Gordon R. A. Fishman

B-257634.3 Nov 09, 1995 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Protest against rejection of proposal for the lease of office space as technically unacceptable is denied where record shows that the timely availability of the proposed space was contingent upon current tenant's future review and approval of a lease for space elsewhere. The solicitation provided for award to the responsible firm submitting the offer that was "fully responsive to all requirements of this solicitation and is the lowest priced. . . .". Both offers were included in the competitive range. Although Fishman was the incumbent lessor for this requirement. It was necessary for Fishman to propose that the agency move its offices from the first floor to the second floor of its building. View Decision Matter of: Gordon R. A. Fishman File: B-257634.3 Date: November 9, 1995 Protest against rejection of proposal for the lease of office space as technically unacceptable is denied where record shows that the timely availability of the proposed space was contingent upon current tenant's future review and approval of a lease for space elsewhere. Attorneys DECISION Gordon R. A. Fishman protests the award of a lease agreement to KD Development under solicitation for offers (SFO) No. GS-05B-15777, issued by the General Services Administration (GSA) for office space in Mount Clemens, Michigan, for the Internal Revenue Service (IRS). Fishman argues that the agency improperly found its offer technically unacceptable and made award to KD at a price higher than Fishman's. We deny the protest. The SFO requested offers to lease approximately 10,250 contiguous net usable square feet; the solicitation provided for award to the responsible firm submitting the offer that was "fully responsive to all requirements of this solicitation and is the lowest priced. . . ." GSA received two offers, one from Fishman and one from KD; both offers were included in the competitive range. Although Fishman was the incumbent lessor for this requirement, IRS' needs had changed and the agency now required 10,250 square feet of contiguous office space. In order to meet this requirement, it was necessary for Fishman to propose that the agency move its offices from the first floor to the second floor of its building. Because GSA was aware of the presence of two tenants on the second floor of Fishman's building, it requested that Fishman provide as part of its best and final offer (BAFO) a letter from one of these tenants reflecting its commitment to vacate the second floor space so that the necessary renovations could commence. (GSA did not require a letter from the other tenant because Fishman had represented that it was a month-to-month tenant.) Fishman furnished with its BAFO a letter from the second floor tenant which provided that: "[w]e are agreeable to re-locate to the first floor at our present location. This re-location is contingent on the review and subsequent approval of the renewed lease." GSA determined that Fishman's offer was technically unacceptable on numerous grounds. Among the bases for GSA's determination was its finding that the space being offered was subject to an existing lease because Fishman's tenant had not provided an unequivocal commitment to move in time to implement Fishman's construction and relocation plan for the IRS. Fishman challenges GSA's determination that its offer was technically unacceptable. Fishman notes that its proposal included a promise to comply with all of the SFO's requirements. Further, Fishman contends that the letter from its tenant showed that the tenant was willing to move, subject only to a contingency--the tenant's review and approval of a renewed lease agreement--which effectively was within Fishman's control. In addition, Fishman argues that to the extent that GSA may have had concerns in this regard, the agency should have permitted it to clarify the matter. In any case, argues Fishman, its ability to furnish the space was a matter of responsibility, rather than technical acceptability, which should have been referred to the Small Business Administration (SBA) since Fishman is a small business concern. [1] Fishman's position is without merit. An offeror must affirmatively demonstrate by the terms of its proposal that its offered product or service meets all of a solicitation's material requirements. Alnasco, Inc., B-249863, Dec. 22, 1992, 92-2 CPD Para. 430. An agency may not properly accept for award a proposal that fails to meet one or more material solicitation requirements. Brooks Towers, Inc., B-255944.2, Apr. 28, 1994, 94-1 CPD Para. 289, aff'd, Brooks Towers, Inc.--Recon., B-255944.3, Dec. 29, 1994, 95-1 CPD Para. 4. Here, Fishman's offer specifically identified the second floor of its building as the space it was offering to meet the requirement for 10,250 square feet of contiguous office space.