Matter of: Melbourne Commerce, LLC
Date: January 9, 2009
Politis for the protester.
Duane C. Pitt, Esq., General Services Administration, for the agency.
Jennifer D. Westfall-McGrail, Esq., and
Christine S. Melody, Esq., Office of the General Counsel, GAO,
participated in the preparation of the decision.
Protest challenging rejection of
offer for lease of office space is denied where offeror failed to furnish
required evidence of a conditional commitment of funds in an amount necessary
to prepare the space.
Melbourne Commerce, LLC of
Clearwater, Florida 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,
The protester argues that the agency erred in rejecting its offer based
on the firm’s failure to furnish evidence of a conditional commitment of funds
in an amount necessary to prepare the space.
We deny the protest.
The SFO contemplated the award of a 10-year lease for a
minimum of 18,508 square feet of office space.
Of relevance to this protest, the solicitation required offerors to
submit with their offers satisfactory evidence of at least a conditional
commitment of funds in an amount necessary to prepare the space. The commitment was required to be signed by
an authorized bank officer and, at a minimum, state the amount of the loan, its
term in years, the annual percentage rate, and the length of the loan
submitted its offer by the December
14, 2007 closing date. By
letter dated January 18, 2008,
the real estate brokerage firm that conducted this acquisition on behalf of GSA
notified the protester that a number of the forms required to be submitted as
part its offer were either missing or incomplete. The letter specifically advised the protester
that “a complete offer” was required to include the above-mentioned evidence of
a conditional commitment of funds. Broker’s
Letter to Protester, Jan. 18, 2008,
at 1. The protester responded by
furnishing some, but not all, of the requested items; one of the items that it
failed to furnish was a conditional commitment of funds letter.
On March 6, the GSA broker sent Melbourne
a letter requesting a final proposal revision (FRP). Like the letter of January 18, this letter
advised the protester that a number of items were missing from its revised
proposal and that they needed to be completed and returned with its FPR for Melbourne’s
offer to be considered fully compliant.
The letter again specifically advised the protester that “a complete
offer” must include evidence of at least a conditional commitment of funds in
an amount necessary to prepare the space.
Broker’s Letter to Protester, Mar.
6, 2008, at 1. Melbourne
again responded by furnishing some, but not all, of the items identified by the
agency--and again, one of the items not furnished was evidence of a conditional
commitment of funds.
By letter dated April 2, another firm that had submitted
an offer in response to the SFO at issue here was notified that its proposal
had been determined unacceptable. This
company, Barnesville Development Corporation, protested to our Office on April
7, and the procurement process was suspended while the protest was pending. We denied Barnesville’s protest on June 30. Barnesville Dev. Corp., B‑400049,
June 30, 2008, 2008
CPD para. 132.
Upon receipt of notification that we had denied
Barnesville’s protest, the GSA broker proceeded with final analysis of the other
offers. On September 8, the contracting
officer, who had reviewed the broker’s findings, awarded a lease to Rutherford
& Strickland Elkton, Inc. The agency
notified the protester that its offer was “deemed non-responsive to minimum
requirements of the SFO.” Contracting
Officer’s Letter to Protester, Sept.
19, 2008. In response to the
protester’s request for clarification of the basis for the agency’s
determination, the contracting officer explained that several required items were
missing from its proposal, and that of greatest concern to her was the
protester’s failure to submit the commitment of funds letter. On October 16, Melbourne
protested to our Office.
The protester first complains that the agency failed to
notify it promptly that its proposal had been excluded from the competition. According to the protester, at all times
during the solicitation process, it was “in full belief” that it had satisfied
all solicitation requirements. Protest
There is no evidence in the record that the protester suffered
any prejudice as a result of the timing of the agency’s notification that its
offer had been excluded from the competition--the protester was given the same opportunity
to protest the rejection of its offer that it would have received had it been
notified of the rejection earlier in the process. See Carriage Abstract, Inc.,
B-290676, B-290676.2, Aug. 15, 2002,
2002 CPD para. 148 at 3 n.1. With regard to
the protester’s argument that the agency effectively misled it to believe that
it had satisfied the solicitation’s requirements, the record does not support
this assertion. Rather, the record shows
that the agency twice notified the protester that it needed to submit evidence
of a conditional commitment of funds for its offer to be considered complete,
and neither time did the protester respond by furnishing evidence of such a
commitment; accordingly, we fail to see a reasonable basis for the protester’s
apparent belief that its offer fully complied with the requirements of the SFO.
argues that it was unreasonable for GSA to reject its offer for failing to
include the required commitment of funds letter. We disagree.
As noted above, the contracting officer rejected Melbourne’s
offer on the ground that it was “nonresponsive” to the SFO requirements. Notwithstanding the contracting officer’s
characterization, the requirement at issue concerns the offeror’s
responsibility, not the technical acceptability of its offer. In this regard, as indicated by the heading
under which the requirement was listed--“Evidence of Capability to Perform,”
SFO para. 3.16--the requirement concerns the offeror’s ability to perform the
contract, rather than the acceptability of its offer. Acquest Dev. LLC, B-287439, June
6, 2001, 2001 CPD para. 101 at 5; Tomasz/Shidler Inv. Corp., B-250855,
B-250855.2, Feb. 23, 1993,
93-1 CPD para. 170 at 6. An offeror who is
found nonresponsible is not eligible for award.
FAR sect. 9.103; Specialty Marine, Inc., B-292053, May 19, 2003, 2003 CPD para. 106 at 3. We will not question an agency’s
nonresponsibility determination unless the record shows that it lacks a
reasonable basis. Aulson & Sky
Co., B‑290159, May 21, 2002, 2002 CPD para. 87 at 5.
argues that it was unreasonable for GSA to reject its offer for failing to
include the required commitment of funds letter given that it had furnished a
commitment of funds letter in connection with a concurrent GSA procurement
handled by the same contracting officer for the lease of space for the Internal
Revenue Service (IRS). The protester
argues that GSA should have recognized based on its submission of the
commitment of funds letter for the IRS procurement that it had the financial
capability to perform the contract here.
We disagree. The
SFO here required evidence of at least a conditional commitment of funds in an
amount necessary to prepare the space solicited--thus, clearly, the letter of
commitment needed to demonstrate the conditional availability of funds for this
project. The letter that Melbourne
furnished in connection with the IRS procurement did not demonstrate the
availability of funds for the SSA project--rather, it specified that the bank
had approved a $2 million loan to finance the IRS Melbourne project. Thus, given that the firm failed to furnish
the evidence required by the SFO regarding commitment of funds for the project
at issue, we see no basis to question the agency’s decision to reject Melbourne’s
Finally, the protester complains that the agency
incorrectly calculated its price per rentable square foot. The contracting officer explained in response
to this argument that while she had misstated the protester’s price per rentable
square foot in her post-award communications with the protester, the misstated
figure was not the one that the broker had used in his present value price
evaluation. As a consequence, the
alleged error in rentable square foot price had no impact on the evaluation and
the protester suffered no prejudice as a result of it.
The protest is denied.
Gary L. Kepplinger