Matter of: Robertson Leasing Corporation File: B-257588 Date: September 21, 1994

Matter of: Robertson Leasing Corporation File: B-257588 Date: September 21, 1994

Protest that awardee failed to comply with solicitation provision requiring offerors to submit evidence demonstrating ownership, a current lease, or an "intent to lease" agreement for an outdoor vehicle storage site is denied where the awardee submitted a copy of its current lease for its proposed site.

Attorneys

DECISION

We deny the protest.

The USMS implements the DOJ forfeiture program by managing and disposing of property that has been seized for forfeiture under laws enforced or administered by the DOJ and other federal agencies. The services required here are part of the forfeiture program.

The RFP required offerors to submit both a technical and price proposal for a base year period and 4 option years. The RFP provided that the score for technical proposals would constitute 60 percent of an offeror's total score and that the score would constitute 40 percent of the total score.

With respect to the technical proposals, the solicitation set forth the following evaluation factors: towing, storage, sales, and work capability. A maximum of 15 points was available under each category; thus, 60 points was the highest technical score an offeror could receive for its technical proposal. Section L of the solicitation instructed offerors on what to provide in their technical proposals for each of these four technical categories. Under the storage category, offerors were to propose both an indoor and outdoor vehicle storage site. Under the work capability evaluation factor, section L requested offerors to provide eight items of information including:

"(8) Provide one of the following with your Technical Proposal:

a) Proof of ownership of proposed facility;

b) Copy of current lease of proposed facility or;

c) Copy of `Intent to Lease' agreement." (Emphasis in original.)

By the January 17, 1994, closing date, seven proposals were received. Six proposals were forwarded to a technical evaluation board (TEB) for evaluation; the contracting officer rejected the seventh offer as technically unacceptable since no technical proposal was included with that offer. The TEB evaluated the proposals and conducted site visits at each offeror's proposed indoor and outdoor storage facilities, and established a competitive range of the top three technical proposals--including those of Robertson and Abre. The agency then issued written discussion questions to the competitive range offerors and requested best and final offers (BAFO). On June 10, the contracting officer awarded a contract to Abre, the highest technically rated, lowest-priced offer.

Abre's proposed outdoor storage facility was located at Brown Field Airport, San Diego. In response to the provision in section L regarding ownership/leasing, Abre provided the agency with a copy of its current lease for that site, which had been in existence since October 14, 1991. Abre also provided a copy of a September 12, 1992, letter from the city of San Diego--the owner of the Brown Field Airport storage site--which provided:

"Your satisfactory compliance with all the terms and conditions of your leases with the City of San Diego has been a welcome addition to the Brown Field Property Management.

"It is the intent of the Property Management office to continue to work with you and your firm on a long term lease basis for your leasing of the acreage on Brown Field Airport."

Robertson protests that Abre's current lease did not meet the ownership/leasing requirement in the RFP since the lease was scheduled to expire in October 1994, 4 months after contract performance for this 5-year requirement was scheduled to begin. In making this argument, Robertson relies heavily on the following language set forth in amendment No. 0003 to the RFP, which consisted of agency responses to 60 contractor questions raised at a preproposal conference, and--of relevance to this protest--provided, in part:

"Question 60: The solicitation requires t[he] contractor to provide a large indoor-outdoor facility in the San Diego area which has created certain difficulties. There is a severely limited amount of properly zoned property available in which to perform the required services. As a proposed solution to this problem, can a contractor contact the incumbent contractor concerning the possibility of sub-leasing and assuming the option to buy the existing property where they are now servicing the USMS, Southern District of CA. If these negotiations are successful, would the USMS consider our proposal fully responsive? Further, would the USMS deem the contractor to be in total compliance with all legal and administrative requirements of the procurement process?

"Answer: The solicitation requires the contractor [to] possess facilities meeting the requirements of the solicitation for the time/time periods required. How they are acquired is the responsibility and concern of the contractor. The USMS is unable to predetermine if a proposal would be considered fully responsive prior to the closing date of the RFP." (Emphasis in original.)

Based on the language set forth in the government's "Answer," Robertson maintains that in order to be technically compliant with the ownership/leasing provision at issue in this protest, offerors who proposed using a leased site were required to submit evidence of a 5-year leasing commitment. Because Abre's proposal submittal did not reflect such a 5-year commitment, Robertson contends that the agency improperly waived this requirement for Abre. We disagree.

As a preliminary matter, we note that Robertson contends that the ownership/leasing requirement constitutes a definitive responsibility criterion. However, as pointed out by the agency, this requirement is in fact a technical evaluation subfactor. While the requirement requested evidence that the contractor has access to adequate vehicle storage facilities, a responsibility-type factor, see Federal Acquisition Regulation (FAR) Sec. 9.104-1(e), a solicitation may include such traditional responsibility factors among technical evaluation criteria as part of a comparative evaluation where the agency reasonably determines such an evaluation of that factor is required to make a selection decision. See ASR Management & Technical Servs., B-244862.3; B-247422, Apr. 23, 1992, 92-1 CPD Para. 383. In this case, the ownership/leasing requirement was identified in section L of the solicitation as information to be considered in evaluating the work capability technical evaluation factor. Section M of the solicitation, "EVALUATION FACTORS FOR AWARD," clearly advised all offerors that "[t]he subfactors for the evaluation criteria are enumerated in section L of the solicitation." We note that other information was separately solicited to assess the offeror's responsibility. The record shows that, consistent with the evaluation scheme stated in the RFP, the TEB comparatively evaluated each offeror's facility, including their ownership/lease arrangements, as part of its consideration of the work capability factor; in particular, the TEB relatively assessed the merits of each offeror's proposed facility, e.g., security, drainage, etc. Under the circumstances, the facilities access submittal requirement is not a definitive responsibility criterion. See id.; Commercial Bldg. Serv., Inc., B-237865.2; B-237865.3, May 16, 1990, 90-1 CPD Para. 473.

We turn now to the question of whether Abre's proposal was technically acceptable with the leasing/ownership evaluation subfactor. While the protester argues that the "Answer" to question 60 set forth in amendment No. 0003 of the solicitation indicates that the agency intended to require evidence of a 5-year leasing commitment to be submitted with the proposal, we find the protester's interpretation to be unreasonable. Given the plain language of the ownership/leasing criterion, and the failure of that provision to specifically request evidence of a 5-year commitment, we think this provision merely required proof of access to a vehicle storage site.[1] This conclusion is not changed by the agency's "Answer" to question 60, neither the "Answer" nor the corresponding "Question" referenced the ownership/leasing provision, nor did either specifically address the required length of any proposed leasing commitment--instead, the question and answer exchange concerned what type of site access agreement would be satisfactory to the agency. In view of the context in which the answer was given, it would be unreasonable to interpret the agency's answer as imposing a requirement that an offeror demonstrate a 5-year leasing commitment with its proposal, particularly when such a requirement is not evident from the plain language of the section L provision itself.

In any event, even accepting the protester's interpretation of the 5-year ownership/leasing requirement, we think Abre's leasing submission reasonably could be construed by the TEB as complying with the provision. As noted above, the September 12, 1992, letter provided by Abre with its current lease stated that the city of San Diego intended to deal with Abre on a "long term lease basis." Given the combination of this language with Abre's submission of the current lease, we think the technical evaluators could reasonably conclude that Abre would have access to use the Brown Field Airport storage site for the 5-year duration of the contract. We also note that on April 27, 1994, the city of San Diego confirmed this interpretation by advising the agency that the city was in fact in the process of negotiating the terms of the 5-year renewal lease with Abre. Under these circumstances, we find the award to be unobjectionable. See E.W. Bliss Co., B-255648.3, April 26, 1994, 73 Comp.Gen. ___, 94-1 CPD Para. 280.

The protest is denied.

1. It is clear from the record that the awardee and the evaluators interpreted the solicitation to require only evidence of current access to the site.