Link: GAO Opinion
Agency: General Services Administration
Disposition: Protests denied.
1. Protest that the agency failed to consider both the variety and quantity of amenities offered under the access to amenities subfactor in a lease procurement is denied, where the variety and quantity of amenities was reasonably considered in the agency’s evaluation and selection decision.
2. Protests arguing that the ultimate selection official, the head of the contracting activity here, did not meaningfully consider the evaluated differences in the offerors’ proposals in her selection decision are denied, where the official implemented our prior recommendation by looking beyond the adjectival ratings assigned to the offerors’ proposals.
General Counsel P.C. Highlight:
King Farm argues that GSA unreasonably evaluated King Farm’s proposal solely on the number of amenity categories offered, rather than considering the total number of amenities in proximity to the offered location, as required by the SFO.
The SFO required GSA to evaluate both the overall number of amenities offered as well as the number of amenity categories, as well as the hours of operation. The record shows that the Head of the Contracting Activity (HCA) in her reevaluation of the proposals took into account the hours of operation, the overall number of amenities–including the value of the amenity type, such as eating facilities–as well as the number of amenity categories. Although, as King Farm notes, the HCA first evaluated the number of amenity categories as the starting point for her analysis, GAO finds that this does not negate the HCA’s consideration of the other aspects required under the SFO with regard to the access to amenities subfactor. Rather, the record demonstrates that the HCA reasonably evaluated King Farm’s proposal under the access to amenities subfactor in accordance with the SFO.
Metroview argues that GSA acted unreasonably in deciding to reevaluate proposals in accordance with GAO’s prior decision without reopening discussions and requesting another final proposal revision. Metroview contends that reopening discussions “may well have resulted in more favorable rental rates” and improved technical proposals. GAO states that the decision whether to reopen discussions is largely a matter left to the agency’s discretion. Moreover, it is well-settled that once an agency has received final offers, it is not legally required to reopen discussions to permit a single offeror to demonstrate the merits of its proposal.
The SFO provided for discussions, and, in fact GSA held two rounds of discussions in September and December 2010, during which the offerors were informed of weaknesses in their proposals. After each round of discussions, the offerors submitted final proposal revisions. Thus, Metroview had two opportunities to strengthen its proposal prior to the March selection of Fishers Lane. Where an agency has adequately advised an offeror of an area of concern, there is no legal requirement that it raise the issue again in a subsequent round of discussions, even where the issue continues to be of concern to the agency. Metroview has not alleged that GSA failed to inform it of weaknesses, but merely alleges that technical proposals could be improved by another round of discussions. In addition, although Metroview has stated that GSA “might” have received better pricing, such a statement is merely speculative and does not demonstrate that reopening discussions would be in the best interests of the government. To the extent that Metroview implies that GAO’s recommendation to GSA under the prior protest required the agency to reopen discussions, GAO notes that its recommendation was limited to the reevaluation of proposals under the access to amenities subfactor and performance of a new tradeoff analysis.
One Largo and Metroview contend that the HCA in her selection decision did not sufficiently recognize the superiority of their proposals under the access to existing Metrorail and planning efficiency and flexibility subfactors. King Farm, One Largo, and Metroview also contend that the HCA did not give sufficient weight to price in her tradeoff analysis. GAO states that in reviewing an agency’s evaluation of proposals and source selection decision, it is not GAO’s role to reevaluate submissions; rather, GAO examines the supporting record to determine whether the decision was reasonable, consistent with the stated evaluation criteria, and adequately documented. Where, as here, a solicitation provides for award on a best value basis, the decision as to the relative technical merit of the offers must be based upon a comparative consideration of the technical differences of the proposals. A protester’s mere disagreement with the agency’s determination as to the relative merits of competing proposals, or disagreement with its judgment as to which proposal offers the best value to the agency does not establish that the source selection decision was unreasonable.
First, One Largo and Metroview argue that the HCA failed to recognize the superiority of their proposals, which were closer to an existing Metrorail subfactor, when the HCA determined that Fishers Lane’s building, which was located 2,407 wlf from a Metrorail station, was within a reasonable walking distance. GAO states that as noted in its prior decision, ratings, whether numerical, color, or adjectival, are merely guides for intelligent decision-making. Here, the HCA looked beyond the adjectival ratings to determine the practical aspects of the distances from a Metrorail station. The HCA was not unreasonable in concluding, consistent with the SFO, that any distance shorter than 2,500 wlf was a reasonable walking distance. In this regard, the SFO advised offerors that “[those] who are more than 2,500 [wlf] from a Metrorail station must provide a shuttle service,” which indicated that the SFO contemplated that distances shorter than 2,500 wlf were reasonable walking distances, otherwise a shuttle would have been required for distances less than 2,500 wlf, as well. Moreover, the HCA recognized in her written decision and in her testimony that One Largo’s and Metroview’s proposals merited the superior ratings they received under this subfactor because of their greater proximity to Metro. The HCA nonetheless concluded that this superiority did not merit the additional cost to the government. Although the protesters’ disagree with the HCA’s decision in this regard, this disagreement does not show that her judgment was unreasonable.
Next, the protesters argue that the HCA unreasonably determined that the tighter column spacing offered by Fishers Lane (which was evaluated to be a significant weakness) was mitigated by the non-rectangular floor plans and non-uniform column spacing (which were evaluated to be minor weaknesses) offered by One Largo and Metroview because Fishers Lane’s proposal was evaluated as also containing these same two minor weaknesses. The HCA testified that she reviewed all of the evaluated strengths and weaknesses of the proposals under the planning efficiency and flexibility subfactor. She acknowledged that only the proposal of Fishers Lane contained a significant weakness. The HCA also testified that she was aware at the time of her source selection decision that the SSEB had assigned minor weaknesses to the proposal of Fishers Lane for a non-rectangular floor plan and non-uniform column spacing, as had been assigned to One Largo and Metroview. Despite the HCA’s testimony that she was aware at the time of her selection decision of these weaknesses in Fishers Lane’s proposal, the HCA’s written selection decision does not acknowledge that Fishers Lane’s proposal had these same weaknesses. Moreover, the HCA was unable to articulate at the hearing an explanation for this omission from her decision. Nonetheless, the record does not demonstrate that the protesters were competitively prejudiced by the HCA’s actions.
One Largo and Metroview argue that the HCA placed too much emphasis on Fishers Lanes’ lower price in her tradeoff decision; One Largo and Metroview also contend that the HCA failed to give sufficient weight to their evaluated strengths under the access to Metrorail subfactor, the highest-weighted subfactor. Conversely, King Farm argues that the HCA did not sufficiently consider King Farm’s lower price. The SFO advised offerors that “price is of significantly less importance than the combined weight of the technical factors,” but that the importance of price “becomes greater as technical offers approach equality.” The HCA concluded that the proposals of One Largo, Metroview, and Fishers Lane were, “not equal, but approaching technical equality,” and so considered price to be of greater importance in comparing the proposals. With regard to a comparison of the proposals of King Farm and Fishers Lane, the HCA recognized that because of King Farm’s distance of 1.3 miles from a Metrorail station, King Farm’s proposal was technically inferior to the other proposals. Therefore, in conducting her tradeoff analysis, the HCA gave price less consideration in her decision. GAO finds the HCA’s consideration of the firms’ respective proposed prices to be consistent with the SFO.
Finally, King Farm also argues that the HCA failed to conduct a tradeoff analysis between the proposals of Fishers Lane and King Farm. GAO states that an agency’s or other party’s characterization of facts in the record does not constrain GAO’s ability as a forum to make findings of fact consistent with the record. The record shows that the HCA compared the technical merits of the proposals of King Farm and Fishers Lane, and concluded that the major difference in the two proposals lay in the distance of each location from an existing Metrorail station. The HCA recognized that the price offered by Fishers Lane was $0.92 per square foot, or $39.2 million over the term of the lease, more than the price offered by King Farm, but concluded that the price difference did not compensate for King Farm’s greater distance from a Metrorail station, given that price is less important than technical quality where proposals do not approach technical equality. The protests are denied.