Link: GAO Opinion
Agency: General Services Administration
Disposition: Protest denied.
Keywords: Negotiation; GSA Lease
General Counsel P.C. Highlight: Negotiations which change the SFO should be well documented in the final proposal, an offeror can’t assume that the agency knows what is included in the proposal unless it is detailed with specificity.
GAO denies the protest of Eagle Creek Marina where the General Services Administration (GSA) awarded a lease to another offeror under a solicitation for offers (SFO), for office space, with reserved and secured parking spaces, in the Rochester, New York, area.
Eagle Creek asserts that GSA misinterpreted the SFO as requiring boat dockage, and that the agency “had actual or constructive knowledge” that Eagle Creek’s offer included costs for this feature. Eagle Creek argues that the agency was therefore required to advise the company during negotiations that the SFO did not require offerors to include costs for boat dockage. GAO has repeatedly held that oral advice that would have the effect of altering the written terms of a solicitation, even from the contracting officer, does not operate to amend a solicitation or otherwise legally bind the agency.
Therefore, GAO, as an initial matter, first notes that, although the initial version of the SFO posted on October 10, 2010, stated that GSA was seeking “to lease office space . . . and two boat slips,” the SFO, as amended and posted on January 11, 2011, and under which this lease was awarded, did not. That is, there was no mention in the SFO under which this lease was awarded of any requirement that boat slips or boat dockage be provided as part of the lease. Given the clarity of the solicitation, the protester’s asserted reliance on the views expressed by the DHS representatives in November 2010, as somehow adding a requirement for boat dockage or boat slips to the SFO, issued in January 2011, was misplaced.
Eagle Creek also asserts that section 1.4 of the SFO, which provides that “[t]he right to use appurtenant areas and facilities is included” in the offered lease, required that the protester make its facility’s boat slips and dockage available for use by the agency. The SFO does not include a definition of “appurtenant,” and none has been cited to by the parties. GAO accords that term its plain meaning. That is, “[t]he term “appurtenant in a lease is defined to include ‘everything which is necessary and essential to the beneficial use and enjoyment of the thing leased or granted.'” To construe this clause, as the protester asserts it did, that is, to essentially include in its offer of office space the entirety of its facility and all of its facility’s amenities at no cost to the government is simply unreasonable.
Lastly, GAO finds the protester’s position that the agency knew or should have known that Eagle Creek had allegedly included the costs for boat dockage and slips in its offer to be without merit. As for actual knowledge, the agency states that it was unaware during the course of this acquisition that Eagle Creek’s offer included such costs. There was nothing in Eagle Creek’s offer indicating or otherwise providing for boat dockage, and the protester does not assert that it advised agency representatives during the competition that boat dockage was included in Eagle Creek’s offer. The protest is denied.