For Design Build contracts that include NFAS 5252.236-9312 Design-Build Contract – Order of Precedence, does that section mean that the contractor must provide, at no additional cost to the government, whichever item takes precedence?
This response is based on the information provided. We suggest you discuss with your contracting team, program manager and/or legal department as appropriate.
The courts are going to look at the contract which supersedes the RFP. If your intent is to have the successful offeror's proposal become the basis of the contract then that will be stated in the RFP/solicitation. We note that blanket inclusion of a proposal means all aspects of the proposal become part of the contract. The concern you raise can be alleviated by having a strong and clear disclaimer in your RFP that states something to the effect that, "The government is providing concept drawings to aid in understanding the basic expectations of the Navy and for planning purposes. The offeror that earns the contract will be bound by all related federal, state and local laws, regulations and ordinances in the execution of this project."
The NAVFAC NFAS October 2018 edition indicates NFAS 5252.236-9312 Design-Build Contract – Order of Precedence, has been removed and reserved. You may find FAR 52.236-21 to be a useful reference. Among other things it notes that "...specifications shall govern".