B-175357, OCT 31, 1972

B-175357, OCT 31, 1972

BID PROTEST - MODEL CITIES PROGRAM - NEGOTIATION PROCEDURES DECISION DENYING THE PROTEST OF HOUSING RESOURCE ASSOCIATES, AGAINST AWARD OF A CONTRACT TO ANOTHER FIRM UNDER AN RFP ISSUED BY THE D.C. GOVERNMENT FOR PLANNING AND DESIGN OF THE TRINIDAD RENEWAL AREA UNDER THE MODEL CITIES PROGRAM. THERE IS NO STATUTORY REQUIREMENT FOR THE USE OF ANY SPECIFIED NEGOTIATION PROCEDURES IN MAKING PROCUREMENTS IN IMPLEMENTATION OF MODEL CITIES PROGRAMS SINCE THE FUNDS INVOLVED ARE GRANT FUNDS WHICH, WHEN PAID OVER AND EXPENDED, BECOME STATE OR LOCAL FUNDS. ACCORDINGLY, THESE PROGRAMS ARE NOT GENERALLY SUBJECT TO THE VARIOUS RESTRICTIONS AND REQUIREMENTS IMPOSED BY FEDERAL STATUTES, REGULATIONS OR GAO DECISIONS WITH RESPECT TO EXPENDITURE OF APPROPRIATED FUNDS BY FEDERAL DEPARTMENTS OR ESTABLISHMENTS, 36 COMP. GEN. 221 (1956).

TO HUDSON, LEFTWICH & EATON:

FURTHER REFERENCE IS MADE TO YOUR PROTEST OF MARCH 1, 1972, ON BEHALF OF HOUSING RESOURCE ASSOCIATES AGAINST THE AWARD OF A CONTRACT TO ANOTHER FIRM UNDER A REQUEST FOR PROPOSAL ISSUED BY THE DISTRICT OF COLUMBIA GOVERNMENT FOR THE PLANNING AND DESIGN OF THE TRINIDAD RENEWAL AREA UNDER THE MODEL CITIES PROGRAM.

THE RECORD INDICATES THAT NINE PROPOSALS WERE RECEIVED AND EVALUATED BY THE D.C. OFFICE OF HOUSING PROGRAMS, USING A POINT SCORE EVALUATION SYSTEM UNDER WHICH THE TECHNICAL ASPECTS OF EACH PROPOSAL, AS WELL AS THE ESTIMATED COST AND PERCENTAGE OF PROFIT, WERE EVALUATED. UNDER THIS SYSTEM THE PROPOSAL SUBMITTED BY WHITLEY-WHITLEY, INC., RECEIVED THE BEST SCORE. A CONTRACT WAS THEREFORE AWARDED TO THAT FIRM, NOTWITHSTANDING THE FACT THAT ITS FEE WAS SLIGHTLY HIGHER THAN THAT PROPOSED BY YOUR FIRM.

YOUR COMPLAINT ESSENTIALLY IS THAT OFFERORS WERE NOT ADVISED OF ALL EVALUATION FACTORS OR OF THE RELATIVE WEIGHT TO BE ATTACHED TO EACH FACTOR, AND THAT NEGOTIATIONS WERE NOT CONDUCTED WITH ALL OFFERORS WITHIN THE COMPETITIVE RANGE. ALSO, YOU OBSERVE THAT THERE WAS NOT A COMMON CUTOFF DATE FOR RECEIPT OF PROPOSALS, OR A REQUEST FOR BEST AND FINAL OFFERS. IN EFFECT, YOU CONTEND THAT THE D.C. GOVERNMENT WAS REQUIRED TO FOLLOW THE NEGOTIATION PROCEDURES SET OUT IN THE FEDERAL PROCUREMENT REGULATIONS, AND IN DECISIONS OF THIS OFFICE, WHICH ARE APPLICABLE TO NEGOTIATED PROCUREMENTS BY FEDERAL AGENCIES IN GENERAL.

THE MODEL CITIES PROGRAM WAS ESTABLISHED BY THE DEMONSTRATION CITIES AND METROPOLITAN DEVELOPMENT ACT OF 1966, APPROVED NOVEMBER 3, 1966, 80 STAT. 1255 (42 U.S.C. 3301, ET SEQ.), TO PROVIDE FEDERAL FINANCIAL AND TECHNICAL ASSISTANCE TO "PLAN, DEVELOP, AND CARRY OUT LOCALLY PREPARED AND SCHEDULED COMPREHENSIVE CITY DEMONSTRATION PROGRAMS." FUNDS FOR THE MODEL CITIES PROGRAM ARE PROVIDED TO THE LOCAL DEMONSTRATION AGENCIES BY MEANS OF GRANTS WHICH, WHEN PAID OVER AND EXPENDED BY THE STATES OR CITIES, BECOME STATE OR CITY FUNDS. THERE IS NO STATUTORY REQUIREMENT FOR THE USE OF ANY SPECIFIED NEGOTIATION PROCEDURES IN MAKING PROCUREMENTS IN IMPLEMENTATION OF THE PROGRAMS IN QUESTION. IN THE ABSENCE OF EITHER A STATUTORY REQUIREMENT OR A REQUIREMENT IN THE GRANT AGREEMENT SPECIFICALLY REQUIRING THE GRANTEE TO DO SO, THE EXPENDITURE OF FUNDS BY A GRANTEE IS NOT GENERALLY SUBJECT TO THE VARIOUS RESTRICTIONS AND REQUIREMENTS IMPOSED BY FEDERAL STATUTES, REGULATIONS, OR THE DECISIONS OF THIS OFFICE WITH RESPECT TO THE EXPENDITURE OF APPROPRIATED FUNDS BY FEDERAL DEPARTMENTS AND ESTABLISHMENTS. 36 COMP. GEN. 221 (1956); 43 COMP. GEN. 697 (1964).

SINCE NEITHER THE 1966 STATUTE, THE GRANT AGREEMENT, NOR THE D.C.PROCUREMENT REGULATIONS IN EFFECT AT THE TIME THIS PROCUREMENT WAS NEGOTIATED REQUIRE USE OF THE NEGOTIATION PROCEDURES FOR WHICH YOU CONTEND, WE SEE NO BASIS TO QUESTION THE LEGALITY OF THE AWARD IN QUESTION. WE ARE, HOWEVER, RECOMMENDING TO THE MAYOR OF THE DISTRICT OF COLUMBIA THAT IN FUTURE PROCUREMENTS OF THIS NATURE CONSIDERATION BE GIVEN TO REQUIRING USE OF ESTABLISHED NEGOTIATION PROCEDURES, SUCH AS THOSE FOR WHICH YOU CONTEND, TO THE MAXIMUM EXTENT PRACTICABLE.

FINALLY, IT SHOULD BE OBSERVED THAT, NOTWITHSTANDING THE PROCEDURES FOLLOWED IN THIS PROCUREMENT, IT APPEARS THAT ALL OFFERORS' PROPOSALS WERE EVALUATED ON THE SAME BASIS, AND THERE IS NO EVIDENCE TO SUGGEST FAVORITISM OR THAT THE ACTION OF THE COGNIZANT OFFICIALS WAS, AS YOU CONTEND, "TANTAMOUNT TO A FRAUD UPON THE BIDDERS AND THE GOVERNMENT."