DePonte Investments, Inc., B-288871; B-288871.2, November 26, 2001

DePonte Investments, Inc., B-288871; B-288871.2, November 26, 2001 TITLE: DePonte Investments, Inc., B-288871; B-288871.2, November 26, 2001 BNUMBER: B-288871; B-288871.2 DATE: November 26, 2001 ********************************************************************** Decision Matter of: DePonte Investments, Inc. File: B-288871; B-288871.2 Date: November 26, 2001 Richard J. Conway, Esq., and Denis W. Kohl, Esq., Dickstein Shapiro Morin & Oshinsky, for the protester. James L. Weiner, Esq., Department of the Interior, for the agency. Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protester's offer was not entitled to preference for Indian-owned firms where solicitation did not provide for the application of a preference. 2. Protest that agency improperly accepted awardee's offer of a building constructed with pre-cast masonry facade is denied where solicitation specifically permitted this construction method; to the extent protester argues that agency advised it that pre-cast masonry facade would not be allowed, protester relied on such oral advice, which conflicted with the solicitation, at its own risk. 3. Agency was not required to evaluate protester's offer more favorably than awardee's for offering a longer lease term, where solicitation provided for award of either 10- or 15-year lease, agency determined that flexibility made 10-year lease preferable, and protester does not rebut agency's position; likewise, it was proper for agency not to give protester additional evaluation credit for offering early availability of the space where solicitation did not provide that early availability was preferable. DECISION DePonte Investments, Inc. protests the award of a contract to Opus West under solicitation for offers (SFO) No. 01-810, issued by the Department of the Interior to lease office and storage space for the Office of the Special Trustee for American Indians. DePonte challenges the award on several grounds. We deny the protest. The SFO provided for evaluation on a "best value" basis using the following factors in addition to price: location; experience in developing first-class office buildings; general contractor, architecture and engineering firm experience with similar projects; and building suitability for occupant's mission. SFO sect. 2.3, adden. 1. The agency received five proposals--including Opus's and DePonte's--conducted an individual conference with each offeror, issued two addenda to the SFO, and received best and final offers from four offerors. Opus's proposal received the highest technical score (10 out of 10 possible points) and offered the lowest price. DePonte's received the lowest technical score (3.9 points) and offered the third lowest price. Contracting Officer's Statement (COS) at 2. The agency concluded that Opus's proposal represented the best value, and made award to that firm. PREFERENCE DePonte protests that, although it informed Interior that it was acting as an agent for an Indian-owned entity, the agency failed to provide DePonte with the preference for Indian-owned businesses established by the Buy Indian Act, 25 U.S.C. sect. 47 (2000), and the Indian Self Determination and Education Act (ISDEA), 25 U.S.C. sect.sect. 450 et seq. (2000). DePonte recognizes that the solicitation did not provide for application of a preference, but asserts that, given the strong policy under these statutes in favor of giving preference to Indian-owned firms, the preference must be applied even where the solicitation is silent. This argument is without merit. We have held that the Buy Indian Act does not mandate that Indian firms be accorded a preference in the award of contracts, unless the solicitation so provides. Orion Food Servs., Ltd., B-233145, Dec. 5, 1988, 88-2 CPD para. 563 at 1. This follows the well-established principle that the evaluation of offers must be based on the stated evaluation factors. American Imaging Servs., Inc.--Recon., B-250861.2, Jan. 5, 1993, 93-1 CPD para. 13 at 1. Thus, even where there is a strong policy in favor of applying a preference, if the solicitation is silent with respect to a preference, a procuring agency cannot properly apply it. Id. at 2 (procuring agency may not apply small disadvantaged business preference, despite strong policy in favor of preference, where solicitation is silent regarding preference). [1] Consequently, since the solicitation here did not provide a preference for Indian-owned firms, the agency properly did not apply one in favor of DePonte. CONSTRUCTION METHOD DePonte maintains that the award was improper because Opus offered a building with a pre-cast masonry facade; according to DePonte, the agency told DePonte that this construction method was unacceptable. Interior denies telling DePonte that it would not accept a building with a pre-cast masonry facade. COS at 4.