B-174490, JAN 24, 1972

B-174490, JAN 24, 1972

BID PROTEST - SALE OF LAND - UNEQUAL ACCESS DECISION DENYING PROTEST BY ROBERT WESTLAND AGAINST THE SALE OF GOVERNMENT-OWNED LAND TO JACK NICHOLS UNDER AN IFB ISSUED BY THE PROPERTY MANAGEMENT AND DISPOSAL SERVICE, GENERAL SERVICES ADMINISTRATION (GSA). PROTESTANT CONTENDS THAT THE LAND WAS UNFAIRLY OFFERED SINCE PROSPECTIVE BIDDERS WERE DENIED EQUAL ACCESS. HOWEVER, THE EVIDENCE INDICATES THAT AMONG THOSE WHO RESPONDED TO THE INVITATION TO CONTACT THE AREA ENGINEER FOR PURPOSES OF INSPECTION, ACCESS WAS GAINED WITHOUT EXCEPTION. FURTHERMORE, THERE IS NO REASON WHY NICHOLS SHOULD BE REQUIRED TO FURNISH PUBLIC ACCESS ACROSS HIS PRIVATE PROPERTY. ACCORDINGLY, THE COMP. GEN. CAN FIND NO LEGAL JUSTIFICATION TO DISAGREE WITH THE PROPOSED AWARD.

TO MR. ROBERT WESTLAND:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 4, 1971, WITH ENCLOSURES, AND LETTER OF NOVEMBER 5, 1971, PROTESTING THE SALE OF 1,668 ACRES OF FARM LAND UNDER INVITATION FOR BIDS (IFB) 10 DR-264, ISSUED BY THE PROPERTY MANAGEMENT AND DISPOSAL SERVICE, GENERAL SERVICES ADMINISTRATION (GSA).

IFB 10 DR-264, ISSUED ON JUNE 14, 1971, OFFERED FOR SALE APPROXIMATELY 1,668 ACRES OF FARM LAND DESCRIBED GENERALLY AS "FORMER DONALD C. AND VIRGINIA WRIGHT PROPERTY, FORT PECK, MONTANA I-MONT 413X". GSA ALSO ADVERTISED THE PROPERTY FOR SALE BY PLACING PUBLIC NOTICES IN SEVERAL NEWSPAPERS. THIRTY-TWO BIDS WERE RECEIVED FOR THE PROPERTY RANGING FROM A LOW OF $500 TO A HIGH OF $185,000. FIVE OF THE BIDS EXCEEDED THE APPRAISED VALUE.

THE HIGH BID OF $185,000 WAS REJECTED BECAUSE OF FAILURE OF THE BIDDER TO COMPLY WITH SPECIAL TERMS OF SALE NO. 4 WHICH REQUIRES THE BIDDER TO SUBMIT WITH HIS BID A BID DEPOSIT OF 10 PERCENT OF THE BID PRICE. THE SECOND HIGH BID OF $144,622.28 WAS SUBMITTED BY JACK NICHOLS, A RANCHER WHOSE PROPERTY ADJOINS THE PROPERTY BEING SOLD.

IT IS YOUR CONTENTION THAT VARIOUS BIDDERS WERE DENIED ACCESS TO THE PROPERTY AND THAT THE GOVERNMENT SHOULD BUILD A ROAD OR OTHERWISE PROVIDE AN ACCESS ROAD TO THE PROPERTY. YOU STATE THAT ACCESS TO THE PROPERTY FROM THE NORTH AND EAST IS CUT OFF BY THE MISSOURI RIVER AND THERE ARE ONLY THREE ACCESS ROUTES ON TO THE PROPERTY, THE BEST BEING FROM THE SOUTHWEST AND CROSSING JACK NICHOLS' PROPERTY, WHICH YOU CLAIM MR. NICHOLS HAS REFUSED TO ALLOW PROSPECTIVE BIDDERS TO USE. YOU ALSO CLAIM THAT THE SECOND ACCESS ROUTE, FROM THE SOUTHEAST CROSSES THE PROPERTY OF ANOTHER RANCHER WHO HAS ALSO DENIED ITS USE TO PROSPECTIVE BIDDERS. YOU STATE THAT THE THIRD ROUTE, FROM THE SOUTH, IS NOTHING MORE THAN A "HORSE AND BUGGY" ROUTE WHICH COULD NOT BE TRAVERSED BY ANYTHING OTHER THAN A FOUR WHEEL DRIVE VEHICLE. YOU ALLEGE THAT IF THE GOVERNMENT SELLS THE LAND TO MR. NICHOLS IT WILL BE REWARDING HIM FOR HIS REFUSAL TO PERMIT PROSPECTIVE BIDDERS TO USE THE ROUTE CROSSING HIS PROPERTY.

YOU REQUEST THAT THIS OFFICE STOP THE PROPOSED SALE TO MR. NICHOLS AND READVERTISE THE PROPERTY FOR SALE GIVING PROSPECTIVE BIDDERS MORE TIME TO PREPARE THEIR BIDS. YOU ALSO REQUEST THAT THE GOVERNMENT ARRANGE A PERMANENT RIGHT-OF-WAY AND GUARANTEED ACCESS TO THE PROPERTY. YOU CONTEND THAT SHOULD THE PROPERTY AGAIN BE PUT UP FOR SALE WITH ACCESS TO THE PROPERTY, YOU WOULD BID A PRICE HIGHER THAN THAT OF MR. NICHOLS, AND THAT IT IS CERTAIN A PRICE MORE CLOSELY APPROXIMATING THE TRUE VALUE OF THE LAND COULD BE OBTAINED. YOU CONTEND THAT THE BID PRICE OF MR. NICHOLS IS NO WHERE NEAR THE TRUE VALUE OF THE LAND AS EVIDENCED BY THE FACT THAT THE HIGH BID, WHICH WAS REJECTED FOR TECHNICAL REASONS, WAS $40,000 MORE THAN THE BID OF MR. NICHOLS.

REGARDING THE REJECTION OF THE HIGH BID FOR FAILURE TO COMPLY WITH SPECIAL TERMS OF SALE NO. 4 WHICH REQUIRED THAT A BID DEPOSIT OF 10 PERCENT ACCOMPANY THE BID, IFB 10 DR-264 WAS SUBJECT TO THE PROVISIONS OF THE INSTRUCTIONS TO BIDDERS (GSA FORM 1741). SECTION 5 OF GSA FORM 1741 STATES, IN PERTINENT PART:

"5. BID DEPOSIT. EACH BID MUST BE ACCOMPANIED BY A BID DEPOSIT OF NOT LESS THAN THE AMOUNT REQUIRED BY THIS INVITATION FOR BIDS, IN THE FORM OF A CERTIFIED CHECK, CASHIER'S CHECK, OR POSTAL MONEY ORDER (OR OTHERWISE PROVIDED FOR IN THIS INVITATION FOR BIDS) PAYABLE TO THE ORDER OF GENERAL SERVICES ADMINISTRATION. FAILURE TO SO PROVIDE SUCH BID DEPOSIT SHALL, REQUIRE REJECTION OF THE BID. *** ".

IN A SIMILAR SITUATION THIS OFFICE HELD THAT THE LATE FILING OF A BID BOND COULD NOT BE WAIVED REGARDLESS OF THE PECUNIARY ADVANTAGE TO THE GOVERNMENT. 43 COMP. GEN. 268 (1963). ACCORDINGLY, IT IS OUR VIEW THAT SECTION 5 OF GSA FORM 1741 REQUIRED REJECTION OF THE HIGH BID.

CONCERNING YOUR CONTENTION THAT VARIOUS BIDDERS WERE DENIED ACCESS TO THE PROPERTY, WE NOTE THAT THE IFB PROVIDED THAT ANYONE DESIRING TO INSPECT THE PROPERTY SHOULD CONTACT MR. DON BECKMAN, AREA ENGINEER, CORPS OF ENGINEERS, FORT PECK, MONTANA, IN ORDER TO MAKE ARRANGEMENTS FOR INSPECTION OF THE PROPERTY. WE ARE ADVISED THAT APPROXIMATELY 20 PEOPLE CONTACTED MR. BECKMAN FOR THE PURPOSE OF ARRANGING TO SEE THE PROPERTY AND THAT ALL OF THESE PEOPLE WERE PERMITTED TO INSPECT THE PROPERTY. WE ARE FURTHER ADVISED BY GSA THAT IT RECEIVED ONLY ONE COMPLAINT CONCERNING ACCESS TO THE PROPERTY. THE RECORD INDICATES THAT THOSE INDIVIDUALS WHO MADE ARRANGEMENTS WITH MR. BECKMAN TO INSPECT THE PROPERTY WERE ADVISED TO USE THE ACCESS ROAD COMING ONTO THE PROPERTY FROM THE SOUTH. IT IS GSA'S POSITION THAT THIS ROAD DOES PROVIDE ACCESS, WHILE IT IS YOUR POSITION THAT, FOR ALL PRACTICAL PURPOSES, IT DOES NOT, SINCE ONLY FOUR WHEEL DRIVE VEHICLES CAN TRAVEL THIS ROAD. HOWEVER, THERE IS NO EVIDENCE OF RECORD THAT ANY BIDDER WHO CONTACTED MR. BECKMAN WAS UNABLE TO REACH THE PROPERTY TO INSPECT IT.

WHILE THE TWO ACCESS ROADS CROSSING PRIVATE PROPERTY MAY BE IN BETTER CONDITION THAN THE ACCESS ROAD CROSSING PUBLIC LAND, WE ARE UNAWARE OF ANY REASON WHY THE OWNERS OF THE PRIVATE PROPERTY, ONE OF WHOM IS MR. NICHOLS, SHOULD BE REQUIRED TO ALLOW PROSPECTIVE BIDDERS TO USE THESE ROADS. AS TO GSA NEGOTIATING FOR ACCESS RIGHTS OVER THESE ROUTES OR, IN THE ALTERNATIVE, BUILDING ITS OWN ROAD, THE QUESTION OF WHETHER THE PROPERTY SHOULD BE SOLD ON A "AS IS" AND "WHERE IS" BASIS, OR WHETHER IMPROVEMENTS SHOULD BE MADE, IS PRIMARILY FOR DETERMINATION BY GSA UNDER AUTHORITY GRANTED TO IT UNDER SECTION 203 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, 40 U.S.C. 484. REGARDING THE ADVERTISING REQUIREMENTS FOR THE SALE OF GOVERNMENT PROPERTY, 40 U.S.C. 484 (E)(2) STATES, IN PERTINENT PART, THAT:

"(2) WHENEVER PUBLIC ADVERTISING FOR BIDS IS REQUIRED UNDER PARAGRAPH (1) OF THIS SUBSECTION -

"(A) THE ADVERTISEMENT FOR BIDS SHALL BE MADE AT SUCH TIME PREVIOUS TO THE DISPOSAL OR CONTRACT, THROUGH SUCH METHODS, AND ON SUCH TERMS AND CONDITIONS AS SHALL PERMIT THAT FULL AND FREE COMPETITION WHICH IS CONSISTENT WITH THE VALUE AND NATURE OF THE PROPERTY INVOLVED;

"(B) ALL BIDS SHALL BE PUBLICLY DISCLOSED AT THE TIME AND PLACE STATED IN THE ADVERTISEMENT;

"(C) AWARD SHALL BE MADE WITH REASONABLE PROMPTNESS BY NOTICE TO THE RESPONSIBLE BIDDER WHOSE BID, CONFORMING TO THE INVITATION FOR BIDS, WILL BE MOST ADVANTAGEOUS TO THE GOVERNMENT, PRICE AND OTHER FACTORS CONSIDERED: PROVIDED, THAT ALL BIDS MAY BE REJECTED WHEN IT IS IN THE PUBLIC INTEREST TO DO SO."

WE ARE OF THE VIEW THAT GSA'S DECISION NOT TO READVERTISE THE PROPERTY FOR SALE IS CONSISTENT WITH THE ABOVE PROVISIONS OF LAW. THIS IS EVIDENCED BY THE NUMBER OF BIDS RECEIVED AND THE FACT THAT FIVE OF THE BIDS WERE IN EXCESS OF THE APPRAISED VALUE. ALSO, AND NOTWITHSTANDING YOUR CONTENTIONS, WE AGREE WITH GSA THAT WHETHER THE BUILDING OF A BETTER ROAD AT A COST OF $10,000 WOULD RESULT IN A GREATER NET RETURN IS PURELY SPECULATIVE. BE THAT AS IT MAY, IT IS OUR OPINION THAT ANY SUGGESTION TO THAT EFFECT SHOULD HAVE BEEN MADE PRIOR TO BID OPENING, AND THAT ANY ASSURANCE FROM UNSUCCESSFUL BIDDERS FOLLOWING BID OPENING THAT THEY WILL BID HIGHER PRICES IF THE PROPERTY IS READVERTISED UNDER DIFFERENT CONDITIONS DOES NOT CONSTITUTE A VALID BASIS FOR REJECTING THE BIDS ALREADY RECEIVED.

ACCORDINGLY, WE FIND NO LEGAL JUSTIFICATION FOR DISAGREEING WITH GSA'S PROPOSED AWARD TO MR. NICHOLS, AS THE HIGHEST RESPONSIVE AND RESPONSIBLE

FOR THE ABOVE REASONS YOUR PROTEST IS DENIED ..END :