B-172177, AUG 17, 1971

B-172177: Aug 17, 1971

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SCHEMATIC PLANS WERE ADEQUATE TO COMPLY WITH THE REQUIREMENTS OF THE PROSPECTIVES. SELSCO IS OBLIGATED BY THE TERMS OF THE PERMIT TO SUBMIT DETAILED PLANS PRIOR TO CONSTRUCTION. ALTHOUGH NO PROVISION IS MADE IN THE FOREST SERVICE MANUAL FOR THE HANDLING OF PROTESTS AGAINST PERMIT AWARDS. IS UNABLE TO CONCLUDE THAT THE DECISION THAT SELSCO IS RESPONSIVE AND RESPONSIBLE IS ARBITRARY. A SAMPLE COPY OF WHICH WAS INCORPORATED IN THE PROSPECTUS. PROSPECTIVE APPLICANTS WERE ADVISED THAT PLANS SUBMITTED WITH PROPOSALS COULD BE SCHEMATIC. UNDER WHICH THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO ISSUE PERMITS FOR THE USE AND OCCUPANCY OF LAND IN THE NATIONAL FORESTS. THAT THE SURCHARGE BIDS WERE REPORTED AS .050 PERCENT FOR MR.

B-172177, AUG 17, 1971

BID PROTEST - MISREPRESENTATIONS - BIDDER RESPONSIBILITY DECISION DENYING PROTEST AGAINST THE AWARD OF A TERM SPECIAL USE PERMIT TO STRAND ELECTRIC SERVICE CORPORATION (SELSCO), BY THE FOREST SERVICE, FOR DEVELOPMENT AND OPERATION OF A COMMERCIAL TRAILER COURT OR CAMP NEAR WEST YELLOWSTONE, GALLATIN NATIONAL FOREST, MONTANA. THE RECORD DOES NOT SUPPORT PROTESTANT'S STATEMENTS REGARDING MISREPRESENTATIONS BY SELSCO IN ITS PROPOSAL, OR ANY INTENT TO LIMIT COMPETITIVE BIDDING. ALSO, SCHEMATIC PLANS WERE ADEQUATE TO COMPLY WITH THE REQUIREMENTS OF THE PROSPECTIVES, AND SELSCO IS OBLIGATED BY THE TERMS OF THE PERMIT TO SUBMIT DETAILED PLANS PRIOR TO CONSTRUCTION. FINALLY, ALTHOUGH NO PROVISION IS MADE IN THE FOREST SERVICE MANUAL FOR THE HANDLING OF PROTESTS AGAINST PERMIT AWARDS, THE FOREST SERVICE GAVE DUE CONSIDERATION TO THE PROTEST AND THE COMP. GEN. IS UNABLE TO CONCLUDE THAT THE DECISION THAT SELSCO IS RESPONSIVE AND RESPONSIBLE IS ARBITRARY, CAPRICIOUS, OR WITHOUT A PROPER BASIS.

TO MR. NEWTON L. GUNTHER:

WE REFER TO YOUR PROTEST, BY LETTER OF MARCH 8, 1971, AND SUBSEQUENT CORRESPONDENCE, AGAINST AWARD BY THE FOREST SERVICE, UNITED STATES DEPARTMENT OF AGRICULTURE, OF A TERM SPECIAL USE PERMIT TO STRAND ELECTRIC SERVICE CORPORATION (SELSCO) FOR DEVELOPMENT AND OPERATION, OVER A PERIOD OF 30 YEARS, OF A COMMERCIAL TRAILER COURT OR CAMP NEAR WEST YELLOWSTONE, GALLATIN NATIONAL FOREST, MONTANA.

IN JUNE 1970 THE FOREST SUPERVISOR, GALLATIN NATIONAL FOREST, ISSUED A PROSPECTUS SOLICITING PROPOSALS FOR THE PLANNING, DEVELOPMENT, OPERATION AND MAINTENANCE OF THE COMMERCIAL TRAILER COURT AND CAMPGROUND IN QUESTION. THE PROSPECTUS SET FORTH CERTAIN MINIMUM REQUIREMENTS TO QUALIFY A PROPOSAL FOR CONSIDERATION AND STATED THAT THE PERMIT, A SAMPLE COPY OF WHICH WAS INCORPORATED IN THE PROSPECTUS, WOULD PROVIDE FOR ADDITIONAL DEVELOPMENT AS PROPOSED BY THE PERMITTEE AND APPROVED BY THE FOREST SERVICE.

PROSPECTIVE APPLICANTS WERE ADVISED THAT PLANS SUBMITTED WITH PROPOSALS COULD BE SCHEMATIC, BUT THAT DETAILED DEVELOPMENT PLANS, AS OUTLINED IN CLAUSE 29 OF THE PERMIT, WOULD BE REQUIRED AFTER AWARD AND PRIOR TO CONSTRUCTION. OTHER INFORMATION REQUIRED TO BE FURNISHED WITH PROPOSALS INCLUDED A COMPLETE PLAN FOR FINANCING THE DEVELOPMENT, BUSINESS AND PERSONAL REFERENCES, PLAN OF OPERATION (I.E., BY PERSON, PARTNERSHIP, CORPORATE, ETC.), AND A PROPOSAL SETTING FORTH THE SURCHARGE BID OFFERED BY THE APPLICANT TO THE UNITED STATES FOR USE OF THE SITE.

PAGE 11 OF THE PROSPECTUS CARRIED A STATEMENT ADVISING THAT PROPOSALS WOULD BE JUDGED ON, BUT NOT LIMITED TO, THE FOLLOWING:

"1. THE PLAN MEETING OR EXCEEDING THE MINIMUM DEVELOPMENT REQUIREMENTS SET FORTH IN THIS PROSPECTUS, WHICH IN THE OPINION OF THE FOREST SERVICE, PROVIDES THE BEST FACILITIES AND SERVICES FOR THE PUBLIC.

"2. QUALIFICATIONS OF APPLICANTS:

A. FINANCIAL ABILITY TO UNDERTAKE THE PROJECT AND OPERATE IT.

B. BUSINESS ABILITY AND REPUTATION.

"3. THE SURCHARGE BID (OPTIONAL) OFFERED FOR THE PERMIT."

THE SAMPLE PERMIT CARRIED A REFERENCE TO THE ACT OF MARCH 4, 1915, AS AMENDED, 16 U.S.C. 497, UNDER WHICH THE SECRETARY OF AGRICULTURE IS AUTHORIZED TO ISSUE PERMITS FOR THE USE AND OCCUPANCY OF LAND IN THE NATIONAL FORESTS, AND TO FOREST SERVICE MANUAL (FSM) 2710, WHICH SETS FORTH THE GOVERNING REGULATIONS ISSUED BY THE SECRETARY, AS AUTHORIZED IN THE ACT. CLAUSE 30 OF THE PERMIT REQUIRES THE PERMITTEE TO FURNISH TO THE GOVERNMENT A PERFORMANCE BOND IN THE AMOUNT OF $10,000, AND CLAUSE 56 REQUIRES NOTICE TO, AND APPROVAL BY, THE FOREST SERVICE OF ANY ACQUISITION OR ASSUMPTION BY ANOTHER PARTY OF ANY RIGHT OR OBLIGATION OF THE PERMITTEE UNDER THE PERMIT. CLAUSE 58 REQUIRES A CORPORATE PERMITTEE TO FURNISH TO THE FOREST SUPERVISOR CERTAIN INFORMATION AS TO THE CORPORATE STRUCTURE TOGETHER WITH NOTICE OF ANY SUBSEQUENT CHANGES THEREIN AND, UPON REQUEST OF THE FOREST SUPERVISOR, A CERTIFIED LIST OF STOCKHOLDERS AND THE EXTENT OF THEIR INDIVIDUAL HOLDINGS.

YOU STATE THAT ON AUGUST 17, 1970, THE FOREST SERVICE PUBLICLY OPENED THE PROPOSALS RECEIVED IN RESPONSE TO THE PROSPECTUS, AND THAT THE SURCHARGE BIDS WERE REPORTED AS .050 PERCENT FOR MR. DOUGLAS WOLFORD; .077 PERCENT FOR YOU; AND 200 PERCENT FOR SELSCO. THE SELSCO PROPOSAL, YOU STATE, WAS SUBMITTED BY MR. LEROY STRAND, WHO SERVES AS VICE PRESIDENT OF SELSCO AND AS VICE PRESIDENT OF UNITED CAMPGROUNDS, USA.

YOU FURTHER STATE THAT AFTER RECEIPT BY YOU ON SEPTEMBER 8, 1970, OF NOTICE FROM THE FOREST SERVICE THAT YOUR PROPOSAL WAS UNACCEPTABLE AND THAT AWARD WAS TO BE MADE TO SELSCO YOU FILED A PROTEST WITH THE CONTRACTING OFFICER, WHICH HAS NOT BEEN RESOLVED TO YOUR SATISFACTION.

YOUR PROTEST TO OUR OFFICE WAS THE SUBJECT OF TWO STATEMENTS FROM THE FOREST SERVICE, WHICH HAVE BEEN MADE AVAILABLE TO YOU. AS STATED IN A REBUTTAL LETTER OF JUNE 23, 1971, TO SUCH STATEMENTS, YOU PROTEST THAT (1) SELSCO'S PROPOSAL WAS NONRESPONSIVE TO THE PROSPECTUS FOR FAILURE TO INCLUDE ADEQUATE BUILDING PLANS; (2) THE ACT OF MARCH 4, 1915, SUPRA, DOES NOT AUTHORIZE THE SECRETARY OF AGRICULTURE TO IGNORE THE FEDERAL PROCUREMENT REGULATIONS ISSUED PURSUANT TO THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 AND/OR REVISED STATUTES 3709; (3) THE SUBMISSION BY SELSCO WITH ITS PROPOSAL OF A BROCHURE DEPICTING FACILITIES BELONGING TO A MR. DON OLSON WAS A MISREPRESENTATION; (4) THE USE OF BUILDING PLANS DRAWN BY BOISE CASCADE CORPORATION LIMITED COMPETITIVE BIDDING IN POSSIBLE VIOLATION OF THE ANTITRUST STATUTES; AND (5) MORE THAN A FRANCHISE AGREEMENT EXISTS BETWEEN SELSCO AND UNITED CAMPGROUNDS, USA (THIS APPARENTLY HAS REFERENCE TO YOUR REPEATED ASSERTIONS THAT THE PROPOSAL ACCEPTED BY THE FOREST SERVICE IS A PROPOSAL FROM UNITED CAMPGROUNDS, USA).

THE FOREST SERVICE HAS ADVISED THAT THE THREE PROPOSALS WERE INITIALLY SUBMITTED TO A TEAM OF FOREST SERVICE PERSONNEL, WHICH INCLUDED AN ENGINEER AND AN ARCHITECT. THIS TEAM EVALUATED THE PROPOSALS ON THE BASIS OF ALL OF THE FACTORS SET FORTH IN THE PROSPECTUS, INCLUDING THE SURCHARGE BID FOR THE PERMIT, AND SELECTED THE PLAN SUBMITTED BY SELSCO AS THE ONE WHICH WOULD PROVIDE THE BEST FACILITIES AND SERVICES.

THE FOREST SERVICE HAS FURTHER ADVISED THAT THE THREE DEVELOPMENT PLANS WERE THEREAFTER SUBMITTED TO QUALIFIED PERSONNEL IN THE DIVISION OF RECREATION AND LANDS IN THE FOREST SERVICE REGIONAL OFFICE. THIS GROUP, IT IS REPORTED, ALSO SELECTED THE SELSCO PLAN AND DID NOT CONSIDER THE SURCHARGE UNTIL AFTER THE THREE PLANS HAD BEEN REVIEWED AND JUDGED.

BASED ON THE ANALYSIS OF THE PROPOSALS BY THE FOREST SERVICE TEAM AND THE SUBSEQUENT REVIEW BY THE REGIONAL OFFICE PERSONNEL, THE FOREST SUPERVISOR ARRIVED AT A TENTATIVE DECISION TO ACCEPT THE SELSCO PROPOSAL AND SO NOTIFIED SELSCO ON SEPTEMBER 4, 1970. AS THE FOREST SERVICE ADVISED YOU BY LETTER OF MAY 4, 1971, SELSCO ACCEPTED THE PERMIT ON DECEMBER 6, 1970, BUT THE FOREST SUPERVISOR DID NOT SIGN THE PERMIT UNTIL FEBRUARY 26, 1971.

THE RECORD BEFORE OUR OFFICE INCLUDES A STATEMENT BY THE FOREST SERVICE TO THE EFFECT THAT THE FOREST SUPERVISOR VERIFIED THAT SELSCO HAD AUTHORITY TO USE THE BOISE CASCADE CORPORATION PLANS SUBMITTED WITH SELSCO'S PROPOSAL. THIS INFORMATION WOULD APPEAR TO BE CONFIRMED BY ADVICE FURNISHED TO YOU BY BOISE CASCADE IN A LETTER DATED FEBRUARY 26, 1971, THAT BOISE CASCADE HAD INFORMED THE FOREST SERVICE THAT IT HAS NO OBJECTION TO THE USE OF ITS DRAWINGS BY SELSCO/UNITED CAMPGROUNDS PROVIDED BOISE CASCADE IS NOT RESPONSIBLE FOR ANY DAMAGES RESULTING FROM SUCH USE.

AS TO THE OLSON BROCHURE, WHICH BEARS THE NAME OF UNITED CAMPGROUNDS, USA, THE RECORD INDICATES THAT THE BROCHURE WAS PRINTED FOR OLSON BY UNITED CAMPGROUNDS, USA, UNDER A FRANCHISE AGREEMENT DATED APRIL 3, 1970. THE AGREEMENT CALLED FOR OPENING AND OPERATION OF THE PARTICULAR CAMPGROUND BY OLSON ON OR BEFORE MAY 15, 1971, AND AS RECENTLY AS MARCH 1971 THE PARTIES WERE CORRESPONDING IN THE MATTER. IT WOULD APPEAR, THEREFORE, THAT AT THE TIME SELSCO SUBMITTED ITS PROPOSAL THE BROCHURE REPRESENTED A CAMPGROUND WHICH UNITED CAMPGROUNDS EXPECTED TO FRANCHISE.

WHILE SELSCO WAS NOT PARTY TO THE UNITED CAMPGROUNDS AGREEMENTS WITH BOISE CASCADE AND OLSON, SELSCO HAS STATED THAT ITS USE OF THE BOISE CASCADE DRAWINGS DERIVED FROM ITS OWN FRANCHISE AGREEMENT WITH UNITED CAMPGROUNDS. SINCE THE FOREST SERVICE WAS AWARE OF SUCH AGREEMENT, IT DOES NOT APPEAR THAT IT WAS MISLED BY THE INCLUSION OF THE DRAWINGS AND THE BROCHURE IN SELSCO'S PROPOSAL. RATHER, AS THE FOREST SERVICE HAS NOTED, UNITED CAMPGROUNDS HAS NOT BECOME A FOREST SERVICE PERMITTEE BY REASON OF ITS FRANCHISE AGREEMENT WITH SELSCO, WHO IS CURRENTLY PERFORMING ALL OF ITS PRECONSTRUCTION PLANNING AND OTHER WORK INDEPENDENTLY OF UNITED CAMPGROUNDS.

IN LIGHT OF THE FOREGOING, WE SEE NO SUPPORT FOR YOUR STATEMENTS REGARDING MISREPRESENTATIONS BY SELSCO IN ITS PROPOSAL, OR ANY INTENT TO LIMIT COMPETITIVE BIDDING. AS TO THE QUESTION OF VIOLATION OF THE ANTITRUST STATUTES, WHICH ARE CRIMINAL LAWS, SUCH MATTERS ARE FOR CONSIDERATION BY THE DEPARTMENT OF JUSTICE, AND YOUR ALLEGATIONS SHOULD THEREFORE BE MADE TO THAT DEPARTMENT.

WITH RESPECT TO THE SUFFICIENCY OF THE BUILDING PLANS SUBMITTED WITH SELSCO'S PROPOSAL, THE FOREST SERVICE HAS ADVISED THAT THE PLANS, ALTHOUGH SCHEMATIC, WERE ADEQUATE TO COMPLY WITH THE REQUIREMENTS OF THE PROSPECTUS. SINCE THE PROSPECTUS PERMITTED THE USE OF SCHEMATIC PLANS, AND SINCE SELSCO IS OBLIGATED BY THE TERMS OF THE PERMIT TO SUBMIT DETAILED PLANS FOR FOREST SERVICE APPROVAL PRIOR TO CONSTRUCTION, WE ARE UNABLE TO CONCLUDE THAT SELSCO'S PROPOSAL WAS NONRESPONSIVE IN THIS RESPECT TO THE PROSPECTUS.

AS TO APPLICATION OF THE FEDERAL PROCUREMENT REGULATIONS (FPR) TO THE GRANT OF TERM SPECIAL USE PERMITS BY THE FOREST SERVICE, SECTION 3(D) OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 472(D), SPECIFICALLY EXCLUDES LANDS RESERVED OR DEDICATED FOR NATIONAL FOREST OR NATIONAL PARK PURPOSES FROM THE APPLICATION OF TITLES I THROUGH VI OF THE ACT. IT IS APPARENT, THEREFORE, THAT THE FPR, WHICH ARE ISSUED IN IMPLEMENTATION OF TITLE III OF THE ACT, DO NOT APPLY TO THE GRANT OF THE PERMIT IN QUESTION.

SECTION 3709, REVISED STATUTES, AS AMENDED, 41 U.S.C. 5, STATES A REQUIREMENT FOR THE USE OF PUBLIC ADVERTISING FOR PURCHASES AND CONTRACTS FOR SUPPLIES OR SERVICES FOR THE GOVERNMENT AND FOR CERTAIN SALES OF GOVERNMENT PROPERTY UNLESS OTHERWISE PROVIDED IN THE APPROPRIATION CONCERNED OR OTHER LAW. SINCE THE ACT OF MARCH 4, 1915, SUPRA, SPECIFICALLY AUTHORIZES THE SECRETARY OF AGRICULTURE TO GRANT PERMITS FOR THE USE OF LAND WITHIN THE NATIONAL FORESTS "UNDER SUCH REGULATIONS AS HE MAY MAKE AND UPON SUCH TERMS AND CONDITIONS AS HE MAY DEEM PROPER," IT IS EVIDENT THAT SECTION 3709, REVISED STATUTES, DOES NOT APPLY TO THE EXERCISE OF SUCH AUTHORITY EVEN IF IT COULD BE CONSIDERED THAT THE FOREST SERVICE IN ISSUING LAND USE PERMITS IS PROCURING SERVICES. THERE REMAINS, THEREFORE, FOR CONSIDERATION WHETHER IN THIS CASE THE FOREST SERVICE HAS COMPLIED WITH THE REGULATIONS WHICH HAVE BEEN ISSUED IN IMPLEMENTATION OF THE ACT OF MARCH 4, 1915.

TITLE 2700 OF THE FOREST SERVICE MANUAL INCLUDES THE FOLLOWING PERTINENT PROVISIONS:

"2710.3 - POLICY

"1. INVITE THROUGH PROSPECTUS, BID, AND PERMIT PROCEDURES THE INSTALLATION OF THOSE PUBLIC SERVICES AND CONVENIENCES NEEDED FOR ACCOMMODATION OF RECREATION VISITORS AND OTHER USERS OF THE NATIONAL FOREST.

"2. REQUIRE A CHARGE COMMENSURATE WITH THE VALUE OF THE USE, EXCEPT WHEN FREE USE OR A NOMINAL FEE IS CLEARLY IN THE PUBLIC INTEREST, OF BENEFIT TO NATIONAL FOREST RESOURCES DEVELOPMENT, PROTECTION, AND PROGRAMS, OR OF BENEFIT TO THE UNITED STATES.

"2710.43 - AUTHORITY TO ISSUE BY FOREST SUPERVISORS AFTER REVIEW AND ADVICE BY REGIONAL FORESTER'S STAFF

"2. TERM PERMITS (ACT OF MARCH 4, 1915, AS AMENDED) FOR CONCESSION AND INDUSTRIAL PURPOSES WHEN TOTAL PLANNED INVESTMENT IS IN EXCESS OF $250,000.

"2712 - APPLICATIONS. APPLICATIONS FOR PERMITS MAY BE MADE ORALLY, BY LETTER, BY BID IN RESPONSE TO A PROSPECTUS, OR BY FORM 2700-3 OR BY SOME OTHER SPECIALLY PRESCRIBED FORM. ***

EACH APPLICATION MUST CONTAIN ENOUGH INFORMATION TO FULLY DESCRIBE THE USE REQUESTED. THIS MUST INCLUDE AN EXACT DESCRIPTION OF THE TRACT OF LAND, THE EXTENT AND NATURE OF THE USE, THE ACREAGE OF LAND OR LIST OF GOVERNMENT IMPROVEMENTS INVOLVED. IT SHOULD ALSO INCLUDE INFORMATION ON HOW OFTEN AND FOR WHAT PERIOD THE USE IS CONTEMPLATED, AND THE APPLICANT'S ABILITY TO SATISFY THE REQUIREMENTS OF THE PROPOSED USE. FOR LARGE COMPLEX USES, WHEN APPROVAL SEEMS LIKELY, SUPPORTING DATA MAY BE REQUIRED IN THE FORM OF FINANCIAL STATEMENTS, RECORDS OF EXPERIENCE, MAPS, SURVEYS, DESIGNS, AND LAYOUTS. SUCH INFORMATION, HOWEVER, SHOULD BE LIMITED TO THAT ESSENTIAL FOR EVALUATION OF THE PROPOSED USE AND NEED NOT BE IN FINAL FORM AS WOULD BE PRESENTED FOR CONSTRUCTION APPROVAL. CARE MUST BE EXERCISED WHEN REQUIRING AN APPLICANT TO GO TO CONSIDERABLE EXPENSE TO PROVIDE SUCH DATA. TO DO SO, COULD IMPLY APPROVAL OF THE PERMIT APPLICATION.

"2712.1 - QUALIFICATIONS OF APPLICANTS. EXCEPT THAT MEMBERS OF THE CONGRESS AND RESIDENT COMMISSIONERS ARE PROHIBITED BY LAW FROM HOLDING CERTAIN TYPES OF SPECIAL-USE PERMITS (ITEM 10, FSM 2703) ANY INDIVIDUAL, CORPORATION, ASSOCIATION, MUNICIPALITY, OR AGENCY OF LOCAL OR STATE GOVERNMENT IS ELIGIBLE FOR CONSIDERATION FOR SPECIAL-USE PERMIT.

"THE QUALIFICATIONS OF ANY APPLICANT REGARDLESS OF HOW THE APPLICATION IS MADE WILL BE CAREFULLY CONSIDERED BEFORE APPROVING A SPECIAL-USE APPLICATION. THIS WILL BE DONE WHETHER THE APPLICATION COVERS EXISTING FACILITIES OR PLANNED NEW FACILITIES. SEE FSM 2716.12. OF PRIMARY INTEREST WHEN A PUBLIC SERVICE IS INVOLVED IS THE APPLICANT'S ABILITY TO PERFORM ACCORDING TO THE PERMIT TERMS. INFORMATION ON THE FOLLOWING POINTS IS HELPFUL IN ANALYZING THE QUALIFICATIONS OF ANY APPLICANT. SHOULD BE SPECIFICALLY REQUESTED IN AN INVITATION FOR BID PROPOSAL (FSM 2712.2): 1. THE KIND AND QUALITY OF THE SERVICE TO BE OFFERED.

2. THE FINANCIAL RESOURCES OF THE APPLICANT. THIS MAY REQUIRE AN EXTENSIVE REVIEW OF THE APPLICANT'S CREDIT REFERENCE AND FINANCIAL RESPONSIBILITY. THE APPLICANT SHOULD HAVE IN CASH OR READILY CONVERTIBLE ASSETS AT LEAST 25 PERCENT OF THE ESTIMATED DEVELOPMENT COST OF THE PROJECT.

3. THE BUSINESS EXPERIENCE AND QUALIFICATIONS OF THE APPLICANT IN RELATION TO THE PROPOSED USE.

4. THE FEE OFFERED FOR CONCESSION PERMIT PRIVILEGES. * * * * *

"2712.2 - PROSPECTUS. WHEN CAREFUL MULTIPLE USE OR FUNCTIONAL PLANNING, THAT IS FULLY RESPONSIVE TO THE INTENT OF THE MULTIPLE USE AND NATIONAL ENVIRONMENTAL POLICY ACTS, INDICATES THAT A CONCESSION SPECIAL USE OPPORTUNITY IS AVAILABLE AND THERE IS A DEMONSTRATED PUBLIC NEED FOR THE SERVICE, EVERY EFFORT SHOULD BE MADE TO OBTAIN THE BEST QUALIFIED PERMITTEE AS WELL AS AN EQUITABLE RETURN TO THE UNITED STATES. THIS WILL BE ACCOMPLISHED BY ISSUING A PROSPECTUS. ***

"IN SOLICITING BIDS, A COMPLETE PROSPECTUS WITH A SAMPLE PERMIT OR PERMITS SHOULD BE CIRCULATED, SETTING FORTH THE MINIMUM FACILITIES AND SERVICES WHICH MUST BE FURNISHED, CONSTRUCTION REQUIREMENTS, AND TIME LIMITS.

"6. SELECTION OF SUCCESSFUL APPLICANT. THE PROSPECTUS WILL SPECIFY THE CRITERIA TO BE USED. THESE SHOULD INCLUDE, BUT ARE NOT NECESSARILY LIMITED TO, THE:

A. KIND AND QUALITY OF SERVICE PROPOSED IN TERMS OF MEETING PUBLIC NEED.

B. APPLICANT'S EXPERIENCE IN THIS OR RELATED FIELDS AND THE QUALIFICATION HE POSSESSES TO FULLY SATISFY THE PUBLIC NEED FOR SERVICE.

C. VERIFICATION OF FINANCIAL RESOURCES.

D. RETURN TO THE GOVERNMENT.

"7. SPECIAL CONDITIONS. THIS SHOULD INCLUDE RESERVATIONS AND CONDITIONS BY THE FOREST SERVICE, SUCH AS THE RIGHT TO REJECT ANY OR ALL BIDS, AND THE CONDITIONS UNDER WHICH THE TERMS OF THE PROSPECTUS MAY BE MODIFIED. THE FOREST SERVICE IS NOT OBLIGATED TO ACCEPT THE PROPOSAL WITH THE HIGHEST BID. THE OBJECTIVE IS TO SELECT AN APPLICANT WHOSE PROPOSAL WILL BEST SERVE THE PUBLIC NEED. HOWEVER, THE ADVICE OF THE ATTORNEY IN CHARGE AND THE FISCAL AGENT SHOULD BE SOUGHT PRIOR TO ACCEPTING A BID THAT DOES NOT PROVIDE THE HIGHEST RETURN."

WE HAVE LONG OBSERVED, WITH RESPECT TO GOVERNMENT PROCUREMENTS, THAT THE FUNCTION OF DETERMINING WHETHER SUPPLIES OR SERVICES OFFERED TO THE GOVERNMENT MEET ITS NEEDS AS STATED IN A PROCUREMENT SOLICITATION, AS WELL AS THE FUNCTION OF DETERMINING WHETHER A PARTICULAR BIDDER OR OFFEROR IS A RESPONSIBLE PROSPECTIVE CONTRACTOR FOR THE PURPOSE OF A PROCUREMENT, RESTS PRIMARILY WITH THE CONTRACTING AGENCY. WE HAVE THEREFORE CONSISTENTLY DECLINED TO QUESTION THE JUDGMENT OF THE CONTRACTING AGENCY IN THE ABSENCE OF INDICATION OF ARBITRARY OR CAPRICIOUS ACTION OR UNLESS THERE IS NO SUBSTANTIAL EVIDENTIARY SUPPORT FOR THE ACTION TAKEN.

THE RECORD IN THIS CASE INDICATES THAT THE PROSPECTUS WAS ISSUED IN COMPLIANCE WITH THE PROVISIONS OF THE FOREST SERVICE MANUAL AND THAT THE EVALUATION OF THE PROPOSALS WAS IN ACCORD WITH THE TERMS OF THE PROSPECTUS AND THE FOREST SERVICE REGULATIONS. THE RECORD FURTHER INDICATES THAT WHILE NO PROVISION IS MADE IN SUCH REGULATIONS FOR THE HANDLING OF PROTESTS AGAINST PERMIT AWARDS, THE FOREST SERVICE NEVERTHELESS GAVE DUE CONSIDERATION TO YOUR PROTEST AND DELAYED SIGNING OF THE PERMIT UNTIL IT HAD ASCERTAINED TO ITS OWN SATISFACTION THAT THE ORIGINAL DECISION TO MAKE AWARD TO SELSCO, AS A RESPONSIVE AND RESPONSIBLE OFFEROR, WAS JUSTIFIED.

ON THE RECORD BEFORE US, WE THEREFORE, ARE UNABLE TO CONCLUDE THAT THE ACTION TAKEN BY THE FOREST SERVICE WAS ARBITRARY, CAPRICIOUS OR WITHOUT A PROPER BASIS. ACCORDINGLY, YOUR PROTEST IS DENIED.