Link: GAO Opinion
Agencies: Department of Commerce; National Oceanic and Atmospheric Administration (NOAA)
Disposition: Protest sustained.
Keywords: Practicable alternative; Solicitation requirements
Port of Bellingham, Washington, protested the award of a lease by the Department of Commerce, National Oceanic and Atmospheric Administration (NOAA), to Port of Newport, Oregon, pursuant to a solicitation for offers (SFO) to provide office, warehouse, and related space for NOAA’s Marine Operations Center-Pacific (MOC-P).
The SFO stated that the lease award would be based on the offer determined to be most advantageous to the government based on the following factors: location of site; site configuration and management; quality of building and pier; availability; past performance and project financing; quality of life; and price. The SFO also provided that: “[a]n award of contract will not be made for a property located within a base flood plain or wetland unless the Government has determined that there is no practicable alternative.” Five offers were received, of which four were competitive, including Newport’s and Bellingham’s. As part of its evaluation, NOAA contracted with an engineering firm to perform an environmental assessment (EA) of the offers, in order to comply with relevant environmental law.
As a result of the EA, NOAA notified Newport during discussions that its proposal and offered site were seemingly in a flood plain and that its final proposal should address this fact. Newport did not alter its final proposal, nor did it provide any meaningful explanation for why its site should be considered to be outside the flood plain. Despite this, Newport’s proposal was selected for the award.
Bellingham protested, claiming that Newport’s proposed pier was clearly within a designated flood plain area; that the agency had no reasonable basis to conclude otherwise; and that the agency was, therefore, required to make a determination as to whether there was a practicable alternative to Newport’s offer. NOAA responded that it “properly concluded that Newport’s offered property is not located within the base flood plain,” and that, having so concluded, that it “was not required to and properly did not conduct a practicable alternative analysis.” In maintaining that Newport did not propose property within the designated flood plain area, the agency refers to the fact that the “finished level” of Newport’s proposed pier is projected to be higher than the applicable base flood plain, as provided by Newport.
GAO has previously considered several protests concerning flood plain requirements, and has noted that these requirements flow from Executive Order No. 11988, which precludes an agency from providing direct or indirect support of flood plain development when there is a practicable alternative. Here, there was no doubt that Newport’s offer proposed to build its pier structure within the designated flood plain area. Further, Newport’s proposed pier construction within the designated flood plain area was expressly presented to NOAA by the engineering firm it retained to, among other things, inform the agency on floodplain matters. With that notification, and in conducting discussions with Newport, NOAA requested that Newport address the flood plain issue in the context of the location of its proposed pier; yet, Newport did not. Finally, the fact that the “finished level” of the pier may be above the base flood plain had no bearing on the clearly apparent fact that the pier structure itself is to be constructed within the designated floodplain area, which will, among other things, require Newport to cause drastic environmental impact.
GAO concluded that there was no reasonable basis for NOAA to conclude that Newport’s proposal did not fall within the scope of either the solicitation’s express floodplain limitations or EO No. 11988’s limitations regarding potential environmental impacts. Thus, NOAA was required to consider the environmental impact of Newport’s proposal and to determine whether there was a practicable alternative to its offer, which it did not, and therefore Bellingham’s protest is sustained.
In sustaining Bellingham’s proposal, the GAO recommends that NOAA comply with the requirements in its solicitation. In particular, if NOAA’s analysis identifies a practicable alternative, as contemplated by the solicitation, it should implement such alternative, if otherwise feasible. In the event NOAA’s analysis concludes there is no practicable alternative, it should comply with the procedural requirements established in EO No. 11988.