B-171435, MAY 14, 1971

B-171435: May 14, 1971

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THE RECORD INDICATES THAT WHILE GLOPAR'S BID WAS REJECTED BECAUSE ITS BUILDING PERMIT DID NOT COVER THE MECHANICAL AND ELECTRICAL PLANS OF THE BUILDING'S SECOND FLOOR. THE PLANS OFFERED BY CASHVAN WERE NOT FURNISHED UNTIL SIX MONTHS AFTER THE SOLICITATION DATE. THUS NEITHER OFFER WAS SUPPORTED BY A BUILDING PERMIT FOR THE "CONSTRUCTION OF AN ENTIRE BUILDING. OFFERS WERE REQUESTED ON A FIRM 8-YEAR LEASE WITH TWO 5-YEAR RENEWAL TERMS. THE SPACE IS NEEDED TO SATISFY A REQUIREMENT OF THE DEPARTMENT OF THE NAVY. EACH YEAR SINCE 1963 THE FOLLOWING PROVISION HAS BEEN INCLUDED IN THE INDEPENDENT OFFICES APPROPRIATIONS ACT: "'NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED FOR THE PAYMENT OF RENTAL ON LEASE AGREEMENTS FOR THE ACCOMMODATION OF FEDERAL AGENCIES IN BUILDINGS AND IMPROVEMENTS WHICH ARE TO BE ERECTED BY THE LESSOR FOR SUCH AGENCIES AT AN ESTIMATED COST OF CONSTRUCTION IN EXCESS OF $200.

B-171435, MAY 14, 1971

BID PROTEST - BID RESPONSIVENESS - BUILDING PERMIT DECISION SUSTAINING PROTEST BY GLOPAR ASSOCIATES LTD., AGAINST THE NEGOTIATIONS OF A LEASE WITH HERBERT CASHVAN FOR RENTAL OF SPACE NEEDED TO SATISFY A REQUIREMENT OF THE DEPARTMENT OF THE NAVY. THE RECORD INDICATES THAT WHILE GLOPAR'S BID WAS REJECTED BECAUSE ITS BUILDING PERMIT DID NOT COVER THE MECHANICAL AND ELECTRICAL PLANS OF THE BUILDING'S SECOND FLOOR, THE PLANS OFFERED BY CASHVAN WERE NOT FURNISHED UNTIL SIX MONTHS AFTER THE SOLICITATION DATE. THUS NEITHER OFFER WAS SUPPORTED BY A BUILDING PERMIT FOR THE "CONSTRUCTION OF AN ENTIRE BUILDING, EXTENSION OR ADDITION" AS REQUIRED BY THE SOLICITATION. THEREFORE, GLOPAR SHOULD BE READMITTED TO THE NEGOTIATIONS OR THERE SHOULD BE A RESOLICITATION FOR THE REQUIREMENTS.

TO MR. KUNZIG:

WE REFER TO REPORTS SUBMITTED BY YOUR GENERAL COUNSEL IN CONNECTION WITH THE PROTEST OF GLOPAR ASSOCIATES LTD. AGAINST THE NEGOTIATION OF A LEASE WITH HERBERT CASHVAN UNDER SOLICITATION NO. 31 DATED MAY 20, 1970.

THE SOLICITATION REQUESTED OFFERS TO BE SUBMITTED BY JUNE 5, 1970, TO LEASE 85,000 SQUARE FEET OF NET USABLE SPACE, PLUS OR MINUS 5 PERCENT, AT A LOCATION WITHIN 10 MILES OF SEWELLS POINT NAVAL COMPLEX, NORFOLK, VIRGINIA, NORTH OF THE EASTERN BRANCH OF THE ELIZABETH RIVER. OFFERS WERE REQUESTED ON A FIRM 8-YEAR LEASE WITH TWO 5-YEAR RENEWAL TERMS. THE SPACE IS NEEDED TO SATISFY A REQUIREMENT OF THE DEPARTMENT OF THE NAVY.

PARAGRAPH 11 OF SCHEDULE "D" OF THE SOLICITATION PROVIDED AS FOLLOWS:

"SPECIAL CONDITIONS RELATING TO BUILDING TO BE ERECTED BY BIDDER

"A. REQUIREMENT. EACH YEAR SINCE 1963 THE FOLLOWING PROVISION HAS BEEN INCLUDED IN THE INDEPENDENT OFFICES APPROPRIATIONS ACT:

"'NO PART OF ANY APPROPRIATION CONTAINED IN THIS ACT SHALL BE USED FOR THE PAYMENT OF RENTAL ON LEASE AGREEMENTS FOR THE ACCOMMODATION OF FEDERAL AGENCIES IN BUILDINGS AND IMPROVEMENTS WHICH ARE TO BE ERECTED BY THE LESSOR FOR SUCH AGENCIES AT AN ESTIMATED COST OF CONSTRUCTION IN EXCESS OF $200,000 OR FOR THE PAYMENT OF THE SALARY OF ANY PERSON WHO EXECUTES SUCH A LEASE AGREEMENT: ***

"B. DEFINITION OF EXISTING BUILDINGS, EXTENSION, AND ADDITIONS.

"(1) FOR THE PURPOSE OF THIS SOLICITATION, BUILDINGS, EXTENSIONS OR ADDITIONS 'WHICH ARE TO BE ERECTED BY THE LESSOR' DO NOT INCLUDE:

"(A) BUILDINGS, EXTENSIONS, OR ADDITIONS, CONSTRUCTION OF WHICH IS SUBSTANTIALLY COMPLETED PRIOR TO DATE OF THE SOLICITATION.

"(B) NEW BUILDINGS, OR EXTENSIONS OF AND ADDITIONS TO EXISTING BUILDINGS THE CONSTRUCTION STATUS OF WHICH, ON THE DATE OF ISSUANCE OF THE SOLICITATION, MET ALL OF THE FOLLOWING CONDITIONS:

"I. TITLE TO THE SITE WAS VESTED IN THE OFFEROR OR HE POSSESSED SUCH OTHER INTEREST IN AND DOMINION AND CONTROL OVER THE SITE TO ENABLE STARTING CONSTRUCTION.

"II. DESIGN WAS COMPLETE.

"III. CONSTRUCTION FINANCING FULLY COMMITTED.

"IV. A BUILDING PERMIT FOR CONSTRUCTION OF THE ENTIRE BUILDING, EXTENSION OR ADDITION HAD BEEN ISSUED.

"V. ACTUAL CONSTRUCTION IS CURRENTLY IN PROGRESS OR A FIRM CONSTRUCTION CONTRACT WITH A FIXED CONPLETION DATE HAS BEEN ENTERED INTO."

THE PURPOSE AND INTENT OF THE FOREGOING PROVISIONS ARE TO ASSURE THAT IN THE CASE OF NEW CONSTRUCTION ONLY THAT CONSTRUCTION ALREADY COMMITTED AS A PRIVATE VENTURE MAY BE OFFERED TO THE GOVERNMENT FOR RENTAL.

THREE OFFERS WERE RECEIVED: HERBERT CASHVAN, GLOPAR ASSOCIATES LTD. AND GOODMAN-SEGAR-HOGAN, INC. THE OFFER OF THE LATTER WAS REJECTED, WE ARE ADVISED, BECAUSE IT OFFERED A NEW BUILDING FOR WHICH A BUILDING PERMIT HAD NOT BEEN ISSUED BY MAY 20, 1970 (THE SOLICITATION DATE). NO OTHER INFORMATION REGARDING THIS REJECTED OFFER IS OF RECORD IN OUR OFFICE. DO, HOWEVER, HAVE INFORMATION ON THE GLOPAR OFFER AND ITS REJECTION.

GLOPAR PROPOSED TO ADD A SECOND FLOOR TO AN EXISTING BUILDING ALREADY OCCUPIED BY THE NAVY, AND CASHVAN PROPOSED TO OFFER A BUILDING "UNDER CONSTRUCTION." HOWEVER, THE GLOPAR OFFER WAS REJECTED BECAUSE, IN THE WORDS OF THE INITIAL REPORT, "DOCUMENTATION SUBMITTED WITH THE OFFER DISCLOSED THAT THE FOREGOING CRITERIA HAD NOT BEEN MET AS OF DATE OF THE SOLICITATION." WHILE "FOREGOING CRITERIA" APPARENTLY HAS REFERENCE TO THE ABOVE-QUOTED CONDITIONS WHICH IMPLEMENT THE STATUTORY LIMITATION, IT NOW APPEARS THAT THE ONLY CRITERION INVOLVED WAS THAT CONCERNING THE BUILDING PERMIT. THE DETAILS RELATING TO THE GLOPAR OFFER AND ITS REJECTION WERE NOT INCLUDED IN THE GENERAL SERVICES ADMINISTRATION (GSA) REPORTS. CONNECTION WITH ITS PROTEST, GLOPAR SUBMITTED TO US THREE PIECES OF CORRESPONDENCE BETWEEN IT AND GSA WHICH MAKE IT DIFFICULT FOR US TO DISTINGUISH BETWEEN THE CASHVAN AND GLOPAR OFFERS INSOFAR AS COMPLIANCE WITH THE BUILDING PERMIT REQUIREMENT IS CONCERNED. IN A LETTER DATED NOVEMBER 17, 1970, TO GLOPAR, THE ACTING DIRECTOR, SPACE MANAGEMENT DIVISION, OFFICE OF OPERATING PROGRAMS, REGION 3, REFERS TO GLOPAR LETTERS OF JULY 23 AND OCTOBER 28, 1970. THESE LETTERS AND THE NOVEMBER 17 REPLY ESTABLISH, TO OUR SATISFACTION, THAT GLOPAR'S OFFER WAS REJECTED BECAUSE ITS BUILDING PERMIT DID NOT AUTHORIZE CONSTRUCTION OF THE ENTIRE SECOND FLOOR TO ITS EXISTING BUILDING. SPECIFICALLY, IT WAS STATED THE BUILDING PERMIT DID NOT COVER THE MECHANICAL AND ELECTRICAL DETAILS OF THE SECOND FLOOR. YET, THE MECHANICAL AND ELECTRICAL PLANS OF THE BUILDING OFFERED BY CASHVAN WERE NOT FURNISHED UNTIL APPROXIMATELY NOVEMBER 18, 1970, OR ABOUT 6 MONTHS AFTER THE SOLICITATION DATE. ESSENTIALLY, THEN, THE BUILDING PERMIT DEFECTS WERE SIMILAR IN BOTH THE GLOPAR AND CASHVAN OFFERS.

WE ARE CONCERNED THAT THE BASES FOR REJECTION OF THE GLOPAR OFFER WERE NEITHER FURNISHED NOR JUSTIFIED TO OUR OFFICE, WHILE THE ACCEPTABILITY OF THE CASHVAN OFFER IS JUSTIFIED IN DETAIL BY FORMAL SUBMISSIONS.

IN A STRICT SENSE, NEITHER OFFER WAS SUPPORTED BY A BUILDING PERMIT FOR THE "CONSTRUCTION OF AN ENTIRE BUILDING, EXTENSION OR ADDITION." WHY GSA CHOSE TO DISREGARD THE BUILDING PERMIT DEFECT IN THE CASE OF CASHVAN AND ENFORCE IT IN THE CASE OF GLOPAR IS UNEXPLAINED.

WE HAVE MADE AN INDEPENDENT REVIEW OF THE CIRCUMSTANCES OF THIS PROTEST AND, BASED ON OUR FINDINGS AND THE FACTS OF RECORD NOW BEFORE US, WE HAVE THE FOLLOWING COMMENTS TO OFFER.

WITH RESPECT TO THE CRITERION RESPECTING THE COMPLETENESS OF DESIGN, IT IS CLEAR FROM THE RECORD THAT MECHANICAL AND ELECTRICAL DESIGNS WERE NOT SUBMITTED BY CASHVAN AT LEAST UNTIL NOVEMBER 17, 1970. IN THIS REGARD, THE BUILDING PERMIT ISSUED TO CASHVAN PROVIDED:

"THIS PERMIT IS GRANTED ONLY FOR WORK SHOWN ON PLANS AND APPLICATION FORMS FILED FOR THIS JOB."

AS OF THE CRITICAL POINT IN TIME - MAY 20, 1970 - CASHVAN HAD SUBMITTED THESE PLANS OR DESIGNS: PILE PLAN 1; FIRST-FLOOR FRAMING PLAN; TYPICAL FLOOR FRAMING PLAN; FIRST-FLOOR PLAN; TYPICAL FLOOR PLAN; ROOF PLAN; AND TYPICAL SECTIONS. TYPICAL MECHANICAL PLAN, FIRST-FLOOR LIGHTING PLAN AND TYPICAL LIGHTING PLAN WERE PREPARED BY CASHVAN'S ARCHITECT ON NOVEMBER 17, 1970.

THUS, CASHVAN'S DESIGN WAS APPARENTLY NO MORE COMPLETE THAN GLOPAR'S AS OF MAY 20, 1970.

AS STATED ABOVE, THE BUILDING PERMIT ISSUED TO CASHVAN DID NOT COVER MECHANICAL OR ELECTRICAL DESIGN. MUCH HAS BEEN MADE OF THE FACT THAT THE BUILDING PERMIT WAS, IN FACT, "ISSUED" TO CASHVAN ON MAY 18, 1970. HAVE VERIFIED THAT THE PERMIT WAS ACTUALLY PICKED UP BY CASHVAN ON MAY 27, 1970, BUT THAT IT WAS BACK DATED TO MAY 18, 1970, AS AN ACCOMMODATION TO MR. CASHVAN. WITHOUT DECIDING THE LEGAL DATE OF "ISSUANCE" - WHICH IS NOT CRUCIAL TO OUR DECISION - WE BELIEVE THAT THE BUILDING PERMIT DID NOT FULLY SATISFY THE SOLICITATION CRITERION THAT IT BE FOR THE ENTIRE BUILDING.

WE BELIEVE THAT THE RECORD NOW BEFORE OUR OFFICE REQUIRES THE CONCLUSION THAT THE GLOPAR PROTEST HAS MERIT AND THAT IT SHOULD BE SUSTAINED. RECOGNIZE THAT THE PASSAGE OF TIME TO THE DATE OF THIS DECISION MAY HAVE MADE THE NEED FOR RENTAL SPACE MORE CRUCIAL AND CRITICAL INSOFAR AS THE NAVY IS CONCERNED AND HAS POSSIBLY WORKED TO THE ECONOMIC DISADVANTAGE OF THE PARTIES TO THIS PROTEST. HOWEVER, WE BELIEVE THE RECORD SHOWS AN INEQUALITY OF TREATMENT OF THE PARTIES.

UNDER THE CIRCUMSTANCES, WE BELIEVE THAT EITHER GLOPAR SHOULD BE READMITTED TO THE NEGOTIATIONS ..END :