Matter of:Meyers Companies, Inc.

Matter of:Meyers Companies, Inc. BNUMBER: B-275963; B-275963.2; B-275963.3 DATE: April 23, 1997 TITLE: Matter of:Meyers Companies, Inc. ********************************************************************** Matter of:Meyers Companies, Inc. File: B-275963; B-275963.2; B-275963.3 Date:April 23, 1997 Darcy V. Hennessy, Esq., Moore, Brower, Hennessy & Freeman, P.C., for the protester. Christopher M. Crowley, Esq., McDowell, Rice, Smith & Gaar, for Dr. William P. Schaetzel, an intervenor. Richard A. Say, Esq., U.S. Army Corps of Engineers, for the agency. C. Douglas McArthur, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Lease requirement that lessee erect and maintain fences to separate parcels, one from another, does not constitute a procurement of property or services sufficient to establish General Accounting Office jurisdiction over dispute concerning award of lease, since there is at best a tenuous connection between the need for fences and the agency's central mission. DECISION Meyers Companies, Inc. protests the award of a lease to Dr. William P. Schaetzel under notice of availability No. DACW41-97-B-RE-502, issued by the U. S. Army Corps of Engineers for the lease of land at the Sunflower Army Ammunition Plant (SAAP) near DeSoto, Kansas. Meyers contends that the awardee submitted a nonresponsive bid; and that, in any event, the agency had made an award orally to Meyers at bid opening, several days before the award to Dr. Schaetzel. We dismiss the protests for lack of jurisdiction.[1] On November 6, 1996, the agency issued a notice that it would accept sealed bids for leases on nine parcels of land at SAAP. In addition to a cover sheet, the notice consisted of instructions to bidders; a lease form; land use regulations for SAAP and tract management plans for each parcel; and a bid form. Paragraph 5 of the instructions advised bidders to submit two signed copies of the lease form, for each parcel upon which they desired to bid, as well as a personal check or money order as a bid guarantee, with the full rental payable "within ten (10) days after notice of acceptance of the bid."[2] Paragraph 6b stated that bids were to be submitted in duplicate on the attached bid form, along with the two signed lease forms and the required deposit. Paragraph 6f reiterated that no bid would be considered without the deposit and that the full annual rental would be due "within ten (10) days after receipt of written notice of acceptance." Paragraph 11 provided that notice of award would be given "as soon as practicable to the successful bidder personally, to a duly authorized representative, or in writing to the bidder at the address indicated in the bid." The instructions advised bidders that the agency would award leases to the highest responsive bidders. The lease form, in pertinent part, provided for payment of a cash rental to be "offset by the value of work items which shall be accomplished by the [l]essee for the maintenance, protection, repair, restoration, and improvement" of the parcels, as described in the SAAP land use requirements attached to the notice. These land use requirements governed various lessee activities, including, among others, provisions relating to fire safety and chemical storage, limits on the number of animals allowed to graze on the leased parcel, weed control, and land management. Paragraph 12 identified existing fence structures and advised bidders that pasture and pasture boundary fences (as opposed to the plant's security fence) would be the total responsibility of the lessee. The tract management plan for agricultural lease number 10 (AL-10), the parcel at issue in the present protest, required the successful bidder to remove approximately 3,500 linear feet of fence and replace it with new five-strand barbed wire fence and maintain fences throughout the lease period.[3] The plan also advised bidders that the agency required a letter of credit in the amount of $4,000 to cover all related costs for replacement and repair of fence in AL-10. The work was to be completed during the initial year of the lease. The bid form listed the nine parcels as separate line items. An asterisk preceded five of the line items, including AL-10. A note at the end of the schedule warned bidders that line items marked with an asterisk "contain[ed] exceptional tract management requirements." These were the requirements spelled out in the tract management plans, which were summarized at the bottom of the schedule. Specifically, the schedule noted that AL-10 (as well as AL-9) required extensive fence work and a letter of credit, as stated in the tract management plan.