Protest challenging GSA’s award of a lease is denied. The protester alleged that by accepting the awardee’s proposal, GSA had changed its intended use of the leased property without amending the solicitation. But the court found that this argument was a just a fancy way of saying that the awardee did not comply with local zoning laws, which, the court reasoned, broached a question of contract performance outside the court’s bid protest jurisdiction. The protester argued that GSA should have assessed whether the awardee complied with local zoning ordinance as part of the responsibility determination. The court, however, found that assessing compliance with zoning laws is not required under the FAR’s responsibility provision.
The General Services Administration posted a request for lease proposals seeking a building for the storage of rocks and equipment for the U.S. Geological Survey. Offerors were instructed to submit evidence that the property was zoned in compliance with local zoning laws prior to performance. The solicitation, however, did not dictate any specific zoning category.
Huffman Building P, LLC, which was the incumbent, submitted an offer proposing to use the same building that the Geological Survey was already using. But GSA awarded the contract to Winco Anchorage Investors I, which offered a lower-priced lease. Huffman filed suit with Court of Federal Claims challenging the award. Winco intervened. All the parties moved for judgment on the administrative record.
Huffman argued that GSA changed that use of the premises post-award without properly amending the solicitation. Huffman claimed that in the solicitation, GSA sought a warehouse and storage space. But GSA had accepted a building from Winco that was zoned for use as a research laboratory. Thus, Huffman contended, GSA must have changed its intended use for the space in a way that constituted a material modification of the RLP.
The court opined that Huffman’s argument vastly overcomplicated the nature of what took place in an attempt to shoehorn a question of contract administration into the court’s bid protest jurisdiction. The RLP merely sought a building with about 15,000 square feet of space. There was no specific zoning requirement. What’s more, the solicitation required offerors to show that the use was lawful under the local zoning laws. It only required them to provide evidence of proper zoning. It did not require a particular zoning designation or even prevent an offeror from changing the zoning designation after award. Whether Winco ultimately delivered a building that compiled with zoning was a question of contract performance. Questions of contract performance do not fall within the court’s bid protest jurisdiction.
Next, Huffman argued that the Winco’s offer had not been technically acceptable because it zoning did not permit warehousing as the principal use.
But the court noted that an agency is required to rely on the offeror’s representation about its ability to perform as included in the proposal unless the proposal contains information that calls those representations into serious doubt. Here, Winco had supported its zoning compliance with (1) a letter from the local development department, (2) a public land use document that showed the building was a warehouse, and (3) a letter from its President avowing that the company had used the space for warehousing. These documents provided the agency with a reasonable indication that Winco could comply with the terms of the solicitation.
Huffman also argued that GSA had deviated from the FAR in failing to consider whether Winco’s building could obtain the zoning designation required for performance. The court reasoned that FAR 9.104 requires an agency to determine that an offeror is responsible—i.e., able to satisfy the contractual commitments in its bid. To be responsible, a contractor must have adequate financial resources, be able to comply with the proposed performance schedule, and have the necessary experience, accounting, and technical skills. The FAR does not impose any particular zoning requirement. The solicitation clearly placed the onus on offerors to achieve zoning compliance. The agency did not need to assess zoning compliance as part of its responsibility determination.
Huffman is represented by Ryan C. Bradel of Ward & Berry and Rebecca Lipson of Ashburn & Mason, P.C. The intervenor, Winco, is represented by Michael Jungreis and Keri-Ann Baker of Reeves Amodio, LLC. The government is represented by Ann C. Motto, Douglas K. Mickle, Robert E. Kirschman, Jr., and Jeffrey Bossert Clark of the Department of Justice as well as M. Leah Wright of the General Services Administration.
