B-400107; B-400107.2, Exec Plaza, LLC, August 1, 2008

B-400107.3 Oct 24, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Exec Plaza, LLC (Exec) requests that our Office recommend that the General Services Administration (GSA) reimburse its costs of filing and pursuing its protest of the terms of solicitation for offers (SFO) No. 08-008. Specifically, Exec requests that we recommend reimbursement of the protester's costs associated with its challenge to terms of the SFO that were amended by the agency during the course of the protest. We deny the request. View Decision B-400107.3, Exec Plaza, LLC--Costs, October 24, 2008 Decision Matter of: ExecPlaza, LLC--Costs File: B-400107.3 Date: October 24, 2008 Fernand A. Lavallee, Esq., Jeffery R. Keitelman, Esq., and Eric M. O'Neill, Esq., DLA Piper US LLP, for the protester. Edith Toms, Esq., and Elizabeth Johnson, Esq., General Services Administration, for the agency. Jonathan L. Kang, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Request for a determination of entitlement to costs is denied because, although the agency issued a clarifying amendment in response to a protest allegation, the protester's argument was not clearly meritorious and therefore the agency's amendment cannot be considered as corrective action in the face of a clearly meritorious protest. DECISION ExecPlaza, LLC (Exec) requests that our Office recommend that the General Services Administration (GSA) reimburse its costs of filing and pursuing its protest of the terms of solicitation for offers (SFO) No. 08-008. Specifically, Exec requests that we recommend reimbursement of the protester's costs associated with its challenge to terms of the SFO that were amended by the agency during the course of the protest. We deny the request. The SFO was issued on February 29, 2008, and sought offers for the lease by GSA of approximately 574,164 square feet of office space in Rockville, MD, on behalf of the National Cancer Institute (NCI). At the time of the protest, GSA leased office space for NCI under multiple leases in Rockville from Exec and another lessor. Exec filed a protest challenging the terms of the SFO on April 25, arguing that the SFO was unduly restrictive of competition because it placed numerous requirements on incumbent lessors, such as Exec, that did not apply to other offerors. As relevant here the protester argued that the SFO required incumbent lessors, but not other offerors, to demolish existing tenant improvements in their proposed properties. Exec argued that this requirement placed it at a competitive disadvantage as compared to other offerors who would not be required to demolish their existing improvements. In its report on the protest, GSA argued that the SFO required all offerors to demolish existing tenant improvements. Agency Report (AR) at 9. The agency further argued that the requirement, as applied to all offerors, was reasonable and was not unduly restrictive of competition. In a supplemental protest, Exec argued that the agency's position regarding the applicability of the demolition requirement to all offerors was not reflected in the SFO. In its supplemental agency report, GSA reiterated its view that the demolition requirement applied equally to all offerors. Supp.AR at 3. Nonetheless, GSA's supplemental report also announced that it was issuing amendment No. 2 to the SFO, which would more clearly state that the demolition requirement applied to all offerors. GSA argued that SFO amendment No. 2 rendered the protest concerning the demolition requirement academic because it made clear that the requirement did not apply uniquely to Exec. In its comments on the supplemental agency report, Exec argued that the amended SFO still did not resolve its argument that the demolition requirement unduly restricted the protester's ability to compete for the contract. The protester also argued, however, that the amendment of the solicitation constituted corrective action in response to the initial protest, and requested that our Office recommend that the protester be reimbursed its costs of pursuing this aspect of its protest. On August 1, we denied the protest. We concluded that certain of the challenged SFO requirements applied equally to all offerors, and that they did not uniquely prejudice Exec's ability to compete for the contract. As relevant here, we concluded that the amended SFO made clear that the demolition requirement applied to all offerors. With regard to the balance of the challenged SFO requirements, we concluded that although several of them applied uniquely to the incumbent lessors, like Exec, the competitive disadvantage they imposed was not unreasonable. DISCUSSION Exec requests that we recommend that the agency reimburse its costs of pursuing its protest concerning the demolition requirement.