Springfield Parcel C, LLC v. United States
| Decision Date | 11 November 2015 |
| Docket Number | No. 15-1069C,15-1069C |
| Parties | SPRINGFIELD PARCEL C, LLC, Plaintiff, v. UNITED STATES, Defendant, and EISENHOWER REAL ESTATE HOLDINGS, LLC, Defendant-Intervenor. |
| Court | U.S. Claims Court |
Post-award protest of lease subject to the Public Buildings Act, 40 U.S.C. § 3307; material terms of agency's request for lease proposals; condition imposed by congressional committees on appropriations for the lease; contravention of material terms of request for lease proposals and of condition on appropriation; enforcement of limitation on appropriation; the Anti-Deficiency Act; 31 U.S.C. § 1341(a); injunction; declaration that lease is void
Alex D. Tomaszczuk, Pillsbury, Winthrop, Shaw, Pittman LLP, McLean, Virginia, for plaintiff Springfield Parcel C, LLC. With him on the briefs were Alexander B. Ginsberg and J. Matthew Carter, Pillsbury, Winthrop, Shaw, Pittman LLP, McLean, Virginia.
Devin A. Wolak, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. for defendant. With him on the briefs were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, and Robert E. Kirschman, Jr., Director, and Douglas K. Mickle, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C.
Dorn C. McGrath, III, Kelley, Drye, and Warren LLP, Washington, D.C. for defendant-intervenor Eisenhower Real Estate Holdings, LLC. With him on the briefs were Holly A. Roth, William M. Jack, and Amba M. Datta, Kelley Drye & Warren LLP, Washington, D.C.
This post-award bid protest arises from a request for lease proposals ("RLP") by the General Services Administration ("GSA" or "government") for a new headquarters for the Transportation Security Administration ("TSA"). After a year-long negotiated-procurement process, GSA awarded the lease to Eisenhower Real Estate Holdings, LLC ("Eisenhower") on August 11, 2015. Another offeror, Springfield Parcel C, LLC ("Springfield"),2 seeks a permanent injunction of the award to Eisenhower, asserting that GSA's action was contrary to law. Eisenhower was granted intervention to defend the award. Pending before the court are the parties' cross-motions for judgment upon the administrative record and the defendants' motions to dismiss. A hearing was held on November 3, 2015.
TSA is currently housed in five leased buildings spread across Northern Virginia. AR 4-359.4 These five offices take up a total of 646,859 rentable square feet. AR 64-5094. Seeking to consolidate TSA into one location and to "improve[] space utilization," in 2014 GSA proposed a single replacement lease. AR 64-5094. By statute, viz., the Public Buildings Act of 1959, codified as amended at 40 U.S.C. § 3301-16, agencies seeking to lease space with an annual rent in excess of $2.85 million must obtain approval for appropriations from the House of Representatives' Committee on Transportation and Infrastructure and the Senate Committee onEnvironment and Public Works, 40 U.S.C. § 3307(a)(2).5 On January 8, 2014, GSA sent a prospectus for the project to these committees. AR 64-5094 to -5097. The executive summary of the prospectus proposed a "lease of up to 625,000 rentable square feet (RSF) of space" for TSA. AR 64-5094. The "[d]escription" section of the prospectus also contained this limitation, specifying a "[p]roposed [m]aximum RSF: 625,000." AR 64-5094. Additionally, a chart attached to the prospectus listed the "Max RSF" of the "[p]roposed" lease as "625,000." AR 64-5097.
The prospectus informed Congress that the new lease's 625,000 rentable square foot cap would result in a 21,859 rentable square foot reduction in TSA's 2014 footprint (646,859 square feet). AR 64-5094. A new lease thus would house TSA in a smaller footprint and also achieve a better space "utilization rate," expressed as the "R/U" ratio, which is the measure of rentable square feet over usable square feet. AR 64-5094. The prospectus included various other conditions, including a "[m]aximum [p]roposed [r]ental [r]ate" of $39.00 per rental square foot, a proposed rental term of 15 years, and a proposed rental locale of Northern Virginia. AR 64-5094.
On February 11, 2014, the House Committee on Transportation and Infrastructure adopted a resolution that said "pursuant to 40 U.S.C. § 3307, appropriations are authorized for a replacement lease of up to 625,000 rentable square feet of space . . . for the . . . Transportation Security Administration . . . at a proposed total annual cost of $24,375,000 for a lease term of up to 15 years, a prospectus for which is attached to and included in this resolution." AR 65-5098. In addition, the resolution "[p]rovided that, the Administrator of General Services and tenant agencies agree to apply an overall utilization rate of 153 square feet or less per person." AR 65-5098.
On April 3, 2014, the Senate Committee on Environment and Public Works granted its approval, resolving that "pursuant to title 40 U.S.C. § 3307, a prospectus providing for a replacement lease of up to a maximum 625,000 rentable square feet of space . . . for the . . . Transportation Security Administration . . . at a maximum proposed rental rate of $39.00 per rentable square foot, at a proposed total annual cost of $24,375,000 for a lease term of up to 15 years . . . is approved." AR 66-5099.
Thereafter, on July 14, 2014, GSA issued a Request for Lease Proposals ("RLP"), No. 2VA0687. AR 14-414 to -856. In pertinent part, the RLP required offerors to meet the following conditions. First, RLP Section 1.02(A) sought "a minimum of 550,000 . . . of American National Standards Institute/Building Owners and Managers Association (ANSI/BOMA) Office Area (ABOA) square feet," and a "maximum" of "625,000" rentablesquare feet. AR 14-417. ABOA and rentable square feet are terms of art with established definitions, which were set out in the RLP. Specifically, AR 14-448 shows a section entitled "General Terms, Conditions, and Standards" of Standard Lease GSA Form L201C, which according to RLP Section 1.01(B) is the form that defines terms used in the RLP. ABOA space includes space in which the tenant will house personnel and furniture. See AR 14-448. Contrastingly, rentable square feet includes ABOA space combined with "common areas such as elevator lobbies, building corridors, and floor service areas." AR 14-448 (describing the formula for determining rentable square feet and including ABOA square feet as a factor in that formula). Rentable square footage thus includes ABOA square footage. See also Hr'g Tr. at 78:17-19 (Nov. 3, 2015) (). In short, RLP 1.02(A) sought a lease of a maximum of 625,000 rentable square feet, and a minimum of 550,000 ABOA square feet. These RLP requirements thus aimed to increase the efficient use of space within the building to be leased for TSA.
Next, RLP Section 4.04(C) provided that offers would be evaluated using a present-value price evaluation, as described in that section. AR 14-432 to -444. In that respect, "[e]valuation of offered prices w[ould] be based on the annual price per ABOA SF, including all required option periods." AR 14-433.
The RLP also contained a government-only provision in Section 5.01(B), which said that the government "shall have 100% sole tenancy" in the leased space. AR 14-435. This provision would apply whether or not the offeror offered a one building or multi-building leasehold. AR 14-435. No retail establishments would be allowed within the building absent a government direction. AR 14-435.
Additionally, RLP Section 5.01(K) set out extensive rules governing offerors' compliance with the National Environmental Policy Act. AR 14-436 to -437. An unnumbered paragraph at the end of this RLP section stated that "[a]ny offer that, in GSA's opinion, would require preparation of an E[nvironmental ]I[mpact ]S[tatement] shall be considered technically unacceptable and ineligible for award." AR 14-437.
Eisenhower and Springfield responded to the RLP by making offers, as did two other entities. GSA focused its evaluations and negotiations on the Eisenhower and Springfield offers.
Eisenhower responded to the RLP by making an offer on August 22, 2014. AR 21-896 to -2009. Eisenhower proposed to lease space in a pre-existing building called Victory Center, located at 5001 Eisenhower Avenue, Alexandria, Virginia. AR 21-898.6 The offer represented that the existing building at Victory Center is a recently renovated single structure encompassing550,000 ABOA square feet, AR 21-946, and that Eisenhower would build "an approximately [***] square foot seamless expansion on the building's south side," AR 21-899. Eisenhower's proposal would generate an R/U factor of 1.07539, AR 21-946, and a space efficiency rating of 148.20 ABOA USF per person, AR 21-898. Eisenhower also provided an "area analysis" of the building, which said the "total rentable area" of the building would be [***] rentable square feet. AR 21-1125.
On September 23, 2014, GSA drafted a memo titled "Negotiations - 9/23/14" that memorializes a discussion between GSA representatives and Eisenhower regarding the proposal. AR 24-2682. The memo said "[c]onfirmed [***] ABOA SF offered; [***] BRSF." AR 24-2682. The government requested a revised proposal from Eisenhower on October 20, 2014. AR 26-2689 to -2694.
On October 31, 2014, Eisenhower submitted a revised proposal that adjusted the amount of square footage offered to [***] ABOA square feet and [***] rentable square feet with [***] "General Purpose" square feet. AR 27-2785. In early December 2014,...
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