B-244975, Dec 3, 1991

B-244975: Dec 3, 1991

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

Protest that awardee will be unable to comply with solicitation requirements regarding handicapped restroom facility and adequate parking is dismissed as a matter of contract administration where awardee clearly offered to meet the solicitation requirements. SDC protests that GSA improperly rejected its proposal as failing to comply with the solicitation requirements and that GSA's award to CLSCC is improper because CLSCC will be unable to perform certain solicitation requirements. /1/ stating that it was offering a lease for an initial 5-year period with an option to renew for a second 5 year period. CLSCC expressly stated that the lease it was offering could be terminated by the government on 60 days notice during the 5-year option period.

B-244975, Dec 3, 1991

DIGEST: 1. Protester's proposal to lease office space for a 5-year period with an option to renew lease for a second 5-year period failed to comply with the solicitation requirement that the government be permitted to cancel the lease on 60 days notice after the first 5 years. 2. Protest that awardee will be unable to comply with solicitation requirements regarding handicapped restroom facility and adequate parking is dismissed as a matter of contract administration where awardee clearly offered to meet the solicitation requirements.

Attorneys

Stoneridge Development Corporation:

Stoneridge Development Corporation (SDC) protests the award of a lease by the General Services Administration (GSA) to Clover Leaf Shopping Center Corporation (CLSCC) for office space in Harrisonburg, Virginia. SDC protests that GSA improperly rejected its proposal as failing to comply with the solicitation requirements and that GSA's award to CLSCC is improper because CLSCC will be unable to perform certain solicitation requirements.

We deny the protest in part and dismiss it in part.

On March 20, 1991, the agency issued solicitation for offers (SFO) No. MVA-90087. The SFO sought offers to lease between 3,750 and 3,900 square feet of office space to be used by the Social Security Administration. Section 1.4 of the SFO provided that the term of the lease must be "for 10 years, with cancellation rights available to the government after the 5th year upon 60 days written notice of cancellation." The SFO indicated that offerors should submit proposals using GSA Form 1364, with appropriate attachments, and provided that award would be based on the offer most advantageous to the government, price and other factors considered.

Prior to the April 30 closing date, CLSCC and SDC submitted initial proposals using the appropriate forms. CLSCC completed blocks 14 through 17 of GSA Form 1364, /1/ stating that it was offering a lease for an initial 5-year period with an option to renew for a second 5 year period. In responding to block 17, CLSCC expressly stated that the lease it was offering could be terminated by the government on 60 days notice during the 5-year option period. In contrast, SDC left blocks 14 through 17 blank and, in block 18 under the heading "Alternates," stated it was offering "a 5-year lease with renewal option" or a "10-year lease which does not include a 5-year cancellation clause." SDC's initial proposal did not indicate the duration of the "renewal option" it was proposing, nor did it provide for any right of cancellation by the government.

Following receipt of initial proposals, the contracting officer contacted SDC and pointed out that, among other things, the term of the lease it had offered failed to meet the solicitation requirements. SDC responded to the contracting officer's communication by letter dated May 7, modifying its initial proposal to state it was offering a lease for an initial 5- year period and a renewal option for a second 5-year period. SDC's May 7 modification did not provide for cancellation by the government on 60 days notice any time after the first 5 years as required by section 1.4 of the SFO.

Following discussions, the contracting officer requested that each offeror submit its best and final offer (BAFO) by June 28; both offerors submitted BAFOs prior to that date. Neither of the BAFOs altered the provisions of the offerors' respective proposals regarding the duration of the leases offered or the government's right of cancellation. Based on SDC's failure to offer the government the right of cancellation on 60 days notice after the first 5 years, the contracting officer concluded that SDC's proposal failed to comply with the solicitation requirements and rejected its proposal on that basis. The lease was subsequently awarded to CLSCC.

SDC protests the rejection of its proposal as unacceptable and argues that CLSCC will be unable to perform some of the requirements required by the SFO. /2/

SDC first maintains that its proposal should not have been rejected for failing to comply with the SFO requirements and argues, "it was our intention to comply fully with the specification requirements, including the specification relating to the 60-day cancellation right during the 5- year renewal period." SDC refers to a question in an attachment to GSA Form 1364 which asked whether the offeror was proposing any deviations to the SFO requirements, notes that it placed an "X" next to the word "No" following that question, and asserts that this response indicated it was offering the required right of cancellation. SDC does not explain why, in its initial proposal, it left blank blocks 14 through 17 of the GSA Form 1354-- specifically block 17 which sought the offeror to commit to the cancellation provision; nor does SDC explain why, in response to the contracting officer's discussion questions, the May 7 modification letter it submitted specifically clarified the duration of the renewal option it was offering but did not provide for cancellation by the government during that period; nor does SDC explain why its BAFO did not in any way address the government's right of cancellation.

In a negotiated procurement, a proposal that fails to conform to the material terms and conditions of the solicitation should be considered unacceptable and a contract award based on such an unacceptable proposal violates the procurement statutes and regulations. See, e.g., Stocker & Yale, Inc., B-242568, May 13, 1991, 70 Comp.Gen. ***, 91-1 CPD Para. 460; Eklund Infrared, B-238021, Mar. 23, 1990, 90-1 CPD Para. 328. Here, the SFO unambiguously provided that the government must have the right to lease office space for 10 years, with the ongoing option to cancel the lease on 60 days notice after the first 5 years. Clearly, this right of cancellation was a material requirement of the solicitation.

In submitting proposals, offerors are required to submit sufficient information from which the procuring agency can determine that its minimum requirements will be met. Wordpro, Inc., B-242100.2, Apr. 24, 1991, 91-1 CPD Para. 404. A blanket offer of compliance is inadequate in circumstances where the agency has a reasonable basis to question whether the offeror is proposing what the solicitation required, Sabre Communications Corp., 68 Comp.Gen. 279 (1989), 89-1 CPD Para. 224, and where a proposal fails to establish that what is being offered complies with the solicitation specification, the procuring agency may reasonably find the proposal technically unacceptable. Management Training Systems, B-238555.2, July 17, 1990, 90-2 CPD Para. 43; Aydin Corp. (West), B-237450, Jan. 18, 1990, 90-1 CPD Para. 69.

Here, SDC's proposal clearly omitted any specific commitment that the government would be permitted to cancel the lease after the first 5 years on 60 days notice. As noted above, SDC's initial proposal left blank the portion of GSA Form 1364 regarding the duration of the lease and the government's right to cancel. Following discussions in which the agency advised SDC that its proposal did not comply with the SFO requirements in this regard, SDC submitted a revised proposal and a BAFO, neither of which addressed the cancellation requirement. Under these circumstances, we believe the agency could reasonably view SDC's proposal was not offering the required right of cancellation despite SDC's general indication of compliance with the SFO requirements. See Sabre Communications Corp., supra; Management Training Systems, supra.

SDC also protests that, in performing the contract, CLSCC will be unable to comply with the SFO requirements regarding adequate parking facilities and provision of a handicapped restroom. Regarding parking facilities, the SFO provided that the offeror must "at least meet current local code requirements." Regarding the restroom, the SFO provided that, "a handicapped, unisex restroom facility, approximately 30 net-usable square feet, shall be required and shall be accessible directly from the reception area."

In responding to the SFO requirement for adequate parking, CLSCC referred to the applicable local zoning ordinance requiring one parking space for every 300 square feet of office space, and expressly stated that it would meet this requirement, noting that the parking lot servicing the location it was offering contained 41 spaces and that CLSCC owned a parking lot directly across the street from the offered location which contained 485 parking spaces. In responding to the requirement for a handicapped restroom facility, CLSCC affirmatively represented that it would install the required restroom.

Since CLSCC's proposal clearly offered to meet the SFO requirements regarding parking facilities and a handicapped restroom, whether CLSCC meets its obligations is a matter of contract administration which is not for review by our Office under the Bid Protest Regulations. See 4 C.F.R. Sec. 21.3(m)(1) (1991), as amended by 56 Fed.Reg. 3759 (1991).

The protest is dismissed in part and denied in part.

/1/ Blocks 14 through 17 sought information regarding the duration of the lease offered; block 17 specifically sought information regarding the government's right to cancel the lease.

/2/ SDC also complains that the contracting officer conducted discussions with CLSCC after submission of BAFOs. The contracting officer states that after BAFOs were submitted, he sought clarification from CLSCC to ensure that it was offering the lease term required by the SFO. In response, CLSCC confirmed its earlier offer stating, "the lease term offered is as stated in Section 1.4 of SFO MVA90087, dated March 12, 1991." We have reviewed the terms of CLSCC's initial proposal and conclude that it fully complied with the requirements of the SFO regarding the government's right to lease office space for a 10 year period with cancellation rights after the 5th year. Accordingly, we do not view the contracting officer's clarification request as having any consequence.