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
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[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.