BNUMBER: B-276057
DATE: May 7, 1997
TITLE: Matter of:Kerry Lindahl
**********************************************************************
Matter of:Kerry Lindahl
File: B-276057
Date:May 7, 1997
Kerry Lindahl, the protester.
Friedrich St. Florian, an intervenor.
Harmon R. Eggers, Esq., and Lydia R. Kupersmith, Esq., General
Services Administration, 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. Protester which entered design competition for the National World
War II Memorial is an interested party to challenge the selection of a
designer on the basis that the agency improperly reduced the amount of
below-grade interior space allegedly required to be included in the
design of the Memorial, notwithstanding that agency did not consider
protester's late entry, since if the protest were sustained, the
appropriate remedy would be a resolicitation under which the protester
could compete.
2. Allegation that in selecting a final design for the National World
War II Memorial contracting agency may not significantly change the
amount of space required to be included in entries in the preliminary
design competition--on the basis of which the designer finalist was
selected--is denied where, when read in the context of the purpose of
the competition, nothing in the Commerce Business Daily notice
publicizing the design competition or in a program brochure
distributed by the contracting agency to potential entrants can
reasonably be read to limit the agency, in selection of a final
design, to the physical characteristics listed as parameters for the
preliminary design competition.
DECISION
Kerry Lindahl protests the selection of Friedrich St. Florian as the
architect with whom to negotiate an architect-engineer (A-E) contract
under solicitation
No. GS-11P-96-AQC-0017. The solicitation was issued by the General
Services Administration (GSA) on behalf of the American Battle
Monuments Commission (ABMC), for design and other A-E services in
connection with the National World War II (WWII) Memorial. The
protester contends that after announcing the competition, GSA
improperly made a material change in the requirements for the design
of the Memorial by reducing the amount of below-grade interior space
initially called for, without affording all competitors an opportunity
to submit a new design responding to GSA's revised space requirements.
We deny the protest.
BACKGROUND
The design competition, classified by GSA as a procurement of A-E
services, is governed by the Brooks Act, 40 U.S.C. sec. 541-544 (1994),
and the implementing provisions of Federal Acquisition Regulation
(FAR) subpart 36.6. These authorities require agencies to publicly
announce their A-E requirements, listing general and project-specific
evaluation criteria; appoint A-E evaluation boards to review
qualification statements already on file, as well as those submitted
in response to the synopsis; and evaluate and rank at least three
firms on a short list for further contract negotiations in order of
ranking. See generally FAR subpart 36.6; Geographic Resource
Solutions, B-260402, June 19, 1995, 95-1 CPD para. 278 at 2. In
accordance with these requirements, the agency announced the design
competition in the Commerce Business Daily (CBD) on June 11, 1996.[1]
GSA synopsized the evaluation criteria and requested interested firms
to submit a completed standard form (SF) 254 (A-E and Related Services
Questionnaire), and SF 255 (A-E and Related Services for Specific
Project Questionnaire), in accordance with FAR sec. 36.603(b) (FAC
90-29). The synopsis constituted the solicitation.
The Memorial is to be located in Washington, D.C., between the Lincoln
Memorial and the Washington Monument, at a site referred to as the
Rainbow Pool, extending from the east end of the Reflecting Pool to
17th Street. The CBD announcement explained that the selection
process was to be conducted in two stages. In Stage I, in addition to
qualifications data, designers were to submit a sketch or graphic
illustrating their preliminary design vision for the WWII Memorial, in
either black and white or color, mounted on a foam core board, and a
narrative description of their intention and philosophy as related to
the proposed Memorial. Stage I submissions were to be evaluated for
originality, appropriateness, feasibility, and compliance with the
project requirements contained in a "Preliminary Program Brochure"
(the Brochure) available from GSA. At the conclusion of the Stage I
evaluations, the agency was to select at least five designers to
proceed to Stage II of the competition and participate in a more
detailed conceptual design competition.
More than 400 entries, including the protester's, were submitted for
consideration in Stage I. An A-E board and a design jury evaluated
the qualifications data and initial submissions and selected six
designers to proceed to Stage II. Mr. Lindahl's entry was not
selected for further consideration.[2]
By letter dated August 21, the agency informed all unsuccessful
designers of the results of the Stage I competition. The agency then
provided the six Stage II competitors with another brochure, which
contained more specific information related to architectural,
landscaping, and water elements, as well as ceremonial, memorial, and
musical components to be considered in designing the Memorial. The
Stage II brochure also contained more detailed project requirements
related to physical aspects of the Memorial (e.g., size, height,
topography, accessibility, etc.). Based on their consideration of the
Stage II submissions, the evaluators recommended that St. Florian be
selected for further negotiations to design the Memorial; the ABMC
accepted that recommendation. St. Florian's selection was announced
at a White House ceremony on January 17, 1997.
As relevant to this protest, a newspaper article publicizing the event
described St. Florian's design as including four interior rooms for
"'presentational and educational space' as called for by the ABMC" but
noted that "[w]hat will be placed in the four interior rooms . . . is
yet to be decided."[3] The article also quoted an ABMC official as
stating that "[o]ur own thinking has been changed, and we're scaling
down the amount of enclosed space considerably from initial
estimates." The article further stated that the ABMC had "already
removed one sizable element, a 400-seat auditorium that was required
in all of the competing designs." According to the quoted official,
"[ABMC] just began to question who would use it, would operate it,
[and] what was the real need." Following publication of the article,
Mr. Lindahl filed this protest in our Office.
PROTESTER'S CONTENTION AND AGENCY POSITION
Mr. Lindahl argues that after announcing the Stage I competition, GSA
improperly made a material change in the design requirements. Mr.
Lindahl contends that the Brochure required that the Stage I sketches
include 7,400 square meters (SM) of below-grade interior space in the
Memorial. According to the protester, based on the newspaper article
publicizing the selection decision, St. Florian's design will be
substantially "scaled down" to include only about 4,900 SM of
below-grade interior space. Mr. Lindahl asserts that this proposed
reduction is significant and requires GSA to cancel the solicitation
and resolicit based on the revised below-grade, interior space
requirements.
The agency does not dispute that the amount of below-grade interior
space included in the final design of the Memorial, such as the
auditorium facility, will probably be reduced from that originally
proposed by St. Florian. GSA essentially argues, however, that the
purpose of the competition was to select a designer, not a final
design for the Memorial, adding that the design of this or any
memorial of this magnitude is essentially an evolutionary process. As
such, the agency expects that the Memorial design inevitably will
undergo several revisions and refinements as the project proceeds from
an initial, preliminary design stage to a final approved monument.
DISCUSSION
Interested Party
The CBD announcement stated that Stage I entries were to be received
at a designated room at GSA by 2:30 p.m. on August 12, 1996. It is
undisputed that Mr. Lindahl attempted to deliver his entry to the
designated room on August 13, sometime after 4:00 p.m. Finding that
room closed, Mr. Lindahl delivered his entry to the contracting
office, where a GSA employee accepted it and marked it as late. GSA
did not consider Mr. Lindahl's late entry, but states that due to the
sheer number of Stage I entries, it inadvertently failed to notify Mr.
Lindahl that his submission had been rejected as late.
GSA relies on our decision in Flight Resources Inc., 65 Comp. Gen. 619
(1986), 86-1 CPD para. 518, to argue that since the protester's Stage I
entry was late, and therefore ineligible for further consideration in
Stage II, Mr. Lindahl lacks the requisite interest under our Bid
Protest Regulations to maintain the protest.
Under the bid protest provisions of the Competition in Contract Act of
1984, 31 U.S.C. sec. 3551-3556 (1994), as amended by Pub. L. No.
104-106, sec. 4321(d), 5501, 5603, 110 Stat. 186, 674, 698, 700 (1996),
only an "interested party" may protest a federal procurement. That
is, a protester must be an actual or prospective supplier whose direct
economic interest would be affected by the award of a contract or the
failure to award a contract. 4 C.F.R. sec. 21.0(a) (1997). Determining
whether a party is interested involves consideration of a variety of
factors, including the nature of the issues raised, the benefit of
relief sought by the protester, and the party's status in relation to
the procurement. Black Hills Refuse Serv., 67 Comp. Gen. 261, 262
(1988), 88-1 CPD para. 151 at 2-3.
The facts in Flight Resources Inc., supra, are distinguishable from
the instant case. That decision involved a procurement for the
operation of a general aviation service facility at Washington
National Airport. Unlike the design competition conducted by GSA
under FAR subpart 36.6, the procurement in Flight Resources Inc. was
conducted using the two-step, sealed bidding procedures set forth at
FAR subpart 14.5. Under those procedures, step one consists of a
request for technical proposals without price to determine the
acceptability of the supplies or services offered. Step two involves
the submission of sealed bids by those firms that submitted acceptable
technical proposals in step one. Award is then made to the
responsible bidder with the lowest responsive bid in accordance with
FAR subpart 14.4.
Flight Resources submitted its step one proposal late; consequently,
the firm's proposal was not eligible for further consideration. In
its subsequent protest to our Office, Flight Resources alleged that in
negotiations following step one, the agency had significantly changed
its needs, which required that the agency cancel the solicitation and
resolicit the requirement. The basis for the protester's allegation
was that, apparently for evaluation purposes, the agency had placed a
ceiling on the amount of investment in fixed improvements and
operating facilities offerors would make if awarded the contract.
We found that since Flight Resources's technical proposal was properly
rejected as late and since, under FAR sec. 14.501, only those offerors
that submitted acceptable step one proposals could participate in step
two, only those offerors had a legitimate interest in the results of
the evaluation. Accordingly, we concluded that Flight Resources was
not an interested party to maintain the protest because, even if we
had sustained the protest, the appropriate remedy would have been to
reevaluate (without the alleged investment ceiling) only the proposals
of those offerors eligible for participation in step two. Since the
agency properly rejected Flight Resources's technical proposal as
late, the firm's proposal would not have been eligible for
reevaluation and, thus, Flight Resources would not have been eligible
for award.
By contrast here, if we were to sustain the protest, the appropriate
remedy would be for GSA to cancel the solicitation and issue a new
solicitation with revised space requirements. See, e.g., Denwood
Properties Corp., 72 Comp. Gen. 181, 182 (1993), 93-1 CPD para. 380 at 3;
CV Assocs.--Recon., B-243460.2, Aug. 20, 1991, 91-2 CPD para. 171 at 2;
120 Church St. Assocs., B-232139.5, Feb. 28, 1990, 90-1 CPD para. 244 at 4
(in each of these cases, the agency reasonably canceled a solicitation
for leased space where its advertised space requirements either
significantly decreased or increased after issuing the solicitation).
Since Mr. Lindahl would have the opportunity to compete under a new
solicitation, he is an interested party to maintain the protest. 3M
Deutschland GmbH, B-221841, May 20, 1986, 86-1 CPD para. 473 at 3.
Analysis
At issue here is whether the Brochure provided that the final design
for the Memorial would include a specified, pre-established amount of
below-grade, interior space. As relevant here, the Brochure stated as
follows:
"The WWII Memorial is intended to convey, through a variety of
means and art forms, the meaning of WWII to America and the
[w]orld. This objective may be met in part by above-grade,
unenclosed, architectural and other design elements.
Below-grade interior space should be included in the design to
provide for special rooms or halls of honor and remembrance,
multimedia interactive educational facilities, an auditorium
theater and a visitor information center. The estimated space
needed for these purposes is approximately 7400 SM. . . . "
Mr. Lindahl concedes that it was reasonable to assume that GSA
ultimately would allow some deviation in the amount of below-grade
interior space to be included in the Stage I designs. He maintains,
however, that a reduction from 7,400 SM, as announced in the Brochure,
to 4,900 SM, as proposed to be included in St. Florian's final design,
is a material change not contemplated by the Brochure. Mr. Lindahl
maintains that had he known that the agency required only 4,900 SM of
below-grade, interior space for the Memorial, his original conceptual
design (and presumably those of other Stage I participants) would have
been significantly different.[4]
A solicitation must be read as a whole and in a reasonable manner,
giving effect to all its provisions. Crown Logistics Servs.,
B-253740, Oct. 19, 1993, 93-2 CPD para. 228 at 6. Here, while the agency
did not issue a "solicitation" in the form of a request for proposals
or invitation for bids, we think that the same principle applies with
respect to the language in the Brochure and the CBD notice announcing
the competition since the CBD notice was the solicitation and it
referenced the Brochure.
In announcing the design competition, the Brochure emphasized that
"[t]he [ABMC], rather than prescribing a mandatory design program
for the WWII Memorial, prefers to offer the fullest opportunity
for the design professions to interpret and develop a composition
of civic design elements to achieve a result worthy of the event,
of those being remembered, and of the Memorial's incomparable
setting. In design, the [ABMC] asks only for the highest quality
of artistry, spiritual substance, and respect for the Memorial's
environs."
The Brochure went on to explain that
"[t]he purposes and philosophy underlying the [WWII] Memorial
serve as broad guidelines for its design. It is to honor and
express the nations's deep and enduring respect and gratitude to
all the American men and women who served in the United States
Armed Forces during WWII, those who gave their lives as well as
those who survived. Without hubris or vainglory, the [M]emorial
should convey a sense of remembrance and national pride,
fortitude, valor, suffering and sacrifice of its fighting forces
and their heroic accomplishments.
. . . . .
The design challenge is to strive to capture in architectural
form, memorial art, inscribed words and landscaped setting, the
stirring spirit and meaning of this unique moment in American
history, a moment in time which, in profound ways, changed
forever the face of American life and the direction of world
history."
The Brochure further emphasized that while the strong presence of
other monuments near the site (e.g., the Washington Monument, the
Lincoln and Jefferson Memorials, the White House, and the Mall itself)
provides a context to which designers of the WWII Memorial may wish to
respond, "the choice of design, philosophy and style guiding the
proposed memorial design are to be the prerogative of the designer."
In our view, it is clear from the Brochure that the purpose of the
competition was to select a designer--rather than a final
design--based on the creative talent and design vision shown in the
initial submissions. We recognize that the Brochure contained
references to the type and amount of space to be included in the
initial designs, stating that "[d]esigned enclosed interior space for
the [M]emorial should be provided below grade . . . " and that "[t]he
estimated space needed for these purposes is approximately 7,400 SM."
When read with the purpose of the competition in mind, however, we
think that the only reasonable interpretation is that these provisions
were intended to serve as a common framework against which preliminary
designs could be--and in fact were--judged. Nothing in the CBD
announcement or the Brochure indicated that in selecting an architect
for further negotiations following Stage II of the competition, the
government was bound or otherwise limited by the information in the
Brochure in selecting a final design.[5]
Moreover, while St. Florian has been selected as the architect for
negotiating a contract based in part on his proposed design, the
design approval and construction process involves several federal
agencies and authorities, all of which could recommend further changes
to the plans for the Memorial. For instance, the Commemorative Works
Act of 1986, 40 U.S.C. sec. 1001-1010 (1994), requires that the ABMC
consult with the National Capital Memorial Commission regarding the
site location and the design of the Memorial. 40 U.S.C. 1007(a)(1).
Additionally, the Secretary of the Interior or the Administrator of
General Services is required to submit site and design proposals to
the Commission of Fine Arts and the National Capital Planning
Commission for their approval. 40 U.S.C. sec. 1007(a)(2). As the
protester recognizes, any one, or several, of these authorities could
recommend a myriad of changes to the design before the final plans for
the Memorial are agreed upon and approved.[6] This statutory scheme,
which vests several entities with authority to recommend changes to
and ultimately approve the final design of the Memorial, further
supports our conclusion that the design competition was not intended
to select a final, static design for the Memorial, but rather to serve
as the starting point of an evolutionary process which ultimately
could result in changes to the preliminary Stage I designs submitted
in response to the Brochure.
In sum, given the purpose of the Brochure--i.e., to provide general
information about the project and guidance on submitting Stage I
entries--and in light of the nature of the design competition--to
select a designer based on demonstrated abilities, qualifications, and
artistic talent--there is no basis for our Office to object to the
modification to the amount of below-grade interior space in the design
of the Memorial.
The protest is denied.
Comptroller General
of the United States
1. The competition was initially announced in a CBD notice published
April 19, subsequently amended on May 17, and superseded by the June
11 CBD announcement.
2. As discussed further below, Mr. Lindahl's entry in fact was
submitted after the time set for receipt of entries.
3. Benjamin Forgey, World War II Memorial Design Unveiled, Washington
Post, January 18, 1997, at A1.
4. Mr. Lindahl also contends that the requirement for an estimated
7,400 SM of below-grade interior space and other provisions in the
Brochure needed clarification or rewording to be unambiguous and more
precise. These arguments, which essentially take issue with the
language contained in the Brochure, are untimely and will not be
considered. If Mr. Lindahl believed that any aspect of the Brochure
was unclear, he was required to raise those objections prior to the
time established for submission of initial Stage I entries. Bid
Protest Regulations, 4 C.F.R. sec. 21.2 (a)(1).
5. The Brochure's reference to the below-grade interior space in
relatively imprecise terms--as "estimated space" and "approximately"
7,400 SM--lends support to our conclusion that the government was not
bound by this figure, nor expected designs to include a specified
amount of below-grade interior space.
6. As an additional part of the design approval and construction
process, the requirements of the National Environmental Policy Act of
1969, 42 U.S.C. sec. 4321-4370d (1994), and the National Historical
Preservation Act of 1966, 16 U.S.C. sec. 470-470x-e (1994), must also be
satisfied.