B-172624, MAY 28, 1971

B-172624: May 28, 1971

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A DETERMINATION THAT IT IS IMPRACTICAL TO OBTAIN COMPETITIVE BIDS FOR SUCH CONTRACTS IS WITHIN THE DISCRETION OF THE DEPARTMENT OF AGRICULTURE. THE EXCEPTION TO THE FORMAL ADVERTISING REQUIREMENT WHICH ALLOWS NEGOTIATION WHERE IT IS IMPRACTICABLE TO OBTAIN COMPETITION. THE CONTRACT IS IN FURTHERANCE OF A MEMORANDUM OF AGREEMENT BETWEEN THE FOREST SERVICE AND THE UNITED STATES ARMY CORPS OF ENGINEERS. IT IS STATED THAT THE NATURE OF THE WORK TO BE REQUIRED OF THE CONTRACTOR IS SUCH THAT IT IS IMPOSSIBLE TO DRAFT SPECIFICATIONS FOR THE WORK INVOLVED. IT IS POINTED OUT THAT THE UNIVERSITY WILL PROVIDE BOTH PROFESSIONAL FORESTERS AND LANDSCAPE ARCHITECTS UNDER THE CONTRACT TERMS AND THAT SUCH EXPERTISE IS REQUIRED BECAUSE OF THE VARYING CONDITIONS ENCOUNTERED AT THE VARIOUS RESERVOIRS INVOLVED.

B-172624, MAY 28, 1971

CONTRACTS - NEGOTIATED CONTRACTS - IMPRACTICALITY OF BIDDING REGARDING NEGOTIATED CONTRACT BETWEEN FOREST SERVICE AND KANSAS STATE UNIVERSITY FOR VEGETATION MANAGEMENT SERVICE IN KANSAS. A DETERMINATION THAT IT IS IMPRACTICAL TO OBTAIN COMPETITIVE BIDS FOR SUCH CONTRACTS IS WITHIN THE DISCRETION OF THE DEPARTMENT OF AGRICULTURE.

TO MR. THOMSON:

YOUR LETTER DATED APRIL 13, 1971, FILE 6320, REQUESTS A DECISION WHETHER A CONTRACT PROPOSED TO BE NEGOTIATED BETWEEN THE FOREST SERVICE AND KANSAS STATE UNIVERSITY FOR VEGETATION MANAGEMENT SERVICES MAY PROPERLY BE NEGOTIATED UNDER 41 U.S.C. 252(C)(10), THE EXCEPTION TO THE FORMAL ADVERTISING REQUIREMENT WHICH ALLOWS NEGOTIATION WHERE IT IS IMPRACTICABLE TO OBTAIN COMPETITION.

THE PROPOSED CONTRACT CALLS FOR "VEGETATIVE INSTALLATION AND CULTURAL SERVICES" TO BE PERFORMED BY KANSAS STATE UNIVERSITY AT VARIOUS RESERVOIRS IN THE STATE OF KANSAS. THE CONTRACT IS IN FURTHERANCE OF A MEMORANDUM OF AGREEMENT BETWEEN THE FOREST SERVICE AND THE UNITED STATES ARMY CORPS OF ENGINEERS, KANSAS CITY DISTRICT, WHEREBY THE FOREST SERVICE HAS AGREED TO ASSIST THE CORPS OF ENGINEERS IN THE "PLANNING, DEVELOPMENT, AND MANAGEMENT OF OUTDOOR RECREATIONAL RESOURCES" AT RESERVOIRS CONSTRUCTED BY THE CORPS OF ENGINEERS IN ACCORDANCE WITH ITS WATER RESOURCE DEVELOPMENT PROJECTS. THE MEMORANDUM OF AGREEMENT PROVIDES FOR REIMBURSEMENT OF THE FOREST SERVICE BY THE CORPS OF ENGINEERS FOR EXPENDITURES MADE PURSUANT TO THE MEMORANDUM.

IN A JUSTIFICATION FOR NEGOTIATION SUBMITTED WITH YOUR LETTER, IT IS STATED THAT THE NATURE OF THE WORK TO BE REQUIRED OF THE CONTRACTOR IS SUCH THAT IT IS IMPOSSIBLE TO DRAFT SPECIFICATIONS FOR THE WORK INVOLVED. THE JUSTIFICATION ENUMERATES THE SPECIAL CAPABILITIES REQUIRED AND OBTAINABLE ONLY FROM KANSAS STATE UNIVERSITY. IN THIS REGARD, IT IS POINTED OUT THAT THE UNIVERSITY WILL PROVIDE BOTH PROFESSIONAL FORESTERS AND LANDSCAPE ARCHITECTS UNDER THE CONTRACT TERMS AND THAT SUCH EXPERTISE IS REQUIRED BECAUSE OF THE VARYING CONDITIONS ENCOUNTERED AT THE VARIOUS RESERVOIRS INVOLVED. THE JUSTIFICATION ALSO MENTIONS THE IMPORTANCE OF TIMING IN THE PLANTING AND WATERING OF THE TREES, SHRUBS AND GRASSES REQUIRED BY THE CONTRACT AS A FURTHER INDICATION OF THE NEED FOR THE SPECIAL CAPABILITIES POSSESSED BY THE UNIVERSITY.

IN B-157954, DECEMBER 15, 1965, WE ADVISED THE SECRETARY OF AGRICULTURE IN RESPONSE TO A QUESTION AS TO THE AUTHORITY OF THE DEPARTMENT TO NEGOTIATE CONTRACTS UNDER 41 U.S.C. 252(C)(10), AS FOLLOWS:

"WE HAVE CONSISTENTLY TAKEN THE POSITION THAT A WIDE DISCRETION IS VESTED IN ADMINISTRATIVE OFFICIALS IN NEGOTIATED PROCUREMENTS REQUIRING PRIMARILY THAT THE CONTRACTING OFFICIALS EXERCISE THEIR BEST JUDGMENT IN MAKING THE AWARD. *** IT HAS LONG BEEN REGARDED AS WITHIN THE PROVINCE OF THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT TO DETERMINE THE NEEDS AND TO DRAFT SPECIFICATIONS TO REFLECT THE NEEDS OF THE GOVERNMENT AND TO DETERMINE FACTUALLY WHETHER THOSE NEEDS WILL BE MET BY THE ARTICLES OFFERED. ***

"IT IS STATED IN THE SUBMISSION THAT NEGOTIATION PROCEDURES SHALL COMPLY WITH PART 1-3 OF THE FEDERAL PROCUREMENT REGULATIONS AND THIS OFFICE WOULD HAVE NO OBJECTION IF THE PROPOSED PROCUREMENTS ARE CONSUMMATED UNDER A REQUEST FOR PROPOSALS AND CONTRACTS AWARDED BY NEGOTIATION UNDER THE EXCEPTION TO FORMAL ADVERTISEMENT SET FORTH, IMPRACTICABILITY OF SECURING COMPETITION, ARISING FROM INCAPABILITY OF DESCRIPTION AND PARTICULARIZATION BY SPECIFICATION. *** "

WE ACCORDINGLY VIEW THE NEGOTIATION OF THE PROPOSED CONTRACT ON THE BASIS THAT IT IS IMPRACTICABLE TO OBTAIN COMPETITION AS WITHIN THE DISCRETION VESTED IN YOUR DEPARTMENT.