

   [1] According to the source selection plan, offers could receive ratings
   of Superior, Highly Successful, Successful, Marginal, or Poor. AR, Tab 8,
   at 10. In actually evaluating offers, the agency used ratings with pluses
   and minuses, which are undefined in the record.

   [2] The parties disagree as to whether Stonebridge's offer was rated
   successful or highly successful under the past performance subfactor. TCC,
   believing that Stonebridge's past performance rating was highly
   successful, asserts that the rating instead should be at best successful,
   but also could be lower. Protester's Comments on AR, Apr. 28, 2008, at 45
   n.27. However, the record supports GSA's position that Stonebridge's final
   past performance rating in fact was only successful, AR, Tab 25, at 10,
   and TCC has made no showing that a lower rating was warranted.
   Accordingly, our decision is based on a rating for Stonebridge of
   successful under the past performance subfactor.

   [3] With respect to the proposed [DELETED], the agency did not credit
   Stonebridge's offer with this amenity because the facilities were not
   official [DELETED]. AR, Tab 19, Location Technical Advisory Report, at 6.

   [4] The agency asserts that offerors (including TCC) in fact were told
   during oral discussions that they could improve their offers by providing
   amenities in their building and that "the [g]overnment would accept a
   legally enforceable guarantee from a financially responsible offeror [as
   evidence] that the amenity would exist at the time of occupancy." AR, Tab
   2, Declaration of Neil I. Levy, at 2. The protester, however, denies that
   it was told that the agency would accept such a guarantee for amenities
   provided by third parties (such as banks, restaurants, etc.); rather,
   according to the protester, it understood that such a guarantee was
   acceptable only for amenities not involving third parties (such as a
   [DELETED]). Protester's Comments on AR, exh. D, Declaration of Thomas E.
   Finan, at 2. Not only is the record unclear as to whether the agency in
   fact informed all offerors that it had relaxed the SFO requirements for
   establishing the existence of amenities provided by third parties, but, in
   any case, the Federal Acquisition Regulation (FAR) requires that the
   government amend the solicitation when it changes its requirements or
   terms and conditions, and there was no amendment issued here. FAR sect.
   15.206(a). In this regard, when an agency orally amends a solicitation,
   the agency is then required to document the contract file and formalize
   the notice with an amendment. FAR sect. 15.206(d); S^3 Ltd., B-287019.2,
   et al., Sept. 14, 2001, 2001 CPD para. 165 at 5. In short, there is no
   evidence that the agency advised TCC, let alone all offerors, of the
   relaxation of the amenities language.

   [5] The agency asserts that it was not required to raise these matters
   during discussions because the solicitation clearly stated that the
   government would consider the number of years experience and past
   performance, and thus it was incumbent on the protester to offer the most
   qualified team possible, without further prompting from the government.
   Again, however, agencies are required to discuss with offerors
   "deficiencies, significant weaknesses, and adverse past performance
   information to which the offeror has not yet had an opportunity to
   respond." FAR sect. 15.306(d)(3). As noted above, under the agency's
   evaluation approach, the failure of TCC's employees to meet the agency's
   experience preferences represented significant evaluated weaknesses in its
   offer. Moreover, the SFO in fact did not disclose the preferences that
   resulted in TCC's lowered ratings; thus, for example, when TCC proposed
   [DELETED] with only 13 years of experience, it could not know that the
   agency had established a preference for a minimum of 15 years experience
   that had to be met in order to avoid a significantly reduced rating. Since
   it is not necessary for the resolution of this protest, we do not address
   whether the agency was required to disclose these preferences in the
   solicitation.