Matter of: Richard S. Cohen--Reconsideration File: B-249131.3 Date: February 2, 1993

B-249131.3: Feb 2, 1993

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PROCUREMENT Bid Protests GAO authority PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration The General Accounting Office (GAO) will not reconsider decision dismissing protest of building site selection because the procuring agency abandoned the procurement by proceeding to obtain property under condemnation authority. Site acquisition conducted pursuant to condemnation authority is not subject to GAO bid protest jurisdiction. The advertisement designated the delineated area where the site was to be located. The agency determined that Bliss's site was most advantageous and selected it for acquisition. GSA was unable to reach an agreement with Bliss as to the purchase price of the site.

Matter of: Richard S. Cohen--Reconsideration File: B-249131.3 Date: February 2, 1993

PROCUREMENT Bid Protests GAO authority PROCUREMENT Bid Protests GAO procedures GAO decisions Reconsideration The General Accounting Office (GAO) will not reconsider decision dismissing protest of building site selection because the procuring agency abandoned the procurement by proceeding to obtain property under condemnation authority; site acquisition conducted pursuant to condemnation authority is not subject to GAO bid protest jurisdiction.

Attorneys

DECISION Richard S. Cohen requests reconsideration of our decision in Richard S. Cohen, B-249131.2, Nov. 16, 1992, 92-2 CPD Para., in which we dismissed its protest against the General Services Administration's (GSA) proposed acquisition of a building site from Alonzo O. Bliss Properties. We dismissed the protest for lack of jurisdiction because GSA has determined to acquire the Bliss site by condemnation.

We deny the request for reconsideration.

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 maximum of 230,000 occupiable square feet of office and related space, and 500 parking spaces." GSA received eight offers in response to this advertisement. GSA subsequently requested appraisals of the offered sites, conducted environmental assessments, and evaluated the offers submitted. The agency requested updated offers, corresponded with the offerors seeking clarification of their offers, and again requested and received updated offers.

After evaluating the updated offers, the agency determined that Bliss's site was most advantageous and selected it for acquisition. GSA was unable to reach an agreement with Bliss as to the purchase price of the site, and by letter dated June 8, 1992, informed Bliss that, in the absence of an offer acceptable to GSA, it would cause the institution of condemnation proceedings to acquire the site. GSA advised our Office that it was in the process of obtaining the necessary approvals to institute condemnation proceedings to acquire the site. In this regard, GSA stated that in accordance with its established procedures, it had informed the Chairmen of the Senate Select Committee on Environment and Public Works and the House of Representatives Committee on Public Works and Transportation of its determination, and would be forwarding the matter to the Department of Justice after receiving the necessary approvals.

We dismissed Cohen's protest that the process by which GSA had selected Bliss's site for acquisition was flawed and that GSA's evaluation of its building site was unreasonable. We determined that GSA, by proceeding with the condemnation of the Bliss site, had essentially abandoned the procurement process for this building site, and thus concluded that Cohen's protest was not appropriate for our review.

In requesting reconsideration, Cohen, in essence, merely expresses disagreement with our decision. For example, Cohen states that the "procurement process was not `abandoned,'" but was used by the agency to make a final site selection. Cohen also argues that unless we exercise jurisdiction over this matter, "it will mean that GSA may hold a selection process the legitimacy of which will not be able to be challenged before GAO," and that "[m]ost importantly, this [p]rotester and others would be effectively left without a cost effective way of challenging the selection process and receiving a remedy." [Emphasis deleted.]

Cohen has not shown, however, that we erred in finding that GSA had abandoned the procurement process. Although GSA did select the Bliss site as the one most advantageous to it before it elected to proceed by condemnation, the procurement process is no longer the vehicle by which GSA will acquire this site. In essence, GSA has canceled the procurement and has substituted a different approach-condemnation to effect site acquisition. Regardless of what occurred in the procurement process, that process has now been superseded and whatever GSA decides to do through the condemnation process clearly is not subject to our bid protest review. In this regard, the Competition in Contracting Act of 1984 limits the jurisdiction of our Office to protests of federal agency procurements, and defines a "protest", in pertinent part, as a written objection to the proposed award of award of a contract for property or services, see 31 U.S.C. Sec. 3551 (1988); property acquired through a condemnation does not result in a procurement contract. In addition, GSA is not prohibited from making a site acquisition through institution of condemnation proceedings after seeking competitive expressions of interest from various offerors. See Alonzo O. Bliss Props., B-249131, Aug. 11, 1992, 71 Comp.Gen., 92-2 CPD Para. 98. The fact that the protester may no longer have a "cost effective" way to challenge the condemnation does not vest us with jurisdiction that we simply do not have.

Under our Bid Protest Regulations, to obtain reconsideration, the requesting party must show that our prior decision may contain either errors of fact of law or present information not previously considered that warrants reversal or modification of our decision. 4 C.F.R. Sec. 21.12(a) (1992). While clearly expressing disagreement, Cohen's arguments point to no errors of fact or law in our decision, and thus provide no basis for reconsideration.

The request for reconsideration is denied.