Comptroller General

United States Government Accountability Office 

Washington, DC 20548 

of the United States

 

Decision 

Matter of: Melbourne Commerce, LLC 

File: B-400049.2 

Date: January 9, 2009 

Gregory Politis for the protester. 

Duane C. Pitt, Esq., General Services Administration, 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 

Protest challenging rejection of offer for lease of office space is denied where offeror 

failed to furnish required evidence of a conditional commitment of funds in an 

amount necessary to prepare the space. 

DECISION 

Melbourne Commerce, LLC of Clearwater, Florida protests the rejection of its offer 

under solicitation for offers (SFO) No. 7FL2052, issued by the General Services 

Administration (GSA) for the lease of office space for the Social Security 

Administration (SSA) in Melbourne, Florida. The protester argues that the agency 

erred in rejecting its offer based on the firm’s failure to furnish evidence of a 

conditional commitment of funds in an amount necessary to prepare the space. 

We deny the protest. 

The SFO contemplated the award of a 10-year lease for a minimum of 18,508 square 

feet of office space. Of relevance to this protest, the solicitation required offerors to 

submit with their offers satisfactory evidence of at least a conditional commitment 

of funds in an amount necessary to prepare the space. The commitment was 

required to be signed by an authorized bank officer and, at a minimum, state the 

amount of the loan, its term in years, the annual percentage rate, and the length of 

the loan commitment. 

Melbourne submitted its offer by the December 14, 2007 closing date. By letter dated 

January 18, 2008, the real estate brokerage firm that conducted this acquisition on 

behalf of GSA notified the protester that a number of the forms required to be 
submitted as part its offer were either missing or incomplete. The letter specifically 

advised the protester that “a complete offer” was required to include the abovementioned evidence of a conditional commitment of funds. Broker’s Letter to

Protester, Jan. 18, 2008, at 1. The protester responded by furnishing some, but not

all, of the requested items; one of the items that it failed to furnish was a conditional 

commitment of funds letter. 

On March 6, the GSA broker sent Melbourne a letter requesting a final proposal 

revision (FRP). Like the letter of January 18, this letter advised the protester that a 

number of items were missing from its revised proposal and that they needed to be 

completed and returned with its FPR for Melbourne’s offer to be considered fully 

compliant. The letter again specifically advised the protester that “a complete offer” 

must include evidence of at least a conditional commitment of funds in an amount

necessary to prepare the space. Broker’s Letter to Protester, Mar. 6, 2008, at 1. 

Melbourne again responded by furnishing some, but not all, of the items identified by 

the agency--and again, one of the items not furnished was evidence of a conditional 

commitment of funds. 

By letter dated April 2, another firm that had submitted an offer in response to the 

SFO at issue here was notified that its proposal had been determined unacceptable. 

This company, Barnesville Development Corporation, protested to our Office on 

April 7, and the procurement process was suspended while the protest was pending. 

We denied Barnesville’s protest on June 30. Barnesville Dev. Corp., B-400049, 

June 30, 2008, 2008 CPD ¶ 132. 

Upon receipt of notification that we had denied Barnesville’s protest, the GSA broker 

proceeded with final analysis of the other offers. On September 8, the contracting 

officer, who had reviewed the broker’s findings, awarded a lease to Rutherford & 

Strickland Elkton, Inc. The agency notified the protester that its offer was “deemed 

non-responsive to minimum requirements of the SFO.” Contracting Officer’s Letter 

to Protester, Sept. 19, 2008. In response to the protester’s request for clarification of

the basis for the agency’s determination, the contracting officer explained that 

several required items were missing from its proposal, and that of greatest concern 

to her was the protester’s failure to submit the commitment of funds letter.1

 On 

October 16, Melbourne protested to our Office. 

The protester first complains that the agency failed to notify it promptly that its 

proposal had been excluded from the competition. According to the protester, at all 

 1

 The other missing items identified by the contracting officer were scaled floor 

plans; seismic acknowledgment; compliance with zoning; evidence of contractor 

experience, competency, and performance; and a copy of a license or certification to 

practice in the state of Florida for the individual and/or firm providing architectural 

and engineering services. 

Page 2 B-400049.2 
times during the solicitation process, it was “in full belief” that it had satisfied all 

solicitation requirements. Protest at 3. 

There is no evidence in the record that the protester suffered any prejudice as a 

result of the timing of the agency’s notification that its offer had been excluded from 

the competition--the protester was given the same opportunity to protest the 

rejection of its offer that it would have received had it been notified of the rejection 

earlier in the process. See Carriage Abstract, Inc., B-290676, B-290676.2, Aug. 15, 

2002, 2002 CPD ¶ 148 at 3 n.1. With regard to the protester’s argument that the 

agency effectively misled it to believe that it had satisfied the solicitation’s 

requirements, the record does not support this assertion. Rather, the record shows 

that the agency twice notified the protester that it needed to submit evidence of a 

conditional commitment of funds for its offer to be considered complete, and neither 

time did the protester respond by furnishing evidence of such a commitment; 

accordingly, we fail to see a reasonable basis for the protester’s apparent belief that 

its offer fully complied with the requirements of the SFO. 

Next, Melbourne argues that it was unreasonable for GSA to reject its offer for failing

to include the required commitment of funds letter. We disagree. 

As noted above, the contracting officer rejected Melbourne’s offer on the ground that 

it was “nonresponsive” to the SFO requirements. Notwithstanding the contracting 

officer’s characterization, the requirement at issue concerns the offeror’s 

responsibility, not the technical acceptability of its offer. In this regard, as indicated 

by the heading under which the requirement was listed--“Evidence of Capability to 

Perform,” SFO ¶ 3.16--the requirement concerns the offeror’s ability to perform the 

contract, rather than the acceptability of its offer. Acquest Dev. LLC, B-287439, 

June 6, 2001, 2001 CPD ¶ 101 at 5; Tomasz/Shidler Inv. Corp., B-250855, B-250855.2, 

Feb. 23, 1993, 93-1 CPD ¶ 170 at 6. An offeror who is found nonresponsible is not 

eligible for award. FAR § 9.103; Specialty Marine, Inc., B-292053, May 19, 2003, 2003 

CPD ¶ 106 at 3. We will not question an agency’s nonresponsibility determination 

unless the record shows that it lacks a reasonable basis. Aulson & Sky Co., 

B-290159, May 21, 2002, 2002 CPD ¶ 87 at 5. 

Here, Melbourne argues that it was unreasonable for GSA to reject its offer for failing

to include the required commitment of funds letter given that it had furnished a 

commitment of funds letter in connection with a concurrent GSA procurement

handled by the same contracting officer for the lease of space for the Internal 

Revenue Service (IRS). The protester argues that GSA should have recognized based 

on its submission of the commitment of funds letter for the IRS procurement that it

had the financial capability to perform the contract here. 

We disagree. The SFO here required evidence of at least a conditional commitment

of funds in an amount necessary to prepare the space solicited--thus, clearly, the 

letter of commitment needed to demonstrate the conditional availability of funds for 

this project. The letter that Melbourne furnished in connection with the IRS 

Page 3 B-400049.2 
procurement did not demonstrate the availability of funds for the SSA project--

rather, it specified that the bank had approved a $2 million loan to finance the IRS 

Melbourne project. Thus, given that the firm failed to furnish the evidence required 

by the SFO regarding commitment of funds for the project at issue, we see no basis

to question the agency’s decision to reject Melbourne’s offer. 

Finally, the protester complains that the agency incorrectly calculated its price per 

rentable square foot. The contracting officer explained in response to this argument

that while she had misstated the protester’s price per rentable square foot in her 

post-award communications with the protester, the misstated figure was not the one 

that the broker had used in his present value price evaluation. As a consequence, the 

alleged error in rentable square foot price had no impact on the evaluation and the 

protester suffered no prejudice as a result of it. 

The protest is denied. 

Gary L. Kepplinger 

General Counsel 

Page 4 B-400049.2