One Largo Metro, LLC v. United States
| Decision Date | 31 January 2013 |
| Docket Number | No. 12-501C,12-501C |
| Parties | ONE LARGO METRO, LLC, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Claims Court |
Post-Award Bid Protest;
Cross-Motions for Judgment
on the Administrative Record;
Technical Evaluation; Best
Value Trade-Off Analysis; Bid
Preparation and Proposal
Costs.
Joseph J. Dyer, Seyfarth Shaw, LLP, Washington, D.C., for Plaintiff. With him were Ronald Gart and Caroline A. Keller, Seyfarth Shaw, LLP, Washington, D.C.
Steven M. Mager, Trial Attorney, Commercial Litigation Department, Civil Division, United States Department of Justice, Washington, D.C., for Defendant. With him were Jeanne F. Davidson, Director, Commercial Litigation Department and Stuart F. Delery, Principal Deputy Assistant Attorney General, Civil Division. Elizabeth H. Johnson, Regional Counsel, General Services Administration, Washington, D.C., of counsel.
On August 8, 2012, Plaintiff, One Largo Metro, LLC (One Largo) filed a post-award bid protest in this court following award of an United States General Services Administration (GSA) contract to Fishers Lane, LLC (Fishers Lane),2 instead of toPlaintiff, pursuant to Solicitation for Offers, No. 08-011 (Solicitation). Plaintiff alleges that, but for Defendant's violation of statutes and regulations in awarding the lease to Fishers Lane, One Largo should have received the award. Plaintiff seeks $4,038,739.003 as monetary relief in the form of bid preparation and proposal costs. Plaintiff filed a motion for judgment on the Administrative Record and, in response, Defendant filed a cross-motion for judgment on the Administrative Record.
On July 16, 2008, Defendant issued the Solicitation4 to lease space for HHS in Montgomery County or Prince George's County, Maryland, in order to consolidate several HHS locations, including the Parklawn building in Rockville, Maryland, into one. The Solicitation requested offers to rent office space to the government on a fixed price basis for a fifteen-year term. It also stated that modernization of HHS's current location at the Parklawn building could be a "potential solution" for the Solicitation, provided that the building complied with all requirements of the Solicitation once renovated. The Solicitation provided that "the lease will be awarded to the Offeror whose offer will be most advantageous to the Government and provides the best value to the Government, price and other award factors considered as set forth below."
Offers were to be evaluated on the basis of three technical factors: "Location," "Building Characteristics," and "Past Performance and Key Personnel." Each factor was further broken down into several sub-factors, as follows:
The Solicitation ranked the importance of each factor and sub-factor:
Location is of equal importance to Building Characteristics and each is significantly more important than Past Performance and Key Personnel. The Location factor is comprised of two sub-factors, of which Access to Metrorail is significantly more important than Access to Amenities. Furthermore, Access to Metrorail is more important than any other sub-factor of either of the other two technical evaluation criteria. The Building Characteristics factor is comprised of three sub-factors, of which Number of Buildings is more important than Planning Efficiency and Flexibility and is significantly more important than Quality of Building Architecture, Building Systems and Construction. The Past Performance sub-factor is of equal importance to the Key Personnel sub-factor in the Past Performance and Key Personnel factor.
Plaintiff contests Defendant's evaluation of the Access to Metrorail and Planning Efficiency and Flexibility sub-factors. Other technical sub-factors, however, are addressed briefly in this opinion because the offerors' overall ratings are relevant to the issue of whether Defendant properly used and conducted a trade-off analysis in awarding this contract.
The Solicitation stated that all proposed buildings "must be located within three (3) miles of a Metrorail station, as measured from the main entrance of the building to the nearest entrance of the transit facility by the driving distance on existing roads." Offerors that were located more than 2,500 walkable linear feet from a Metrorail station were required to provide shuttle service at their expense. Regarding the Access to Metrorail sub-factor, the Solicitation stated:
In addition to providing a convenient means of commuting to and from work for HHS employees, access to Existing Metrorail is also important as it provides a useful method for employees to travel back and forth to other HHS facilities, during normal business hours. Distances will be measured from the main entrance of the building to the nearest entrance of the transit facility, in walkable linear feet (wlf) or, if it is more than 2,500 wlf [walkable linear feet], by the driving distance of existing roads. Buildings closer to an existing Metrorail station will be evaluated more highly.
For the other sub-factor under the Location factor, Access to Amenities,8 the Solicitation provided that offers would be evaluated for amenities within the building, as well as amenities within one mile of the main entrance of the building closest to the entrance to the amenity. In a section labeled "Location Amenities," the Solicitation stated:
Adequate eating facilities shall be located within 1 mile. The government encourages pedestrian access from the building location to the following basic services: fitness facilities, postal facilities . . . , restaurants, day care center, fast food establishments, dry cleaners, ATMs/banking services, convenience shops, card/gift shops, hair salons, automotive service stations, and drug stores.
In a separate section labeled "Access to Amenities," dealing specifically with the Access to Amenities sub-factor, the Solicitation indicated that offers would be evaluated for the quantity and variety of those same twelve categories of amenities. The Solicitation continued:
If possible, these amenities should be available during early morning and evening hours, as well as operating during a normal business day. Thefinal evaluation will consider all of the available amenities and the offers will be scored based on quantity, variety, hours and proximity of such amenities. To be considered, restaurants and fast food establishments must be open for breakfast and lunch. The best rating will be given to offers that provide the greatest variety and quantity of amenities with good hours of operation existing at the time of occupancy within the building or within 1,500 walkable linear feet of the building.
Under the Building Characteristics factor, the most important sub-factor was Number of Buildings, which was to be evaluated based on the number of buildings the offeror proposed, with a lower number of buildings, or buildings connected by a tunnel or covered walkway, to be given higher ratings. With regard to the Planning Efficiency and Flexibility sub-factor of the Building Characteristics factor, the Solicitation stated:
Each building will be evaluated for overall planning efficiency. This evaluation will include blocking and stacking plans, floor plate sizes, circulation factors, common area factors, rentable to usable ("r/u") square foot ratios, column spacing, column bay sizing, core configuration and placement, window mullion spacing, and other indicia of planning efficiency and flexibility .... The Government prefers solutions that offer integrated performance effectiveness with more efficiency and more flexibility for layout and more flexibility for future reconfigurations. Proximity and accessibility of the loading dock to the freight elevator and ability of the lobby design to accommodate integration of Government security requirements will also be considered. Buildings which provide for more efficiency and flexibility will be more highly evaluated.
Also as part of the Building Characteristics factor, the Solicitation stated under the Quality of Building Architecture, Building Systems, and Construction sub-factor that the government would assess the "qualitative attributes of the building's architecture, massing, building systems, construction, and finishes." For this sub-factor, "[t]he building systems that provide the most capacity, efficiency, reliability, and flexibility will be more highly rated."
Regarding the Past Performance sub-factor, the Solicitation stated that Defendant would evaluate the offeror's "past two (2) performances for development and ownership of projects of similar size, scope and complexity," with projects that are "more current and demonstrate a clear parallel" with this Solicitation being rated more highly. The Solicitation indicted, however, that "[f]ailure to submit information on Past Performance due to lack of experience will be evaluated by the Government as neutral." Under the Key Personnel sub-factor, the Solicitation indicated that Defendant would evaluate offerors' "entire design, construction, and management team," for qualifications and past performance on similar projects. Moreover, the Solicitation stated, "[o]fferors whose key personnel provide the greatest qualifications, the most favorable past performance on similar projects, and a proven track record of working together on all three past successful projects will be more highly rated."
The Solicitation indicated that "[t]he Government intends to use a trade-off process in selecting the offer that is most advantageous." The Solicitation described the trade-off analysis as "a method of evaluating price and other factors as...
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