B-152768, APRIL 6, 1964, 43 COMP. GEN. 663

B-152768, APRIL 6, 1964, 43 COMP. GEN. 663

LEASES - BIDS - EVALUATION - ENVIRONMENTAL FACTORS, ETC. THE AWARD OF A LEASE FOR OFFICE SPACE TO THE SECOND LOW BIDDER ON THE BASIS OF AN EVALUATION OF THE ENVIRONMENT, INCLUDING THE PHYSICAL CHARACTERISTICS OF THE BUILDING AND THE SURROUNDING AREA AS TO PUBLIC TRANSPORTATION, AND PARKING AND EATING FACILITIES, REQUIRED BY THE INVITATION WAS PROPER, EVEN THOUGH THE EVALUATION FACTORS COULD NOT BE PRECISE AND INCONTROVERTIBLE BECAUSE OF THE IMPRACTICABILITY OF STATING IN A LEASE INVITATION EXACTLY WHAT IS DESIRED AS TO ENVIRONMENT, THE FACTORS BEING PERTINENT IN DETERMINING THAT THE OFFICE SPACE OFFERED MET THE CRITERIA OF SECTION 2/A) (5) OF EXECUTIVE ORDER NO. 11035, DATED JULY 9, 1962, IMPLEMENTING 40 U.S.C. 490/E), PRESCRIBING THE QUALITY OF THE OFFICE SPACE AND THE REQUIREMENT FOR SAFE, HEALTHFUL, AND CONVENIENT CONDITIONS OF EMPLOYMENT, AND THE BID EVALUATION HAVING MET GENERAL GUIDELINES OF ACCEPTABILITY, THE AWARD TO THE SECOND LOW BIDDER OFFERING A BUILDING THAT MORE ADVANTAGEOUSLY MET THE NEEDS OF THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED, NEED NOT BE QUESTIONED.

TO ICE, MILLER, DONADIO AND RYAN, APRIL 6, 1964:

BY LETTERS DATED OCTOBER 26, 1963, AND FEBRUARY 11 AND 21, 1964, YOU PROTESTED, ON BEHALF OF PRINTING ARTS CENTER OF INDIANA, INC., AGAINST THE AWARD OF A LEASE TO DABEN REALTY COMPANY, NC., UNDER INVITATION FOR BIDS NO. GS-05BR-3373 FOR SPACE TO BE OCCUPIED BY THE DEPARTMENT OF AGRICULTURE IN INDIANAPOLIS, INDIANA.

THE INVITATION, ISSUED ON JULY 15, 1963, REQUESTED BIDS FOR APPROXIMATELY 31,370 SQUARE FEET OF NET USABLE SPACE UNDER A FIRM LEASE TERM OF 5 YEARS. THE INVITATION SPECIFIED AN OPENING DATE OF JULY 31, 1963, AND THE DATE OF POSSESSION AS DECEMBER 1, 1963. TWELVE BIDS WERE RECEIVED AND OPENED AS SCHEDULED. THE LOWEST BID RECEIVED WAS SUBMITTED BY PRINTING ARTS CENTER WHICH OFFERED 31,923 SQUARE FEET OF NET USABLE SPACE LOCATED IN A GROUP OF CONNECTED BUILDINGS KNOWN AS THE PRINTING ARTS CENTER, 611 NORTH PARK AVENUE, INDIANAPOLIS, INDIANA, FOR $61,680 PER ANNUM. FOR PURPOSES OF BID EVALUATION, THE AMOUNT OF $6,271.12 REPRESENTING SERVICES AND UTILITIES NOT INCLUDED IN THE BID WAS ADDED TO THE BID PRICE BRINGING THE TOTAL ESTIMATED COST TO $67,951.12 PER ANNUM. DABEN SUBMITTED THE NEXT LOWEST BID IN THE AMOUNT OF $78,000 PER ANNUM FOR 31,370 SQUARE FEET OF NET USABLE SPACE, REPORTED TO BE FULLY SERVICED, AT THE FAIR STORE BUILDING, 311 25 WEST WASHINGTON STREET, INDIANAPOLIS. DABEN INSERTED IN ITEM 7 OF ITS BID ENTITLED "ALTERNATES (IF PERMITTED)," AS FOLLOWS:

AN ALTERNATE RENTAL CONSIDERATION OF $5,500 PER MONTH IS OFFERED, BOTH FOR THE INITIAL TERM AND THE RENEWAL OPTIONS, EXCLUDING ALL UTILITIES (HEAT, ALL ELECTRIC CURRENT AND WATER).

THE TOTAL OVERALL COST UNDER THE DABEN ALTERNATE OFFER IS ESTIMATED AT $75,947.60 PER ANNUM, ALLOWING $9,947.60 PER ANNUM FOR UTILITIES AND SERVICES NOT INCLUDED IN THE ALTERNATE BID.

UPON EVALUATION OF THE TWO LOW BIDS IN THE LIGHT OF THE INVITATION EVALUATION CRITERIA, AWARD WAS MADE TO DABEN FOR A 5-YEAR FIRM LEASE TERM COMMENCING ON JULY 1, 1964. WE BELIEVE, ON REVIEW OF THE RECORD BEFORE US, THAT THE AWARD WAS PROPER UNDER THE CIRCUMSTANCES INVOLVED.

THE PROTEST AGAINST THE AWARD AS MADE MAY BE SUMMARIZED AS FOLLOWS:

1. THE AWARD IS AT VARIANCE WITH THE INVITATION WHICH REQUIRED POSSESSION ON DECEMBER 1, 1963, BUT THE AWARD REQUIRES POSSESSION JULY 1, 1964;

2. THE BID OF DABEN WAS NOT RESPONSIVE FOR THE REASON THAT THE FURNISHING OF CERTAIN BUILDING SERVICES IS TO BE FURNISHED "AS AGREED UPON; "

3. THE BID OF DABEN WAS IN THE ALTERNATIVE EVEN THOUGH THE INVITATION DID NOT AUTHORIZE ALTERNATE BIDS; AND

4. DABEN IS NOT A RESPONSIBLE BIDDER BECAUSE OF ITS POOR FINANCIAL STATUS.

CONCERNING NUMBER 1, ABOVE, THE INVITATION AS ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA) REQUIRED POSSESSION OF THE PREMISES TO BE LEASED ON DECEMBER 1, 1963. BIDS WERE OPENED ON JULY 31, 1963, AND THE 60 -DAY ACCEPTANCE PERIOD EXPIRED ON SEPTEMBER 29, 1963. IT IS REPORTED THAT HAD AWARD BEEN MADE BY SEPTEMBER 29, THE SUCCESSFUL BIDDER WOULD HAVE HAD 62 DAYS TO MEET THE DECEMBER 1 OCCUPANCY DATE. HOWEVER, FOR THE CONVENIENCE OF THE GOVERNMENT, AWARD WAS DELAYED BY OBTAINING EXTENSIONS OF TIME FOR BID ACCEPTANCE FROM THE TWO LOW BIDDERS. IT IS FURTHER REPORTED THAT THE ADMINISTRATIVE DELAY IN MAKING THE AWARD MADE IT IMPOSSIBLE FOR ANY BIDDER TO MEET THE DECEMBER 1 DATE AND THAT AWARD WAS MADE AT A LATER DATE (APPARENTLY JANUARY 27, 1964). IN VIEW THEREOF, AN ARRANGEMENT WAS MADE WITH PRINTING ARTS--- THE PRESENT LESSOR--- TO RETAIN THE GOVERNMENT'S PRESENT OCCUPANCY AT THE PRINTING ARTS CENTER ON A FIRM BASIS UNTIL JUNE 30, 1964, WHICH IS THE ONLY ARRANGEMENT TO WHICH THE LESSOR WOULD AGREE. HENCE, IN THE INTEREST OF THE GOVERNMENT TO AVOID LIABILITY FOR THE PAYMENT OF RENT AT TWO SEPARATE LOCATIONS, GSA DOES NOT DESIRE OCCUPANCY BEFORE JUNE 30, 1964.

THE QUESTION INVOLVED HERE IS WHETHER THE VARIANCE BETWEEN THE DATE OF OCCUPANCY PRESCRIBED IN THE INVITATION AND THAT CONTEMPLATED BY THE AWARD MADE TO DABEN WAS CONTRARY TO THE COMPETITIVE BIDDING SYSTEM OR OTHERWISE PREJUDICIAL TO COMPETING BIDDERS. IT IS CLEAR FROM THE RECORD THAT BOTH DABEN AND PRINTING ARTS WERE AWARE THAT AWARD COULD NOT BE MADE TO ANY BIDDER IN TIME TO MEET THE DECEMBER 1 OCCUPANCY DATE. BOTH OF THESE BIDDERS VOLUNTARILY EXTENDED THEIR BID ACCEPTANCE TIME IN VIEW OF THE IMPOSSIBILITY TO MAKE AN AWARD COMMENSURATE WITH THE DECEMBER 1 OCCUPANCY DATE. CERTAINLY, UNDER THESE CIRCUMSTANCES, IT MAY NOT BE SAID THAT EITHER BIDDER WAS PREJUDICED OR THAT ONE HAD AN ADVANTAGE OVER THE OTHER SO FAR AS THE EVALUATION OF THEIR BIDS WAS CONCERNED. THE JUNE 30, 1964, OCCUPANCY DATE WAS FIXED IN THE LIGHT OF THE FACT THAT PRINTING ARTS WOULD EXTEND ITS PRESENT LEASE ON A FIRM BASIS TO THAT DATE ONLY. WE CONCLUDE, THEREFORE, THAT THE LEGALITY OF THE AWARD MAY NOT BE QUESTIONED ON THE BASIS THAT THE ADVERTISED OCCUPANCY WAS EXTENDED BEYOND THE DATE SPECIFIED IN THE INVITATION.

WHILE DABEN IN RESPONDING TO SCHEDULE "A" OF THE INVITATION INDICATED THAT CERTAIN BUILDING SERVICES WOULD BE INCLUDED IN THE RENTAL QUOTED IN ITS BID "AS AGREED UPON," IT UNQUALIFIEDLY AGREED TO FURNISH CERTAIN MANDATORY BUILDING SERVICES REQUIRED BY SCHEDULE "B," WHICH SERVICES ARE ALSO INCLUDED IN SCHEDULE "A" BUT ON THE BASIS "AS AGREED UPON.' THUS, AN AMBIGUITY EXISTED AS TO WHETHER CERTAIN BUILDING SERVICES WERE INCLUDED IN THE RENTAL QUOTED IN DABEN'S BID. HOWEVER, THE RULE IS WELL SETTLED THAT ANY AMBIGUITY IN A BID IS TO BE CONSTRUED AGAINST THE PARTY WHO CREATED THE AMBIGUITY. 16 COMP. GEN. 569; 39 ID. 546. UNDER THE CIRCUMSTANCES, THE GOVERNMENT WAS ENTITLED TO ACCEPT DABEN'S BID AND INSIST UPON THAT COMPANY FURNISHING ALL THE BUILDING SERVICES LISTED ON SCHEDULE "A" AS TO WHICH DABEN ADVISED WOULD BE FURNISHED AS PART OF THE RENTAL CONSIDERATION EVEN THOUGH DABEN GRATUITOUSLY STATED, IN CERTAIN INSTANCES, THAT CERTAIN SERVICES WOULD BE FURNISHED "AS AGREED UPON.' 39 COMP. GEN. 653.

WITH RESPECT TO YOUR CONTENTION THAT DABEN SUBMITTED AN UNAUTHORIZED ALTERNATE BID, YOU ARE ADVISED THAT, WHILE THE INVITATION DID NOT SOLICIT ALTERNATE BIDS BUT PROVIDED THAT SUCH BIDS ,WILL NOT BE ACCEPTED AS RESPONSIVE TO THE INVITATION," SUCH SUBMISSION WAS NOT FATAL TO CONSIDERATION OF ITS BID. IN FACT, THE SO-CALLED ALTERNATE BID WAS NOT AN ALTERNATE BID WITHIN THE MEANING OF PARAGRAPH 7 OF THE INSTRUCTIONS TO BIDDERS SINCE IT WAS RESPONSIVE TO THE INVITATION. IN 33 COMP. GEN. 499, 500, WE HELD THAT:

AS COMMONLY UNDERSTOOD, THE PROHIBITION AGAINST "ALTERNATE" BIDS IN STANDARD FORM 33 FORBIDS CONSIDERATION OF BIDS WHICH OFFER SOMETHING OTHER THAN THAT WHICH IS CALLED FOR BY THE SPECIFICATION. * * *

THIS POINT OF CONTENTION IS ANSWERED ACCORDINGLY.

THE MATTER OF THE RESPONSIBILITY OF DABEN WAS THOROUGHLY INVESTIGATED BY GSA AND THE RECORD ESTABLISHES THAT DABEN HAD ADEQUATE FINANCIAL COMMITMENTS TO INSURE THE SPECIFICATION REMODELING OF THE BUILDING OFFERED FOR LEASE. WE HAVE HELD THAT THE FINANCIAL RESPONSIBILITY OF A PROSPECTIVE CONTRACTOR IS PRIMARILY FOR DETERMINATION BY THE CONTRACTING AGENCY WHICH, IN THE ABSENCE OF CONCLUSIVE EVIDENCE TO THE CONTRARY, WILL NOT BE QUESTIONED BY OUR OFFICE.

THE PRICE DIFFERENTIAL BETWEEN THE BID OF PRINTING ARTS AND DABEN IS ABOUT $10,045 PER ANNUM OR $50,245 OVER THE 5-YEAR FIRM LEASE TERM. EVALUATING THE TWO BIDS CONSIDERATION WAS GIVEN TO FACTORS OF ENVIRONMENT, INCLUDING THE PHYSICAL CHARACTERISTICS OF THE BUILDING AND THE SURROUNDING AREA. PARAGRAPH 14 OF THE GENERAL PROVISIONS OF THE INVITATION SPECIFICALLY ADVISED BIDDERS OF THE FOLLOWING:

AWARD FACTORS. THE FOLLOWING FACTORS, IN ADDITION TO RENTAL PAYMENT, SHALL BE CONSIDERED BY THE CONTRACTING OFFICER IN DETERMINING WHICH PROPOSAL WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT:

A. SUSCEPTIBILITY OF THE DESIGN OF THE SPACE OFFERED TO EFFICIENT LAYOUT AND GOOD UTILIZATION.

B. FACTORS OF ENVIRONMENT, INCLUDING THE PHYSICAL CHARACTERISTICS OF THE BUILDING AND THE AREA SURROUNDING IT.

C. AVAILABILITY AND COST OF SATISFACTORY PUBLIC TRANSPORTATION, INCLUDING FREQUENCY AND QUALITY OF COMMUTER SERVICE, NUMBER OF TRANSFERS REQUIRED TO REACH SPACE FROM RESIDENTIAL AREAS, LENGTH OF TIME REQUIRED TO REACH TRANSFER POINTS, AND OTHER RELATED CONDITIONS.

D. ACCESSIBILITY TO AUTOMOBILE TRANSPORTATION AND PARKING FACILITIES.

E. AVAILABILITY OF SATISFACTORY EATING FACILITIES WITHIN A TWO BLOCK AREA.

EXECUTIVE ORDER NO. 11035, DATED JULY 9, 1962, IMPLEMENTING 40 U.S.C. 490/E), PROVIDES IN SECTION 2/A) (5) THAT:

THE QUALITY OF OFFICE SPACE FOR GOVERNMENT OPERATIONS SHALL BE APPROPRIATE FOR THE EFFICIENT AND ECONOMICAL PERFORMANCE OF GOVERNMENTAL ACTIVITIES, WHILE AFFORDING EMPLOYEES SAFE, HEALTHFUL, AND CONVENIENT CONDITIONS OF EMPLOYMENT.

IN THE LIGHT OF THESE CRITERIA AND THE EVALUATION FACTORS ENUMERATED IN PARAGRAPH 14, ABOVE, GSA DETERMINED THAT THE BUILDING OFFERED BY DABEN WAS MORE ADVANTAGEOUS TO THE GOVERNMENT THAN THAT OFFERED BY PRINTING ARTS. ON THE RECORD BEFORE US, WE ARE NOT DISPOSED TO QUESTION THAT DETERMINATION. SPECIFICALLY, THE RECORD SHOWS THAT AS TO FACTOR "A," ABOVE, BOTH BUILDINGS WERE APPROXIMATELY EQUAL IN THIS REGARD. CONCERNING "B," ABOVE, GSA REPORTED, IN EFFECT, THAT THERE IS NO COMPARISON BETWEEN THE BUILDING OFFERED BY PRINTING ARTS CENTER AND THE BUILDING OFFERED BY THE DABEN COMPANY SO FAR AS CONCERNS FACTORS OF ENVIRONMENT, PHYSICAL CHARACTERISTICS, AND SURROUNDING AREA.

RESPECTING THE AVAILABILITY AND COST OF SATISFACTORY PUBLIC TRANSPORTATION, FACTOR "C," GSA REPORTED:

THE PRINTING ARTS CENTER IS LOCATED 12 BLOCKS FROM THE CENTER OF THE CITY. WITH LIMITED EXCEPTION, ACCESS BY EMPLOYEES AND THE PUBLIC USING PUBLIC TRANSPORTATION REQUIRE THE USE OF TRANSFERS. THERE ARE NO HOTELS OR OTHER SUITABLE ACCOMMODATIONS NEARER TO THE PRINTING ARTS CENTER THAN THE DOWNTOWN AREA SO THAT TAXIS OR PUBLIC TRANSPORTATION WOULD HAVE TO BE USED BY VISITORS TO REACH THE CENTER. THE FAIR STORE BUILDING IS WITHIN THREE BLOCKS OF THE CENTER OF TRANSPORTATION AND ACCESS IS CONVENIENT AND DOES NOT REQUIRE THE USE OF TRANSFERS WHEN PUBLIC TRANSPORTATION IS USED. THE BUILDING IS WITHIN EASY WALKING DISTANCE OF HOTELS AND OTHER SUITABLE ACCOMMODATIONS FOR THE CONVENIENCE OF VISITORS.

AS TO FACTORS "D" AND "E," GSA ADVISED THAT BOTH BUILDINGS HAVE ADEQUATE PARKING IN THE IMMEDIATE VICINITY, BUT THAT THE DABEN BUILDING HAS MORE CONVENIENT ACCESSIBILITY TO HOTELS AND MOTELS. CONCERNING EATING FACILITIES, GSA POINTED OUT THAT EATING FACILITIES ARE COMPARABLE BUT THAT THE LOCATION OF THE DABEN BUILDING AFFORDS BETTER AVAILABILITY TO EXCELLENT CAFETERIA FACILITIES.

WHILE THESE AWARD FACTORS COULD NOT BE APPLIED IN A MANNER TO PROVIDE PRECISE AND INCONTROVERTIBLE BID EVALUATION, THEY ARE NEVERTHELESS PERTINENT FACTORS WHICH MUST BE CONSIDERED IN DETERMINING WHETHER THE TENDERED OFFICE SPACE MEETS THE CRITERIA SET OUT IN EXECUTIVE ORDER NO. 11035 AND SPECIFIED IN PARAGRAPH 14 OF THE GENERAL PROVISIONS OF THE INVITATION. WE RECOGNIZE THAT IT IS IMPRACTICABLE IN A LEASE INVITATION TO STATE EXACTLY WHAT THE GOVERNMENT DESIRES AS TO THE ENVIRONMENT OF LEASED OFFICE SPACE. CF. 36 COMP. GEN. 380, 385. IT IS SUFFICIENT, IN OUR OPINION, TO PRESCRIBE GENERAL GUIDELINES OF ACCEPTABILITY WHICH NECESSARILY MUST BE APPLIED AS EQUITABLY AS POSSIBLE TO THE LOCATIONS OF THE OFFICE SPACES TENDERED. THERE IS ALSO FOR CONSIDERATION THE PROVISIONS OF SECTION 303/B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT 377, 41 U.S.C. 253/B), AS AMENDED, AS WELL AS PARAGRAPH 10 OF THE INSTRUCTIONS TO BIDDERS WHICH PROVIDES, IN EFFECT, THAT AWARD WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, CONSIDERING PRICE AND SUCH OTHER FACTORS AS MAY BE SPECIFIED IN THE INVITATION. YOUR CONTENTION ON THIS REGARD IS ANSWERED ACCORDINGLY.