TITLE:  Medlin Construction Group, B-286166, November 24, 2000
BNUMBER:  B-286166
DATE:  November 24, 2000
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Medlin Construction Group, B-286166, November 24, 2000

Decision

Matter of: Medlin Construction Group

File: B-286166

Date: November 24, 2000

David F. Barton, Esq., The Gardner Law Firm, for the protester.

Wilson J. Campbell, Esq., Naval Facilities Engineering Command, for the
agency.

Jennifer D. Westfall-McGrail, Esq., and Christine S. Melody, Esq., Office of
the General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Where request for proposals (RFP) for design and construction of physical
fitness centers did not require offerors to submit with their proposals
fully developed drawings demonstrating compliance with all RFP requirements,
but provided for further development of successful offeror's design after
award and required successful offeror to comply with all RFP requirements
regardless of whether or not such compliance was shown in the drawings
submitted with its proposal, agency was not required to reject proposal as
technically unacceptable because its drawings failed to show every detail
required.

DECISION

Medlin Construction Group protests the award of a contract to James N. Gray
Company under request for proposals (RFP) No. N62474-99-R-6089, issued by
the Department of the Navy for the design and construction of two physical
fitness centers at the Naval Air Station, Lemoore, California. The protester
contends that Gray's proposal did not comply with the terms of the RFP.

We deny the protest.

BACKGROUND

The RFP calls for the design and construction of two physical fitness
centers (PFC), one of approximately 5,410 square meters in the station's
Administrative area and the other of approximately 575 square meters in the
station's Operations area. The

project also includes the rehabilitation of an existing outdoor swimming
pool and the demolition of the existing PFC.

The solicitation, which used the two-phase design-build selection procedures
outlined in Federal Acquisition Regulation Subpart 36.3, contemplated award
of a fixed-price contract to the offeror whose offer was determined to be
most advantageous to the government, considering price and technical
evaluation factors. Phase One technical evaluation factors, which were to be
used to select the five most highly qualified offerors to participate in
Phase Two, were (1) past performance,
(2) corporate and key personnel experience, and (3)(a) past commitment to
small business (for large businesses only). Phase Two technical evaluation
factors were (3)(b) proposed commitment to small businesses, (4) gymnasium
design, (5) site design, and (6) building systems and materials. RFP,
Document 00202, para. 1.2, 2. Several subfactors were listed under each of the
three final factors. [1] The six technical evaluation factors carried
approximately equal weight, and the technical evaluation factors, when
combined, were approximately equal in weight to price. Id. para. 1.3.

The RFP requested prices for seven items: a base item, which represented the
minimum project requirements, and six "desirable" items, which represented

upgrades to the minimum requirements. [2] Offerors were advised that a
budget of $13,830,000 was available for the contract, and that the agency
was interested in obtaining desirable items to the extent possible within
the budgeted amount.

The solicitation included detailed design and construction requirements.
Offerors were instructed to include in their Phase Two technical proposals a
basis of design report, describing their design solutions and explaining
their compliance with the project requirements outlined in the RFP. Id. para.
3.2.2.b. In addition, offerors were instructed to submit site and building
plans and technical information, such as catalog cuts and manufacturer's
literature, describing items such as flooring, roofing, windows, and
plumbing fixtures that they proposed to furnish. Id.

The Navy received the Phase One proposals on February 25, 2000 and, after
evaluation, selected the five most highly qualified offerors to participate
in Phase Two. Phase Two proposals were received on June 6. After evaluating
the proposals, the Navy eliminated two offerors from the competitive range.
On July 7, the agency opened discussions with the three remaining firms,
Gray, Medlin, and Offeror A, by forwarding them questions regarding their
offers via e-mail.

On July 12, Medlin notified the contracting officer that it had received
another offeror's discussion questions in addition to its own. Upon review,
the Navy discovered that it had inadvertently forwarded Offeror A's
discussion questions to Medlin and Gray, as well as to Offeror A, and that
it had furnished Medlin's discussion questions to Gray, as well as to
Medlin. (Offeror A received only its own questions.)

The contracting officer determined that the Navy had violated procurement
regulations by disclosing offerors' discussion questions to other offerors
and conducted a conference call with representatives of the three firms to
determine whether this impropriety could be resolved in a manner that would
satisfy the parties and protect the integrity of the procurement process.
The parties, none of whom wished to see the solicitation cancelled, agreed
that an appropriate solution to the unauthorized disclosure would be award
on the basis of initial proposals. The Navy subsequently determined,
however, that award on the basis of initial proposals was not feasible
because discussions had taken place and because all of the offers contained
significant deficiencies. Accordingly, the contracting officer contacted the
three firms again and advised them that the only acceptable course of
action, other than cancellation of the solicitation, would be to release the
discussion questions and initial total price of each offeror to the other
two offerors. According to the agency, "[t]he offerors still did not want
the Navy to cancel the solicitation, so they agreed to the release of the
discussion questions and initial total price to each other." Agency Report,
Sept. 28, 2000, at 6.

The above information was released to the offerors on July 19. Responses to
the discussion questions were received on July 26, and final proposal
revisions were received on July 28.

Taking into consideration both the Phase One and Phase Two evaluation
factors, the evaluators assigned Gray's technical proposal an overall rating
of "Good +" and Medlin's proposal an overall rating of "Good --." Id. at 7.
Gray's final price was $12,807,075, and Medlin's was $11,800,000. The source
selection authority determined that the technical superiority of Gray's
proposal warranted its higher price and selected Gray's offer as the one
most advantageous to the government. On July 31, the Navy awarded Gray a
contract.

On August 18, Medlin submitted a Freedom of Information Act request for a
copy of Gray's initial proposal. During an August 24 telephone conversation,
Medlin clarified that the design drawings and renderings would be sufficient
in lieu of the entire proposal. The Navy furnished a copy of the drawings
and renderings initially proposed by Gray to Medlin on August 25. On August
28, Medlin filed its protest with our Office.

ANALYSIS

Medlin contends that Gray's proposal ought to have been considered
unacceptable because Gray's design drawings fail to demonstrate compliance
with a number of the solicitation's requirements. Medlin argues that Gray's
drawings fail to show a paved fire fighting access ring road around the
Administrative PFC, as required by the RFP; [3] the type of double curtain
shower stalls required by the RFP; [4] and the required minimum number of
lockers. [5] The protester also argues that Gray's drawings do not show
locker rooms located on the perimeter of the Administrative PFC, as required
by the RFP. [6]

The Navy maintains that Gray was not required to demonstrate compliance with
these requirements in the drawings that it submitted with its proposal
because the drawings submitted with the proposal are conceptual designs
only, with details to be added after award. The Navy contends that Gray's
site plan showed adequate area for a fire fighting equipment access surface
around the building's perimeter and that its building plans showed adequate
area in the locker rooms for the required shower stalls and lockers, which
was sufficient.

We agree that Gray was not required to demonstrate detailed compliance with
the above requirements in the drawings that it submitted with its proposal.
There was no requirement in the RFP that offerors submit as part of their
proposals fully developed drawings demonstrating compliance with each of the
solicitation's requirements. To the contrary, the solicitation clearly
contemplated that further development of the successful offeror's design
would take place after award. For example, the RFP provided as follows at
section 01331, para. 1.4:

After Award of contract the Contractor shall:

  a. Prepare design drawings and project specifications for construction of
     the facility;
  b. Prepare design analyses (basis of design and calculations) supporting
     the design shown;
  c. Coordinate all elements of the design to ensure there are no conflicts;
  d. Present progress information in 45% submittal. Present 100 percent
     complete design submittal in sufficient detail to permit a complete
     review by the Government.

Moreover, Gray--which took "no exception to any terms, conditions, and
provisions included in [the] solicitation," Gray Final Proposal Revision,
July 26, 2000--was required to furnish a 25' wide, all weather access
surface suitable for fire fighting apparatus, double curtain shower stalls,
the required minimum number of lockers, and locker rooms located on the
facility's perimeter regardless of whether or not its preliminary
drawings--or even its final drawings--showed such features. In this regard,
the RFP provided that:

Final design submissions found to be not in compliance with the requirements
of the RFP will be returned to the Contractor for correction and
resubmission. The Contractor shall make such modifications as may be
necessary to bring the design into compliance at no change in contract price
and schedule. . . .

If design approval can not be granted due to non-compliance with technical
elements of the design, the Government may exercise its option to terminate
the contract for default . . .

RFP sect. 01111, para. 1.5.2; and that:

Design approval shall not be construed as a waiver from performing
requirements contained in the RFP which may have been omitted from the
Contractor prepared design documents.

RFP sect. 01331, para. 1.4.d. Given that the RFP did not require offerors to submit
with their proposals fully developed drawings demonstrating compliance with
all RFP requirements, that the failure to demonstrate compliance with the
above requirements did not relieve Gray of the responsibility of complying
with them, and that the addition of these features would be consistent with
Gray's design, as submitted, we see no reason that the evaluators could not
regard Gray's design as acceptable. See F2M, Inc./SCI, B-257920, Nov. 22,
1994, 94-2 CPD para. 198 at 3-4 .

Regarding the protester's argument that there is not sufficient room in
Gray's site design for installation of a 25' wide surface on all sides of
the building, the Navy contends that there is sufficient space, and our
review of Gray's drawings supports the agency's position. Further, regarding
Medlin's assertion that Gray's fire fighting equipment access surface will
necessarily extend beyond the project boundaries indicated on the RFP's site
plans, the solicitation instructed that the fitness centers were to be
developed within the indicated boundaries, RFP para. IIB.1(A), but did not
require that the access surface for the fire fighting equipment also be
located within these boundaries.

The protester also complains that Gray's design does not provide handicapped
parking spaces adjacent to the main entrance of the Administrative PFC, as
required by the RFP pursuant to the Americans with Disabilities Act (ADA)
and the Uniform Federal Accessibility Standards (UFAS). [7]

Contrary to the protester's allegation, neither the ADA Accessibility
Guidelines for Buildings and Facilities nor the UFAS require handicapped
parking adjacent to a building's entrance; instead, both references require
that the spaces with most direct access to the building entrance be
designated for the disabled. [8] Since the protester has not argued that
Gray's drawings, which show handicapped parking in the area of the parking
lot closest to the Administrative PFC's entrance, fail to comply with this
requirement, this ground of its protest is without merit.

Medlin further contends that Gray's drawings do not show an exterior
gathering space adjacent to the main entrance of the Administrative fitness
center, as required by the RFP. [9] The protester also argues that Gray's
drawings do not show a service entry with appropriate vehicle access space
and that the swimming pool sunroof proposed by Gray will not furnish
adequate protection against glare as required by the solicitation. [10]

Regarding the protester's first complaint, Gray's drawing L-1 shows an open
area partially surrounded by trees, shrubs, and groundcover on either side
of the Administrative PFC's entrance canopy. The Navy opines that this will
serve as an ideal gathering place, and we have no basis upon which to
disagree. Similarly, with regard to the protester's second complaint, Gray's
Drawing A1.01 shows a vehicle accessible entrance into the gymnasium, which,
according to the agency, can serve as a service entry. [11] Regarding the
protester's third argument, Medlin has furnished no evidence in support of
its allegation that Gray will not furnish an appropriate sunroof, and thus
we have no basis upon which to sustain this ground of its protest.

Next, Medlin argues that Gray did not propose to furnish the required
minimum of 200 parking spaces for the Administrative PFC. The protester
contends in this regard that 68 of the 220 spaces that Gray proposed to
furnish serve a separate building, the Survival Training Center, and thus
should not have been counted as parking for the new PFC.

The RFP, as revised by amendment No. 4, stated at para. IIB.1.A that the
administrative PFC "requires a total of 200 parking spaces, including
existing parking to remain." The protester contends that the phrase
"existing parking to remain" can only reasonably be interpreted as referring
to "spaces which previously existed as assigned to the existing physical
fitness center which is being demolished as part of this contract."
Protester's Supplemental Comments, Nov. 6, 2000, at 2-3. The Navy disputes
this interpretation, arguing that it intended that offerors be permitted to
include existing parking serving other nearby buildings in their proposed
number of parking spaces. Agency Response to GAO Questions, Nov. 2, 2000, at
1. The agency cites as support for its position para. IIC.2.b.1(d) of the RFP,
which states in relevant part as follows:

There is existing parking at the corner of Hancock Avenue and Franklin
Avenue. The designer may consider expanding, reconfiguring or relocating
this parking to satisfy the building program and budget.

According to the agency, this is the parking lot containing the 68 spaces to
which Medlin refers. The Navy maintains that "[n]o parking spaces in this
existing parking lot were, or are meant to be, designated for the Survival
Training Center or any other specific use." Id.

We see no reason that the reference to "existing parking to remain" should
be interpreted in the restrictive manner advocated by the protester. In our
view, paragraph IIC.2.b.1(d), cited above, made clear that offerors could
count spaces in the existing lot at the corner of Hancock and Franklin
Avenues toward their required totals.

Medlin further argues that Gray's proposal does not provide the minimum
required fire separation between the new Administrative PFC and the existing
Survival Training Center.

The Navy explains that the Uniform Building Code requires structures such as
the Administrative PFC with an occupancy type of A-2.1 to have 1-hour
non-combustible construction for exterior walls if located more than 10 feet
from an assumed property line. According to the agency, this requirement
applies to Gray's design because the distance between the new PFC and
adjacent buildings is 48 feet, which means that the assumed property line is
24 feet from the PFC. The agency further notes that Gray has proposed
exterior walls for the Administrative PFC made of split Concrete Masonry
Unit blocks of appropriate thickness, adequate to meet the 1-hour
non-combustible requirement. Agency Report at 12.

In response, the protester generally challenges the agency's position on the
ground that it assumes, first, that both the Administrative PFC and the
adjacent building are of the same construction classification and, second,
that the door and window openings in the PFC meet the requirements in the
Uniform Building Code for fire rating or allowable area, which, Medlin
maintains, is "doubtful." Protester's Comments, Oct. 16, 2000, at 9. With
respect to the first point, the agency states that the Administrative PFC
and the adjacent building, the Survival Training Center, are of the same
construction classification, and we have no basis to question this
assertion. With respect to the second point, as noted above, even assuming
Gray's proposal does not indicate the fire rating or area of the door and
window openings, any such lack of detail does not make its proposal
unacceptable, as Medlin contends. As noted above, the RFP here did not
require that proposals show detailed compliance with all the specifications
and any such lack of detail in Gray's proposal did not relieve Gray of the
obligation of complying with them. As long as use of compliant door and
window openings would be consistent with Gray's design--and Medlin does not
argue that it would not be--we see no reason why the evaluators could not
regard Gray's design as acceptable.

Next, Medlin contends that it will be impossible for Gray to complete
construction of the new Administrative PFC prior to demolishing the existing
PFC, as required by the RFP, because the two buildings overlap.

As shown on Gray's drawing C-3, the only portion of the new PFC that
overlaps the existing PFC is the entrance canopy; thus the only portion of
the new facility that Gray will be unable to construct prior to demolition
of the existing facility is the entrance canopy. Because the entrance canopy
is a minor feature of the building not essential for its occupancy, we think
it insignificant that Gray will not be able to complete work on it until
after demolition of the existing PFC.

Finally, Medlin alleges that Gray did not revise its proposal to reflect the
changes in requirements set forth in amendment No. 7, which was issued
during discussions.

Amendment No. 7 deleted the requirement for food service space in the
Operations PFC; deleted the requirement for an acoustical divider between
the basketball courts in the Administrative PFC; relocated the Operations
PFC from the northeast to the southeast corner of the site; and changed the
requirement regarding a roof structure over the pool. Gray responded to
these changes in its revised proposal of July 26 by providing a revised
floor plan for the Operations PFC that deleted the food service space,
proposing to furnish a non-acoustical partition between the basketball
courts, offering to resite the Operations PFC to the southeast corner of the
site during preliminary design at no additional cost, and revising their
design for a sunscreen/sunroof. Accordingly, the protester's allegation that
Gray's proposal

failed to address the changes in requirements made by amendment No. 7 is not
supported by the record.

The protest is denied. [12]

Anthony H. Gamboa

Acting General Counsel

Notes

1. Subfactors to be considered under the building design factor were
functional relationship of space layouts; ease and efficiency of interior
circulation; function and aesthetics of internal spaces; sustainability and
passive energy conservation of building design; quality and compatibility of
exterior appearance; and orientation of buildings to related facilities and
site features. Subfactors to be considered under the site design factor were
aesthetics, maintainability and irrigation need of landscaping; ease of
pedestrian and vehicular traffic; adequacy and ease of parking; ease of
drainage; and suitability and maintainability of utility systems.

2. The upgrades were the addition of work to (1) replace the pool pump, (2)
provide a motorized fold up style curtain to separate the gyms, (3) provide
additional landscaping, (4) provide an outside walled patio, (5) add
exterior basketball and sand volleyball courts, and (6) provide a roof
structure over the existing swimming pool.

3. The Navy points out that, contrary to the protester's allegation, the RFP
did not require a paved fire fighting access ring road; it required "a 25'
(7620 mm.) wide, all weather, access surface suitable for fire fighting
apparatus on all sides of the perimeter of the structure." RFP para. IIC.b.3(e).
According to the Navy, there are acceptable all weather access surfaces
other than pavement. Agency Report at 11.

4. The RFP indicated that one of the agency's "miscellaneous needs" with
regard to the Administrative PFC locker rooms was for showers with "a double
shower curtain system to create an undressing vestibule." RFP at IIA-17 and
IIA-19.

5. The RFP, as revised by amendment No. 4, required the contractor to
install
40 full size lockers, plus 30 sets of two stacked ‘L' shaped lockers
in the women's locker room in the Administrative PFC and 60 full size, plus
120 sets of two stacked ‘L' shaped lockers in the men's locker room.

6. The RFP stated that both locker rooms were to be located "on the
perimeter of the facility near swimming pool." RFP at IIA-16 and IIA-18.

7. The RFP required that design and construction be in accordance with the
latest adopted version of a number of codes, including the Uniform Federal
Accessibility Standards, as well as the Americans with Disabilities Act. RFP
at IIA-3.

8. The ADA Accessibility Guidelines for Buildings and Facilities provide at
sect. 4.6.2 that:

Accessible parking spaces serving a particular building shall be located on
the shortest accessible route of travel from adjacent parking to an
accessible entrance.

The UFAS similarly provides at sect. 4.6.2 that:

Parking spaces for disabled people and accessible passenger loading zones
that serve a particular building shall be the spaces or zones located
closest to the nearest accessible entrance on an accessible route.

9. Paragraph IIC.2.b.4(a) of the RFP provides in relevant part as follows
(italics in original):

The main entry shall be developed with an outdoor gathering/waiting space,
well lighted and landscaped with wind and weather protection.

10. Paragraph IIC.2.b.1(d) of the RFP provides in relevant part: "The
[Administrative PFC] will have one controlled public entry and a service
entry." Paragraph IIA.1.A.4 of the RFP, as revised by amendment No. 7,
provides:

Roof structure for the existing swimming pool should provide cover against
the low angle eastern and western sun. The center portion of the pool need
not be covered. The intent is for the roof structure to protect swimmers
against glare from the sun.

11. Regarding the protester's complaint that this entry is not in fact
vehicle accessible because the existing road/driveway does not extend all
the way to it and Gray has not proposed to extend the existing paved surface
in its drawings, we do not think that this is the sort of detail that Gray
was required to address in the conceptual drawings that it submitted with
its proposal.

12. To the extent that in its comments on the agency report the protester
has raised additional grounds of protest--i.e., that the government did not
adequately consider the life-cycle cost savings associated with its
proposal, that Gray's proposal should have been rejected as nonresponsive
because it included alternative offers for one of the desirable items, and
that the ratings that the evaluators assigned Gray's proposal under several
of the evaluation factors were inconsistent with the ratings that they
assigned the proposal under the subfactors comprising these factors-the
arguments are untimely. Medlin was aware of these bases of protest, at the
latest, upon its receipt of the agency report, yet did not assert these
bases of protest within
10 calendar days after its receipt of the report, as required by our Bid
Protest Regulations, 4 C.F.R. sect. 21.2(a)(2) (2000). In this regard, Medlin's
comments were not filed within the normal 10-calendar-day period, see 4
C.F.R. sect. 21.3(i), due to our granting an extension request by the protester.
Since a time extension for purposes of filing comments does not waive the
timeliness rules with regard to new grounds of protest, we dismiss these
bases of protest as untimely. SDS Petroleum Prods., Inc., B-280430, Sept. 1,
1998, 98-2 CPD para. 59 at 3-4 n. 3.