BNUMBER:  B-275693
DATE:  March 17, 1997
TITLE:  Ervin & Associates, Inc.

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Matter of:Ervin & Associates, Inc.

File:     B-275693

Date:March 17, 1997

John J. Ervin for the protester.
Richard A. Marchese, Esq., Department of Housing and Urban 
Development, for the agency.
Aldo A. Benejam, Esq., and Christine S. Melody, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

1.  Contention that agency improperly conducted a limited competition 
for equity monitoring services is denied where the record shows that 
agency reasonably determined that only a limited number of sources 
were capable of meeting the agency's urgent requirements and the 
urgency was not the result of a lack of advance planning.

2.  Allegation that agency improperly failed to solicit the protester 
in limited competition for equity monitoring services is denied where 
there is no evidence in the record that prior to issuing the 
solicitation, contracting officials either knew or should have known 
of the protester's capability or interest in performing the urgently 
required services.

DECISION

Ervin & Associates, Inc. protests the decision by the Department of 
Housing and Urban Development (HUD) to limit the number of sources 
solicited under request for proposals (RFP) No. DU100C000018545 for 
equity monitoring services for the Federal Housing Administration 
(FHA).  Ervin argues that HUD's need to limit the competition was the 
result of a lack of advance planning by the agency.  The protester 
also maintains that since HUD knew of its capability to provide these 
services, HUD improperly failed to solicit the firm.

We deny the protest.

BACKGROUND

The purpose of the procurement is to obtain an equity monitoring 
contractor for the FHA's "Class B Trust Certificate" interests.  The 
Trust is the result of a sale of what is referred to in the record as 
"partially-assisted" multifamily mortgages.  This is a structured 
financing arrangement whereby HUD transferred 157 mortgages with an 
unpaid principal balance of approximately $850 million to the Trust.  
The mortgages are formerly FHA-insured, fully amortizing mortgages at 
varying levels of delinquency, secured by first liens on multifamily 
properties.  At the conclusion of the transaction, HUD retains a 
minimum of 30 percent of the beneficial interest in the Trust.

The agency states that in May 1995, FHA proposed a structured 
transaction to dispose of the portfolio of the mortgages involved 
here, modeled after a program conducted by the Resolution Trust 
Corporation (RTC), referred to as the RTC's "N-Series program."  The 
record indicates that HUD had finalized its decision to proceed with 
the transfer of the mortgages to the Trust by the fall of 1995.  At 
about the same time, HUD also determined that HUD's equity interest as 
a result of the transfer of the mortgages to the Trust would require 
monitoring.

In January 1996, HUD set mid-April as the date by which the 
partially-assisted note sale and, thus, the transfer of the mortgages 
to the Trust, would be completed.  Since the RTC had recently 
undergone a similar process with the N-Series program, and since HUD 
had no prior experience with this type of transaction, HUD turned to 
the RTC for guidance with the transaction and for assistance in 
identifying the  responsibilities and functions of an equity monitor.  
During February, HUD met with RTC program managers and with one of the 
RTC's current equity monitors to discuss the functions and 
responsibilities of an equity monitor.  HUD states that as a result of 
those meetings, it became evident that there were only a limited 
number of sources experienced and qualified in providing equity 
monitoring services.

In March 1996, HUD determined that the equity monitor would have to be 
in place by the time the mortgage transfers were completed in order to 
ensure that HUD's equity interest was protected.  In other words, the 
agency's goal was to complete the mortgage transfers concurrent with 
the award of a contract for the equity monitoring services.  According 
to HUD, however, the agency would require 6-12 months to complete a 
procurement for an equity monitor using full and open competitive 
procedures.  With the mortgage transfers rescheduled to be completed 
in June, less than 3 months away, the agency decided that a 
competitive procurement would not be feasible and explored several 
other approaches to meeting its requirement.  In view of the RTC's 
recent experience with its "N-Series" program, HUD decided to request 
that the RTC identify firms experienced in equity monitoring work.  

In response, the RTC identified nine firms that it believed capable of 
providing equity monitoring services.  Seven of those firms had 
recently submitted technically acceptable proposals in response to an 
unrestricted solicitation for equity monitoring services for the RTC.  
The other two firms identified by the RTC had performed several equity 
monitoring contracts for the RTC.  According to HUD, all firms 
identified were deemed by the RTC to have the requisite background, 
capability, and experience to perform the equity monitoring work 
required by HUD.  Ervin was not one of the firms the RTC 
identified.[1]

On June 25, 1996, HUD prepared a justification and approval (J&A) 
document based on a finding of urgent and compelling circumstances 
under the authority of 41 U.S.C  sec.  253(c)(2) (1994).  The J&A stated 
that due to the urgency of the procurement and the specialized nature 
of the required work, the competition would be limited to the nine 
firms identified by the RTC as being uniquely qualified to perform the 
work.  The J&A also stated that future equity monitoring services 
would be procured using fully competitive procedures.

The RFP, issued on June 27, contemplated the award of a fixed-price 
contract for a 1-year period.  The principal task under the RFP is to 
provide oversight to ensure that the Trust is managed consistent with 
the terms of the transaction documents, so that FHA receives the 
maximum recovery of its interest in the Trust.

Of the nine firms solicited, only two responded to the RFP.  Both 
firms made oral presentations to HUD; the agency conducted discussions 
with each firm immediately following their oral presentations; and 
requested and received best and final offers (BAFO) from both.  The 
agency subsequently submitted written discussion questions to both 
firms and reevaluated BAFOs based on their responses to these items.  
On September 30, the agency awarded the contract to the firm of 
Alschuler, Melvoin and Glasser, L.L.P. for a 12-month period in the 
amount of $700,000.  This protest to our Office followed an 
agency-level protest which HUD denied.

PROTESTER'S CONTENTIONS

The protester argues that the urgency of the procurement was the 
result of a lack of advance planning by HUD contracting officials, 
and, thus, that the agency's decision to limit the competition was not 
justifiable.  In this connection, Ervin contends that the agency 
either knew or should have known as early as August 1994 that it 
required equity monitoring services.  Ervin contends that HUD could 
have met its requirement for equity monitoring services on a fully 
competitive basis had it not delayed finalizing the functions and 
responsibilities of the equity monitor until March 1996, by which time 
it was too late to proceed on a competitive basis.

Ervin also contends that the agency improperly excluded it from the 
limited competition.  In this connection, the protester states that 
for the last 6 years, it has performed numerous multifamily housing 
services contracts for HUD and asserts that Ervin is well known to HUD 
as an expert in all aspects of multifamily housing.

DISCUSSION

An agency may use other than competitive procedures to procure goods 
or services where its needs are of such an unusual and compelling 
urgency that the government would be seriously injured if the agency 
is not permitted to limit the number of sources from which it solicits 
proposals.  41 U.S.C.  sec.  253(c)(2).  When citing an unusual and 
compelling urgency, the agency is required to request offers from "as 
many potential sources as is practicable under the circumstances."  41 
U.S.C.  sec.  253(e); Federal Acquisition Regulation  sec.  6.302-2(c) (FAC 
90-31).  An agency using the urgency exception may restrict 
competition to the firms it reasonably believes can perform the work 
in the available time.  RSO, Inc., B-250785.2; B-250785.3, Feb. 24, 
1993, 93-1 CPD  para.  489.  We will not object to the agency's 
determination to limit the competition based on an unusual and 
compelling urgency unless the agency's determination lacks a 
reasonable basis.  Jay Dee Militarywear, Inc., B-243437, July 31, 
1991, 91-2 CPD  para.  105, recon. denied, B-243437.2, Oct. 24, 1991, 91-2 
CPD  para.  366.

We first consider the protester's contention that HUD's need to limit 
the competition was the result of a lack of advance planning on the 
part of procurement officials.  In this regard, award of a contract 
using other than competitive procedures may not be made where the 
urgency cited as the justification was the result of a lack of advance 
planning by contracting officials.  41 U.S.C.  sec.  253(f)(5); Magnavox 
NAV-COM, Inc., B-248501, Aug. 31, 1992, 92-2 CPD  para.  143.  Here, the 
record does not support the protester's assertion that HUD's need to 
limit the competition was the result of a lack of advance planning.

The record shows that in order to ensure that FHA's equity interests 
resulting from the partially-assisted note sale were adequately 
protected, HUD required that the equity monitoring contractor be in 
place concurrent with the transfer of the mortgages to the Trust, 
which was scheduled to be completed by June 1996.  The record also 
shows, however, that the agency would require 6-12 months to complete 
a procurement on a full and open basis.  The protester does not 
dispute the agency's conclusions in this regard.

Further, the record does not support the protester's contention that 
HUD first recognized the need for an equity monitor as early as August 
1994.  The protester asserts that because it was around that time that 
financial consultants first advised HUD on the details of the 
structured transaction (i.e., the mortgage transfers to the Trust), 
they should have informed HUD at that time of the need for a 
contractor to monitor its equity interests in the Trust.

Contrary to the protester's assertion, the record does not show that 
HUD's financial advisors informed HUD of the need for equity 
monitoring services in 1994.  What the record does show is that HUD 
did not recognize the need for equity monitoring services until the 
fall of 1995, at the earliest, when it finalized its strategy to 
proceed with the mortgage transfers.  The record further shows that 
once that decision was made, HUD officials took steps to identify the 
agency's specific needs and determine the functions and 
responsibilities of an equity monitor, using as a model the RTC's 
"N-Series" program.  In an effort to gather information about the 
contemplated transaction, HUD officials met with RTC program managers 
and with a private firm under contract with the RTC to provide equity 
monitoring services.  As a result of those meetings, HUD firmed up its 
strategy and finalized its requirement for the equity monitor services 
some time in March 1996.  Since
the services required here are highly specialized in nature and HUD 
had no prior experience procuring these services, we fail to see how 
HUD's actions reflect a lack of advance planning.  To the contrary, 
HUD's approach appears to have been a reasonable one under the 
circumstances.  

Indeed, HUD's efforts here are in marked contrast to those taken in 
various situations where we sustained protests because the agency 
failed to take the appropriate steps to plan for the procurement.  
Eg., TLC Servs., Inc., B-252614, June 22, 1993, 93-1 CPD  para.  481; 
Laidlaw Envtl. Servs. (GS), Inc.; Int'l Technology--Claim for Costs, 
B-249452; B-250377.2, Nov. 23, 1992, 92-2 CPD  para.  366; Service 
Contractors, B-243236, July 12, 1991, 91-2 CPD  para.  49.  In each of the 
cases cited, it was clear that the agency either knew or should have 
known of its requirement well in advance, such that with proper 
planning, it had sufficient time to conduct a competitive procurement.  
Here, given the limited amount of time between when HUD first 
recognized the need for the equity monitor services (fall 1995) and 
when HUD had planned to have the equity monitor in place (June 1996), 
and in light of the agency's efforts during that relatively short 
period, there is simply no basis to conclude that the limited 
competition approach was the result of a lack of advance planning.

Ervin also points out that the J&A states that HUD required that the 
equity monitor be in place by June 1996, but that HUD delayed the 
award until September, allegedly showing that the "urgency" cited in 
the J&A as a justification for limiting the competition did not 
actually exist.

As explained above, although a determination was made in March 1996 
that the equity monitor contract should be in place by June, in fact 
the RFP was not issued until late June.  The record shows that the 
delay in issuing the RFP was due to HUD's efforts to identify firms 
capable of providing the required services, not to any change in the 
perceived urgency of the need for the services.  Similarly, while the 
award was not made until September 30, any delays in the evaluation 
process--for example, the agency decided to reopen discussions with 
both offerors who responded to the RFP--were due to circumstances that 
arose during the evaluation and selection process which the agency 
could not have foreseen.  Accordingly, given the reasons for the delay 
in making award until September, there simply is no basis in this 
record to conclude that the delay shows that the agency's need for 
these services was not urgent.

Ervin contends that HUD officials should have known of Ervin's 
interest and capability to provide the equity monitor services, and, 
thus, should have solicited the firm.  In this connection, the 
protester asserts that for the last several years, it has performed 
numerous multifamily housing services contracts for HUD, which should 
have alerted contracting officials to the firm's interest and 
capability of performing the equity monitoring services required here.  
The protester asserts that its president is a certified public 
accountant (CPA) and that at the time of this procurement, Ervin 
employed several CPAs and other individuals with financial and real 
estate experience, all of whom are capable of performing the contract.

HUD explains that the work Ervin has performed under its multifamily 
housing services contracts is essentially different from the 
specialized work required under the equity monitoring contract.  For 
instance, the principal task of the equity monitor is to provide 
administrative oversight to ensure that the Trust is managed 
consistent with the terms of the transaction documents so that FHA 
receives the maximum recovery of its interest in the Trust.  The 
contractor is to review operating statements, budgets, audits and 
other reports, and other financial information required to be 
submitted under the terms of the Trust.  The equity monitor is to 
perform cash as well as asset monitoring and management, and is also 
responsible for reviewing the servicing and legal files related to the 
underlying collateral business plans, budgets, operating statements, 
balance sheets, audit reports, tax reports, and other information 
issued by the Trust.

By contrast to the tasks listed above, Ervin's prior contracts were to 
provide technical assistance in the areas of multifamily real estate 
finance, mortgage loan servicing, and property management, including 
property acquisition and disposition.  Ervin was also responsible for 
evaluating the likelihood of bringing defaulted mortgages current, and 
for conducting detailed inspections of the conditions of the various 
buildings, grounds, and mechanical systems.

Based on our review of the record, including the statements of work of 
the contracts Ervin has performed in the past, we conclude that HUD 
contracting officials had no reason to have known that Ervin was 
either qualified or interested in performing the equity monitoring 
services.  While some tasks that Ervin has performed arguably overlap 
with the responsibilities of the equity monitor (e.g., reviewing 
annual financial statements), overall, the expertise required to 
perform the equity monitoring contract is specialized in nature in 
that it primarily calls for extensive analyses of complex financial 
transactions.  The fact that Ervin employees possessed professional 
degrees in accounting and real estate financing does not change the 
fact that the tasks required here differ significantly from those 
Ervin has performed under the multifamily housing services contracts, 
which primarily involve property management (i.e., physical 
inspections, property disposition, etc.).  Thus, we fail to see why 
HUD knew or should have known that Ervin was capable of providing the 
services required here and accordingly, we have no basis upon which to 
object to the agency's failure to solicit Ervin.

Finally, the protester maintains that the reason HUD did not solicit 
the firm for this contract was because it was retaliating against 
Ervin for its efforts to uncover alleged procurement irregularities at 
HUD.  Since the record reasonably supports the agency's decision to 
not solicit Ervin for this procurement, we need not reach the question 
of whether HUD contracting officials were biased against Ervin.[2] 

The protest is denied.

Comptroller General
of the United States

1. At a conference held in our Office, Ervin conceded that it has 
never submitted a proposal to the RTC for equity monitoring services; 
nor does the protester argue that the RTC should have included the 
firm in the list of sources it provided to HUD. 

2. We note that Ervin has a lawsuit pending, Ervin and Associates, 
Inc., et al. v. 
Helen Dunlap, et al., Civil Action No. 96-CV1253, which includes 
allegations that HUD is retaliating against Ervin by "blackballing" 
the firm from competing for HUD contracts, as well as allegations of 
bias, bad faith, and procurement irregularities at HUD.  The equity 
monitoring services contract that is the subject of this protest is 
not directly at issue in the lawsuit.