B-152768, JUN. 23, 1964

B-152768, JUN. 23, 1964

TO ICE, MILLER, DONADIO AND RYAN:

BY LETTER DATED APRIL 11, 1964, YOU REQUESTED, ON BEHALF OF PRINTING ARTS CENTER OF INDIANA, INC., RECONSIDERATION OF OUR DECISION OF APRIL 6, 1964, WHEREIN WE DENIED THE PROTEST MADE AGAINST THE AWARD OF A LEASE TO DABEN REALTY COMPANY, INC., UNDER INVITATION FOR BIDS NO. GS 05BR-3373, ISSUED BY THE GENERAL SERVICES ADMINISTRATION (GSA) ON JULY 15, 1963.

YOU ADVISE THAT DOCUMENTARY EVIDENCE WHICH SHOULD BE IN THE OFFICIAL FILES DIRECTLY CONFLICTS WITH THE FACTS STATED IN OUR DECISION. YOUR APRIL 11 LETTER ADVISED AS FOLLOWS:

"DOCUMENTARY EVIDENCE SUBMITTED HEREWITH REFUTES COMPLETELY THE STATEMENT THAT THE EXTENSION TO JUNE 30, 1964 WAS THE ONLY ARRANGEMENT TO WHICH THE LESSOR WOULD AGREE. SINCE PRINTING ARTS WAS WILLING TO EXTEND THE LEASE ACCORDING TO THIS DOCUMENTARY EVIDENCE, FOR AS LITTLE AS 60 DAYS, THE EXTENSION TO JUNE 30, 1964, CANNOT BE SAID TO BE FOR THE PURPOSE OF AVOIDING LIABILITY FOR THE PAYMENT OF RENT AT TWO SEPARATE LOCATIONS. THE ONLY REALISTIC CONCLUSION REMAINING IS THAT THE EXTENSION WAS FOR THE PURPOSE OF ENABLING A BIDDER TO GET PREMISES READY FOR OCCUPANCY SIX MONTHS LATER THAN HAD BEEN PROMISED WHEN THE BID WAS FILED. THE AWARD MAY HAVE BEEN 8 DAYS LATE ACCORDING TO DOCUMENTS IN THE FILE. BUT IF A SIX MONTHS' EXTENSION WAS REQUESTED AND ACCEPTED BY THE GOVERNMENT IN PREFERENCE TO AN EXTENSION TERMINABLE ON 60 DAYS' NOTICE, THE INFERENCE IS INESCAPABLE THAT DABEN REALTY COULD NOT COMPLY WITH THE REQUIREMENTS OF THE BID AT THE TIME IT WAS GRANTED EVEN ALLOWING CONSIDERABLE LEEWAY FOR THE 8 DAYS DELAY IN THE FINAL AWARD.

"IT IS ALSO STATED IN THE THIRD PARAGRAPH ON PAGE 2 OF YOUR LETTER THAT "ADMINISTRATIVE DELAY IN MAKING THE AWARD MADE IT IMPOSSIBLE FOR ANY BIDDER TO MEET THE DECEMBER 1 DATE AND THAT AWARD WAS MADE AT A LATER DATE (APPARENTLY JANUARY 27, 1964).' HOWEVER, THE RECORD DISCLOSES THAT THE REQUEST FOR A SIX MONTHS' EXTENSION ON OCTOBER 15, 1963, WAS BEFORE THERE HAD BEEN ANY ADMINISTRATIVE DELAY, AT A TIME WHEN BIDDERS WERE NOTIFIED THAT AN AWARD HAD BEEN MADE, BEFORE ANY PROTEST HAD BEEN FILED. OBVIOUSLY THE GOVERNMENT RECOGNIZED AT THAT EARLY DATE THAT DABEN REALTY COULD NOT MEET THE DECEMBER 1 OCCUPANCY REQUIREMENT. THERE IS, THEREFORE, NO RELATIONSHIP BETWEEN ANY SUBSEQUENT ADMINISTRATIVE DELAY AND THE INABILITY OF DABEN TO MEET THE OCCUPANCY REQUIREMENT AS SET FORTH IN THE BID, WHICH INABILITY WAS RECOGNIZED ON OCTOBER 15.'

THE PERTINENT PORTIONS OF OUR APRIL 6 DECISION READ AS FOLLOWS:

"THE QUESTION INVOLVED HERE IS WHETHER THE VARIANCE BETWEEN THE DATE OF OCCUPANCY PRESCRIBED IN THE INVITATION AND THAT CONTEMPLATED BY THE AWARD MADE TO DABEN WAS CONTRARY TO THE COMPETITIVE BIDDING SYSTEM OR OTHERWISE PREJUDICIAL TO COMPETING BIDDERS. IT IS CLEAR FROM THE RECORD THAT BOTH DABEN AND PRINTING ARTS WERE AWARE THAT AWARD COULD NOT BE MADE TO ANY BIDDER IN TIME TO MEET THE DECEMBER 1 OCCUPANCY DATE. BOTH OF THESE BIDDERS VOLUNTARILY EXTENDED THEIR BID ACCEPTANCE TIME IN VIEW OF THE IMPOSSIBILITY TO MAKE AN AWARD COMMENSURATE WITH THE DECEMBER 1 OCCUPANCY DATE. CERTAINLY, UNDER THESE CIRCUMSTANCES, IT MAY NOT BE SAID THAT EITHER BIDDER WAS PREJUDICED OR THAT ONE HAD AN ADVANTAGE OVER THE OTHER SO FAR AS THE EVALUATION OF THEIR BIDS WAS CONCERNED. THE JUNE 30, 1964, OCCUPANCY DATE WAS FIXED IN THE LIGHT OF THE FACT THAT THE PRINTING ARTS WOULD EXTEND ITS PRESENT LEASE ON A FIRM BASIS TO THAT DATE ONLY. CONCLUDE, THEREFORE, THAT THE LEGALITY OF THE AWARD MAY NOT BE QUESTIONED ON THE BASIS THAT THE ADVERTISED OCCUPANCY WAS EXTENDED BEYOND THE DATE SPECIFIED IN THE INVITATION.'

THERE EXISTS, THEREFORE, A DISPUTE AS TO THE FACTS INVOLVED. SINCE GSA IS THE AGENCY RESPONSIBLE FOR SECURING LEASED PREMISES FOR GOVERNMENT USE, ITS COMMENTS ON THE MATTERS IN ISSUE MAY BE SUMMARIZED AS FOLLOWS:

IN OCTOBER 1963, WHEN THE GSA CHICAGO REGIONAL OFFICE HAD RECEIVED AN AUTHORIZATION TO AWARD A LEASE TO DABEN, THE REGIONAL OFFICE DETERMINED THAT IT WOULD BE NECESSARY TO EXTEND THE PRESENT LEASE WITH PRINTING ARTS SO AS TO ASSURE THAT SPACE WOULD CONTINUE TO BE AVAILABLE TO THE GOVERNMENT. THIS SITUATION WAS DISCUSSED WITH PRINTING ARTS, THE PRESENT LESSOR, WITH THE VIEW TO EXTENDING THE PRESENT LEASE TO JUNE 30, 1964, CANCELLABLE UPON NOTICE AT AN EARLIER DATE AT THE GOVERNMENT'S OPTION. THOSE DISCUSSIONS, THE LESSOR WOULD CONSIDER GSA'S PROPOSAL ON A FIRM-TERM BASIS ONLY.

WITH REFERENCE TO THE PERIOD SUBSEQUENT TO THESE DISCUSSIONS, IT IS NOTED THAT PRINTING ARTS OFFERED IN ITS LETTER OF NOVEMBER 27, 1963, "TO EXTEND LEASE NO. GS-05B-5421 TO DECEMBER 31, 1964, EITHER PARTY TO HAVE THE RIGHT AND PRIVILEGE TO CANCEL SAID LEASE AS OF THE END OF ANY CALENDAR MONTH UPON NOT LESS THAN SIXTY DAYS' PRIOR WRITTEN NOTICE TO THE OTHER.' GSA WAS UNWILLING TO TAKE THE RISK OF CANCELLATION BY PRINTING ARTS WHICH MIGHT OCCUR PRIOR TO AN AWARD UNDER THE INSTANT INVITATION AND THE TIME GSA WOULD BE PREPARED TO MOVE THE GOVERNMENT AGENCIES INTO NEWLY LEASED PREMISES. ALTHOUGH GSA IN A LETTER OF OCTOBER 7, 1963, TO THE HONORABLE DONALD C. BRUCE, MEMBER OF CONGRESS, ADVISED THAT IT HAD AUTHORIZED THE CHICAGO REGIONAL OFFICE TO AWARD THE LEASE TO DABEN REALTY, A MORE EXACT STATEMENT OF THE SITUATION IS THAT, ON OCTOBER 7, 1963, GSA REQUESTED THE REGIONAL ADMINISTRATOR TO MAKE AN AWARD TO DABEN "IF ALL OTHER REQUIREMENTS TO LEASE ARE MET.' AN EXTENSION OF THE EXISTING LEASE WAS REQUIRED FOR THE PURPOSE OF SECURING SUFFICIENT TIME TO COMPLETE THE PROPOSED RELOCATION OF THE AGENCIES. ADMINISTRATIVE REQUIREMENTS NECESSITATED THAT SUFFICIENT TIME BE ALLOWED FOR REQUIRED ACTIONS AND DETERMINATIONS TO BE MADE PRIOR TO AWARD. A DETAILED APPRAISAL HAD TO BE PREPARED AND SUBMITTED FOR REVIEW AND APPROVAL, AND A DETERMINATION HAD TO BE MADE RESPECTING COMPLIANCE WITH THE ECONOMY ACT LIMITATIONS. THESE REQUIREMENTS WERE PREREQUISITE BEFORE AWARD WOULD BE MADE TO ANY BIDDER. THE AWARD WAS MADE ON JANUARY 27, 1964, NOT ON OCTOBER 7, 1963, TO DABEN REALTY.

THE PRIMARY FACTOR IN THE DECISION TO AWARD THE LEASE TO DABEN REALTY WAS THAT OF ENVIRONMENT, INCLUDING BOTH THE AREA SURROUNDING THE BUILDING AND ITS PHYSICAL CHARACTERISTICS. FACTORS ALSO IMPORTANT IN THE DECISION WERE THE AVAILABILITY OF TRANSPORTATION AND OF EATING FACILITIES. IN THIS CONNECTION, WE HELD IN THE DECISION OF APRIL 6, 1964, THAT:

"WHILE THESE AWARD FACTORS COULD NOT BE APPLIED IN A MANNER TO PROVIDE PRECISE AND INCONTROVERTIBLE BID EVALUATION, THEY ARE NEVERTHELESS PERTINENT FACTORS WHICH MUST BE CONSIDERED IN DETERMINING WHETHER THE TENDERED OFFICE SPACE MEETS THE CRITERIA SET OUT IN EXECUTIVE ORDER NO. 11035 AND SPECIFIED IN PARAGRAPH 14 OF THE GENERAL PROVISIONS OF THE INVITATION. WE RECOGNIZE THAT IT IS IMPRACTICABLE IN A LEASE INVITATION TO STATE EXACTLY WHAT THE GOVERNMENT DESIRES AS TO THE ENVIRONMENT OF LEASED OFFICE SPACE. CF. 36 COMP. GEN. 380, 385. IT IS SUFFICIENT, IN OUR OPINION, TO PRESCRIBE GENERAL GUIDELINES OF ACCEPTABILITY WHICH NECESSARILY MUST BE APPLIED AS EQUITABLY AS POSSIBLE TO THE LOCATIONS OF THE OFFICE SPACES TENDERED. THERE IS ALSO FOR CONSIDERATION THE PROVISIONS OF SECTION 303 (B) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, 63 STAT. 377, AS AMENDED, AS WELL AS PARAGRAPH 10 OF THE INSTRUCTIONS TO BIDDERS WHICH PROVIDES, IN EFFECT, THAT AWARD WILL BE MADE TO THAT RESPONSIBLE BIDDER WHOSE BID WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, CONSIDERING PRICE AND SUCH OTHER FACTORS AS MAY BE SPECIFIED IN THE INVITATION. YOUR CONTENTION IN THIS REGARD IS ANSWERED ACCORDINGLY.'

ON THE BASIS OF OUR REVIEW, WE ARE UNABLE TO AGREE THAT THE FACTS INVOLVED IN THIS AWARD WERE INACCURATE OR MISSTATED. THE DETERMINATION MADE BY GSA TO MAKE THE AWARD TO DABEN REALTY INVOLVED MATTERS OF JUDGMENT AS TO WHICH OUR OFFICE MAY NOT SUBSTITUTE ITS OPINION IN THE ABSENCE OF A CONVINCING SHOWING THAT THE DETERMINATION THUS MADE WAS ARBITRARY OR OTHERWISE CONTRARY TO LAW. WE DO NOT FEEL THAT THE EVIDENCE PRESENTED BY YOU MEETS THOSE CRITERIA.