BNUMBER:  B-276057 
DATE:  May 7, 1997
TITLE: Matter of:Kerry Lindahl 

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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.