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FAR
2.101: Definitions - Offer |
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Comptroller General - Key Excerpts |
Since the lease
does not contain a termination for convenience clause, we would
customarily find that remedial action that may disturb the award
is not feasible; in the absence of a termination for convenience
clause, we would ordinarily not recommend termination of an
awarded lease, even if we sustained the protest and found the
award improper. Peter N.G. Schwartz Co. Judiciary Square Ltd.
P’ship, B‑239007.3, Oct. 31, 1990, 90-2 CPD para. 353 at 11.
Here, however, Fedcar argues that remedial action is appropriate
because no legally binding lease contract between GSA and Duke
was formed. Based on our review of the record, we agree with
Fedcar that GSA did not form a legally binding lease contract
with Duke because it did not unconditionally accept Duke’s
offer. In this regard, the record shows that on December 17,
2007, when GSA accepted Duke’s offer and notified Duke of the
award, GSA forwarded to Duke a draft lease containing various
changes from the terms of the SFO and Duke’s offer, and
requested that Duke execute and return the lease. AR, Tab 13,
GSA’s Award Letter (Dec. 17, 2007). Fedcar has identified
various changes in this draft lease that it regards as material
deviations from the terms of the SFO and Duke’s offer. For
example, the agency changed a section of the SFO regarding the
installation of roof antennas by making the agency’s right to
mount an antenna conditional on Duke’s consent and added new
provisions addressing the removal of the antennas. The draft
lease also limited the lessor’s right to negotiate price and
imposed a mandatory procedure involving the use of appraisals to
determine the purchase price. Neither GSA nor Duke has asserted
that these are not changes from the SFO or Duke’s offer, or
explained why these changes are not material. Based on our
review of the record, we find these changes are material.
Moreover, the record does not include the modified draft lease
executed by both GSA and Duke, even though this document (if it
is in existence) was requested to be produced.
A purported acceptance of an offer that is conditioned on the
offeror’s assent to terms additional to or different from than
those offered is not an acceptance but a counteroffer, and does
not create a binding contract. 1st Home Liquidating Trust, et
al. v. United States, 76 Fed. Cl. 731, 739 (2007) (citing
Restatement (Second) of Contracts sect. 59); Romala Corp. v.
United States, 20 Cl.Ct. 435, 443 (1990); Climax Molybdenum Co.,
B-193828, July 3, 1979, 79‑2 CPD para. 2 at 4. On this record,
we find that GSA’s conditional acceptance of Duke’s offer did
not form a legally binding lease contract. Because GSA has
made material changes to the lease agreement from those
contained in the SFO, we recommend that GSA amend the SFO and
obtain revised proposals. We also recommend that GSA make a new
source selection decision taking into account the correct
present value ANSI/BOMA office area per square foot price of the
offers. In so doing, the agency should fully document its
cost/technical tradeoff, including a comparison of the
proposals’ strengths and weaknesses as well as the evaluated
price difference. In the event that Fedcar’s proposal is found
to be the best value, award should be made to that firm. We also
recommend that Fedcar be reimbursed the reasonable costs of
filing and pursuing the protests, including reasonable
attorneys’ fees. 4 C.F.R. sect. 21.8(d)(1). Fedcar should submit
its certified claim for costs, detailing the time expended and
costs incurred, directly to the agency within 60 days after the
receipt of this decision. (Fedcar
Company, Ltd., B-310980; B-310980.2; B-310980.3, March 25,
2008) (pdf)
Proposal submitted prior to the
issue date of a request for proposals (RFP) is an offer in
response to the RFP that the contracting agency must consider
where the agency provided the offeror with prior written notice
that it would do so. (STG,
Inc., B-285910, September 20, 2000) |
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Comptroller General - Listing of Decisions |
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For
the Government |
For
the Protester |
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Fedcar Company, Ltd., B-310980;
B-310980.2; B-310980.3, March 25, 2008 (pdf) |
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STG,
Inc., B-285910, September 20, 2000 (pdf) |
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