Comptroller General

United States Government Accountability Office

Washington, DC 20548 

of the United States

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. 

Decision 

Matter of: CESC Skyline, LLC 

File: B-402520; B-402520.2 

Date: May 3, 2010 

Mary Beth Bosco, Esq., Elizabeth Gill, Esq., and John Sharp, Esq., Patton Boggs LLP, 

for the protester. 

Michael A. Hordell, Esq., and Stanley R. Soya, Esq., Pepper Hamilton LLP, for EREH 

Phase I LLC; Marcia G. Madsen, Esq., David F. Dowd, Esq., Roger D. Waldron, Esq., 

and Polly Myers, Esq., Mayer Brown LLP, for GBA Associates Limited Partnership, 

the intervenors. 

Jeffrey H. Dunn, Esq., General Services Administration, for the agency. 

Edward Goldstein, Esq., and Christine S. Melody, Esq., Office of the General 

Counsel, GAO, participated in the preparation of the decision. 

DIGEST 

Protest challenging accelerated occupancy deadlines established in solicitation for 

acquisition of lease space in connection with the 2005 round of Department of 

Defense base realignments and closures is denied; protester’s contention that the 

occupancy deadlines do not constitute legitimate requirements is without merit 

where the record shows that they are necessary to meet statutorily-imposed 

deadlines. 

DECISION 

CESC Skyline, LLC of Arlington, Virginia, protests the terms of solicitation for offers 

(SFO) No. 9VA2175, issued by the General Services Administration (GSA), seeking 

office and related space in Northern Virginia to house the Department of Defense 

(DOD) Medical Command Headquarters. The procurement is related to the 2005 

round of DOD base realignments and closures authorized by the National Defense 

Authorization Act for Fiscal Year 2002, Pub. L. No. 107-107, Title XXX (2001), in 

connection with the Defense Base Realignment and Closure (BRAC) Act of 1990, 

Pub. L. No. 101-510, Title XXIX (1990) (as amended). CESC argues that the SFO is 

unduly restrictive of competition in violation of the Competition in Contracting Act 

(CICA) of 1984, and that it is defective because it fails to provide prospective 

offerors certain information necessary to prepare a proposal. 

We deny the protest. 
By way of background, the term “BRAC” refers to the process enacted by Congress 

which authorizes DOD to reorganize its base structure to more efficiently and 

effectively support forces, increase operational readiness, and facilitate new ways of 

doing business. The first round of reorganization was authorized in 1988 by the 

Defense Authorization Amendments and BRAC Act, Pub. L. No. 100-526, Title II 

(1988) (as amended). Subsequently, additional BRAC rounds were completed in 

1991, 1993, and 1995 as authorized by the Defense BRAC Act of 1990, Pub. L. No. 

101-510, Title XXIX (1990) (as amended). The latest round--BRAC 2005--was 

authorized by the National Defense Authorization Act for Fiscal Year 2002, Pub. L. 

No. 107-107, Title XXX (2001).1 Pursuant to BRAC 2005, DOD is required to complete 

all recommended base realignments and closures no later than September 15, 2011.2

 

As it relates to this protest, under the 2005 BRAC reorganization, DOD is required to 

locate the components of the DOD Medical Command (MedCom) Headquarters on “a 

single, contiguous site.”3

 DOD began its analysis of the options for housing MedCom 

 

(continued...) 

1

 Generally, under the BRAC process, the Secretary of Defense prepares a list of 

bases that DOD recommends for realignment or closure, which the Secretary then 

submits to a special BRAC Commission established by Congress. The BRAC 

Commission prepares a report for the President with its findings and conclusions 

regarding the recommendations of the Secretary of Defense. The President submits 

the BRAC Commission Report to Congress with the President’s approval or 

disapproval of the report. If the President approves the recommendations, they are 

binding 45 legislative days after Presidential transmission or Congressional 

adjournment, unless Congress enacts a joint resolution of disapproval. If the 

President disapproves the Commission’s initial recommendations, the Commission 

must submit revised recommendations to the President. 

2

 The September 15, 2011 date derives from section 2904 of the BRAC Act, which 

requires DOD to complete all recommended base closures and realignments within 

6 years of September 15, 2005, the date on which the President transmitted the BRAC 

Commission’s Report, with his approval, to Congress. 

3

 Specifically, in the 2005 BRAC round DOD is required to: 

Realign the Potomac Annex, DC. Realign Bolling Air Force Base, DC. 

Realign Skyline, leased space in Falls Church, VA. Collocate the Navy 

Bureau of Medicine, Office of the Surgeon General of the Air Force, the 

Air Force Medical Operating Activity, and the Air Force Medical 

Support Activity, Office of the Secretary of Defense (Health Affairs), 

Tricare Management Activity, Office of the Army Surgeon General and 

US Army Medical Command to a single, contiguous site that meets the 

current Department of Defense AntiTerrorism Force Protection 

standards for new construction at either the National Naval Medical 

Page 2 B-402520; B-402520.2 
in 2006. DOD completed the analysis in 2008 with a recommendation to pursue 

leased space in the National Capital Region. The Under Secretary of Defense for 

Acquisition, Technology and Logistics approved this recommendation in March 2008 

and, on June 12, 2008, DOD forwarded a request for space to GSA. 

Based on DOD’s request, GSA prepared a housing plan and prospectus, which were 

transmitted to Congress on September 16, 2009 for approval.4

 Contracting Officer’s 

(CO) Statement at 2. According to the prospectus, the MedCom Headquarters 

currently occupies approximately 600,000 rentable square feet (rsf) of space across 

14 different locations in the Washington Metropolitan Area, which includes 

government-owned locations and leased space. Agency Report (AR), Tab 5, 

Prospectus No. PVA-04-WA10, at 5. The housing plan indicates that the leases have 

different expiration dates and that the current leased locations do not comply with 

the DOD Minimum Anti-Terrorism Standards for Buildings which must be met for all 

leases that expire in fiscal year 2009 and beyond. 

In the housing plan and prospectus submitted to Congress, GSA proposed to lease up 

to 751,000 rsf in order to house the components of the MedCom Headquarters at a 

single site. The 751,000 rsf consists of approximately 600,000 rsf for BRAC covered 

functions and approximately 150,000 rsf for personnel not covered by BRAC and 

space not essential for BRAC covered operations (e.g., conference rooms, break 

areas, training areas). CO Statement at 2. 

 

On January 20, 2010, before receiving Congressional approval of the prospectus, GSA 

issued the SFO, which provides for leasing 750,791 rsf in two phases. Phase I 

provides for moving all BRAC covered personnel by the September 15, 2011 BRAC 

deadline. Accordingly, the SFO requires that 600,000 rsf be ready for the 

government’s move no later than June 1, 2011. In this regard, the SFO states that 

“[i]n order to meet the . . . BRAC statutory deadline of September 15, 2011, full 

 

(...continued) 

Center, Bethesda, MD, Bolling Air Force Base, DC, or federally owned 

or leased space in the National Capital Region and consolidate 

common support activity. 

2005 Defense BRAC Commission Final Approved Recommendations, Vol. 2, 

Appendix Q-99. 

4

 GSA prepared a lease prospectus for the MedCom Headquarters project, which 

provides, among other things, a project summary, a justification for the project, and 

a project description with an estimated total cost. See Agency Report (AR), Tab 5, 

Prospectus No. PVA-04-WA10. As provided by the Public Buildings Act, 40 U.S.C. 

§§ 3307 et seq., GSA is required to obtain Congressional approval of the lease 

prospectus before it can execute the lease at issue in this protest since the lease is 

for a project in excess of $2.66 million. 

Page 3 B-402520; B-402520.2 
occupancy for the first phase is required no later than September 1, 2011.” SFO at 7. 

Phase II provides for moving non-BRAC related personnel and space not essential 

for BRAC operations. The remainder of the 750,791 rsf must be ready for 

commencement of the government move no later than June 1, 2012, so full 

occupancy can occur no later than September 1, 2012. Id.

On February 22, 2010, the SFO closing date, GSA received [DELETED] timely offers, 

including an offer from CESC. CESC filed its protest with our Office the same day. 

In its protest, CESC principally argues that the occupancy dates set forth in the SFO 

are “extremely accelerated,” unduly restrictive of competition, and therefore in 

violation of CICA. Protest at 3. In this regard, CESC alleges that based on the 

required occupancy dates, there is currently only one viable location and offeror, 

thus rendering the SFO a de facto sole-source procurement. CESC further argues 

that, pursuant to CICA, the sole-source procurement cannot be justified because it 

was the result of GSA’s lack of advance planning. As a final matter, CESC argues 

that the SFO fails to contain sufficient information to enable offerors to prepare a 

Security Unit Price List mandated by the SFO. 

A contracting agency has the discretion to determine its needs and the best method 

to accommodate them. Parcel 47C LLC, B-286324, B-286324.2, Dec. 26, 2000, 2001 

CPD ¶ 44 at 7. In preparing a solicitation, a contracting agency is required to specify 

its needs in a manner designed to achieve full and open competition, and may 

include restrictive requirements only to the extent they are necessary to satisfy the 

agency’s legitimate needs. 41 U.S.C. § 253a(a)(1) (2006); Innovative Refrigeration 

Concepts, B-272370, Sept. 30, 1996, 96-2 CPD ¶ 127 at 3. Where a protester 

challenges a specification as unduly restrictive, the procuring agency has the 

responsibility of establishing that the specification is reasonably necessary to meet 

its needs. The adequacy of the agency’s justification is ascertained through 

examining whether the agency’s explanation is reasonable, that is, whether the 

explanation can withstand logical scrutiny. Chadwick-Helmuth Co., Inc., B-279621.2, 

Aug. 17, 1998, 98-2 CPD ¶ 44 at 3. A protester’s mere disagreement with the agency’s 

judgment concerning the agency’s needs and how to accommodate them does not 

show that the agency’s judgment is unreasonable. Dynamic Access Sys., B-295356, 

Feb. 8, 2005, 2005 CPD ¶ 34 at 4. 

GSA recognizes that the occupancy deadlines established by the SFO have the 

practical effect of limiting the number of viable offerors to those with an existing 

building, and eliminates offerors such as CESC that would need to engage in new 

construction and are unable to immediately commence renovations of their building 

upon award (for example, due to occupants with outstanding leases). AR, at 2, 6. 

GSA asserts, however, that the occupancy schedule is necessary so that DOD is able 

to relocate all BRAC-affected MedCom personnel by the statutorily-mandated 

deadline of September 15, 2011. 

Page 4 B-402520; B-402520.2 
CESC argues that GSA’s purported reliance on the September 15, 2011 BRAC 

deadline as justification for the occupancy dates is unreasonable because, according 

to CESC, the deadline is not immutable. Specifically, citing a September 18, 2009 

DOD policy memorandum, CESC maintains that DOD has approved extending the 

BRAC move schedule beyond the September 15, 2011 deadline. In addition, CESC 

contends that GSA’s own conduct demonstrates that it has the option of extending 

the BRAC deadline. In this regard, CESC notes that by dividing the move into two 

phases, GSA has effectively waived the BRAC deadline “to permit some amount of 

admittedly BRAC rentable square feet to be delivered after the September 15, 2011 

deadline.” Protester’s Supp. Comments at 6. CESC also argues that GSA has 

implicitly recognized the possibility of waiving the BRAC deadline where the 

contracting officer, in response to CESC’s protest, has acknowledged the potential to 

extend the occupancy period beyond the BRAC deadline, and GSA has advised 

Congress in a separate prospectus that it may not meet the September 15, 2011 

deadline. CESC’s arguments are without merit. 

As a preliminary matter, the premise of CESC’s arguments here is fatally flawed. The 

BRAC deadline is statutory, thereby requiring Congressional action, as opposed to a 

DOD policy memorandum or some action by GSA, to change the requirement. In any 

event, the memorandum cited by CESC, by its terms, and as subsequently clarified 

by DOD, does not purport to extend the statutorily-imposed BRAC deadline. 

Specifically, the memorandum addresses a requested delay by the Washington 

Headquarters Service “of the requirement that all lease renewals executed after 

September 30, 2009, must comply with the enhanced Antiterrorism (AT) criteria for 

buildings that house DOD employees.” AR, Tab 12, Policy Memorandum from 

Ashton B. Carter, Under Secretary of Defense, Subject: Expiration of Leases 

Impacted by Base Realignment and Closure (BRAC) 2005, Sept. 18, 2009. In granting 

the waiver for the National Capital Region, the memorandum specifically directed 

that the Washington Headquarters Services 

[b]e granted the authority to execute lease renewals until September 

30, 2011, to accommodate continued occupancy by organizations in the 

[National Capital Region] affected by BRAC, even if the existing leased 

facility is not in compliance with [minimum antiterrorism standards] 

for buildings that house DOD employees. Such lease renewals may be 

for a term sufficient to allow occupancy by those organizations until 

their movement to the installations directed by the BRAC 

recommendation, including any time necessary to complete the 

disposal process, but in no event beyond September 30, 2014. 

Id.

As subsequently explained in detail by DOD, it granted the waiver because enforcing 

the deadline for meeting the enhanced antiterrorism standards for the BRACaffected organizations potentially could have required these organizations to move 

Page 5 B-402520; B-402520.2 
twice, once when they had to renew their leases to meet the enhanced antiterrorism 

criteria, and then again to comport with the BRAC-mandated realignments. DOD 

thus sought “to avoid the mission disruption and waste of resources that could come 

with any double move.” AR, Tab 13, DOD Statement Clarifying its September 18, 

2009 Memorandum, Sept. 23, 2009. 

 

CESC asserts that when DOD granted the waiver it also extended the BRAC move 

deadline, given that the memorandum provides that lease renewals may be for a term 

through September 30, 2014. This provision, however, merely allows for extending 

the affected leases up through September 30, 2014--it does not address the BRAC 

move date. In fact, the memorandum implicitly recognizes compliance with the 

BRAC requirements by providing that lease renewals for BRAC-affected 

organizations “may be for a term sufficient to allow occupancy . . . until their 

movement to the installations directed by the BRAC recommendation.” AR, Tab 12, 

supra.

5

 

CESC’s arguments suggesting that GSA has recognized that it may extend the BRAC 

deadline are equally baseless. As noted above, CESC argues that the two-phase 

occupancy process provided under the SFO deviates from the BRAC deadline since 

some BRAC space will not be delivered until after September 15, 2011. GSA explains 

that by dividing the requirement into two phases, it has prioritized delivery of the 

space necessary for DOD to meet the immediate BRAC move requirements. As 

noted above, the space to be delivered under Phase I will allow MedCom to perform 

its mission and thereby allow DOD to meet the BRAC relocation requirement by the 

September 15, 2011 deadline. Phase II encompasses space that is not missionessential for the BRAC components, notwithstanding the fact some of the space 

 

5

 To the extent the memorandum may have contained any ambiguity regarding DOD’s 

policy in connection with lease term renewals and the BRAC deadline, DOD clarified 

the matter shortly thereafter through a public statement advising that 

[t]he memorandum does not extend the BRAC relocation deadline and 

has no effect on BRAC relocation requirements. The Department has a 

legal obligation and a plan in place to close and realign all installations 

as recommended by the BRAC Commission by September 15, 2011. . . . 

The extension does not change the statutory BRAC deadline of Sept. 

15, 2011, nor does it authorize any organization affected by BRAC to 

exceed the deadline. 

AR, Tab 13, Lease Memorandum Clarification and Public Statement, Sept. 23, 2009. 

As DOD explained, allowing leases to run until September 2014 was intended to 

allow “time for orderly lease termination activities.” Id. 

Page 6 B-402520; B-402520.2 
delivered under Phase II will be used by MedCom.6

 See CO Statement at 5. This 

two-phase approach is consistent with and reasonably supports GSA’s efforts to 

ensure that DOD will be capable of meeting the BRAC-mandated requirements, and 

does not suggest, as the CESC argues, an attempt to waive the BRAC deadline.7

CESC’s additional arguments that GSA has suggested that the BRAC deadline is not 

firm and ultimately may be waived are based on mischaracterizations of a statement 

by the contracting officer in connection with this protest, and language contained in 

a prospectus submitted to Congress in connection with a different BRAC move. In 

both cases, GSA in fact affirms DOD’s need to meet the September 2011 BRAC 

deadline, while also addressing potential contingencies if, for example, there is a 

significant delay in Congressional action on the prospectus which could affect the 

timing of the procurement. These statements do not suggest, as CESC argues, that 

GSA believes it has the authority to waive the BRAC statutory deadline or that GSA 

will not be able to meet the BRAC deadline. GSA’s consideration of alternative 

courses of action in the event it became impossible to meet the BRAC deadline in no 

way alters GSA’s duty to strive to meet the statutory deadline, and the contracting 

officer has consistently affirmed GSA’s commitment to making an award that meets 

the current statutory deadline. 

CESC further asserts that, to the extent the BRAC deadline is a legitimate 

requirement, it results in a de facto sole-source procurement, which cannot be 

justified because it is a consequence of GSA’s lack of advance planning. The record 

reflects, however, that the SFO is not a de facto sole-source procurement. A survey 

of the rental market performed by GSA identified [DELETED] viable properties. See

AR, Tab 6, Market Analysis, Nov. 20, 2008. Moreover, based on expressions of 

interest received by GSA and the contracting officer’s understanding of market 

conditions, the contracting officer expected to receive at least [DELETED] viable 

offers in response to the SFO, [DELETED]. Owners of [DELETED] buildings have in 

fact submitted offers and both offerors have affirmed that they will be able to meet 

 

6

 GSA also explains that some of the space to be delivered in Phase II will house 

non-BRAC-related personnel. CO Statement at 2. 

7

 CESC argues that 600,000 rsf will not in fact meet the needs associated with the 

BRAC requirements since the prospectus identifies 535,169 usable square feet (usf) 

as BRAC space. According to CESC, 535,169 usf equates to approximately 642,202 

rsf based on an industry standard factor of 1.2 to convert usf to rsf. CESC, however, 

fails to recognize that the 535,169 usf figure identified in the prospectus includes 

approximately 60,000 usf for non-BRAC personnel. See AR, Tab 5, Prospectus No. 

PVA-04-WA10, at 5. When this space is removed, the space specifically required for 

the BRAC move equates to 475,127 usf, which, after applying the 1.2 conversion 

factor, amounts to approximately 570,000 rsf, somewhat less than the 600,000 rsf 

provided for in the SFO. 

Page 7 B-402520; B-402520.2 
the required occupancy dates. See CO Supp. Statement. Thus, CESC’s contention 

that the BRAC occupancy requirements have resulted in a de facto sole-source 

procurement are without a factual basis. 

Moreover, CESC’s arguments chastising GSA for its alleged lack of advance planning 

are misplaced. First, the record reflects that GSA engaged in an orderly and 

deliberate process for identifying the requirements and evaluating potential options 

for meeting its requirements. While a more expeditious process might have been to 

the protester’s benefit, there is no indication that GSA’s acquisition planning was 

defective or otherwise unreasonable. Second, the statutory and regulatory 

provisions cited by the protester as support for its arguments concern the 

prohibition against using the agency’s lack of advance planning as a justification for 

the agency’s use of noncompetitive procedures, e.g., sole-source awards. See 10 

U.S.C. § 2304(f)(4); 41 U.S.C. § 253(f)(4); Federal Acquisition Regulation 

§ 6.301(c)(1). These provisions are inapposite, however, since the SFO here uses full 

and open competitive procedures. 

As a final matter, CESC argues that the SFO does not provide offerors with sufficient 

information to prepare their offers. CESC complains that the SFO requires offerors 

to complete a Security Unit Price List but does not provide any specifications or 

quantities for any of the items listed. CESC also maintains that the Security Unit 

Price List is confusing because it is unclear as to whether the lessor must provide 

certain items as part of the rent, or if GSA will pay for them separately. 

CESC is not an interested party to challenge these aspects of the SFO. Under the bid 

protest provisions of the Competition in Contracting Act of 1984, 31 U.S.C. §§ 3551-

3556 (2006), only an “interested party” may protest a federal procurement. That is, a 

protester must be an actual or prospective bidder or offeror whose direct economic 

interest would be affected by the award of a contract or the failure to award a 

contract. Bid Protest Regulations, 4 C.F.R. § 21.0(a)(1) (2009). 

Here, as discussed above, we conclude that the SFO’s accelerated occupancy 

schedule represents a legitimate agency requirement. While CESC has not expressly 

asserted that it is unable to meet the SFO requirement in this regard, and the record 

reflects that CESC has in fact submitted an offer in response to the SFO, CESC 

tacitly admits its inability to meet the SFO occupancy requirements throughout its 

protest by repeatedly arguing that the accelerated occupancy schedule provided in 

the SFO results in a sole-source award to another offeror. E.g., Protest at 7 (stating 

that the SFO “violates the requirements of [CICA] by restricting bidding to a single 

prospective bidder”). CESC’s inability to meet the SFO requirements (specifically, 

the accelerated occupancy schedule) is a logical predicate of its sole-source 

Page 8 B-402520; B-402520.2 
Page 9 B-402520; B-402520.2 

 

argument.8 Since CESC’s protest is premised on its inability to meet a legitimate 

agency requirement, it is apparent that CESC could not be eligible for an award 

under the SFO, and therefore does not have the direct economic interest required to 

challenge the other aspects of the SFO.9 

The protest is denied. 

Lynn H. Gibson 

Acting General Counsel 

8

 This conclusion is also consistent with statements by the contracting officer 

throughout this protest that CESC’s offer does not meet the government’s minimum 

requirements since its proposed location currently only provides up to 431,235 rsf 

and there is not a reasonable likelihood that CESC would be able to add the 

additional space in time to meet the move-in dates mandated by the SFO. CO 

Statement at 3; CO Supp. Statement. CESC has not rebutted GSA’s representations 

or conclusions in this regard. 

9

 After CESC filed its protest challenging the terms of the SFO, GSA rejected CESC’s 

offer in response to the SFO because CESC’s proposed occupancy schedule did not 

meet the schedule required by the terms of the SFO. CESC filed a separate protest 

challenging the agency’s decision in this regard raising the same issues as CESC 

raised in its initial protest challenging the terms of the SFO. Having concluded, as 

discussed above, that CESC’s protest of the SFO is without merit, CESC’s protest of 

its elimination from the competition is denied as well.