BNUMBER: B-277572.4
DATE: February 11, 1998
TITLE: HG Properties A, L.P., B-277572.4, February 11, 1998
**********************************************************************
Matter of:HG Properties A, L.P.
File: B-277572.4
Date:February 11, 1998
Thomas W. Rochford, TRS Design & Consulting Services, for the
protester.
Patricia Dearing, Department of Agriculture, for the agency.
Guy R. Pietrovito, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protest challenging the amendment of a solicitation for lease of
office space that delays the requested occupancy date and deletes
references to microwave equipment is denied where the later occupancy
date satisfies the agency's needs and accommodates delays caused by a
prior protest and where the agency had determined that it will have no
microwave equipment in the office space.
DECISION
HG Properties A, L.P. protests the U.S. Forest Service's amendment of
solicitation for offers (SFO) No. R1-97-04.
We deny the protest.
As issued, the SFO requested offers for a 10-year lease with two
5-year options for office and related space in a new or existing
building for a Forest Service supervisor's office within or near
Libby, Montana. The SFO stated that the space must be ready for
occupancy by March 1, 1998, and informed offerors that if a different
occupancy date were proposed, the contracting officer would determine
if that date would reasonably fulfill the Forest Service's needs. The
SFO provided specifications detailing the architectural, mechanical,
electrical, plumbing, utilities, maintenance, and service
requirements. One "special requirement" of the specifications was
that the computer room space must be located "away from areas housing
microwave equipment and radio transmitters."
The SFO provided for a best value basis for award and stated that
technical evaluation factors were of equal importance to price. The
proposal preparation instructions required offerors to provide, among
other things, plans illustrating the space offered, and site plans
showing the placement of the building on-site, proposed parking, and
landscaping. The following technical evaluation factors were provided
in descending order of importance:
Potential for Efficient Layout
Energy Efficiency
Location
Physical Characteristics
Past Performance
Offers were received from five firms, including HG and Mountain States
Leasing-Libby (MSL). HG, the incumbent contractor, offered its
existing space within the Libby city limits, while MSL offered space
in a building to be constructed outside the Libby city limits.
Discussions were conducted, and best and final offers (BAFO) were
received from HG, MSL, and two other offerors. The contracting
officer selected MSL's proposal for award based upon the firm's higher
technical score, given there was only a minimal price difference
between the proposals.
HG protested that the Forest Service failed to evaluate MSL's proposed
layout in accordance with the stated SFO requirements regarding the
location of the computer room. Specifically, HG complained that the
Forest Service had not evaluated MSL's proposal to situate the
telecommunications room within the space containing the computer
equipment. We agreed and sustained HG's protest on this basis. HG
Properties A, L.P., B-277572, et al., Oct. 29, 1997, 97-2 CPD para. 123 at
5. We recommended that the Forest Service amend the SFO to state its
actual requirements regarding the location of the computer room
vis-�-vis the microwave equipment and radio transmitters, and reopen
negotiations with the competitive range offerors to allow them an
opportunity to respond to the amended solicitation.
On October 31, in response to our decision, the Forest Service amended
the SFO to change the occupancy date from March 1 to July 1 and to
delete references to microwave equipment. The agency also reopened
the competition, requesting BAFOs from HG, MSL, and another firm.
Prior to the closing date for receipt of BAFOs, HG protested the terms
of the amended solicitation. Specifically, HG complains that the
Forest Service had no reasonable basis to change the required
occupancy date and to delete references to microwave equipment; the
protester asserts that these changes were made in bad faith to favor
MSL in the competition.
The Forest Service responds that because of delays caused by HG's
earlier protest a March 1 occupancy date was not realistic for firms,
such as MSL, that would be required to do construction or remodeling.
The agency estimated that award would not be made until mid-December
and that this would not allow sufficient time for construction or
remodeling to meet the original occupancy date, particularly
considering the severe winter conditions usually experienced in Libby.
The delayed occupancy date would, in the agency's view, be less
restrictive of competition. The agency also states that it deleted
the reference to microwave equipment because the Forest Service
supervisor's office does not have, and will not in the future use,
microwave equipment.[1]
HG disagrees with the agency's statements, asserting that the Forest
Service has not provided evidence to establish that the change in the
occupancy date was necessary or that the agency does not have, and
will not have, microwave equipment in the Forest Service supervisor's
office. Regarding the amended occupancy date, HG asserts that the
agency's minimum requirements have not changed and that maintaining
the original occupancy date would not be restrictive of competition
because the competition was already limited to the original
competitive range offerors. In the alternative, HG argues that the
change in the occupancy date is such a substantial and material change
in the solicitation that the Forest Service was required to conduct a
new, unrestricted competition.
We find that the Forest Service had a reasonable basis to amend the
SFO's occupancy date. Because contracting agencies have broad
discretion in determining their needs and the best method of
accommodating those needs, we will not question an agency's
determination of its needs unless that determination has no reasonable
basis. OPS, Inc., B-271835, July 31, 1996, 96-2 CPD para. 50 at 4. The
delay in the procurement occasioned by HG's prior protest and the
anticipated severe weather conditions to be expected in Libby during
the winter provide the agency with a reasonable basis to delay the
occupancy date, given that such a delay will meet the agency's needs.
We note that acceptance of HG's contention would apparently provide
the firm a competitive advantage, given its offer of existing space,
should the occupancy date not be delayed to reflect the delays in the
procurement and the need for new construction to be performed during
the winter; our Office will not consider this type of contention--that
is, that a solicitation requirement that the agency believes meets its
needs should be made more restrictive than the agency believes is
required. See Simplix, B-274388, Dec. 6, 1996, 96-2 CPD para. 216 at 5-6.
We also find no evidence that the Forest Service's amendment of the
occupancy date was the result of bias or bad faith in favor of MSL or
against HG. Where a protester alleges bias on the part of government
officials, the protester must provide credible evidence clearly
demonstrating bias against the protester or for the awardee, and that
the agency's bias translated into action that unfairly affected the
protester's competitive position. Advanced Sciences, Inc.,
B-259569.3, July 3, 1995, 95-2 CPD para. 52 at 17. HG's bald allegations
do not satisfy this standard.
We also disagree with HG's arguments that the delay in the occupancy
date is a cardinal change in the solicitation such that a new,
unrestricted competition was required to be conducted. In fact, the
original SFO provided for the contracting officer's evaluation of
whether a later proposed occupancy date would satisfy the agency's
needs. In any event, since HG was provided with an opportunity to
submit a BAFO under the amended solicitation, it was not competitively
disadvantaged by the agency's determination to continue with the
competition under this SFO.
HG also protests the deletion of the SFO's references to microwave
equipment, alleging, contrary to the agency's statements, that the
Forest Service supervisor's office currently has microwave equipment.
In response to this protest allegation, the agency has provided us
with an inventory and specifications for all the communications
equipment currently located in the Forest Service supervisor's office
in Libby. This evidence, which is unrebutted by the protester,
establishes that the communications equipment used by the Forest
Service at this location is radio, not microwave, equipment. In
addition, the agency reiterates that it will not install and use
microwave equipment in this location in the future. Accordingly, we
find no basis to object to the agency's deletion of solicitation
references to microwave equipment, given the absence of such equipment
at this location, nor do we find any evidence of bias in the agency's
actions.
The protest is denied.
Comptroller General
of the United States
1. The Forest Service states that the Forest Service supervisor at
this location uses a VHF/UHF radio communication system rather than a
microwave communication system. HG suggests that placing radio
transmitters within the computer room would also be a proposal
deficiency. We do not address this concern because HG's allegations
prematurely presume that the agency will not appropriately account for
offerors' proposed layouts, including the location of radio
transmitters vis-�-vis the computer room, in their evaluation of
proposals under the Potential for Efficient Layout factor.