Working Alternatives, Inc., B-276911, July 2, 1997

B-276911 Jul 02, 1997 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Contracting agency properly concluded that protester's proposal was technically unacceptable where the documentation submitted to comply with a mandatory requirement to show the firm's right to use the facility it proposed is insufficient on its face in that it sets out terms dictated by the prospective lessor with no indication that the protester/prospective lessee has agreed to the terms and fails to specify a definite duration of the lease. There is no basis to object to agency decision not to communicate with offeror regarding deficiencies in its documentation submitted to show compliance with a mandatory right to use requirement regarding proposed facility. Since any such communication would have constituted discussions. View Decision Matter of: Working Alternatives, Inc. File: B-276911 Date: July 2, 1997 DIGEST Attorneys DECISION Working Alternatives, Inc. (WAI) protests as improper the rejection of its proposal under request for proposals (RFP) No. 200-374-W, issued by the Department of Justice, Federal Bureau of Prisons, to obtain residential community corrections center services in the Los Angeles, California area. We deny the protest. The solicitation advised that award would be made to the offeror whose offer, conforming to the solicitation, was most advantageous to the government, considering price and various technical factors not at issue here. In addition, proposals would be evaluated to determine whether the offeror complied with several mandatory technical requirements. One of these mandatory requirements concerned the offeror's right to use its proposed facility: L.7(a) . . . ALL TECHNICAL PROPOSALS MUST CONTAIN DOCUMENTATION REGARDING RIGHT TO USE, . . . . (g) All proposals must provide evidence supporting the offeror's right to use the proposed facility. Acceptable evidence of right to use is limited to deeds, leases, bills of sale, options to lease, options to buy, contingency leases or contingency deeds. Please note that the Bureau of Prisons may award a contract based on the initial submittal of offers, therefore, offerors must consider each proposal as a best and final offer unless otherwise instructed by the Contracting Officer. Confirming the instruction contained in this final sentence, the solicitation included Federal Acquisition Regulation (FAR) Sec. 52.215-16, Alternate II, which advised offerors of the agency's intent to award the contract on the basis of initial proposals without conducting discussions, save for communications conducted for the purpose of minor clarification. Proposals were submitted on April 1, 1997. The contracting officer reviewed WAI's proposal and determined that the document submitted in connection with the right to use requirement--an agreement to lease--was insufficient to show that the firm complied with this mandatory requirement. As a result, the contracting officer determined that WAI's proposal was technically unacceptable. In its protest, WAI argues that its agreement to lease was sufficient to meet the mandatory right to use requirement or, alternatively, that the agency should have communicated with the firm to clarify the matter. The evaluation of proposals and the resulting determination of whether a proposal is within the competitive range is a matter within the discretion of the contracting agency, since the agency is responsible for defining its needs and the best method of accommodating them. Bannum, Inc., B-271075 et al., May 22, 1996, 96-1 CPD Para. 248 at 3. Our Office will only question the agency's evaluation where it lacks a reasonable basis or conflicts with the stated evaluation criteria for award. Id. The document in question is a letter to WAI's president from the prospective lessor entitled, "Agreement to Lease 101 W. 89th St., Los Angeles, CA." The letter states: "This letter shall serve as a record of my agreement to enter into a lease for the above-mentioned property to Working Alternatives, Inc. for the purpose of operating federal corrections programs. The terms of the lease will be as follows: 1. The lease term shall be for five years, with an option to extend the lease for an additional five years. 2. The rental amount shall be based on the contracts that are serviced in the facility, with a rental of $18,000 per month per 50 bed contract. 3. The rent shall increase by 5% per year at the beginning of each contract year. 4. Tenant (Working Alternatives, Inc.) shall be responsible for all taxes, insurance, repairs and maintenance for the property. 5. All operations must be in compliance with the Conditional Use Permit. 6. All other terms of the lease shall be commercially reasonable and acceptable to both parties. "Additionally, I have asked my attorneys to draft a lease formalizing these terms. The draft should be prepared within 30 days. A copy will be forwarded to you as soon as possible. . .