B-205766 L/M, JUL 7, 1982

B-205766 L/M, JUL 7, 1982

PRECIS-UNAVAILABLE

LEE H. HAMILTON, HOUSE OF REPRESENTATIVES:

WE REFER TO YOUR DECEMBER 2, 1981 LETTER ON BEHALF OF CONSULTING ENGINEERS OF INDIANA, INC. REGARDING A TWO-STEP, FORMALLY ADVERTISED PROCUREMENT BY THE ARMY CORPS OF ENGINEERS TO DESIGN AND CONSTRUCT A PHYSICAL FITNESS FACILITY AT FORT BENJAMIN HARRISON. YOU ASK WHETHER IT IS NORMAL AND APPROPRIATE TO REQUEST THE KIND OF DETAILED DRAWINGS AND SPECIFICATIONS THAT THE CORPS SOLICITED IN THE PROCUREMENT'S FIRST STEP. YOU ALSO ASK WHETHER THE SOLICITATION VIOLATES THE BROOKS ACT, WHICH SETS OUT SPECIAL PROCEDURES FOR THE PROCUREMENT OF ARCHITECTURAL AND ENGINEERING (A-E) SERVICES.

IN ORDER TO RESPOND TO YOUR LETTER, WE REQUESTED A REPORT ON THE MATTER FROM THE CORPS. A COPY OF THE REPORT IS ENCLOSED.

REGARDING YOUR FIRST QUESTION, THE CORPS' REPORT INCLUDES THE RELEVANT SECTION OF THE PROCUREMENT'S FIRST STEP, REQUEST FOR TECHNICAL PROPOSALS (RFTP) DACA45-81-R-0140. THE RFTP REQUIRES THAT PROPOSALS UNDER THE FIRST STEP INCLUDE "DESCRIPTIVE SPECIFICATIONS, CONCEPT DRAWINGS OR DATA" AS FOLLOWS:

"(A) SITE PLAN SHOWING DRAINAGE, PARKING AND LANDSCAPING. (B) FLOOR PLAN WITH OVERALL DIMENSIONS. (C) TWO BUILDING CROSS SECTION. (D) TYPICAL BUILDING ENTRANCE. (E) SKETCH OF BUILDING ENTRANCE. (F) CONCEPT DESIGN ANALYSIS DESCRIBING THE BASIS FOR SELECTION OF MATERIAL AND EQUIPMENT ***. (G) PRELIMINARY ENERGY BUDGET ***. (H) OUTLINE SPECIFICATIONS FOR ALL MATERIALS AND CONSTRUCTION."

PROSPECTIVE OFFERORS ARE ADVISED THAT THE LISTED ITEMS MUST BE DEVELOPED "TO A 20-25 PERCENT DESIGN COMPLETION *** SO THAT A DETERMINATION OF TECHNICAL ADEQUACY CAN BE MADE ***."

THIS PROJECT IS QUITE SIMILAR TO A "TURNKEY" HOUSING PROJECT, THAT IS, A TYPE OF NEGOTIATED PROCUREMENT INVOLVING A SINGLE CONTRACT FOR THE CONSTRUCTION AS WELL AS THE DESIGN (AND IN SOME INSTANCES THE SITE DEVELOPMENT WORK) OF THE PROJECT. IN THIS KIND OF PROCUREMENT, THE ARCHITECT WORKS FOR THE CONSTRUCTION CONTRACTOR AND HAS NO CONTRACTUAL RELATIONSHIP WITH THE GOVERNMENT. WE HAVE RECOGNIZED THE PROPRIETY OF THIS METHOD OF PROCUREMENT FOR A NUMBER OF YEARS.

OF NECESSITY, THEN, A CERTAIN AMOUNT OF DESIGN EFFORT IS ESSENTIAL TO PROVIDE A FRAMEWORK UPON WHICH THE TECHNICAL ADEQUACY OF COMPETING PROPOSALS FOR A CONSTRUCTION EFFORT CAN BE JUDGED. WE HAVE NO INDEPENDENT KNOWLEDGE AS TO WHETHER THE DETAIL REFLECTED IN THE RFTP REQUIREMENTS FOR THIS CONSTRUCTION PROJECT IS EXCESSIVE. WE NOTE, HOWEVER, THAT THE CORPS, BOTH IN ITS REPORT TO OUR OFFICE AND IN AN OCTOBER 8, 1981 LETTER TO YOUR CONSTITUTENT THAT YOU FURNISHED US, SUBMITS THAT THE RFTP REQUIREMENTS WERE NOT EXCESSIVE AND REPRESENTED ONLY THE MINIMUM DOCUMENTATION NEEDED TO JUDGE TECHNICAL ACCEPTABILITY UNDER THE FIRST STEP OF THE PROCUREMENT. IN THIS RESPECT, AS A GENERAL MATTER THE FIRST STEP OF A TWO-STEP, FORMALLY ADVERTISED PROCUREMENT CONSISTS OF THE SUBMISSION, EVALUATION AND DISCUSSION OF A TECHNICAL PROPOSAL, WITHOUT PRICING, IN A MANNER QUITE SIMILAR TO TECHNICAL PROPOSAL EVALUATION IN A NEGOTIATED PROCUREMENT. THE SECOND STEP, BIDS (PRICES) ARE INVITED FROM THOSE FIRMS FOUND TECHNICALLY ACCEPTABLE IN THE FIRST STEP. DEFENSE ACQUISITION REGULATION (DAR) SEC. 2-501 (1976 ED.).

YOU ALSO ASK WHETHER THE PROCUREMENT VIOLATES THE BROOKS ACT, 40 U.S.C. SEC. 541 ET SEQ. (1976).

THE BROOKS ACT ESTABLISHES SPECIAL PROCEDURES, WHICH DO NOT INCLUDE PRICE COMPETITION, FOR THE PROCUREMENT OF PROFESSIONAL A-E SERVICES. IT APPLIES TO A PROCUREMENT THAT UNIQUELY OR TO A SUBSTANTIAL OR DOMINANT EXTENT LOGICALLY REQUIRES PERFORMANCE BY A PROFESSIONALLY LICENSED AND QUALIFIED A-E FIRM.

IN EVERY MILITARY CONSTRUCTION AUTHORIZATION ACT SINCE 1971, HOWEVER, THE CONGRESS EXPRESSLY HAS REQUIRED PRICE COMPETITION FOR CONSTRUCTION CONTRACTS. THE FACT THAT A CONSTRUCTION EFFORT MAY INVOLVE A-E TYPE SERVICES, WHICH OFTEN IS THE CASE, THUS DOES NOT MANDATE THE USE OF THE BROOKS ACT, SINCE THE PROCUREMENT IS FOR CONSTRUCTION, NOT A-E SERVICES. THEREFORE, WE DO NOT BELIEVE THAT THE PROCUREMENT IN ISSUE HERE - TO DESIGN AND BUILD A PHYSICAL FITNESS FACILITY - VIOLATES THE BROOKS ACT