United States Government Accountability Office

Washington, DC 20548

Comptroller General

of the United States

 

Decision

Matter of: King Farm Associates, LLC

File: B-404896.16

Date: May 30, 2012

Angela B. Styles, Esq., Derek R. Mullins, Esq., and Robert J. Wagman, Jr., Esq., 

Crowell & Moring LLP, for the protester.

Kris Durmer, Esq., Jay Bernstein, Esq., Lesley Busch, Esq., and Katharine Healy, 

Esq., General Services Administration, for the agency.

Tania Calhoun, Esq., and Edward Goldstein, Esq., Office of the General Counsel, 

GAO, participated in the preparation of the decision.

DIGEST

GAO will not grant request for reconsideration to vacate protest decision based on 

new information where the protester has not demonstrated any nexus between the 

newly-disclosed information and the procurement at issue.

DECISION

King Farm Associates, LLC, of Vienna, Virginia, requests reconsideration of our 

decision in King Farm Assocs., LLC; One Largo Metro LLC; Metroview Dev.

Holdings, LLC, B-404896.10 et al., Dec. 5, 2011, 2012 CPD ¶ 6, in which we denied 

its protest of the General Services Administration’s (GSA) award of a lease to 

Fishers Lane/JBG Companies, of Rockville, Maryland, under solicitation for offers 

(SFO) No. 08-011, for office space for the Department of Health and Human 

Services. In its protest, King Farm challenged GSA’s reevaluation of its proposal 

and various aspects of the source selection decision.1

 

1 As explained in our decision, the subject of this protest was the reevaluation and 

new source selection decision resulting from our recommendation in a prior 

decision. See One Largo Metro LLC; Metroview Dev. Holdings, LLC; King Farm 

Assocs., LLC, B-404896 et al., June 20, 2011, 2011 CPD ¶ 128. In that prior 

decision, we sustained protests from three firms, including King Farm, challenging 

the original evaluation and source selection decision. Id. Details of the facts, 

arguments, analyses, and conclusions from the decision at issue here are not 

required to understand the request for reconsideration and are not repeated here.

 We denied the protest, 

DOCUMENT FOR PUBLIC RELEASE

The decision issued on the date below was subject to 

a GAO Protective Order. This redacted version has 

been approved for public release.
Page 2 B-404896.16 

concluding that the protesters had not demonstrated that GSA’s actions were 

unreasonable. King Farm now asks that we vacate our decision, direct GSA to 

provide a new agency report for our review, and issue a new decision.

We deny the request for reconsideration.

BACKGROUND

The SFO, issued by GSA’s Public Buildings Service, sought offers for a 15-year 

lease of office space in suburban Maryland. After evaluating the initial proposals 

submitted in response to the SFO, the agency engaged in several rounds of 

clarifications and discussions and requested final revised offers. These offers were 

evaluated by the agency’s technical teams and source selection evaluation board 

(SSEB). The SSEB recommended that the lease be awarded to King Farm. The 

SSEB’s report and recommendation were provided to the agency’s source selection 

authority (SSA), who agreed that the lease should be awarded to King Farm. The 

SSA’s decision was provided to GSA’s commissioner for the National Capital 

Region, Public Buildings Service, who also served as the Head of the Contracting 

Activity (HCA) for this region. After reviewing the SSEB’s evaluation report, the 

HCA selected Fishers Lane for award. 

King Farm and other firms filed protests in our Office. We sustained the protests 

and recommended that GSA reevaluate proposals and perform and document a 

new source selection decision. Pursuant to that recommendation, the HCA 

reevaluated proposals and made a new tradeoff analysis and source selection 

decision, again concluding that Fishers Lane’s proposal reflected the best value to 

the government. Following a debriefing, King Farm and other offerors filed protests 

in our Office. The protesters raised numerous objections to GSA’s reevaluation of 

offers and source selection decision. As explained in the decision, we denied the 

protesters’ challenges, finding that the HCA’s decision was not unreasonable.

REQUEST FOR RECONSIDERATION

In its request for reconsideration, King Farm states that an April 2012 report issued 

by GSA’s Office of Inspector General (OIG), and subsequent statements by the IG, 

“have exposed new facts demonstrating improper and potentially criminal 

procurement activities in GSA’s Public Buildings Service.” Request for 

Reconsideration, at 2. 

The OIG Report concerned an investigation of possible excessive expenditures and 

employee misconduct in connection with the Public Building Service’s October 2010 
Page 3 B-404896.16 

Western Regions Conference.2 One of the OIG’s findings was that “. . . in many 

instances GSA followed neither federal procurement laws nor its own policy on 

conference spending.” OIG Report, supra, at 1. After the OIG’s report was issued, 

the GSA Administrator terminated two appointees in the line of authority and 

submitted her own resignation due to the “loss of confidence” in GSA’s leadership.3 

Another official was placed on administrative leave for his conduct at the 

conference.4

 At a congressional hearing on April 16, the IG stated that criminal 

referrals had been made to the Department of Justice, with a recommendation for 

criminal charges. He did not name any individuals as the subjects of these criminal 

referrals.5

 

King Farm alleges that the GSA officials who were fired, resigned, or placed on 

administrative leave as a result of the OIG’s report were “personally involved” in this 

procurement, citing various e-mails in the record. Request for Reconsideration, at 

2. The firm further alleges that GSA’s source selection process in the lease 

procurement “utilized GSA attorneys to shield the decision-making process” and, as 

a result, the record excluded relevant documents and testimony based on GSA’s 

claims of attorney-client privilege. Id., at 3. Citing the OIG’s findings of improper 

procurement activity and the IG’s statements concerning criminal referrals, King 

Farm argues that “there is now evidence of improper and potentially criminal 

procurement practices being perpetrated” by the same officials involved in the lease 

procurement, and that the communications protected by the attorney-client privilege 

are no longer protected based on the “crime/fraud” exception to the privilege. Id.

 

, at 

11-12. To protect the integrity of the procurement process, King Farm asserts that 

GAO’s decision must be vacated and GAO must issue a new decision based on a 

complete record. 

 

2 GSA OIG Management Deficiency Report: General Services Administration, 

Public Buildings Service, 2010 Western Regions Conference, Apr. 2, 2012, at 3. 

According to the OIG Report, GSA’s regions covering the western half of the United 

States hold this conference every other year. The 2010 Western Regional 

Conference was hosted by GSA’s Pacific Rim Region. Id. 

3 Testimony of Martha N. Johnson, before the House Committee on Transportation 

and Infrastructure, Subcommittee on Economic Development, Public Buildings and 

Emergency Management, Apr. 17, 2012, CQ Congressional Transcripts, at 61.

4 “GSA scandal engulfs another top official,” 

www.govexec.com/management/2012/04/gsa-scandal-engulfs-another-topofficial/41721. 

5 Testimony of Brian D. Miller, before the House Committee on Oversight and 

Government Reform, Apr. 16, 2012, CQ Congressional Transcripts, at 44-45.
Page 4 B-404896.16 

Under our Bid Protest Regulations, to obtain reconsideration, the requesting party 

must set out the factual and legal grounds upon which reversal or modification of 

the decision is deemed warranted, specifying any errors of law made or information 

not previously considered. 4 C.F.R. § 21.14(a) (2012). We conclude that King 

Farm has failed to provide any basis warranting the relief it now requests. Our 

analysis begins, and ends, with our finding that King Farm’s request for 

reconsideration has not shown any nexus between the activities described in the 

OIG’s report and the criminal referrals--the “information not previously 

considered”--and the lease procurement at issue here. 

It is readily apparent that the OIG report is wholly unrelated to the lease 

procurement at issue. The improper procurement practices it describes were 

limited to the OIG’s investigation in connection with the 2010 Western Region 

Conference, hosted by GSA’s Pacific Rim Region. OIG Report, supra, at 3. The 

OIG specifically found that “GSA failed to follow contracting regulations in many of 

the procurements associated with the [Western Region Conference] and wasted 

taxpayer dollars.” Id., at 4. These procurements concerned the original solicitation 

and agreement with a hotel, the revised hotel agreement, the contract to provide a 

team-building exercise, and the contract for audio-visual services. Id. 

In contrast, the lease procurement had nothing to do with this or any other 

conference. It was, instead, a procurement for the lease of office space undertaken 

by the National Capital Region. The OIG report does not purport to extend to such 

procurements, and the OIG’s office has confirmed that it has not conducted, and 

does not plan to conduct, an audit or investigation of the lease procurement. GSA 

Response to Request for Reconsideration, Attachment 3, E-Mail Exchange 

Between OIG and GSA Office of the General Counsel. 

Moreover, King Farm’s efforts to tie certain GSA officials to the source selection 

decision in the lease procurement, to the improper procurement activities described 

in the OIG’s report, and to the IG’s criminal referrals, are unavailing.

First, GSA states that none of the GSA officials cited by King Farm as engaging in 

“potentially criminal procurement activity” evaluated offers for the lease procurement 

or otherwise participated in the source selection decision for the lease procurement, 

as both functions were performed solely by the HCA. Id., at 4, n.2. The e-mails 

cited by King Farm in support of its position that the officials were “personally 

involved” do not contradict GSA’s statement.6

 

6 As our decision explained, King Farm and another protester initially protested that 

the award decision did not represent the HCA’s independent judgment, but was the 

result of the influence of a more senior GSA official. This official is referenced in 

King Farm’s request for reconsideration. King Farm abandoned this protest ground 

when it did not address the agency’s response in its comments; the other protester 

 

(continued...)
Page 5 B-404896.16 

Second, nothing in the OIG’s report suggests any involvement by any of these 

officials in any of the procurement activities that were the subject of the OIG’s 

investigation. Although these officials were disciplined as a result of the OIG’s 

report, there is no evidence that they were disciplined because they “personally 

were engaged in, or personally approved of,” improper procurement activities. 

Instead, as noted above, the evidence shows that two officials were terminated and 

one resigned because the excesses and improprieties associated with the Western 

Region Conference created a loss of confidence in GSA’s leadership team, and that 

the fourth was placed on administrative leave based on his conduct at the 

conference. See n.3, n.4, supra. 

Finally, King Farm has not presented any evidence to indicate, or otherwise 

suggest, that the GSA officials who were, in fact, the subject of the OIG’s 

investigation and the subsequent IG’s criminal referrals, were involved with the 

lease procurement. 

In conclusion, King Farm’s request for reconsideration, rooted entirely on OIG report 

findings and IG criminal referrals that lack any apparent connection to the 

procurement at issue in our underlying decision, is without any basis.7

 See

Environmental Protection Agency; CGI Federal, Inc.--Recon., B-299504.3, 

B-299504.4, July 23, 2008, 2008 CPD ¶ 149, at 6 (denying request for 

reconsideration, in part, where there was no nexus between new information, which 

formed the basis of the request, and findings in the underlying decision); Cf., 

Lockheed Martin Corp., B-295402, Feb. 18, 2005, 2005 CPD ¶ 24, at 2-3 (protest 

challenging agency actions that occurred in the relatively distant past was timely 

 

(...continued)

withdrew its protest ground after hearing the HCA’s testimony at a hearing 

conducted during the course of the protest. In that hearing, in response to the 

question, “to what extent was the decision you issued the result of your independent 

judgment?”, the HCA testified, “100 percent.” Hearing Transcript, at 81. 

7 King Farm asserts that the “fundamental question” in its request for 

reconsideration is whether GSA improperly withheld documents from the 

administrative record. It is mistaken. King Farm has long known that documents 

were withheld from the record but did not raise this issue within 10 days of the 

issuance of our decision. 4 C.F.R. § 21.14(b). Rather, King Farm’s request for 

reconsideration turns entirely on the new information it has presented to our Office. 
Page 6 B-404896.16 

where it was based on newly-obtained information related to the procurement at 

issue). 

 

The request for reconsideration is denied.

Lynn H. Gibson

General Counsel