B-219403, SEP 25, 1985

B-219403: Sep 25, 1985

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BEFORE TRAIL TO BE RECONSTRUCTED UNDER SOLICITATION ISSUED THE FOLLOWING SPRING IS COVERED WITH SNOW. THE PERIOD ALLOWED FOR A CONSTRUCTION SITE VISIT IS ADEQUATE WHEN THE TRAIL TO BE REBUILT IS ONLY HALF SNOW-COVERED ON DATE THE AGENCY ISSUES THE INVITATION FOR BIDS. SINCE PROSPECTIVE BIDDERS ARE EXPECTED TO TAKE RISKS INTO ACCOUNT WHEN PREPARING THEIR BIDS. PART OF WHICH WAS STILL UNDER SNOW AT THE JUNE 24 BID OPENING. SNOW COVERED HALF THE WHATCOM PASS TRAIL WHEN THE IFB WAS ISSUED. TECHNICAL PERSONNEL BELIEVED THAT THE OPEN PORTION WAS REPRESENTATIVE OF THE ENTIRE JOB. SUCH A DETERMINATION IS REQUIRED BY THE COMPETITION IN CONTRACTING ACT OF 1984. WHEN THE SITE WAS ALREADY SNOW-COVERED.

B-219403, SEP 25, 1985

BIDS - OPENING - POSTPONEMENT - DENIED DIGEST: 1. WHEN PROTESTER HAS ACTUAL KNOWLEDGE OF THE NEED TO INSPECT A CONSTRUCTION SITE IN THE FALL, BEFORE TRAIL TO BE RECONSTRUCTED UNDER SOLICITATION ISSUED THE FOLLOWING SPRING IS COVERED WITH SNOW, NEITHER THE PROTESTER'S FAILURE TO RECEIVE AN AGENCY LETTER SUGGESTING THAT PROSPECTIVE BIDDERS MAKE AN INSPECTION NOR THE COMMERCE BUSINESS DAILY'S APPARENT FAILURE TO PUBLISH A PRESOLICITATION NOTICE TRANSMITTED BY THE AGENCY JUSTIFIES POSTPONING BID OPENING. BIDS - OPENING - POSTPONEMENT - PROPRIETY 2. THE PERIOD ALLOWED FOR A CONSTRUCTION SITE VISIT IS ADEQUATE WHEN THE TRAIL TO BE REBUILT IS ONLY HALF SNOW-COVERED ON DATE THE AGENCY ISSUES THE INVITATION FOR BIDS, THE AGENCY CONSIDERS THE SNOW FREE PORTION REPRESENTATIVE OF THE ENTIRE TRAIL, AND BID OPENING DELAY WOULD INCREASE THE TIME REQUIRED TO COMPLETE THE PROJECT FROM TWO TO THREE SEASONS. BIDS - OPENING - POSTPONEMENT - PROPRIETY 3. WHEN RISK INHERENT IN INABILITY TO VIEW THE SNOW-COVERED PORTION OF TRAIL AFFECTS ALL BIDDERS EQUALLY, AGENCY MAY PROPERLY REFUSE TO POSTPONE BID OPENING, SINCE PROSPECTIVE BIDDERS ARE EXPECTED TO TAKE RISKS INTO ACCOUNT WHEN PREPARING THEIR BIDS.

HAPPY TRAILS:

HAPPY TRAILS PROTESTS THE REFUSAL OF THE FOREST SERVICE, U.S. DEPARTMENT OF AGRICULTURE, TO EXTEND THE OPENING DATE OF INVITATION FOR BIDS (IFB) NO. R6-5-85-210C. THE AGENCY ISSUED THE IFB ON MAY 17, 1985, SEEKING BIDS FOR RECONSTRUCTION OF 3.88 MILES OF THE WHATCOM PASS TRAIL IN THE MT. BAKER-SNOQUALMIE NATIONAL FOREST IN WASHINGTON STATE. HAPPY TRAILS ALLEGES THAT THE AGENCY DID NOT ALLOW SUFFICIENT TIME FOR BIDDERS TO INSPECT THE CONSTRUCTION SITE, PART OF WHICH WAS STILL UNDER SNOW AT THE JUNE 24 BID OPENING.

WE DENY THE PROTEST.

IN AN ATTEMPT TO AVOID THIS PROBLEM BY PERMITTING PROSPECTIVE BIDDERS TO INSPECT THE TRAIL IN GOOD WEATHER, ON SEPTEMBER 26, 1984, THE FOREST SERVICE SENT A PRESOLICITATION ANNOUNCEMENT TO THE COMMERCE BUSINESS DAILY (CBD). /1/ IN ADDITION, ON OCTOBER 1, 1984, THE AGENCY SENT LETTERS TO ALL BIDDERS ON THE TRAIL CONSTRUCTION BIDDERS' LIST, PROVIDING DIRECTIONS TO THE SITE AND A PROJECT MAP. THE LETTER SUGGESTED THAT THEY EXAMINE THE TRAIL AT THAT TIME BECAUSE SNOW MIGHT PRECLUDE INSPECTION WHEN THE AGENCY ACTUALLY ISSUED THE IFB THE FOLLOWING SPRING.

ACCORDING TO THE FOREST SERVICE, SNOW COVERED HALF THE WHATCOM PASS TRAIL WHEN THE IFB WAS ISSUED, BUT TECHNICAL PERSONNEL BELIEVED THAT THE OPEN PORTION WAS REPRESENTATIVE OF THE ENTIRE JOB. THE CONTRACTING OFFICER THEREFORE DENIED HAPPY TRAILS' REQUEST TO POSTPONE THE BID OPENING, CAUSING THE FIRM TO PROTEST TO OUR OFFICE ON JUNE 21, REQUESTING A 3-WEEK POSTPONEMENT. NOTWITHSTANDING THE PROTEST, THE FOREST SERVICE AWARDED THE CONTRACT ON JULY 16 TO ADOLPH K. OLSEN AFTER DETERMINING THAT TO DELAY AWARD WOULD SIGNIFICANTLY AFFECT THE INTERESTS OF THE UNITED STATES. SUCH A DETERMINATION IS REQUIRED BY THE COMPETITION IN CONTRACTING ACT OF 1984, 31 U.S.C.A. SEC. 3553 (WEST SUPP. 1985).

HAPPY TRAILS STATES THAT IT DID NOT RECEIVE THE OCTOBER 1984 LETTER AND THAT A COMPETITOR DID NOT RECEIVE IT UNTIL OCTOBER 20, WHEN THE SITE WAS ALREADY SNOW-COVERED. IN ADDITION, HAPPY TRAILS CONTENDS THAT THE AGENCY DID NOT MAKE AVAILABLE THE CONSTRUCTION LOG, WHICH HAPPY TRAILS CONSIDERED ESSENTIAL FOR A SITE INSPECTION, WHEN THE FIRM REQUESTED IT ON OCTOBER 1. THE FIRM ASSERTS THAT ITS BID, WHICH WAS FOURTH-LOW, WOULD HAVE BEEN MORE COMPETITIVE IF IT HAD BEEN BASED ON A FULL SITE INSPECTION. FINALLY, HAPPY TRAILS URGES THAT BIDDERS SHOULD NOT HAVE TO RELY ON INSPECTION OF THE PART OF THE TRAIL EXPOSED DURING MAY AND JUNE, SINCE THE AGENCY WILL HOLD THE CONTRACTOR RESPONSIBLE FOR COMPLETING THE ENTIRE PROJECT AT THE BID PRICE.

THE FOREST SERVICE REPLIES THAT THE WORK SEASON FOR THE WHATCOM TRAIL RECONSTRUCTION IS ONLY APPROXIMATELY 90 DAYS, SO THAT TO HAVE DELAYED BID OPENING WOULD HAVE INCREASED THE TIME REQUIRED TO COMPLETE THE PROJECT (420 DAYS ACCORDING TO THE SOLICITATION) FROM TWO TO THREE SEASONS. ADDITION, THE AGENCY STATES, THE AWARDEE, WHO HAND-CARRIED A BID TO THE JUNE 24 OPENING, STATED THAT HE HAD WALKED THE FULL LENGTH OF THE TRAIL DURING THE 3 PREVIOUS DAYS.

HAPPY TRAILS IMPLIES THAT THIS WOULD NOT HAVE BEEN POSSIBLE, SINCE ACCORDING TO THE NATIONAL PARK SERVICE'S WEEKLY TRAIL REPORT, DATED JULY 1, THE ENTIRE TRAIL WAS NOT SNOW-FREE AS OF THAT DATE. RATHER, THE REPORT STATES THAT SOLID SNOW COVERED THE TRAIL 1 MILE BELOW THE HANNEGAN PASS, WITH 3 FEET OF SNOW AT BOUNDARY CAMP, AS WELL AS MODERATE AVALANCHE DANGER IN THE PASS AREA. THE PROTESTER CONTENDS THAT 1.94 MILES OF THE TRAIL WERE UNDER SOLID SNOW, ALTHOUGH THE TRAIL REPORT DOES NOT INDICATE THE TOTAL SNOW-COVERED DISTANCE.

THE PROTESTER CONCLUDES THAT THE FOREST SERVICE'S REFUSAL TO POSTPONE BID OPENING THEREFORE IMPROPERLY RESTRICTED COMPETITION. HAPPY TRAILS SEEKS CANCELLATION OF THE CONTRACT AND RESOLICITATION AFTER A FULL OPPORTUNITY TO INSPECT.

IN GENERAL, THE AWARD OF A CONTRACT IS NOT IMPROPER SOLELY BECAUSE A BIDDER DID NOT RECEIVE A SOLICITATION, SO LONG AS THERE IS ADEQUATE COMPETITION RESULTING IN REASONABLE PRICES AND THERE HAS BEEN NO DELIBERATE ATTEMPT BY THE PROCURING AGENCY TO PRECLUDE A CERTAIN BIDDER FROM COMPETING. UFFNER TEXTILE CORP., B-210076, JAN. 18, 1983, 83-1 CPD PARA. 66. THIS RULE APPLIES TO A FAILURE TO RECEIVE A PRESOLICITATION NOTICE AS WELL, AND IN SIMILAR CIRCUMSTANCES WE HAVE UPHELD THE DENIAL OF A BIDDER'S REQUEST FOR AN EXTENSION OF THE BID OPENING DATE. SEE CAPITAL ENGINEERING & MFG. CO., B-213924, APR. 2, 1984, 84-1 CPD PARA. 374.

ALTHOUGH HAPPY TRAILS CLAIMS NON-RECEIPT OF THE PRESOLICITATION LETTER, THE AGENCY INFORMS US THAT THE FIRM WAS ON THE PROSPECTIVE BIDDERS' LIST AND SHOULD HAVE RECEIVED A COPY. HAPPY TRAILS HAS NOT ALLEGED THAT THE AGENCY DELIBERATELY ATTEMPTED TO EXCLUDE IT FROM COMPETING. ALSO, WE ARE UNABLE TO CONCLUDE THAT COMPETITION WAS INADEQUATE OR THAT PRICES OBTAINED WERE UNREASONABLE. SINCE THE FOREST SERVICE RECEIVED NINE BIDS, SEVERAL OF WHICH WERE IN AMOUNTS LESS THAN THE GOVERNMENT ESTIMATE.

AS FOR THE APPARENT FAILURE OF THE PRESOLICITATION NOTICE ACTUALLY TO BE PUBLISHED IN THE CBD, THE RECORD SHOWS THAT THE AGENCY TRANSMITTED IT TO THE CBD IN A TIMELY FASHION. IN ADDITION, DESPITE THE APPARENT LACK OF PUBLICATION, THE PROTESTER HERE HAD ACTUAL KNOWLEDGE OF THE PROPOSED SOLICITATION AND THE NECESSITY OF VIEWING THE SITE BEFORE IT BECAME SNOW- COVERED, SINCE BY ITS OWN ADMISSION IT REQUESTED THE CONSTRUCTION LOG ON OCTOBER 1, 1984. (IT DOES NOT APPEAR THAT THIS LOG WAS AVAILABLE TO ANY BIDDER UNTIL MAY 1985, ALTHOUGH THE RECORD IS NOT ENTIRELY CLEAR ON THIS POINT.)

IN CONNECTION WITH SITE INSPECTIONS, THE FEDERAL ACQUISITION REGULATION PROVIDES THAT INVITATIONS FOR BIDS FOR CONSTRUCTION CONTRACTS SHALL ALLOW SUFFICIENT TIME FOR BID PREPARATION TO ALLOW BIDDERS AN ADEQUATE OPPORTUNITY TO PREPARE THEIR BIDS, GIVING REGARD TO THE SEASON AND THE TIME NECESSARY FOR BIDDERS TO INSPECT THE SITE. 48 C.F.R. SEC. 36.303 (1984). WE CONSIDER THE PERIOD ALLOWED FOR SITE INSPECTION IN THIS CASE ADEQUATE. ALTHOUGH THERE IS CONFLICTING INFORMATION AS TO WHETHER THE ENTIRE TRAIL WAS SNOW-FREE BEFORE BID OPENING, AS NOTED ABOVE, THE AGENCY CONSIDERED THE PORTION OF THE TRAIL THAT WAS OPEN AT THE TIME THE IFB WAS ISSUED IN MAY REPRESENTATIVE OF THE ENTIRE TRAIL. ADDITIONALLY, THE PROTESTER DOES NOT DISPUTE THAT IT COULD HAVE VIEWED THE SITE ON OR ABOUT OCTOBER 1 AFTER REQUESTING THE CONSTRUCTION LOG AND PRIOR TO THE TRAIL BECOMING SNOW-COVERED.

IN OUR VIEW, HAPPY TRAILS IS PRIMARILY ATTEMPTING TO HAVE THE PROCUREMENT TIME FRAME RESTRUCTURED TO ELIMINATE AS MUCH RISK AS POSSIBLE. HOWEVER, THE MERE PRESENCE OF RISK IN A SOLICITATION DOES NOT MAKE THE SOLICITATION IMPROPER. HERO, INC., 63 COMP.GEN. 117 (1983), 83-2 CPD PARA. 687. BIDDERS ARE EXPECTED TO EXERCISE BUSINESS JUDGMENT AND TAKE RISKS, SUCH AS OF HIDDEN CONDITIONS, WHICH MAY OCCUR IN CONSTRUCTION OR REHABILITATION CONTRACTS, INTO ACCOUNT WHEN DEVELOPING THEIR BIDS. 41 COMP.GEN. 484 AT 488 (1962); TALLEY SUPPORT SERVICES, INC., B-209232, JUNE 27, 1983, 83-2 CPD PARA. 22. IN THIS CASE, THE TIME FRAME FOR THE SITE VISIT AFFECTED POTENTIAL BIDDERS EQUALLY AND THE FACT THAT BIDDERS MAY RESPOND DIFFERENTLY IN CALCULATING THEIR PRICES INVOLVES A MATTER OF BUSINESS JUDGMENT AND DOES NOT PRECLUDE A FAIR COMPETITION. SAXON CORP., B-214977, AUG. 21, 1984, 84-2 CPD PARA. 205.

WE DENY THE PROTEST.

/1/ IT APPEARS FROM A SEARCH OF A PRIVATE COMPANY'S COMPUTER DATA BASE THAT THE SYNOPSIS WAS NOT ACTUALLY PUBLISHED.