Acquest Development LLC, B-287439, June 6, 2001

B-287439 Jun 06, 2001 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights A firm protested the award of a contract for the construction and lease of office and laboratory space, contending that the awardee's furnishing of certain information was submitted after the time of best and final offers. GAO held that the agency reasonably determined that since such information concerns offeror responsibility, the information could be submitted any time prior to award and thus was not a basis for rejecting its offer. Accordingly, the protest was denied. View Decision Matter of: Acquest Development LLC File: B-287439 Date: June 6, 2001 DIGEST Attorneys DECISION Acquest Development LLC protests the award of a contract to Western Devcon, Inc. under solicitation for offers (SFO) No. 9CA01019, issued by the General Services Administration (GSA) for the construction and lease of office and laboratory space. Acquest challenges the agency's evaluation of the proposals and the award determination. We deny the protest. The SFO sought proposals to build and lease 54,119 rentable square feet of office and laboratory space for the U.S. Drug Enforcement Agency (DEA) in San Diego, California. The space is to be used by the DEA for chemical analysis of controlled substances purchased or seized as evidence in illegal operations. The SFO contemplated a firm lease-term of 18 years. The procurement was conducted in two phases. The first phase consisted of evaluation of the technical qualifications of offerors, including past performance (key personnel and experience on comparable projects) and quality of the location and site. The second phase consisted of a technical and price evaluation, plus a carry-over of the offerors' past performance scores from the first phase. The technical factors combined were weighted greater than price. Award was to be made to the firm whose offer represented the greatest value to the government. SFO Sec. 2.2. Both Acquest and Western submitted offers and, after discussions, submitted best and final offers (BAFO). Due to deficiencies in both BAFOs, the contracting officer reopened negotiations. Among Acquest's deficiencies were its failure to submit financial information, its proposal of an unusually high operating-cost rate, and its continued lack of a detailed construction budget. After reviewing the revised BAFOs, the contracting officer requested a financial responsibility check on both offerors. During this period, Acquest submitted additional information bearing on its financial capability, and Western on control of its building site. GSA's credit and finance division found Western's financial capability satisfactory, but found Acquest's unsatisfactory. GSA's construction management consultant also found that, based on its construction budget, Acquest would be unable to recover its construction costs through its proposed rental rate. Based on these considerations, the contracting officer determined that Acquest was not financially responsible and awarded the contract to Western. After a debriefing, Acquest filed this protest. /1/ Acquest's protest centers around an SFO provision, "Evidence of Capability to Perform," which required that, "[u]pon request of [BAFOs]," offerors submit "[s]atisfactory evidence of at least a conditional commitment of funds in an amount necessary to prepare the space," and "demonstrate evidence of ownership [of its proposed site] through a copy of recorded grant deed . . . [or show] that it has control of site through a valid, binding legally enforceable option to purchase the site." SFO Sec. 3.10. Acquest first asserts that the agency erred in finding it nonresponsible under SFO Sec. 310. /2/ In this regard, the protester maintains that it submitted sufficient information to establish its financial capability. The Federal Acquisition Regulation (FAR) requires that a prospective contractor have adequate financial resources to perform the contract, or the ability to obtain them. FAR Sec. 9.104-3(a). Contracting officers are vested with broad discretion in exercising the business judgment involved in a nonresponsibility determination. Blocacor, LDA, B-282122.3, Aug. 2, 1999, 99-2 CPD Para. 25 at 4. Our Office generally will not disturb a nonresponsibility determination absent a showing either that the agency had no reasonable basis for the determination, or acted in bad faith. Id. In our review of nonresponsibility determinations, we consider only whether the negative determination was reasonably based on the information available to the contracting officer at the time it was made. Document Printing Serv., Inc., B-256654, B-257051, July 8, 1994, 94-2 CPD Para. 13 at 4. The agency's determination here was reasonable.