Link: GAO Opinion
Agency: Department of Veterans Affairs
Disposition: Protest denied.
Keywords: Proposal Evaluation; discussions
General Counsel P.C. Highlight: GAO reviews challenges to an agency’s evaluation of offers only to determine whether the agency’s evaluation conclusions were reasonable and consistent with the solicitation’s evaluation factors and applicable procurement laws and regulations. A protester’s mere disagreement with the agency’s judgment does not establish that an evaluation was unreasonable.
Sherman Plaza, Inc. (Sherman) protests the award of a lease by the Department of Veterans Affairs (VA), under a solicitation for offers (SFO), for office space to be occupied by the VA’s Consolidated Patient Account Center (CPAC).
The SFO sought offers for the award of a 20-year lease for office space in Madison, Wisconsin. Offerors were to propose space in existing buildings that provides 380 dedicated parking spaces, access to public transportation, and other amenities. The SFO stated that the lease would be awarded on a best value basis considering price, technical quality, operations and maintenance plan, and evidence of capability to perform prior to award.
The awardee proposed to provide 389 parking spaces in a two story building, while Sherman proposed 387 parking spaces in a one story building. A five-member technical evaluation board (TEB) assigned point scores for each factor. The awardee received the highest score. Sherman filed four protests challenging the evaluation of offers. The VA subsequently advised GAO that it would take corrective action, including amending the SFO, seeking final revised offers, evaluating the offers, and making a new selection decision.
In accordance with the corrective action, the VA issued an amendment, which revised the award factors and subfactors. The amendment advised offerors that “this is the final submission for this procurement, and there will be no modifications, clarification, negotiations, or discussions upon receipt of your proposal.” Sherman and the original awardee submitted revised offers and the awardee again received the highest score. Sherman’s proposal was the least desirable since it was located within an active retail shopping center on a major highway, which raised concerns about security, parking, and traffic congestion. The awardee’s offer was “far superior” with regard to energy efficiency, and included a more detailed plan for operations and maintenance than any of the other offers.
GAO states that it reviews challenges to an agency’s evaluation of offers only to determine whether the agency’s evaluation conclusions were reasonable and consistent with the solicitation’s evaluation factors and applicable procurement laws and regulations. A protester’s mere disagreement with the agency’s judgment does not establish that an evaluation was unreasonable.
Sherman argued that the awardee’s offer was materially deficient since it did not demonstrate its compliance with the SFO requirement for 380 dedicated parking spaces. Even though the awardee proposed 389 parking spaces, the building housing the parking is shared by two tenants, including one with 20 employees. GAO’s review of the record shows that the awardee did provide a plan and short narrative to show how it would satisfy the SFO parking requirements and that the VA was aware of the other tenant. GAO finds that the agency had a reasonable basis to conclude that the awardee’s offer demonstrated that it would meet the SFO requirements.
Sherman also asserts that: (1) the awardee would have to expand its parking site to meet the needs of both tenants and the expansion would infringe on neighboring floodplain/wetland areas; and (2) the awardee received an almost perfect score under the quality of site evaluation subfactor even though the awardee did not guarantee the minimum 380 parking spaces. However, the VA submitted a Federal Emergency Management Agency (FEMA) map showing that the offered site was outside the floodplain/wetland areas. The record also indicates that the score assigned under the quality of site evaluation subfactor was based on the facts that the awardee’s property was located by a bus stop, was adjacent to a major highway, was accessible to bike and walking trails, was located near restaurants, and provided a natural setting. GAO finds that Sherman had not shown that the evaluation of the awardee’s proposal was unreasonable.
Next, Sherman asserts that the agency could not reasonably re-award this lease without holding discussions with Sherman. But, the SOF, as modified following the corrective action, stated that the VA would not hold discussions or seek additional submissions. GAO states that Bid Protest Regulations require that protests based upon alleged improprieties in a solicitation that are apparent prior to the closing time for receipt of proposals be filed prior to that time. GAO states that the protest here, which challenges the announced ground rules for the post-corrective action competition, i.e. that it would not hold any further discussions with any offerors, constitutes a challenge to the terms of the solicitation. GAO concludes that the allegations brought by Sherman are untimely. The protest is denied.