Great South Bay Marina, Inc., B-293649, May 3, 2004

B-293649 May 03, 2004 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Great South Bay Marina, Inc. (GSBM) protests the decision by the National Park Service (NPS) to cancel the prospectus seeking proposals for the award of a concession contract at Fire Island National Seashore. GSBM argues that the agency lacked a reasonable basis to cancel the prospectus. We deny the protest. View Decision B-293649, Great South Bay Marina, Inc., May 3, 2004 Decision Matter of: Great South Bay Marina, Inc. File: B-293649 Date: May 3, 2004 Dominic S. Rizzo, Esq., for the protester. Pete Raynor, Esq., National Park Service, 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 Agency had a reasonable basis to cancel a concession contract prospectus in order to reconsider its requirements, where it determined that stated estimate of amount contractor would be required to commit to improvement of government-owned facilities was inaccurate, and that recompeting the requirement after revising estimate could increase competition. DECISION Great South Bay Marina, Inc. (GSBM) protests the decision by the National Park Service (NPS) to cancel the prospectus seeking proposals for the award of a concession contract at Fire Island National Seashore. GSBM argues that the agency lacked a reasonable basis to cancel the prospectus. We deny the protest. The prospectus contemplated the award of a 10-year concession contract to provide, among other things, snack bar, maintenance, and restaurant services. The prospectus also required offerors to commit to invest $3,016,000 in the Concessions Facilities Improvement Program (CFIP), which would encompass substantial rehabilitation and reconstruction of government-owned facilities on the island. GSBM was the only offeror that responded to the prospectus. An evaluation panel reviewed the offer and determined that it was unacceptable based on a finding, among other things, that GSBM had estimated the cost of the CFIP at only $1,458,648, and thus did not commit to invest $3 million as required. The panel recommended that NPS cancel the prospectus and review the estimate. In reviewing this recommendation, the Regional Director considered the fact that, prior to the closing date for the prospectus, NPS had received letters from two potential offerors complaining that the required CFIP investment was too high. The Director determined that, even if the GSBM offer were found acceptable, it was in the public's interest to cancel the prospectus and reassess the CFIP investment requirements. JURISDICTION NPS argues, as a preliminary matter, that our Office lacks jurisdiction in this matter because the prospectus involves a concession contract, and not a solicitation for the procurement of property or services. We disagree. Our authority to decide bid protests derives from the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. 3551-56 (2000), and encompasses written objections by interested parties to –a solicitation or other request by a federal agency for offers for a contract for the procurement of property or services.— Where the government invites offerors to compete for a business opportunity such as a concession contract, the performance of which also involves the delivery of goods or services to the government, the value of which is not de minimis, the contract is one for the procurement of property or services within the meaning of CICA and, therefore, is encompassed within our Office's bid protest jurisdiction. Shields and Dean Concessions, Inc., B-292901.2, B'292901.3, Feb. 23, 2004, 2004 CPD 42. Here, in addition to providing visitor services, the contractor is required to provide substantial rehabilitation and construction services to the government; indeed, as discussed, the cost of these services is the focus of the protest. These services are valued at more than $3 million in the prospectus (and at about $1.5 million in the protester's offer). We have found services valued at over $800,000 not to be de minimis for purposes of establishing our jurisdiction over the award of a concession contract, Shields and Dean Concessions, Inc., supra, and we see no reason to reach a different conclusion with regard to the substantially higher-valued construction services here. Since the required construction and rehabilitation are clearly not de minimis, this protest falls within our jurisdiction. CANCELLATION GSBM protests that, in canceling the prospectus, the agency improperly relied on letters from other potential offerors instead of performing an independent analysis of the prospectus to determine if it was flawed.