Matter of: Richard S. Cohen File: B-249131.2 Date: November 16, 1992

Matter of: Richard S. Cohen File: B-249131.2 Date: November 16, 1992

PROCUREMENT Bid Protests GAO authority Real property Condemnation Protest that the process by which the General Services Administration (GSA) selected a building site for acquisition was flawed will not be considered where GSA has determined that it will acquire the site by condemnation.

Attorneys

DECISION Richard S. Cohen protests the General Services Administration's (GSA) proposed acquisition of a building site from Alonzo O. Bliss Properties. Cohen contends that the process by which GSA selected Bliss's site for acquisition was flawed, and that GSA's evaluation of its proposed building site was unreasonable.

We dismiss the protest.

On January 14, 1991, GSA published in The Washington Post an advertisement seeking "expressions of interest" in providing a building site for the Department of Justice. The advertisement designated the delineated area where the site was to be located, and stated that "[t]he site must be capable of delivering a minimum of 230,000 occupiable square feet of office and related space, and 500 parking spaces."

GSA received expressions of interest from 12 offerors in response to the advertisement. The offerors were provided with a "Contract to Sell Real Property" (contract), and instructed that they were to submit to GSA a preliminary title report, purchase price for the site, plat or sketch showing the dimensions of the land offered, names and correct widths of the abutting public streets, sidewalks, and alleys, and zoning requirements, along with a completed contract, by May 8.

Eight offerors, including Bliss and Cohen, responded to this request. GSA subsequently requested appraisals of the offered sites, conducted environmental assessments, and evaluated the offers submitted. The agency requested and received updated offers in late August 1991, and during its review of the offers, found areas within each that required clarification. The agency corresponded with the offerors seeking clarification of their offers from September through December, and requested and received updated offers.

After evaluating the updated offers using evaluation factors, the agency determined that Bliss's site was most advantageous and selected it for acquisition. GSA advised Bliss at this time that it was willing to pay $23,400,000 for the site rather than $26,700,000 as proposed by Bliss. By letter dated June 8, 1992, GSA informed Bliss that because an agreement could not be reached as to the purchase price of the site, GSA, in the absence of an offer acceptable to it, would cause the institution of condemnation proceedings to acquire the site. GSA has advised our Office that it is no longer evaluating alternate sites and is in the process of obtaining the necessary approvals to institute condemnation proceedings to acquire the Bliss site. In this regard, GSA states that, in accordance with its established procedures, it has informed the Chairmen of the Senate Committee on Environment and Public Works and the House of Representatives Committee on Public Works and Transportation, of its determination, and after receiving approval, it will forward the matter to the Department of Justice.

GSA has proceeded here under the site acquisition provisions of the Public Buildings Act of 1959 (PBA), 40 U.S.C. Sec. 604 (1988). Under the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. Secs. 3551-3556 (1988), our Office considers protests of procurements conducted by GSA under the PBA. RJP Ltd., 71 Comp.Gen. 333 (1992), 92-1 CPD Para. 310. Here, GSA has determined to acquire the Bliss site by condemnation. The PBA expressly authorizes the acquisition of building sites by condemnation, and this decision is not subject to review by our Office even if the requirement had been initially advertised. Alonzo O. Bliss Properties, B-249131, Aug. 11, 1992, 71 Comp.Gen. __, 92-2 CPD Para. 98. Since GSA, by proceeding with condemnation, has abandoned the procurement proce consider the protest as our jurisdiction under CICA is limited to protests of federal agency procurements. 31 U.S.C. Sec. 3551; 4 C.F.R. Sec. 21.1(a) (1992).

The protest is dismissed.

James F. Hinchman General Counsel

B-249131.2

The Honorable Richard G. Austin Administrator of General Services

Dear Mr. Austin:

Enclosed is a copy of our decision of today dismissing the protest of Richard S. Cohen concerning the General Services Administration's (GSA) proposed acquisition of building site for the Department of Justice from Alonzo O. Bliss Properties. We dismissed the protest because your agency had stated that the site will be acquired under condemnation proceedings and we therefore consider the matter inappropriate for review by our Office.

In reviewing the protest, one matter came to our attention that we think merits your consideration in future building site acquisitions under the Public Buildings Act of 1959 (PBA), 40 U.S.C. Sec. 604 (1988). Your agency argued, in response to the protest, that there is no obligation to disclose the evaluation factors used in selecting the site "most advantageous to the United States, all factors considered . . ." under the PBA. We do not agree with this view, and think that potential offerors should be apprised of the evaluation factors that will be used in selecting a site where offerors are solicited for potential building sites under the PBA.

While we agree with your agency that the PBA expressly exempts acquisitions conducted thereunder from the competition requirements of the Federal Property and Administrative Services Act of 1949, 41 U.S.C. Secs. 251 et seq. (1988), and that the Office of Federal Procurement Policy Act, 41 U.S.C. Sec. 405(a), expressly provides that the Federal Acquisition Regulation is inapplicable to acquisitions of real property, see RJP Ltd., 71 Comp.Gen. 333 (1992), 92-1 CPD Para. 310, we do not think that this provides GSA with unfettered discretion to conduct the acquisition in any manner it sees fit. Rather, we believe that inherent in the PBA, as in all procurement statutes, is the fundamental requirement of fairness. The touchstone of federal procurement is that property and services are to be obtained in such a way as to promote competitio being treated in a fair and impartial manner. Fiber Materials, Inc., 57 Comp.Gen. 527 (1978), 78-1 CPD Para. 422. It is through fairness and competition that the government maximizes vendor participation in procurements and thereby helps assure itself of receiving a sufficient number of offers so that the government's needs can be satisfied through advantageous offers from both a price and technical standpoint.

One element of intelligent and fair competition is the disclosure of the evaluation factors to be used by the procuring agency in evaluating offers submitted and the relative importance of those factors. See 49 Comp.Gen. 229 (1969); 44 Comp.Gen. 439 (1965) (solicitations issued under negotiated procedures by federal agencies, subject to general procurement statutes, were defective when they did not disclose the evaluation factors and their relative weights, even though the statutes and implementing regulations themselves did not expressly require such disclosure). Only in this way can an offeror know whether the procurement is intended to result in the acquisition of property or services at the lowest possible price or if the government is willing to pay a higher price for property or services that are technically superior to what can be acquired at the lowest possible price; competition is not served if offerors are not given any idea of the factors, and their relative values, upon which the government will select an offer for award. See Signatron, Inc., 54 Comp. Gen. 530 (1974), 74-2 CPD Para. 386.

For this reason, the disclosure of evaluation factors and their relative importance to potential offerors is basic to any fairly and properly conducted procurement, and we view as inimical to the fundamental federal procurement principles of fair play and impartiality any procedures and practices which do not comport with this. See Fiber Materials, Inc., supra (while government prime contractor is not subject to the statutory or regulatory requirements governing direct procurements by the federal government, solicitation issued by government prime contractor is defective where it fails to include evaluation factors for award); Ford Motor Co.; Chrysler Corp., B-207179; B-207179.2, Jan. 20, 1983, 83-1 CPD Para. 72 (District of Columbia procurement was defective where bids were rejected based on their failure to comply with evaluation factors which were not disclosed in the solicitation).

We think that this fundamental element of fair competition is particularly applicable to the PBA, which authorizes GSA to acquire sites "most advantageous to the United States, all factors considered . . . ." That is, the statute clearly envisions a balancing of specified factors as the basis for a considere most advantageous.

In this case, the record showed that GSA had factors and evaluated the offered sites against those factors, but did not at any time during the site acquisition process advise the offerors of the evaluation factors and their relative importance, or even inform the offerors that evaluation factors existed. Compare RJP Ltd., supra., where GSA did disclose the evaluation factors to offerors under a PBA site selection. The failure to disclose the evaluation factors to be used may well inhibit intelligent competition and GSA's assurance that it had selected the site "most advantageous to the United States, all factors considered . . . ." For example, if all offerors had been aware of the evaluation factors and their relative weight, including price, they might have provided information in their offers specifically bearing on the factors that would have been helpful to and had an impact on GSA's evaluation, and/or may have adjusted their proposed prices to account for relative advantages or disadvantages of their proposed sites in light of the factors.

Thus, we think that in future competitive site selections GSA should disclose to the offerors the evaluation factors to be used and their relative weight.

We would appreciate your advice as to any actions(s) in response to this letter.