Great South Bay Marina, Inc., B-296335, July 13, 2005

B-296335 Jul 13, 2005 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Great South Bay Marina, Inc. protests the National Park Service's (NPS) award of a concession contract to Fire Island Concessions, LLC under prospectus No. CC-FIIS007-05, for concession services at Fire Island National Seashore. We deny the protest. View Decision B-296335, Great South Bay Marina, Inc., July 13, 2005 Decision Matter of: Great South Bay Marina, Inc. File: B-296335 Date: July 13, 2005 Dominic S. Rizzo, Esq., for the protester. Anthony R. Conte, Esq., Department of the Interior, for the agency. Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Government Accountability Office (GAO) has jurisdiction over protest of award of National Park Service concession contract where prospectus, in addition to authorizing contractor to furnish concession services, requires contractor to furnish construction and rehabilitation services valued at over1 million to the government. 2. Where agency refuses to furnish an agency report responding to a protest, GAO will decide protest on the basis of the documents available, even if that record is limited to documents submitted by protester. 3. Protest challenging agency's conclusion that awardee's proposal represented the best value to the government is denied where protester generally asserts that its offer is superior to awardee's but offers no specific or detailed argument, beyond a description of its proposal in one area (financial capability), to establish that the agency unreasonably concluded that its proposal did not represent the best value. DECISION Great South Bay Marina, Inc. protests the National Park Service's (NPS) award of a concession contract to Fire Island Concessions, LLC under prospectus No. CC-FIIS007-05, for concession services at Fire Island National Seashore. We deny the protest. JURISDICTION The Department of the Interior notified our Office 1 day prior to the due date for submission of the agency's report on Great South Bay Marina's protest that it is the agency's position that NPS "concession contracts are not procurement contracts for goods or services," and, as such, are outside the scope of our bid protest jurisdiction under the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. Sections 3551-3556 (2000), amended by the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, Section 326, 118 Stat. 1811 (2004). Letter from the Department of the Interior to GAO, May 26, 2005, at 1. The agency, relying on its analysis of our Office's jurisdiction, therefore declined to submit a report responding to the protest, a matter that we address separately below. For the reasons set out here, we disagree with the agency regarding our jurisdiction over the protest. In support of its position that we lack jurisdiction, the agency asserts that concession contracts do not procure goods or services for the benefit of the government, as required for exercise of our jurisdiction pursuant to CICA, but rather authorize third parties to provide services to park visitors. We agree that our Office lacks jurisdiction to consider a protest challenging the award of a "pure" concession contract--that is, one that merely authorizes a concessionaire to provide services to park visitors. We have long recognized, however, that some NPS "concession" contracts are hybrids, and require the delivery of goods and/or services to the government, in addition to authorizing the contractor to provide services to park visitors. See , e.g. , Shields & Dean Concessions, Inc. , B-292901.2, B-292901.3, Feb. 23, 2004, 2004 CPD Paragraph 42, recon. denied , B-292901.4, Mar. 19, 2004, 2004 CPD Paragraph 71 (concessionaire required to provide maintenance, repair and other services for government facility as well as facility improvement valued at over800,000); Starfleet Marine Transp., Inc. , B-290181, July 5, 2002, 2002 CPD Paragraph 113 (concessionaire for ferryboat services required to provide janitorial services for agency's docks and piers, equip ferries with public address systems for use by Park Ranger, and provide transportation for Park Ranger). It has consistently been our Office's view that a mixed transaction that includes the delivery of goods or services of more than de minimis value to the government is a contract for the procurement of property or services within the meaning of CICA. Starfleet Marine Transp., Inc. , supra , at 6. In arguing that we lack jurisdiction, the agency relies on the House and Senate committee reports that accompanied the NPS Concessions Management Improvement Act of 1998, Pub. L. No. 105-391, Sections 401-419, 112 Stat.