Government Within Its Rights to Reject Lease Proposal that Lacked Viable Amenities; Poplar Point RBBR, LLC v. United States, COFC No. 19-1378C

18

Protest challenging offeror’s elimination form the competition is denied. The agency sought to lease office on a site with certain amenities like restaurants and stores. The protester claimed the agency had engaged in disparate treatment and applied unstated criteria when it rejected the protester’s proposal for not showing that is proposed amenities would remain viable throughout the lease term. The court, however, found that the protester’s argument was based on a misreading of the solicitation. The solicitation provided that offerors who proposed a site without existing amenities would be held to a higher evidentiary standard in proving that the amenities could exist on the site. The protester was the only offeror that proposed a site without existing amenities, and it was simply unable to meet the higher evidentiary that applied as a result of its approach.

The General Services Administration published a request for lease proposals, seeking space for the headquarters of the Securities and Exchange Commission. The RLP had an amenities provision that required the space to be located in the vicinity of restaurants, a pharmacy, a bank, dry cleaners, etc. The provision provided that the amenities must either currently exist or the offeror had demonstrate that they would exist by the occupancy date and were likely to remain viable throughout the term of the lease.

Poplar Point RBBR, LLC submitted a proposal in response to the RLP. Poplar Point proposed space in an underdeveloped area of Washington, DC that currently lacked the required amenities. Poplar Point included in its proposal a guarantee of amenities in which it committed to operate the necessary facilities to provide the range of required amenities.

GSA, however, eliminated Poplar Point from the competition, finding that its offer failed to establish that the proposed remedies would be viable during the course of the lease. GSA noted several deficiencies with Poplar Point’s proposal, including non-binding letters of intent, a failure to explain what amenities would be operated in the space, and a vague guarantee of amenities.

Poplar Point filed a protest with GAO challenging its elimination from the competition. GAO denied the protest. Poplar then filed a protest with the COFC. Poplar Point moved to supplement the administrative records, and both Poplar Point and the government moved for judgment on the administrative record.

The court first addressed Poplar Point’s motion to supplement. Poplar point wanted GSA to consider some other RLP’s and leases to demonstrate that GSA had previously accepted guarantees of amenities from other lessors. The court denied the motion, reasoning that every procurement stands on its own, and that GSA was not bound by its actions in a previous procurement. Additionally, the documents Poplar Point wanted to add did not provide evidence of past agency actions because the terms of those leases were different from the RLP in this case. Moreover, these other lease documents did not include any actual evidence of what the awardee’s had submitted as amenities.

As to the protest, Poplar Point first argued that GSA engaged in disparate treatment by requiring Poplar Point, but not other offerors, to demonstrate that the amenities near its site would remain viable through the term of the lease. The court, however, found this argument was based on a misinterpretation of the RLP. The terms of the RLP expressly imposed a different evidentiary standard on offerors that did not propose existing amenities. Poplar Point was the only offeror that did not propose existing amenities. Thus, it was the only offeror that had to establish that its proposed amenities would remain viable.

Poplar Point also argued that GSA improperly viewed sites without existing amenities as automatically deficient. The court disagreed. Again, the RLP imposed a more stringent standard of proof on offerors that proposed sites without amenities. The deficiency that GSA noted in Poplar Point’s proposal was not, as Poplar Point contended, an automatic, undisclosed deficiency. Rather, sites with deficient amenities had to satisfy a heightened evidentiary requirement.

Next, Poplar Point argued that GSA applied six different unstated evaluation criteria. First, Poplar Point contended that it had been improperly penalized for not providing enough details about its vendors even though that was not an RLP requirement. But the court found this was not an unstated criterion. Instead, it was clear from and intrinsic to the RLP’s requirements that GSA could weigh and review the types of amenities provided.

Second, Poplar Point asserted that the agency improperly required it to submit consultants’ analyses to demonstrate that it amenities were viable. The court found this argument was not supported by the record. While GSA had asked Poplar Point for analyses that the company’s consultants had prepared for the property, the agency also noted that Poplar Point had failed to provide any other of support. Contrary to Poplar Point’s contentions, GSA did not require the consultants’ analyses, but instead reasonably requested any support for the proposed amenities.

Third, Poplar Point asserted that GSA unreasonably required Poplar Point to submit legally binding letters of intent from vendors who would provide amenities. The court noted that the RLP required offerors to prove the viability of amenities through letters of intent. Poplar Point, however, submitted non-binding expressions of interest from vendors, not letters of intent.

Fourth, Poplar Point argued GSA imposed unstated criteria by requiring a high unannounced standard of proof for its guarantee of amenities. The court, however, found that the RLP required that, for a site without amenities, the offeror had to demonstrate that the amenities would be viable through the lease term. The content of any guarantee of amenities would be intrinsic to GSA’s evaluation of this requirement. GSA did not apply any unstated criteria by closely examining Poplar Point’s guarantee.

Fifth, Poplar Point posited that GSA improperly penalized it for proposing a single entity that would provide the vendors instead of multiple vendors. But the court found that GSA did not reject Poplar Point because it proposed a single entity. Rather, GSA rejected the proposal because the evidence of amenities Poplar Point submitted did not satisfy the RLP requirements.

Sixth, Poplar Point contended that GSA applied unstated criteria by evaluating the number of hotels and grocery stores, employees and residents in the area, and barriers to further development at the site even though these factors were not mentioned in the RLP. The court found it was not unreasonable for GSA to consider these factors in determining whether Poplar Point could meet the amenities requirement. While the RLP contained a non-exhaustive list of amenities, it did not preclude the agency from considering other amenities in the propose sites.

Aside from the unstated criteria, Poplar Point argued that its proposal satisfied the RLP and GSA arbitrarily eliminated it from the competition. The court tossed this argument, reasoning that GSA reasonably determined that Poplar Point’s proposal was inadequate. Again, Poplar Point’s guarantee did not provide details of how the company would ensure that amenities remained viable.

Finally, Poplar Point argued that GSA did not conduct meaningful discussions and mislead Poplar Point into believing that its guarantee of amenities would suffice. The court found the record did not support this argument. While the record showed that a guarantee had been discussed, it did not show that GSA had affirmatively stated that the guarantee alone would satisfy the amenities requirement. What’s more, Poplar Point did not even provide the type of guarantee that was discussed.

Poplar Point is represented by Richard J. Conway, Michael J. Slattery, and Sara N. Gerber.  The government is represented by Ann C. Motto, Joseph H. Hunt, Robert E. Kirschman, Jr., and Douglas K. Mickle of the Department of Justice as well as Adetokunbo Falade of the General Services Administration.

COFC - Poplar Point RBBR