Pre-award protest alleging a lease solicitation failed to provide sufficient information for offerors to propose meaningful rental rates is denied, where the solicitation provided the agency’s general requirements, provided a tenant improvement allowance, and suggested that the successful offeror could seek future adjustments under the changes clause. GAO also denied the protester’s challenge to the solicitation’s requirement for a certain number of parking spaces, where the protester did not demonstrate the agency did not need this number of spaces and did not suggest an alternative.
The Flaherty Family Trust protested the terms of a request for proposals issued by the General Services Administration for lease space for U.S. Customs and Border Protection, arguing that the solicitation failed to provide offerors with sufficient information regarding the agency’s requirements, and is internally inconsistent and ambiguous.
First, the protester challenged the absence of definite information in the solicitation regarding the agency’s internal space requirements, which the protester contends is needed for offerors to propose accurate rental rates. The solicitation did not provide this information or suggest its intended use of the space, but provided certain special requirements to give offerors a general idea of what will be built inside the provided shell. The solicitation also set forth the shell building requirements and established a tenant improvement allowance of $37.39 per square foot to be used for the build-out of the space in accordance with the government approved design intent drawings that will be provided after award.
Thus, the solicitation anticipated that final space allocations will be decided after award, and that the agency will pay for renovation to accommodate these internal space requirements via the tenant improvement allowance. Flaherty challenged the omission of definite internal space requirements, noting that the solicitation required offerors to price fully-serviced space, inclusive of utilities, in their proposed rental rate. According to the protester, the cost of such utilities is impacted by the requirements for the space.
GAO found the solicitation provided sufficient information to allow offerors to intelligently prepare proposals, even without definite information regarding the agency’s internal space requirements. Although the protester argued that highly specialized uses could have a large impact on operating costs, there is no indication in the solicitation that the agency anticipates adoption of such requirements and expects offerors to account for this possibility in calculating their operating costs. Further, in the event the agency did adopt such usage, it appeared the contractor would be entitled to an equitable adjustment under the contract’s changes clause.
Further, to the extent an offeror might base its estimated operating costs on the shell building alone, the protester has not asserted that doing so would result in materially different operating costs relative to using the information found in the Agency Special Requirements section. The agency also maintained that the usage of the internal space will not make a material difference in operating costs, which the agency asserted would be almost entirely a product of the square footage of the building and the prevailing market rate for utilities.
Flaherty also raised concerns about the solicitation’s parking requirements, which it argued were inconsistent with the agency special requirements. The solicitation required the offered location to have 96 parking spaces publicly available within one-quarter walkable mile, in addition to 44 structured/inside parking spaces reserved for the exclusive use of the government. In contrast, the Agency Special Requirements sought 100 secured parking spots for government and employee vehicles and 40 public parking spaces. GAO found this argument meritless. While the provisions were inconsistent, an amendment to the solicitation clarified that any discrepancies in the solicitation would be resolved in favor of the solicitation document itself.
Flaherty also argued that the total number of required parking spaces is prejudicial against any bidder in an office business park, which runs contrary to the agency’s stated preference for an office park location. Flaherty explained that the total number of required parking spaces exceeds the county’s local code by 37 percent, making it difficult for an office park location to provide the requisite parking without significantly increased costs.
However, GAO declined to question the agency’s determination of its own requirement, explaining that a requirement is not unreasonable merely because it is onerous for one bidder. The agency represented that the number of required parking space represented its actual requirement and Flaherty offered no showing otherwise. Further, the protester did not argue there is a less restrictive means of meeting the requirement.
The Flaherty Family Trust is represented by Diana Parks Curran of Curran Legal Services Group, Inc. The government is represented by Benjamin D. Lorber, General Services Administration. GAO attorneys Alexander O. Levine and Jennifer D. Westfall-McGrail participated in the preparation of the decision.
