B-170220, AUG 26, 1971, 51 COMP GEN 129

B-170220: Aug 26, 1971

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HOUSING - "TURNKEY" DEVELOPERS - CONTRACTS - NEGOTIATION PROCEDURES ALTHOUGH THE NEGOTIATION OF TURNKEY CONSTRUCTION CONTRACTS FOR MILITARY FAMILY HOUSING UNDER 10 U.S.C. 2304(A)(10) AND PARAGRAPH 3 210.2(XIII) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH AUTHORIZE NEGOTIATION WHEN IT IS IMPRACTICABLE TO OBTAIN COMPETITION OR IMPOSSIBLE TO DRAFT SPECIFICATIONS WAS NECESSARY BECAUSE THE IMPOSSIBILITY OF DRAFTING ADEQUATE SPECIFICATIONS IS INHERENT IN THE "TURNKEY" CONCEPT THAT PERMITS THE HOUSING DEVELOPER TO USE HIS OWN ARCHITECT. THE GOVERNMENT SHOULD DETERMINE THAT ITS ACTUAL REQUIREMENTS WERE MET. WE MUST CONCLUDE THAT THE AWARD OF A CONTRACT TO HUNT WAS IMPROPER. FROM THE OMAHA DISTRICT ENGINEER (FURNISHED WITH THE DEPUTY GENERAL COUNSEL'S LETTER OF NOVEMBER 18) THAT THE ESTIMATED MINIMUM COST OF TERMINATING THE CONTRACT AS OF THAT DATE WOULD HAVE BEEN $466.

B-170220, AUG 26, 1971, 51 COMP GEN 129

HOUSING - "TURNKEY" DEVELOPERS - CONTRACTS - NEGOTIATION PROCEDURES ALTHOUGH THE NEGOTIATION OF TURNKEY CONSTRUCTION CONTRACTS FOR MILITARY FAMILY HOUSING UNDER 10 U.S.C. 2304(A)(10) AND PARAGRAPH 3 210.2(XIII) OF THE ARMED SERVICES PROCUREMENT REGULATION WHICH AUTHORIZE NEGOTIATION WHEN IT IS IMPRACTICABLE TO OBTAIN COMPETITION OR IMPOSSIBLE TO DRAFT SPECIFICATIONS WAS NECESSARY BECAUSE THE IMPOSSIBILITY OF DRAFTING ADEQUATE SPECIFICATIONS IS INHERENT IN THE "TURNKEY" CONCEPT THAT PERMITS THE HOUSING DEVELOPER TO USE HIS OWN ARCHITECT, FUTURE PROCUREMENTS BY THE SAME METHOD SHOULD, IN ADDITION TO IDENTIFYING THE TECHNICAL CRITERIA FOR EACH TURNKEY PROJECT, INDICATE THE RELATIVE IMPORTANCE OF EACH EVALUATION FACTOR, AND WHEN USING THE "BEST VALUE FORMULA" EVALUATION, THE GOVERNMENT SHOULD DETERMINE THAT ITS ACTUAL REQUIREMENTS WERE MET, AND IF THOSE REQUIREMENTS BECOME DEFINITIZED DURING THE COURSE OF NEGOTIATIONS, ALL OFFERORS IN A COMPETITIVE RANGE MUST BE GIVEN AN OPPORTUNITY TO SUBMIT REVISED PROPOSALS.

TO THE SECRETARY OF THE ARMY, AUGUST 26, 1971:

WE REFER TO LETTERS, WITH ENCLOSURES, DATED AUGUST 27 AND OCTOBER 7, 1970, FROM THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, AND LETTERS OF OCTOBER 27 AND NOVEMBER 18, 1970, FROM HIS DEPUTY GENERAL COUNSEL, FURNISHING OUR OFFICE REPORTS RELATIVE TO THE PROTEST OF MOUNTAIN STATES INVESTMENT BUILDERS (MSIB), AND LUEDER CONSTRUCTION CO. AGAINST THE AWARD OF A CONTRACT TO HUNT BUILDING MARTS, INC., UNDER REQUEST FOR PROPOSALS (RFP) DACA41-70-R-0002 FOR THE DESIGN AND CONSTRUCTION OF FAMILY HOUSING FOR NONCOMMISSIONED OFFICERS AT FORT CARSON, COLORADO.

FROM OUR REVIEW OF THE RECORD AND FOR THE REASONS SET FORTH BELOW, WE MUST CONCLUDE THAT THE AWARD OF A CONTRACT TO HUNT WAS IMPROPER. HOWEVER, IN VIEW OF THE ADVICE CONTAINED IN A LETTER DATED NOVEMBER 6, 1970, FROM THE OMAHA DISTRICT ENGINEER (FURNISHED WITH THE DEPUTY GENERAL COUNSEL'S LETTER OF NOVEMBER 18) THAT THE ESTIMATED MINIMUM COST OF TERMINATING THE CONTRACT AS OF THAT DATE WOULD HAVE BEEN $466,000, TERMINATION OF THE CONTRACT WAS NOT THEN AND WOULD NOT NOW BE IN THE BEST INTERESTS OF THE UNITED STATES.

THE SUBJECT RFP WAS ISSUED ON FEBRUARY 19, 1970, PURSUANT TO A DETERMINATION AND FINDINGS DATED JANUARY 30, 1970, CITING THE AUTHORITY OF 10 U.S.C. 2304(A)(10) TO NEGOTIATE CONTRACTS FOR "PROPERTY OR SERVICES FOR WHICH IT IS IMPRACTICABLE TO OBTAIN COMPETITION," AS IMPLEMENTED BY PARAGRAPH 3-210.2(XIII) WHICH AUTHORIZES RELIANCE ON 10 U.S.C. 2304(A)(10) "WHEN IT IS IMPOSSIBLE TO DRAFT, FOR A SOLICITATION OF BIDS, ADEQUATE SPECIFICATIONS OR ANY OTHER ADEQUATELY DETAILED DESCRIPTION OF THE REQUIRED SUPPLIES OR SERVICES." ELEVEN SOURCES SUBMITTED DESIGN AND FIXED -PRICE PROPOSALS BY THE MAY 5, 1970, CLOSING DATE. AFTER PRELIMINARY EVALUATION, THREE PROPOSALS WERE DETERMINED TO BE UNACCEPTABLE AND THE OFFERORS WERE SO ADVISED BY LETTERS DATED MAY 21, 1970. EACH OF THE EIGHT REMAINING OFFERORS WAS INFORMALLY ADVISED OF THE DESIGN DEFICIENCIES IN ITS PROPOSAL AND EACH WAS INFORMALLY ADVISED OF THE DESIGN DEFICIENCIES IN ITS PROPOSAL AND EACH WAS AFFORDED AN OPPORTUNITY TO SUBMIT ITS BEST PRICE. THIS INFORMAL ADVICE WAS CONFIRMED BY LETTERS DATED MAY 18, 1970, WHICH STATED THAT RESPONSES SHOULD BE RECEIVED "AS SOON AS POSSIBLE, BUT NOT LATER THAN 22 MAY 1970." UPON FURTHER EVALUATION, IT WAS DETERMINED THAT ONLY LUEDER AND HUNT WERE WITHIN A COMPETITIVE RANGE, PRICE AND OTHER FACTORS CONSIDERED. BY LETTER DATED JUNE 9, 1970, THE DISTRICT ENGINEER ADVISED MSIB THAT ITS PROPOSAL WOULD NOT BE CONSIDERED FURTHER. SINCE THE OFFICE OF THE CHIEF OF ENGINEERS HAD INFORMALLY REQUESTED THAT NO AWARD BE MADE WITHOUT ITS APPROVAL, THE DISTRICT ENGINEER BY TELEGRAM OF JUNE 8 ADVISED IT THAT LUEDER'S PROPOSAL HAD BEEN DETERMINED TO BE THE MOST ADVANTAGEOUS, PRICE AND OTHER FACTORS CONSIDERED, AND RECOMMENDED AWARD TO THAT FIRM. HOWEVER, ON JUNE 15, 1970, THE DIRECTOR OF MILITARY CONSTRUCTION DETERMINED THAT THE CONTRACT SHOULD BE AWARDED TO HUNT. SUBSEQUENTLY, ON JUNE 26, 1970, THE CONTRACT WAS AWARDED TO HUNT AT A PRICE OF $3,039,034.

BY TELEGRAM OF JULY 2, 1970, MSIB FILED A PROTEST WITH OUR OFFICE AND ON AUGUST 24, 1970, WE RECEIVED LUEDER'S PROTEST. ALSO, THE GENERAL COUNSEL'S LETTER OF OCTOBER 7, 1970, FORWARDED FOR OUR CONSIDERATION A THIRD PROTEST FILED WITH THE DISTRICT ENGINEER ON AUGUST 3, 1970, BY G. A. GOODWIN BUILDING CONTRACTOR, INC., WHICH GENERALLY QUESTIONS THE DECISION TO AWARD TO HUNT.

IN ITS SUBMISSIONS OF JULY 10, SEPTEMBER 17, NOVEMBER 3 AND DECEMBER 24, 1970, RAIN, HARRELL, EMERY, YOUNG & DOKE, COUNSEL FOR MSIB, QUESTIONED THE LEGALITY OF THE AWARD. SINCE THE CORPS OF ENGINEERS, IN SUPPORT OF ITS POSITION, HAS PLACED SUBSTANTIAL RELIANCE ON A MEMORANDUM DATED FEBRUARY 24, 1970, FROM THE DEPUTY ASSISTANT SECRETARY OF DEFENSE (INSTALLATIONS AND HOUSING), ENTITLED "ONE-STEP TURNKEY PROCEDURES FOR MILITARY FAMILY HOUSING PROJECTS," OUR DISCUSSION WILL INCLUDE A CONSIDERATION OF THE ADEQUACY OF THE GUIDANCE PROVIDED BY THAT MEMORANDUM.

FIRST, IT IS URGED THAT THE PROCUREMENT SHOULD HAVE BEEN FORMALLY ADVERTISED OR, AT A MINIMUM, THAT TWO-STEP FORMAL ADVERTISING PROCEDURES SHOULD HAVE BEEN USED (SEE ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2- 501). SECTION 2304(A) OF TITLE 10 OF THE U.S.C. EXPRESSES A PREFERENCE FOR FORMAL ADVERTISING AND CONSTRUCTION CONTRACTS ARE, WITH RARE EXCEPTION, LET BY FORMAL ADVERTISING. IN THIS CONNECTION, 10 U.S.C. 2304(C)(1)(A) PERMITS THE NEGOTIATION OF CONSTRUCTION CONTRACTS WHERE, INTER ALIA, 10 U.S.C. 2304(A)(10) IS RELIED ON AS THE NEGOTIATION AUTHORITY. WE DO NOTE THAT RELIANCE ON ASPR 3-210.2(XIII) IN SUPPORT OF THE USE OF EXCEPTION (10) IS SUBJECT TO QUESTION. THE IMPOSSIBILITY OF DRAFTING ADEQUATE SPECIFICATIONS HERE IS SELF-IMPOSED - A LIMITATION WHICH WE HAVE GENERALLY CONSIDERED TO BE UNACCEPTABLE IN VIEW OF THE PREFERENCE FOR FORMAL ADVERTISING. THE IMPOSSIBILITY DERIVES FROM AND IS INHERENT IN THE "TURNKEY" CONCEPT.

BRIEFLY STATED, UNDER THE "TURNKEY" METHOD, A DEVELOPER BUILDS IN ACCORDANCE WITH PLANS AND SPECIFICATIONS PREPARED BY HIS OWN ARCHITECT AND TO A STANDARD OF GOOD DESIGN, QUALITY AND WORKMANSHIP. NECESSARILY, THE GUIDANCE IN THE SOLICITATION IS LIMITED TO AN INDICATION OF THE FEATURES REQUIRED, SUCH AS STYLE OF HOUSE, NUMBER OF BEDROOMS AND BATHS, ETC., AND AN INDICATION OF WHERE THE HOUSING IS TO BE LOCATED ON THE SITE - ESSENTIALLY, PERFORMANCE SPECIFICATIONS. THIS METHOD OF PROCUREMENT HAS, AS IS POINTED OUT IN THE GENERAL COUNSEL'S LETTER OF AUGUST 27, 1970, BEEN RECOGNIZED AND ENCOURAGED BY THE CONGRESS. SEE, FOR EXAMPLE, SECTION 510 OF THE MILITARY CONSTRUCTION AUTHORIZATION ACT OF 1970, PUBLIC LAW 91-142, DECEMBER 5, 1969, WHICH RELAXES THE MAXIMUM NET FLOOR AREA LIMITATIONS ON MILITARY HOUSING IMPOSED BY 10 U.S.C. 7574 BY PROVIDING IN A NEW SUBPARAGRAPH (F) OF SECTION 7574 THAT THE MAXIMUM LIMITATIONS "MAY BE INCREASED UP TO 15 PER CENTUM IF THE SECRETARY OF DEFENSE, OR HIS DESIGNEE, DETERMINES THAT SUCH INCREASE IS IN THE BEST INTEREST OF THE GOVERNMENT TO PERMIT AWARD OF A TURNKEY CONSTRUCTION CONTRACT FOR FAMILY HOUSING TO THE CONTRACTOR OFFERING THE MOST SATISFACTORY PROPOSAL." SEE, ALSO, SENATE COMMITTEE ON ARMED SERVICES REPORT ON THE MILITARY CONSTRUCTION AUTHORIZATION ACT OF 1970, S. REPT. NO. 91-527, 91ST CONG., 1ST SESS. (1969), PAGES 43-44; HOUSE COMMITTEE ON ARMED SERVICES REPORT ON THE MILITARY CONSTRUCTION AUTHORIZATION ACT OF 1970, H.R. REPT. NO. 91- 386, 91ST CONG., 1ST SESS. (1969), PAGES 38-39. UNDER THE CIRCUMSTANCES, WE WILL NOT OBJECT TO THE NEGOTIATION OF TURNKEY CONSTRUCTION CONTRACTS FOR MILITARY HOUSING.

NEXT, IT IS CONTENDED THAT THE EVALUATION CRITERIA WERE INADEQUATELY STATED. IN THIS CONNECTION APPENDIX "C" OF THE SOLICITATION, ENTITLED "EVALUATION OF PROPOSALS," PROVIDED THAT:

1. EACH PROPOSAL WILL BE REVIEWED AND EVALUATED TO INDICATE HOW WELL THE PROPOSAL MEETS THE NEEDS OF THE GOVERNMENT FOR THE INDICATED PRICE. THE PROPOSAL SELECTED WILL BE ONE OFFERING THE MOST HOUSE FOR THE MONEY.

2. EVALUATION WILL BE BASED ON RECOGNIZED BASIC PRACTICES IN THE HOMEBUILDING INDUSTRY FOR THE PARTICULAR ITEMS BEING EVALUATED. THE EVALUATION OF EACH PARTICULAR ITEM WILL INCLUDE CONSIDERATION OF ATTRACTIVENESS OF STRUCTURES AND COMPATABILITY TO ITS TOTAL ENVIRONMENT OF MATERIALS, STRUCTURAL MASS, TRADITION FOR DESIGN, AND COMMUNITY ENVIRONMENT. EVALUATION WILL BE MADE ON THE FOLLOWING GENERAL FACTORS:

A. SITE DESIGN: CONFORMANCE TO PRINCIPLES OUTLINED IN FHA MPS 300, FUNCTIONAL LAYOUT INCLUDING DENSITY, PRIVACY, STORAGE, TRASH PICKUP, CIRCULATION, RELATIONSHIP TO OPEN SPACE, ARRANGEMENT OF OPEN SPACE, LANDSCAPING, RECREATION, ETC.

B. SITE ENGINEERING: GRADING, SURFACE DRAINAGE, ROADS, PARKING, SIDEWALKS, TYPES OF PLANTS FOR LANDSCAPING, TYPE OF SCREENING, TYPE AND DURABILITY OF MATERIALS FOR CONSTRUCTION, ETC.

C. DWELLING UNIT DESIGN: (TYPE SINGLE/DUPLEX/TOWNHOUSE) SENSE OF IDENTITY (VARIANCE BETWEEN UNITS), FUNCTIONAL LAYOUT, INTERIOR AND EXTERIOR AESTHETICS, VISUAL PRIVACY, NOISE PRIVACY, INTERIOR AND EXTERIOR STORAGE, ENVIRONMENTAL COMPATIBILITY WITH SITE, ETC.

D. DWELLING UNIT ENGINEERING AND SPECIFICATIONS: DESIGN OF FOUNDATION, WALLS, FLOORS, ROOF, WINDOWS, DOORS, KITCHEN CABINETS, BATHROOM, ELECTRICAL, HEATING, PLUMBING, PARTY WALLS, FINISHES, TYPE AND DURABILITY OF MATERIALS FOR CONSTRUCTION, ETC.

E. TOTAL PRICE FOR THE PROJECT.

THE FOREGOING CRITERIA WERE SPECIFIED IN ACCORDANCE WITH THE DEPARTMENT OF DEFENSE (DOD) GUIDANCE WHICH INDICATES THE MAXIMUM WEIGHT THAT CAN BE ASSIGNED TO EACH FACTOR (ADOPTED BY THE CORPS OF ENGINEERS IN THE INSTANT CASE) AS FOLLOWS:

1. THE FOLLOWING TECHNICAL EVALUATION CRITERIA IS APPLICABLE TO EACH TURNKEY PROJECT. THE TOTAL MAXIMUM POSSIBLE WEIGHTS ASSIGNED TO THE FOUR MAJOR EVALUATION AREAS SHALL BE ASSIGNED FOR EACH PROJECT. THESE WEIGHTS SHALL NOT BE DISCLOSED TO PROPOSERS IN THE RFP.

I. SITE DESIGN 20%

II. SITE ENGINEERING 10%

III. DWELLING UNIT DESIGN 40%

IV. DWELLING UNIT ENGINEERING & SPECIFICATIONS 30%

TECHNICAL EVALUATION TOTAL 100%

V. COST (SEPARATE CONSIDERATION) 100%

4. COST - TECHNICAL EVALUATION TEAMS SHALL NOT CONSIDER COST. COST WILL BE EVALUATED AFTER INITIAL TECHNICAL EVALUATIONS HAVE BEEN COMPLETED. RANKING OF PROPOSALS WILL BE BASED ON QUALITY/COST RATIO THAT REFLECTS THE RESULTS OF THE TECHNICAL EVALUATION AND COST. THIS RATIO IS THE RESULTANT OF DIVIDING THE PROPOSER'S COST BY THE TOTAL TECHNICAL EVALUATION POINTS RECEIVED BY THE PROPOSER (I.E., BID $ AMOUNT OVER TECH. EVAL. PTS $/POINT). THIS RELATIONSHIP SHOULD BE ESTABLISHED PRIOR TO ENTERING INTO NEGOTIATIONS. RECOGNIZING THAT NEGOTIATIONS WILL IN MOST INSTANCES RESULT IN A CHANGE IN PROPOSER'S TECHNICAL EVALUATION SCORE AND HIS BID PRICE, IT IS ESSENTIAL THAT INITIAL RANKINGS BE ADJUSTED BY RECOMPUTING THE RATIOS PRIOR TO ESTABLISHING A FINAL RANKING OF PROPOSALS. THIS FINAL RANKING SHOULD BE CONSIDERED ONLY AS A STATISTICAL INDICATOR. SOUND JUDGMENT MUST BE APPLIED TO INSURE THAT COST AND ALL OTHER FACTORS ARE PROPERLY CONSIDERED IN MAKING AN AWARD IN THE GOVERNMENT'S BEST INTERESTS. IT IS ESSENTIAL THAT THIS DECISION BE PROPERLY DOCUMENTED.

THE FURTHER BREAKDOWN IN THE SOLICITATION OF EACH OF THE FOUR TECHNICAL EVALUATION CATEGORIES INTO SUBCATEGORIES RELATING TO SPECIFIC PROJECT REQUIREMENTS WAS ALSO IN ACCORDANCE WITH THE DOD GUIDANCE.

CONCEDING THAT THE SOLICITATION ADEQUATELY IDENTIFIED THE EVALUATION CRITERIA, IT IS NEVERTHELESS OBVIOUS THAT NO INDICATION IS GIVEN IN THE RFP AS TO THE RELATIVE IMPORTANCE OF EACH FACTOR. WE HAVE, AS YOU KNOW, REPEATEDLY STRESSED THE NEED FOR SUCH IDENTIFICATION. E.G., 49 COMP. GEN. 229 (1969); 47 ID. 252 (1967); CF. 50 ID. 59 (1970). MOREOVER, WE BELIEVE THAT IN THIS CONTEXT IT IS PARTICULARLY CRITICAL THAT OFFERORS BE APPRISED OF THE EVALUATION FORMULA.

COUNSEL FOR MSIB NEXT QUESTIONS IN ITS LETTER OF SEPTEMBER 17, 1970, THE PROPRIETY OF SELECTING THE PROPOSAL WHICH OFFERS "THE MOST HOUSE FOR THE MONEY," AS PROVIDED FOR BY PARAGRAPH 1 OF APPENDIX "C," AS FOLLOWS:

(B) WE FURTHER URGE THAT THE "BEST VALUE FORMULA" OF DIVIDING THE PRICE BY THE NUMBER OF TOTAL EVALUATION POINTS IS INHERENTLY IMPROPER AND RESULTS, BY DEFINITION, IN SPENDING ALL AVAILABLE FUNDS. WHEN THE DENOMINATOR IN A FORMULA IS A VARIABLE DEPENDING ON JUDGMENT AND WHAT THE GOVERNMENT REPRESENTATIVES DESIRE, THIS VIRTUALLY ASSURES THAT THE QUOTIENT (I.E., BEST VALUE) SELECTED WILL BE THE AMOUNT NEAREST THE MAXIMUM AVAILABLE FUNDS. FOR EXAMPLE, THE "ONE-STEP TURNKEY PROCEDURES FOR MILITARY HOUSING PROJECTS" (PARAGRAPH 1A(1)) PERMITS OFFERORS TO PROPOSE DESIGNS EXCEEDING THE MAXIMUM NET FLOOR AREAS. WE SUBMIT THAT SUCH A FORMULA IS TANTAMOUNT TO SAYING TO OFFERORS: "WE HAVE X DOLLARS TO SPEND; WHAT WILL YOU GIVE US FOR IT?" WE FURTHER SUBMIT THIS RESULT IS DEMONSTRATED BY THIS PROCUREMENT. THE CONTRACTING OFFICER RECOMMENDED AWARD TO LUEDER CONSTRUCTION CO. (SECOND IN PRICE), BUT THE OCE DIRECTED AWARD TO HUNT BUILDING MARTS, INC. (SEVENTH IN PRICE) FOR AN AMOUNT ($3,039,034) ONLY A FEW THOUSAND DOLLARS LESS THAN THE COST LIMITATION ($3,067,500).

ADMITTEDLY, THE METHOD OF EVALUATION UTILIZED HERE PERMITS THE GOVERNMENT TO SELECT THE HOUSE REPRESENTING THE BEST VALUE; HOWEVER, COUNSEL'S PRESENTATION ASSUMES THAT THE GOVERNMENT'S EVALUATORS WILL NOT INDEPENDENTLY AND OBJECTIVELY JUDGE THE RELATIVE MERITS OF EACH PROPOSAL AGAINST THE EVALUATION CRITERIA ESTABLISHED. IN OUR VIEW, THE PROBLEM ARISES NOT FROM POSSIBLE BIAS ON THE PART OF THE EVALUATORS, BUT RATHER FROM THE PERMISSIBLE, AND, INDEED, SOLICITED, VARIATIONS IN THE DESIGN APPROACHES THAT MAY BE SUBMITTED IN SATISFACTION OF THE GOVERNMENT'S STATED REQUIREMENTS. EVEN IN THIS CONTEXT, HOWEVER, WE AGREE GENERALLY THAT THE EVALUATORS MUST CONSIDER WHETHER EACH INDIVIDUAL PROPOSAL SATISFIES THE GOVERNMENT'S ACTUAL REQUIREMENTS. FURTHER, IT MUST BE RECOGNIZED THAT THE GOVERNMENT'S REQUIREMENTS MAY BECOME FURTHER DEFINITIZED DURING THE COURSE OF NEGOTIATIONS. WHEN THIS OCCURS, WE BELIEVE THAT ALL OFFERORS WITHIN A COMPETITIVE RANGE MUST BE ACCORDED AN EQUITABLE OPPORTUNITY TO SUBMIT REVISED PROPOSALS IN RESPONSE THERETO. THE THRUST OF COUNSEL FOR MSIB'S OBJECTIONS TO THE CONDUCT OF THIS PROCUREMENT APPEARS TO FALL IN THIS AREA. IN THIS CONNECTION, IT IS URGED THAT AWARD WAS MADE TO HUNT BUILDING MARTS, INC., ON THE BASIS OF "ADDED FEATURES" SUCH AS CARPORTS, COVERED PATIOS, ADDITIONAL SHOWERS, RECREATION AREAS AND ASPHALT PARKING, WHICH WERE NOT IDENTIFIED IN THE SOLICITATION AS EVALUATION FACTORS.

WE DO NOT BELIEVE IT NECESSARY TO PROBE EACH OF THESE "ADDITIONAL FEATURES." IT IS SUFFICIENT TO NOTE, FIRST, THAT THE RECORD SUPPORTS COUNSEL'S POSITION THAT THE ABSENCE OF ADDED FEATURES FROM THE MSIB AND LUEDER PROPOSALS MADE A SIGNIFICANT DIFFERENCE IN EVALUATION. SECOND, THE ROLE OF THESE FEATURES IN THE EVALUATION OF PROPOSALS WAS NOT ALWAYS INDICATED WITH CLARITY. FOR EXAMPLE, WITH RESPECT TO CARPORTS, PARAGRAPH 3A OF APPENDIX "B," STATEMENT OF WORK, PROVIDED THAT: "GARAGES AND/OR CARPORTS MAY BE PROVIDED." AS THE CONTRACTING OFFICER CONCEDES IN HIS REPORT OF SEPTEMBER 18, 1970, THE OFFER OF A GARAGE OR CARPORT IS NOT MANDATORY. WHILE THE LANGUAGE MAY BE READ TO INDICATE THAT THE OFFER OF EITHER FEATURE WOULD BE CONSIDERED IN EVALUATION, THIS WAS NOT MADE CLEAR TO PROPOSERS. IN ANY EVENT, AND MOST SIGNIFICANTLY, THERE IS NO DEMONSTRATION THAT THE ABSENCE OF THE ADDED FEATURES FROM EITHER THE MSIB OR LUEDER PROPOSAL WAS NOT EASILY CORRECTABLE BY NEGOTIATIONS. IN LIGHT OF THE FOREGOING, THE ELIMINATION OF MSIB FROM FURTHER CONSIDERATION WAS NOT IN CONSONANCE WITH THE COMPETITIVE NEGOTIATION REQUIREMENTS OF 10 U.S.C. 2304(G). THIS IS PARTICULARLY TRUE IN THE CASE OF LUEDER SINCE ITS PROPOSAL WAS INITIALLY DETERMINED TO BE THE MOST ADVANTAGEOUS, DESIGN AND PRICE ASPECTS CONSIDERED, BY THE EVALUATION TEAM AFTER APPLICATION OF THE QUESTIONED EVALUATION CRITERIA. IN THIS CONNECTION, ACTION LEADING TO THE REVERSAL OF THE EVALUATION WAS INITIATED BY THE COMMANDING GENERAL, FORT CARSON, WHO REQUESTED THAT THE DIRECTOR OF MILITARY CONSTRUCTION, THE FINAL APPROVAL AUTHORITY IN THIS CASE, REVIEW THE DECISION. THE DIRECTOR REEVALUATED THE HUNT AND LUEDER PROPOSALS AND DIRECTED AWARD TO HUNT. STATED BY THE CONTRACTING OFFICER IN A MEMORANDUM FOR THE FILE DATED JUNE 24, 1970, THE DIRECTOR "GAVE MORE WEIGHT TO THE ADDITIONAL DESIGN FEATURES OFFERED BY HUNT THAN WAS GIVEN BY THE TECHNICAL EVALUATION TEAM, THEREBY RESULTING IN REVERSAL OF RELATIVE STANDINGS." MOREOVER, IN A MEMORANDUM FOR THE RECORD DATED JUNE 18, 1970, THE CHIEF, MILITARY BRANCH, ENGINEERING DIVISION, KANSAS CITY DISTRICT OFFICE, INDICATES THAT THE TECHNICAL EVALUATION TEAM MIGHT HAVE REACHED THE SAME CONCLUSION AS THE DIRECTOR IF IT HAD KNOWN THAT THE COMMANDING GENERAL, FORT CARSON, INTENDED THE HOUSING TO BE USED BY "SENIOR GRADE NCO PERSONNEL WITH FEWER CHILDREN, IN LIEU OF LOWER GRADE PERSONNEL."

WHILE WE DO NOT QUESTION THE RIGHT OF THE DIRECTOR OF MILITARY CONSTRUCTION TO EXERCISE HIS REVIEW AUTHORITY, OFFERORS ARE, IN OUR VIEW, ENTITLED TO NOTICE OF THE REVISED WEIGHT OF THE FACTORS RELIED ON BY THE DIRECTOR AND TO AN OPPORTUNITY TO SUBMIT PROPOSAL REVISIONS RESPECTING THESE FACTORS FOR FURTHER NEGOTIATION PURPOSES.

WE BELIEVE THAT APPROPRIATE CORRECTIVE ACTION IS ESSENTIAL TO THE FUTURE PROCUREMENT OF MILITARY HOUSING ON A TURNKEY BASIS.