TITLE: B-400049, Barnesville Development Corporation, June 30, 2008
BNUMBER: B-400049
DATE: June 30, 2008
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B-400049, Barnesville Development Corporation, June 30, 2008

   Decision

   Matter of: Barnesville Development Corporation

   File: B-400049

   Date: June 30, 2008

   Michael J. Brutz for the protester.
   John C. Ringenhausen, Esq., General Services Administration, for the
   agency.
   Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office
   of General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest challenging rejection of offer for the lease of office space is
   denied where the record shows that the offer failed to meet solicitation
   requirements pertaining to floor space dimensions; protester's argument
   that the agency should be regarded as having waived the floor space
   dimension requirements by including in the solicitation another, allegedly
   inconsistent requirement regarding layout of space is without merit given
   that the solicitation provisions at issue can be read in a manner that
   gives effect to both provisions.

   DECISION

   Barnesville Development Corporation protests the rejection of its offer
   under solicitation for offers (SFO) No. 7FL2052, issued by the General
   Services Administration (GSA) for the lease of office space for the Social
   Security Administration (SSA) in Melbourne, Florida. The protester
   contends that the agency improperly rejected its offered building for
   failing to comply with an allegedly ambiguous solicitation requirement
   pertaining to floor space dimensions.

   We deny the protest.

   BACKGROUND

   The solicitation sought offers for the lease of a minimum of 18,508 square
   feet of office space. Of relevance to this protest, the solicitation
   advised prospective offerors that "the overall building floor-plate cannot
   exceed a 2:1 ratio (space should be no more than twice as long as it is
   wide)," SFO sect. 1.4;[1] the solicitation further instructed that all of
   the space was to be on the same floor.[2] The SFO also set forth a series
   of internal space requirements (square footage and special requirements
   pertaining to particular rooms to be located in the space), and advised
   that the actual dimensions of the internal spaces would be shown on the
   government design intent drawings to be provided to the lessor after
   award.[3] Offers were due by December 14, 2007.

   The protester, which is the incumbent lessor, submitted an offer on
   December 11, 2007. The offer was accompanied by a sketch depicting a plan
   for adding on to the protester's existing building to meet the required
   square footage, which had increased since award of the preceding lease.
   The offer included the following explanation of relevance to this protest:

     As the incumbent Lessor, the main objective of this proposal is to
     expand the existing building in such a way as to minimize any disruption
     to the current activities of this facility while meeting the
     requirements of the SFO 1.4, in particular the SSA's requirement that
     the building floor plate be no more than 2 time[s] [as] long as it is
     wide. Reviewing Section III of [attachment 3 to the SFO,] it is clear
     that the intent of this unique requirement is to allow for the maximum
     flexibility for furniture placement with rectangular space and with a
     large open area. This proposal clearly meets the intent of the
     requirement in the following ways:

     1. The SFO prefers the multipurpose room and storage room to be located
     contiguous to the main office space. This plan complies with that
     requirement.

     2. By relocating the Manager's and Assistant Manager's offices to the
     new addition, along with the Interview room and IVT room we free up a
     large open area providing an efficient layout for the placement of work
     stations. . . .

     3. The open work space created by this arrangement is approximately 90
     feet wide and 180 feet long which complies with the "intent" of the 2:1
     requirement for efficient furniture layout.

     * * * * *

     . . . We submit that the deviation contained herein is minor in nature
     in that it clearly meets the stated "intent" of the 2:1 requirement and
     would be advantageous to the government in that it will permit the SSA
     to stay in its current space so the cost and disruption of relocating is
     eliminated. . . .

   Protest, exh. B, Barnesville's Proposal, Item 19 Attachment.

   By letter dated January 18, 2008, the agency's representative notified
   Barnesville that its offer required revision to be determined acceptable.
   In particular, the letter notified the protester that its offer needed to
   demonstrate compliance with the requirements of section 1.4 and attachment
   3 pertaining to the 2:1 ratio for building floorplate dimensions. The
   letter invited Barnesville to submit a revised offer by January 31.

   The protester responded with a letter in which it recognized that its
   proposal did not "strictly meet the 2:1 requirement if the `floorplate' is
   used as the sole criterion" because of its proposed relocation of the
   offices and other rooms, and reiterated why it considered its approach to
   be a "superior option." Protester's Letter to GSA Real Estate Broker, Jan.
   28, 2008, at 1.

   By letter dated March 6, the agency's representative notified the
   protester that its revised offer still did not meet the required 2:1
   ratio, and that if the protester's final offer did not meet the ratio, the
   government would have no alternative but to consider the protester's offer
   unacceptable.

   The protester responded by challenging the agency representative's
   conclusion that its failure to demonstrate compliance with the requirement
   that the building floorplate not exceed a 2:1 ratio rendered its offer
   unacceptable. Barnesville maintained that the "floorplate criteri[on]" was
   "void on its face" because the specifications clearly permitted the
   storage and multipurpose rooms to be separated from the main office area.
   Protester's Letter to GSA Real Estate Broker, Mar. 14, 2008, at 2. The
   protester reasoned that since the specifications permitted the storage and
   multipurpose rooms to be separated from the main office area, the square
   footage encompassed by these rooms should not be considered in determining
   whether the space offered complied with the 2:1 ratio. The protester
   asserted that if the square footage associated with these rooms were not
   considered, its proposed space would comply with the 2:1 ratio.

   By letter dated April 2, the contracting officer notified the protester
   that its proposal had been determined unacceptable. On April 7,
   Barnesville protested to our Office.

   ANALYSIS

   The protester argues that since the solicitation allows for the
   multipurpose and storage rooms to be separated from the main office area
   by a public corridor, GSA must consider designs that do not meet the 2:1
   ratio. The protester's argument, as we understand it, is that the agency
   has effectively waived the requirement that the space be no more than
   twice as long as it is wide by permitting the storage and multipurpose
   rooms to be located noncontiguous to the rest of the space. We disagree.

   In interpreting the language of a solicitation, we read the solicitation
   as a whole and in a manner that gives effect to all its provisions. SRI
   Int'l, Inc., B-250327.4, Apr. 27, 1993, 93-1 CPD para. 344 at 6 n.5. The
   protester's argument rests on the assumption that permitting some of the
   space to be separated from the remainder by a corridor is somehow
   inconsistent with requiring that the overall space fit within a 2:1
   footprint. The two provisions are not inconsistent, however; they may be
   read in a manner that gives full effect to both--i.e., the storage and
   multipurpose rooms are permitted to be separated from the remainder of the
   space by a corridor so long as the overall dimensions of the space still
   comply with the 2:1 ratio. In any event, even assuming that the storage
   and multipurpose rooms could be excluded for purposes of determining
   compliance with the 2:1 ratio, the proposed space layout that Barnesville
   submitted with its offer does not demonstrate compliance with the required
   ratio. That is, the protester's drawing does not demonstrate that the
   proposed space will comply with the requirement that it be no more than
   twice as long as it is wide even when the two rooms in question are
   excluded from the calculation.

   Next, the protester argues that it satisfied the intent of the requirement
   that the space be no more than twice as long as it is wide by proposing a
   plan for subdividing the space that provides for a large open space of the
   required rectangular shape. It is the role of the agency, not the lessor,
   to determine how the interior space will be subdivided, however. See SFO
   sect. 5.17. Moreover, the requirement is that the overall space be no more
   than twice as long as it is wide, not that it be possible to subdivide the
   space in a manner that results in a large open area meeting the 2:1
   requirement.

   The protester further argues that the 2:1 ratio requirement has been
   ambiguous from the outset. We will not consider this argument because it
   was not raised in a timely manner. Our Bid Protest Regulations require
   that protests based upon alleged improprieties in a solicitation that are
   apparent prior to the closing time for receipt of proposals be filed prior
   to that time. 4 C.F.R. sect. 21.2(a)(1) (2008). Here, the requirement that
   the leased space be no more than twice as long as it is wide was included
   in the SFO at the time it was issued. Accordingly, to be timely, any
   protest of the requirement would have had to be raised prior to the
   closing time set for receipt of initial offers on December 14, 2007. See
   Bevilacqua Research Corp., B-293051, Jan. 12, 2004, 2004 CPD para. 15 at 6
   n.6.

   The protester also complains that the agency failed to furnish it with a
   debriefing. An agency's failure to provide a debriefing is not a matter
   that we will consider. This is because the scheduling of a debriefing is a
   procedural matter that does not involve the validity of an award. The
   Ideal Solution, LLC, B-298300, July 10, 2006, 2006 CPD para. 101 at 3 n.2;
   Canadian Commercial Corp., B-222515, July 16, 1986, 86-2 CPD para. 73 at
   5.

   Finally, in its comments on the agency report, the protester raised the
   argument that the real estate brokerage firm that conducted this
   acquisition on behalf of GSA had a conflict of interest in that it stood
   to benefit financially from the selection of a higher-priced offer. The
   protester points out in this connection that the broker's commission
   typically is a specified percentage of the rent paid the lessor, meaning
   that the broker will receive more compensation if it selects a
   higher-priced lessor to receive the award.

   We will not consider this argument because it too is based on information
   that was provided to offerors in the solicitation, and thus, to be timely,
   should have been raised prior to the closing time for receipt of
   proposals. 4 C.F.R. sect. 21.2(a)(1). In this connection, the SFO notified
   offerors that:

     For the purposes of this SFO, The Staubach Company (the Broker) is the
     authorized real estate broker representing GSA. . . . The government
     expects the Lessor to pay a commission to the Broker. . . . The
     commission will be negotiated between the Lessor and the Broker and will
     be based on a lease term not to exceed the firm term of the lease
     contract. . . .

   SFO at 9. Given that the SFO made clear that the successful offeror was
   required to pay a commission to the broker and that the amount of the
   commission was to be negotiated between the offeror and the broker,
   offerors were on notice of the procedure regarding the broker's
   commission, and any challenge to the procedure should have been filed
   before the closing time for receipt of proposals.

   The protest is denied.

   Gary L. Kepplinger
   General Counsel

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

   [1] This requirement was reiterated in section III (General Design
   Requirements) of attachment 3 to the SFO (Special Requirements for the
   Social Security Administration), which provided as follows:

     It is a requirement that overall dimensions of the space shall have a
     maximum length to width ratio of 2 to 1. Preference will be given to
     blocks of space that allow maximum flexibility for furniture placement,
     i.e., few or no columns or other obstructions, rectangular in shape, no
     curves or off-sets, and with large open areas. . . .

   SFO, att. 3 at 2.

   [2] The section setting forth this requirement provided more fully as
   follows:

     Street-level, contiguous (same floor) space is preferred. Contiguous
     upper-floor space on one floor which meets GSA lease criteria and has
     handicapped accessible elevator service is an acceptable alternative. We
     prefer that the storage and/or multipurpose rooms be located contiguous
     with the main office space. However, these rooms only, and their
     associated square footage, may be separated from the main office area by
     a public corridor. . . .

   SFO, att. 3 at 2.

   [3] Required interior spaces included a manager's office and an assistant
   manager's office; a reception area; and storage, interview, interactive
   video training (IVT), multipurpose, and automatic data processing (ADP)
   rooms.