Matter of: CB Commercial Government Services Group File: B-259014 Date: February 28, 1995 *REDACTED VERSION [*]

Matter of: CB Commercial Government Services Group File: B-259014 Date: February 28, 1995 *REDACTED VERSION [*]

Agency properly excluded an offeror's proposal from further consideration under request for proposals (RFP) for building management services where the offeror failed to show that it met the RFP's qualification criterion that it have been "actively engaged" in the marketing, leasing, and operation of three retail centers within the last 6 years.

Attorneys

DECISION

CB Commercial Government Services Group (CB) protests the rejection of its proposal by the General Services Administration (GSA) under request for proposals (RFP) No. GS-11P-94-AQC-0006, for private sector program development and management services for the International Trade Center (ITC), to be located in the Federal Triangle Building, currently under construction in Washington, D.C. [1]

We deny the protest.

The ITC will contain, in addition to offices for federal agencies, office space that can be occupied by state and local government agencies, private sector organizations and representatives of foreign governments; retail space; food service areas; an auditorium and conference center; and spaces for exhibits and "special uses," e.g., receptions and banquets. The RFP seeks proposals from management teams, referred to as trade center managers (TCM), to develop, implement, manage, and operate a private sector development program and associated management services for the ITC. The contract is to consist of two phases: a program development phase, followed by an implementation phase (which consists of nine 1-year options). The successful offeror will initially provide development services, including market surveys, program development, financial analysis, marketing plans and leasing plans, culminating in a final development plan. Once the management plan is approved by the government, the contractor will provide services for implementing the development plan, including marketing, leasing, design and build-out of tenant spaces, lease administration, and facility promotion. The contractor will also provide property management for the operation of the food services, auditorium, conference, exhibit and specialty spaces, and for special events.

Under the RFP's evaluation scheme, offerors were required to demonstrate during a preliminary evaluation that their proposals satisfied eight "go/no-go" qualification criteria specified in section M.1., including:

"c. The offeror team must have been actively engaged in the marketing, leasing, and operation of at least three multi-tenant destination retail centers totaling, in aggregate, not less than 400,000 rentable square feet (including food operation), during the past six years within a major urban area."

According to the RFP, proposals from offerors that did not meet this or any of the other specified qualification criteria would not receive further consideration under the RFP's source selection procedures.

Four proposals, including CB's, were received by the closing date for receipt of proposals. CB listed three multi-tenant destination retail centers located within major urban areas to meet the requirements of section M.1.c. CB described its involvement in [DELETED], its first listed retail center, [2] as follows:

"[CB] successfully marketed [DELETED] to a roster of class A tenants. They continue to manage the building as well as coordinating all special events."

After evaluating CB's proposal, the technical evaluation panel (TEP) asked CB to clarify "the period of time during which [CB] was actively engaged in the marketing, leasing and operation of [DELETED]." CB responded that it "has been continuously engaged in the project's marketing, leasing, and operation since its inception." The TEP regarded CB's response to be insufficient because the panel did not regard "continuously engaged" to be synonymous with "actively engaged." The TEP then asked CB to "[c]larify how and when [CB] was actively engaged in the marketing, leasing and operation of [DELETED]." [Emphasis in original.]

In its letter responding to the agency's request, CB stated that:

"[CB] has been and continues to be involved in all phases of the leasing, management and marketing of [DELETED]. This relationship has existed since its inception in the late 1970's. . . . At one point as Managing Partner we even had a [DELETED] [percent] equity interest.

"The property is now wholly owned by [DELETED]. . . . [CB], through our Realty Advisors group is the asset manager for the [DELETED]. In that role we oversee the ongoing leasing efforts (renewals, replacement, etc.) of [DELETED]. [3] We also secured [the new owner] and continue to act as their investment manager. . . ."

The TEP determined that CB's response did not demostrate that it met the qualification criterion of being "actively engaged" in the marketing, leasing, and operation of a multi-tenant destination retail center because CB is merely an "asset manager" and only "oversees" the leasing efforts of [DELETED] at [DELETED]. According to the TEP, "actively engaged" in direct performance of marketing, leasing, and operation of the retail center "means hands-on involvement rather than overseeing the work of others." The agency notified CB that its proposal and clarifications did not demonstrate compliance with the qualification criterion, therefore CB's proposal would receive no further consideration. [4]

The protester argues that its proposal satisfied the requirements of section M.1.c.; that the agency's elimination of its proposal for its failure to satisfy the criterion was unreasonable and rejects the imposition of undisclosed evaluation factors; and that the two offerors which were found to satisfy this criterion were held to a lesser standard than was CB.

We view the qualification requirements employed here as essentially definitive responsibility criteria. See Stevens Technical Servs., Inc., B-250515.2; et al., May 17, 1993, 93-1 CPD Para. 385. A definitive responsibility criterion is defined as a specific objective standard, i.e., qualitative and quantitative, that is established by a procuring agency to measure an offeror's ability to perform a contract. Teltara, Inc., B-245806.2, Apr. 14, 1992, 92-1 CPD Para. 363. An agency may only find an offeror in compliance with a definitive responsibility criterion based on adequate, objective evidence. T. Warehouse Corp., B-248951, Oct. 9, 1992, 92-2 CPD Para. 235.

CB first asserts that the agency improperly employed an undisclosed criterion--that the offeror be directly performing the marketing, leasing, and operation of the facility--in evaluating the offerors' proposals with regard to the section M.1.c. criterion. We disagree. Under the RFP, the TCM will be directly responsible for planning and providing marketing, leasing, tenant build-out and other development services with the private sector. Given the duties of the TCM as outlined in the RFP, we think the agency reasonably construed the term "actively engaged," which is also used with other qualification criteria, to mean day-to-day experience or direct involvement in those areas. [5] See id.

The TEP actually noted that CB characterized its involvement with [DELETED] differently than its involvement with the other two retail centers it listed, stating that while it has responsibility "for total leasing and management" at the other two retail centers, it oversees the leasing efforts of [DELETED], presumably its managing agent, at [DELETED], but that [DELETED] performs that function. This characterization strongly suggests that CB is not actively engaged in the leasing activities at [DELETED]. Furthermore, CB's reference to its former equity interest as managing partner, and its roles as asset manager and investment manager for the owner do not show that it was actively engaged in marketing, leasing, or operating [DELETED], but indicate that CB was involved more generally in the investment aspects of the property.

In addition, while CB once may have been "actively engaged" in the marketing, leasing, and operation of [DELETED], CB's proposal and clarifications never identify at what point in time (if ever) this occurred. In this regard, the RFP requires that active engagement have occurred during the past 6 years, and while CB's proposal mentions its involvement since the project's inception in the late 1970s, it does not pinpoint this involvement or otherwise indicate that it occurred in the past 6 years. According to the agency, this time frame is critical because of the changing real estate market over the last 6 years and the need for offerors to have been actively engaged in marketing, leasing, and operating retail centers in those market conditions during that time frame, which presumably will more closely resemble the market conditions facing the TCM when it begins to market, lease, and operate the private sector space at the ITC. Because CB's proposal and clarifications do not establish if or when CB was actively engaged in the marketing, leasing, and operation of [DELETED], and given that CB has not even established this involvement during the course of this protest, the agency reasonably found that CB's proposal did not meet this qualification criterion.

The protester complains that the agency should have contacted its listed reference to ascertain that CB was "actively engaged" in marketing, leasing, and operating [DELETED]. However, procurement officials have no duty to check any or all of the references furnished in a proposal. Employment Perspectives, B-218338, June 24, 1985, 85-1 CPD Para. 715. In any case, the affidavit of the reference, which accompanied the protest, does not state how or when CB was "actively engaged" in managing [DELETED], but merely makes that conclusory statement. Accordingly, this affidavit is not determinative of CB's active involvement in light of the other information provided in CB's proposal and clarifications. Moreover, the RFP was explicit that failure to provide sufficient information may result in the offeror's proposal being rejected; [6] and the agency reminded CB of this requirement in its request for clarifications, which expressly advised CB of the agency's areas of concern with regard to CB's compliance with this criterion.

Thus, the agency reasonably found CB had failed to present adequate, objective evidence that its involvement in [DELETED] was sufficient to satisfy the requirements of section M.1.c. [7]

We do not agree with the protester's other contention that the agency inconsistently evaluated the same minimum requirement for the two offerors--Trade Center Management Associates (TCMA) and La Salle Partners--who received "go" ratings for all the qualification criteria. TCMA described all three of its listed retail centers for minimum requirement M.1.c. as "[m]arketed, leased, and operated by [DELETED]," part of TCMA's team. [8] Based on the record, we find that the agency reasonably determined that TCMA satisfied this criterion.

La Salle's proposal stated that it is the "leasing and management agent" and "is responsible for development of overall strategic planning, annual operating budget development, leasing and merchandising plans, as well as day-to-day operational management" at one of its listed retail centers. While the protester complains that La Salle is an asset manager at a second retail center (like CB at [DELETED]), La Salle (in contrast to CB) goes on to state that it is also the "leasing agent" for this retail center. For this retail center, La Salle, as the leasing agent, "is responsible for the efficient and satisfactory management, leasing, marketing, maintenance, and operation of [the center]." With regard to its third listed retail center, La Salle states that it "is responsible for management and leasing." Although La Salle did not specifically state that it is actively engaged in "operating" this third retail center, La Salle's submission states that its responsibility includes "preparation of annual management and marketing plans, and budget preparation and approval," which we think the agency reasonably construed, in conjunction with La Salle's responsibility for management and leasing, as indicative of La Salle's active engagement in the operation of that retail center. Thus, we do not find that La Salle's proposal was noncompliant with the criterion in question, nor that it was held to a lesser standard than was CB in this regard.

Based on our review, we conclude that the agency had a reasonable basis to eliminate CB's proposal for failing to comply with all of the RFP qualification criteria.

The protest is denied.

* The decision issued on February 28, 1995, contained proprietary information and was subject to a General Accounting Office protective order. This version of the decision has been redacted. Deletions in text are indicated by "[DELETED]."

1. The Federal Triangle Building is being developed by GSA, which will operate the building, and the Pennsylvania Avenue Development Corporation (PADC), which is overseeing design and construction of the building.

2. CB's other two listed retail centers are not at issue.

3. [DELETED] is CB's managing agent at [DELETED] but is not part of CB's team under the proposal at issue.

4. The TEP also found that CB did not meet the minimum requirements of section M.1.f., the relevant portion of which reads:

"The offeror team must have been actively engaged in the planning, design review, scheduling, promotion, and operation of at least one conference center exceeding 30,000 square feet, outside of a hotel, and serving multiple user requirements during the past ten years. . . ."

Specifically, the TEP found that the conference center listed by CB was not "outside of a hotel" and that the individual listed by CB as part of its team was not actively engaged in "planning and design review" for a conference center. Since we find below that the agency reasonably rejected CB's proposal for its failure to comply with section M.1.c., we need not consider whether CB complied with section M.1.f.

5. For example, direct involvement in leasing is necessary as the scope of work describes the leasing plan to be developed by the TCM as encompassing "aggressive leasing strategies aimed at having the ITC one hundred percent leased by the projected completion date for the building."

6. The RFP also required that offerors, in describing each project listed to meet the minimum requirements, submit the name of a reference familiar with the project and the role the offeror played in the project; the name and a description of each project, "explaining how it meets the [Qualification Criteria]"; a list of tenants; and a description of the offeror's role in each project.

7. We also note that the protester has not claimed that it is actively engaged in managing any other destination retail centers beyond those identified in its proposal.

8. The RFP allows teaming arrangements. Since [DELETED] is part of the team offered by TCMA for this proposal, its experience properly can be counted in assessing TCMA's compliance with this criterion. See Gelco Servs., Inc., B-253376, Sept. 14, 1993, 93-2 CPD Para. 163.