B-153036, APR. 21, 1964

B-153036: Apr 21, 1964

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BENNETT AND ASSOCIATES: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6. THE PERTINENT PROVISIONS OF THE INVITATION WERE AS FOLLOWS: "1. BIDS OFFERING SPACE LOCATED OUTSIDE THIS AREA WILL BE REJECTED. "/B) THE GOVERNMENT RESERVES THE RIGHT TO REJECT THOSE BIDS OFFERING SPACE WITHIN THE AREA SPECIFIED IN (A) ABOVE WHERE SUCH LOCATIONS. ARE: 1) OF POOR GENERAL ENVIRONMENT 2) INCONVENIENT TO THE GENERAL PUBLIC AND GOVERNMENT EMPLOYEES AND/OR ARE NOT READILY ACCESSIBLE BY PUBLIC AND/OR PRIVATE TRANSPORTATION. TYPE AND AMOUNT OF NET USABLE SPACE "/A) THE ENTIRE SPACE REQUIREMENT IS DESIRED IN A SINGLE BUILDING. BIDS OFFERING SPACE IN NOT MORE THAN THREE (3) SEPARATE BUILDINGS AT ONE LOCATION WILL BE CONSIDERED PROVIDED SUCH BUILDINGS ARE CONTIGUOUS OR ADJACENT. "/B) SPACE OFFERED MUST BE IN A BUILDING/S) OF SOUND AND SUBSTANTIAL CONSTRUCTION.

B-153036, APR. 21, 1964

TO SOL C. BENNETT AND ASSOCIATES:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 6, 1963, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE REJECTION OF A BID SUBMITTED BY J. K. SILLS, ROBERT A. SILLS AND BEVERLY B. SILLS, IN RESPONSE TO INVITATION FOR BIDS NO. GS-PBS-03-593 FOR LEASING SPACE IN THE DISTRICT OF COLUMBIA, VIRGINIA OR MARYLAND.

THE CITED INVITATION DATED OCTOBER 23, 1963, SOLICITED BIDS--- TO BE OPENED NOVEMBER 21, 1963, LATER EXTENDED TO DECEMBER 2, 1963--- FOR FURNISHING SPACE REQUIREMENTS FOR THE COAST AND GEODETIC SURVEY. THE PERTINENT PROVISIONS OF THE INVITATION WERE AS FOLLOWS:

"1. LOCATION

"/A) IN THE DISTRICT OF COLUMBIA, OR VIRGINIA, OR MARYLAND--- SPACE OFFERED MUST BE WITHIN A TEN AIR MILE RADIUS MEASURED FROM THE ZERO MILESTONE, WASHINGTON, D.C. FOR NEARBY VIRGINIA AND PRINCE GEORGES COUNTY, MARYLAND, AND WITHIN A FIFTEEN AIR MILE RADIUS FOR MONTGOMERY COUNTY, MARYLAND. BIDS OFFERING SPACE LOCATED OUTSIDE THIS AREA WILL BE REJECTED.

"/B) THE GOVERNMENT RESERVES THE RIGHT TO REJECT THOSE BIDS OFFERING SPACE WITHIN THE AREA SPECIFIED IN (A) ABOVE WHERE SUCH LOCATIONS, IN THE SOLE DETERMINATION OF THE CONTRACTING OFFICER, ARE:

1) OF POOR GENERAL ENVIRONMENT

2) INCONVENIENT TO THE GENERAL PUBLIC AND GOVERNMENT EMPLOYEES AND/OR ARE NOT READILY ACCESSIBLE BY PUBLIC AND/OR PRIVATE TRANSPORTATION. (ALSO SEE SCHEDULE B, PART II, PARAGRAPH 1)

"2. TYPE AND AMOUNT OF NET USABLE SPACE

"/A) THE ENTIRE SPACE REQUIREMENT IS DESIRED IN A SINGLE BUILDING. HOWEVER, BIDS OFFERING SPACE IN NOT MORE THAN THREE (3) SEPARATE BUILDINGS AT ONE LOCATION WILL BE CONSIDERED PROVIDED SUCH BUILDINGS ARE CONTIGUOUS OR ADJACENT.

"/B) SPACE OFFERED MUST BE IN A BUILDING/S) OF SOUND AND SUBSTANTIAL CONSTRUCTION. SPACE OFFERED MUST CONFORM WITH THE REQUIREMENTS SET FORTH IN THIS INVITATION. A MINIMUM AMOUNT OF NET USABLE OFFICE, STORAGE AND SPECIAL PURPOSE SPACE AS OUTLINED BELOW IS REQUIRED:

CHART

PERCENT OF TOTAL OFFICE APPROX. 91,000 69.0 PERCENT STORAGE APPROX. 19,000

14.5 PERCENT SPECIAL PURPOSE SPACE APPROX. 22,000 16.5 PERCENT

TOTAL 132,000 100.0 PERCENT

(REFER TO PARAGRAPH 5 FOLLOWING FOR DEFINITION OF NET USABLE SPACE). NOTE: THE DETAILED REQUIREMENTS FOR CONDITIONING THE SPECIAL PURPOSE SPACE AS NOTED ABOVE ARE MORE FULLY DESCRIBED IN SCHEDULE C, PART I OF THIS INVITATION.

"/C) BIDS ARE SOLICITED FOR NOT LESS THAN 132,000 NOR MORE THAN 140,000 NET USABLE SQUARE FEET OF SPACE AT ONE LOCATION. ANY SPACE OFFERED IN EXCESS OF 132,000 SQUARE FEET SHALL BE PROPORTIONATE BY TYPE. (I.E. OFFICE, STORAGE, SPECIAL PURPOSE) AS INDICATED BY THE PERCENTAGES IN 2 (B) ABOVE. BIDS NOT IN COMPLIANCE WITH THE ABOVE WILL BE REJECTED AS NONRESPONSIVE.

"3. DATE OF POSSESSION

"DELIVERY IS PREFERRED BY FEBRUARY 1, 1964, BUT NOT LATER THAN JUNE 1, 1964. BIDS OFFERING POSSESSION LATER THAN JUNE 1, 1964, WILL BE REJECTED.

"4. TERM OF LEASE

"BIDS ARE REQUESTED ON A FIRM FIVE-YEAR BASIS AND A FIRM TEN-YEAR BASIS. IT IS ALSO REQUESTED THAT BIDS ON A FIRM FIVE-YEAR BASIS CONTAIN A QUOTATION PERMITTING THE GOVERNMENT THE RIGHT TO RENEW THE LEASE FOR FIVE CONSECUTIVE ONE-YEAR TERMS, UPON 90 DAYS WRITTEN NOTICE. BIDS WILL BE EVALUATED ON THE BASIS OF THE INITIAL FIRM TERM PRICE ONLY.'

TEN BIDS WERE RECEIVED. THE LOW BID WAS SUBMITTED BY J. K. SILLS, ROBERT A. SILLS AND BEVERLY B. SILLS, WHO OFFERED SPACE IN THE SILLS BUILDING, PORT ROYAL ROAD, RAVENSWORTH PARK, FAIRFAX COUNTY, VIRGINIA. THE SILLS BID WAS REJECTED FOR REASONS HEREINAFTER DISCUSSED. THE SECOND LOW BID WAS CONSIDERED NONRESPONSIVE. AWARD WAS MADE ON JANUARY 15, 1964, TO WASHINGTON SCIENCE CENTER CONDUIT, INC. ( C/O WEAVER BROTHERS), THE THIRD LOW BIDDER, AT ITS BID PRICE FOR A 10-YEAR TERM FOR FURNISHING OFFICE SPACE IN ITS BUILDING KNOWN AS THE WASHINGTON SCIENCE CENTER AND FOR FURNISHING STORAGE AND SPECIAL PURPOSE SPACE AS SET FORTH IN ITS BID.

YOUR LETTER OF DECEMBER 6, 1963, AS WELL AS SOME OF THE OTHER CORRESPONDENCE WITH OUR OFFICE, TOOK ISSUE WITH THE DETERMINATION OF GENERAL SERVICES ADMINISTRATION (GSA) OFFICIALS THAT THE SILLS BUILDING WAS NOT WITHIN THE 10-AIR-MILE RADIUS MEASURED FROM THE ZERO MILESTONE, WASHINGTON, D.C., AND QUESTIONED THE NECESSITY OF LIMITING THE ACCEPTABILITY OF SPACE IN PRINCE GEORGES COUNTY, MARYLAND, AND IN VIRGINIA, TO A 10-AIR-MILE RADIUS WHEN SPACE WITHIN A 15-MILE RADIUS WOULD BE ACCEPTABLE FOR PROPERTY LOCATED IN MONTGOMERY COUNTY, MARYLAND. AS TO THIS MATTER, GSA REPORTS THAT THE SILLS BUILDING IS LOCATED APPROXIMATELY 11 1/2 STATUTE MILES FROM THE ZERO MILESTONE AND THAT IF THE TERM "AIR MILE" REFERS TO A NAUTICAL MILE, AS YOU CONTEND, WHICH IS 6,080.2 FEET PER MILE, THE SILLS PROPERTY WOULD QUALIFY FROM A MILEAGE STANDPOINT. ALSO, GSA REPORTS THAT IRRESPECTIVE OF THE FACT THAT THE PROPERTY OFFERED MIGHT BE WITHIN THE ACCEPTABLE LIMITS, IT WOULD NOT BE ACCEPTABLE FOR THE FOLLOWING REASONS:

"/1) THE LOCATION IS OF POOR GENERAL ENVIRONMENT SINCE IT IS LOCATED IN THE CENTER OF A WAREHOUSE AREA WITH A TRUCKING FIRM WAREHOUSE AND A BOTTLING COMPANY WAREHOUSE LOCATED DIRECTLY ACROSS THE STREET. (SCHEDULE A, PART I, PAR. 1 OF THE INVITATION).

"/2) THE CLOSEST PUBLIC BUS TRANSPORTATION IS HOURLY SERVICE, APPROXIMATELY 7:00 A.M. TO 7:00 P.M., FROM NORTH SPRINGFIELD TO ALEXANDRIA WITH TRANSFER POINTS TO WASHINGTON, D.C. THE BUS CROSSES THE INTERSECTION OF BRADDOCK ROAD AND RAVENSWORTH ROAD, APPROXIMATELY 1 1/2 MILES ON BRADDOCK ROAD FROM THE ENTRANCE ROAD TO THE SILLS BUILDING. IN ADDITION THE DISTANCE FROM BRADDOCK ROAD TO THE BUILDING IS APPROXIMATELY 1/4 MILE. THUS THE SPACE OFFERED IS NOT READILY ACCESSIBLE TO PUBLIC TRANSPORTATION. (SCHEDULE A, PART I, PAR. 1 OF THE INVITATION).

"/3) SPACE OFFERED IS IN A WAREHOUSE BUILDING, COMPLETELY WINDOWLESS ON THREE SIDES AND CONTAINING NUMEROUS WAREHOUSE DOORS ON THREE SIDES. IT IS NOT OF THE TYPE GENERALLY RECOGNIZED AS ADAPTABLE TO GENERAL OFFICE SPACE AS REQUIRED BY SCHEDULE B, PART II, PAR. 1 OF THE INVITATION.

WITH REGARD TO THE MATTER OF GENERAL ENVIRONMENT YOU QUESTION THE PROPRIETY OF THE SPECIFICATION WHICH AUTHORIZED THE CONTRACTING OFFICER, IN HIS "SOLE DETERMINATION" TO REJECT A BID OFFERING SPACE WITHIN AN AREA OF "POOR GENERAL ENVIRONMENT.' YOU STATE THAT THE CONTRACTING OFFICER CAN REJECT LOCATIONS "THAT DO NOT SATISFY HIS FANCIFUL TASTE OR HIS MENTAL STATE.' ALSO, YOU DISPUTE THE ACCURACY OF THE ADMINISTRATIVE DETERMINATION AS TO THE AVAILABILITY OF THE PUBLIC BUS TRANSPORTATION SERVING THE SILLS BUILDING AREA. PARTICULARLY, YOU STRESS THE ALLEGED FACT THAT "THE GOVERNMENT STARTED COMMERCIAL NEGOTIATIONS WITH THE TRANSIT COMPANY FOR BUS SERVICE IN CONNECTION WITH THE WEAVER BROTHERS ROCKVILLE BUILDING EITHER PRIOR TO OR AFTER THE LEASE WAS AWARDED.' WITH REGARD TO THE ADMINISTRATIVE DETERMINATION THAT THE SPACE YOU OFFERED IS IN A WAREHOUSE BUILDING, YOU DO NOT DISPUTE THE FACT THAT THE BUILDING WAS CONSTRUCTED PRIMARILY AS A WAREHOUSE SINCE IN ITS PRESENT FORM IT HAS WAREHOUSE DOORS ON THREE SIDES WITH NO WINDOWS ON THOSE SIDES BUT YOU STATE THAT THE GOVERNMENT WAS FURNISHED WITH A DRAWING TO SHOW HOW THE BUILDING WOULD BE REMODELED TO MEET THE GOVERNMENT'S REQUIREMENT.

THE COAST AND GEODETIC SURVEY, IN ITS REQUEST FOR SPACE ADDRESSED TO THE GSA, STATED AS SOME OF THE CRITERIA TO BE USED FOR A SITE SELECTION (1) THE ENVIRONMENTAL CONDITIONS OF THE SITE TO BE ,ATTRACTIVE TO THE PROFESSIONAL AND SCIENTIFIC COMMUNITY THAT VISITS THE BUREAU" AND, ALSO, TO BE CONDUCIVE TO THE RETENTION AND RECRUITING OF PROFESSIONAL, SCIENTIFIC AND TECHNICAL PERSONNEL IN SCARCE CATEGORIES; (2) ADEQUATE EATING AND PARKING FACILITIES IN PROXIMITY OF THE SITE WHICH WILL HOUSE ABOUT 640 EMPLOYEES; (3) COMMUTER SERVICES AVAILABLE TO EMPLOYEES; AND (4) NORMAL COMMUNITY SERVICES AVAILABLE TO EMPLOYEES.

THE DRAFTING OF PROPER SPECIFICATIONS WHICH REFLECT THE NEEDS OF THE GOVERNMENT AND THE DETERMINATION FACTUALLY WHETHER THE OFFERS MADE BY THE BIDDERS MEET THOSE SPECIFICATIONS ARE PRIMARILY THE RESPONSIBILITY OF THE CONTRACTING AGENCY. 17 COMP. GEN. 554. THERE IS NO REQUIREMENT THAT THE GOVERNMENT LEASE SPACE MERELY BECAUSE IT IS OFFERED AT A LOWER PRICE WITHOUT REFERENCE TO THE PARTICULAR NEEDS TO BE SERVED. THE NEEDS OF THE CONTRACTING AGENCY AND THE USING AGENCY MUST BE CONSIDERED. THE FACT THAT A BIDDER MAY DIFFER WITH A DETERMINATION OF THE CONTRACTING OFFICER, AS IN THIS CASE, DOES NOT REQUIRE OUR OFFICE TO OBJECT TO A DETERMINATION SO MADE UNLESS IT IS CLEARLY SHOWN TO BE WITHOUT ANY FOUNDATION.

WHILE IT MIGHT BE SUCCESSFULLY CONTENDED THAT THE MATTER OF ENVIRONMENT, ALL OTHER FACTORS BEING EQUAL, SHOULD NOT BE OF SUFFICIENT IMPORTANCE TO REJECT AN OTHERWISE ACCEPTABLE LOW BID, THAT IS NOT THE CASE HERE. WHETHER OR NOT THE SILLS BUILDING WOULD BE ADEQUATELY SERVED BY PUBLIC BUS TRANSPORTATION REMAINED IN THE SPECULATIVE STAGE; HOWEVER, INSOFAR AS INVOLVES THE PUBLIC BUS TRANSPORTATION TO THE SITE OF THE BUILDING OFFERED BY WEAVER BROTHERS OUR OFFICE HAS BEEN FURNISHED WITH A BUS SCHEDULE, EFFECTIVE SEPTEMBER 16, 1962, WHICH SHOWS SCHEDULED DEPARTURES OF BUSES BETWEEN ROCKVILLE AND THE D.C.-MARYLAND LINE ON A 30-MINUTE BASIS. GSA HAS FURNISHED OUR OFFICE WITH INFORMATION THAT DURING THE MORNING AND EVENING RUSH HOUR PERIODS BUSES LEAVE TERMINAL POINTS IN BOTH DIRECTIONS AT 15 MINUTE INTERVALS. ONE BUS ROUTE PASSES WITHIN APPROXIMATELY A QUARTER OF A BLOCK FROM THE WEAVER BROTHERS BUILDING AND THE OTHER BUS ROUTE WITHIN APPROXIMATELY 2 1/2 BLOCKS.

WHAT APPEARS TO HAVE BEEN AN IMPORTANT FACTOR IN REJECTING THE SILLS BID IS THE FACT THAT GSA DID NOT CONSIDER THE BUILDING OFFERED AS BEING OF THE TYPE GENERALLY RECOGNIZED AS ADAPTABLE TO GENERAL OFFICE SPACE. PART II, SCHEDULE "B," OF THE INVITATION PROVIDED IN THIS REGARD AS OLLOWS:

"1. TYPE OF BUILDING

"/A) THE BUILDING WHEREIN THE SPACE IS LOCATED SHALL BE OF TYPE GENERALLY RECOGNIZED AS COMPARABLE OR ADAPTABLE TO THE AVERAGE OFFICE BUILDING USED FOR PURPOSES SIMILAR TO THOSE SET FORTH IN THIS INVITATION. BIDS PROPOSING BUILDINGS WHICH IN THE SOLE DETERMINATION OF THE CONTRACTING OFFICER ARE OBSOLETE OR HAVE EXTERIOR PHYSICAL CHARACTERISTICS THAT ARE NOT COMPATIBLE WITH THE SURROUNDING ENVIRONMENT WILL BE REJECTED.

"/B) THE DESIGN OF THE SPACE OFFERED MUST, IN THE SOLE DETERMINATION OF THE CONTRACTING OFFICER, BE SUSCEPTIBLE TO EFFICIENT LAYOUT AND GOOD UTILIZATION OF ALL PRIVATE OFFICES AND ,SPECIAL USE" AREAS REQUIRED BY THIS INVITATION INCLUDING, BUT NOT LIMITED TO, FLOOR SIZE AND SHAPE, COLUMN SPACING, WINDOW SPACING, SIZE MODULE, LOCATION OF CORE AREA, AND INGRESS AND EGRESS. BIDS OFFERING SPACE WHICH DO NOT MEET THESE REQUIREMENTS WILL BE REJECTED.

"/C) IF THE SPACE OFFERED IS IN A BUILDING/S) WHICH WAS CONSTRUCTED OR USED FOR A PURPOSE OTHER THAN CONTEMPLATED UNDER THIS INVITATION AND/OR INVOLVES MAJOR RENOVATION OR ALTERATION TO COMPLY WITH THE PROVISIONS OF THIS INVITATION, BIDDER/S) SHALL SUBMIT, WITHIN 15 DAYS AFTER REQUESTED TO DO SO BY THE CONTRACTING OFFICER, THE NECESSARY SKETCHES AND PLANS SHOWING THE PROPOSED TREATMENT OF EXTERIORS AND SUCH PLANS COVERING THE INTERIOR TREATMENT AS WILL CLEARLY DELINEATE THE WORK PROPOSED TO PROVIDE SPACE IN FULL COMPLIANCE WITH THE SPECIFICATIONS INCLUDED IN THIS INVITATION. FAILURE TO COMPLY WITH THIS REQUEST WILL RESULT IN THE ELIMINATION OF THE AFFECTED BID/S) FROM FURTHER CONSIDERATION.'

WHILE YOU STATE THAT THERE WAS SUBMITTED WITH THE BID OF SILLS CERTAIN INFORMATION AS TO THE MANNER IN WHICH THE BUILDING OFFERED WOULD BE ALTERED TO MEET THE SPECIFICATIONS, GSA NEVERTHELESS HAS DECIDED THAT THE BUILDING DOES NOT MEET THE REQUIREMENTS FOR OFFICE SPACE. THE DIFFERENCE IN PRICE BETWEEN THE SILLS BID AND THE BID OF WEAVER BROTHERS DOES NOT BECOME AN ISSUE.

WE FIND NO LEGAL BASIS FOR HOLDING THAT THE ACTION OF GSA IN REJECTING THE SILLS BID WAS ERRONEOUS.

WITH RESPECT TO YOUR CONTENTION THAT THE AWARD MADE TO THE WASHINGTON SCIENCE CENTER CONDUIT, INC., WAS IN VIOLATION OF THE LIMITATION CONTAINED IN THE INDEPENDENT OFFICES APPROPRIATION ACT, 1964, 77 STAT. 436-437, WE HAVE ADVISED THE GSA TODAY THAT, IN THE ABSENCE OF PROSPECTUS APPROVAL, THE AWARD IN THIS INSTANCE MUST BE REGARDED AS IN CONTRAVENTION OF THE APPROPRIATION LIMITATION.