“Well, I’ve Got Two Lovers and I Ain’t Ashamed, Two Lovers, and I Love them Both the Same”: Presented with a Sophie’s Choice Between Two Versions of Its Proposal, Protester Chooses the Wrong One; Property at 4545 Montgomery, LLC, GAO B-420006

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Protest challenging the rejection of the protester’s proposal is denied. The protester submitted two versions of its proposal. The agency told the protester to choose one. The version the protester chose was unacceptable. The protester argued that it had never rescinded its alternative, acceptable proposal. But the record showed that the protester had made a choice, and the agency had sent the protester an email confirming that choice. The agency had no obligation to only consider the acceptable version. The protester argued that the agency should have advised it that it was making a bad choice. GAO, however, reasoned that the agency was not required to direct the protester’s business judgment.

The Department of Agriculture (DOA) posted a request for lease proposals (RLP). The RLP stated the offerors were required to make tenant improvement for which they would be reimbursed. The RLP required offerors to include the cost of the improvements in the rent amortized over the term of the lease. The RFP further provided, however, the agency could elect to make a lump sum payment for the improvements.

Property at 4545 Montgomery, LLC submitted two proposals in response to the RFP. In one, Property at 4545 amortized the cost of improvements. In the other, the company assumed the government would pay the improvement in a lump sum.

DOA called Property at 4545 to clarify which proposal the company wanted the agency to consider. The parties disputed what was said during the call. According to DOA, Property at 4545 asked the agency to tell the protester which version it should select, but the contracting officer refused to do so. The agency claimed that Property at 4545 ultimately chose the lump sum proposal. According to Property at 4545, it never rescinded either proposal.

Following that call, DOA sent a letter to Property at 4545 confirming that the company had selected the lump sum proposal. Property at 4545 did not respond. Thereafter, DOE rejected Property at 4545’s proposal as unacceptable because the RLP did not allow offerors to propose lump sum payments for the improvements. Property at 4545 protested.

Property at 4545 argued that the RLP did not prohibit a lump sum proposal. GAO rejected this argument. The RLP required offerors to amortize the cost of improvements. While the lease stated that the government may make a lump sum payment, this option was reserved for the agency’s discretion, and was not an option offerors could propose.

Property at 4545 further contended that it never rescinded its amortized proposal, so DOA could have considered it. But GAO noted that Property at 4545 also argued that the agency had demanded that the company select one version of its proposal. What’s more, the government had sent an email to Property at 4545 confirming that it had selected the lump sum proposal.

The protester alleged that DOA should have simply chosen to review whatever version of the proposal was acceptable, or at the very least advised the company as which version was acceptable. GAO reasoned that there noting that legally requires an agency to only consider the acceptable alternative of two proposal versions. Also, as to advising the company on which version is acceptable, it is not an agency’s responsibility to direct an offeror’s business judgment.

Property at 4545 is represented by Dr. Paul Sohi. The agency is represented by Adam Humphries of the Department of Agriculture. GAO attorneys Mary G. Curcio and John Sorrenti participated in the preparation of the decision.

GAO - Property at 4545 Montgomery