B-207688, MAY 3, 1983

B-207688, MAY 3, 1983

DIGEST: 1. BID PROTEST ALLEGING THAT SOLICITATION IMPROPERLY EXCLUDED PROTESTER AND ITS AFFILIATES FROM COMPETITION IS TIMELY EVEN THOUGH PROTEST WAS FILED IN GAO AT 12:19 P.M. AND BIDS WERE OPENED AT 10 A.M. THAT SAME DAY. THERE IS A 3-HOUR TIME DIFFERENCE BETWEEN LOCATION OF BID OPENING (EUGENE, OREGON) AND LOCATION OF GAO (WASHINGTON, D. C.). THEREFORE, PROTEST WAS FILED IN OUR OFFICE BEFORE BIDS WERE ACTUALLY REQUIRED TO BE SUBMITTED IN ACCORD WITH SECTION 21.2(B)(1) OF OUR BID PROTEST PROCEDURES. 2. DISPUTE BETWEEN PROTESTER AND CONTRACTING AGENCY CONCERNING WHETHER PROTESTER WAS ENTITLED TO EXTENSION OF CONTRACT IS A MATTER OF CONTRACT ADMINISTRATION WHICH IS NOT FOR RESOLUTION BY OUR OFFICE. 3. FOREST SERVICE REGULATION (36 C.F.R. SECS. 223.5(H)(1)), WHICH EXCLUDES DEFAULTED PURCHASER FROM BIDDING ON RESALE OF TIMBER REMAINING UNDER DEFAULTED CONTRACT, UNLESS FOREST SERVICE DETERMINES THAT ALLOWING DEFAULTED PURCHASER TO BID IS IN PUBLIC INTEREST, IS VALID. GAO RECOMMENDATION IN B-195497, JUNE 2, 1980, IS MODIFIED IN ACCORD WITH SILLER BROTHERS, INCORPORATED V. UNITED STATES, 655 F.2D 1039 (CT.CL. 1981), CERT. DENIED, 102 S. CT. 1970 (1982).

TANGFELDT WOOD PRODUCTS, INC.:

TANGFELDT WOOD PRODUCTS, INC. (TANGFELDT), PROTESTS ITS EXCLUSION FROM PARTICIPATION IN THE PUFF RESALE TIMBER SALE BY THE UNITED STATES FOREST SERVICE. TANGFELDT CONTENDS THAT IT WAS NOT ALLOWED TO PARTICIPATE IN THE SALE BECAUSE THE FOREST SERVICE WRONGFULLY CONCLUDED THAT TANGFELDT HAD DEFAULTED UNDER A CONTRACT AWARDED BY THE FOREST SERVICE IN CONNECTION WITH THE ORIGINAL PUFF TIMBER SALE. TANGFELDT ARGUES THAT THE FOREST SERVICE'S AUTOMATIC EXCLUSION OF TANGFELDT AS A DEFAULTED CONTRACTOR AMOUNTED TO A PREMATURE DETERMINATION THAT TANGFELDT WAS NONRESPONSIBLE AND, SINCE TANGFELDT IS A SMALL BUSINESS, THE MATTER OF ITS RESPONSIBILITY SHOULD HAVE BEEN REFERRED TO THE SMALL BUSINESS ADMINISTRATION (SBA) FOR REVIEW UNDER CERTIFICATE OF COMPETENCY PROCEDURES IN ACCORD WITH 15 U.S.C. SECS. 637(B)(7) (SUPP. IV, 1980).

THE PROTEST IS DENIED.

WHEN THE ORAL AUCTION FOR THE ORIGINAL PUFF TIMBER SALE WAS CONDUCTED, TANGFELDT WAS THE HIGHEST BIDDER AND WAS AWARDED THE CONTRACT ON DECEMBER 9, 1980. BECAUSE MUCH OF THE PUFF TIMBER SALE INCLUDED TREES WHICH HAD BEEN DAMAGED BY FIRE AND BECAUSE FIRE DAMAGED TREES ARE HIGHLY SUSCEPTIBLE TO INSECT INFESTATION, ROTTING, AND WINDTHROW, THE FOREST SERVICE REQUIRED THAT ALL TIMBER HARVESTING OPERATIONS BE CONCLUDED BY MARCH 31, 1982. HOWEVER, TANGFELDT REQUESTED A 2-YEAR EXTENSION OF ITS CONTRACT ON JANUARY 19, 1982, IN ACCORD WITH THE FOREST SERVICE MANUAL (INTERIM DIRECTIVE NO. 71, NOVEMBER 17, 1980). THE FOREST SERVICE WAS WILLING TO GRANT THE REQUESTED EXTENSION CONTINGENT UPON TANGFELDT AGREEING, AMONG OTHER THINGS, TO A REQUIREMENT THAT TANGFELDT CUT AND REMOVE CERTAIN SPECIFIED TIMBER PRIOR TO JULY 15, 1982. TANGFELDT VIEWED THE IMPOSITION OF THE PRIORITY REMOVAL REQUIREMENT AS UNWARRANTED AND IMPERMISSIBLE AND, THEREFORE, OBJECTED. WHEN TANGFELDT AND THE FOREST SERVICE COULD NOT AGREE UPON A COMPROMISE DATE FOR REMOVAL OF THE SPECIFIED TIMBER, TANGFELDT CONCLUDED THAT THE FOREST SERVICE HAD MATERIALLY BREACHED THE CONTRACT BECAUSE AN EXTENSION WAS REQUIRED UNDER THE FOREST SERVICE'S OWN REGULATIONS. ON THE OTHER HAND, THE FOREST SERVICE CONCLUDED THAT THE PRIORITY REMOVAL SCHEDULE WAS JUSTIFIED AND THAT TANGFELDT HAD MATERIALLY BREACHED THE CONTRACT BECAUSE BY THE CONTRACT'S EXPIRATION DATE TANGFELDT HAD REMOVED LESS THAN 70 PERCENT OF THE TIMBER WHICH IT WAS OBLIGATED TO REMOVE BY MARCH 31, 1982, UNDER THE TERMS OF ITS CONTRACT.

ALTHOUGH MR. MENDELSOHN DOES NOT CONTEST THAT HE KNEW HIS OFFICIAL APPOINTMENT WAS TO END ON DECEMBER 31, 1980, HE NEVERTHELESS MAKES THE ARGUMENT THAT HE SHOULD BE COMPENSATED FOR SERVICES PERFORMED AFTER THAT DATE. HE STATES THAT ON JANUARY 15, 1981, HE RECEIVED A MEMORANDUM DATED DECEMBER 30, 1980, FROM THE DIRECTOR OF THE COUNCIL ASKING WHAT WORK HE HAD ALREADY PERFORMED AND WHAT OVERSEAS VISITS HE PLANNED TO MAKE. MR. MENDELSOHN SAYS THAT ON THE BASIS OF THIS MEMORANDUM HE ASSUMED HE WAS TO CARRY ON AS HE HAD PREVIOUSLY DONE, ESPECIALLY BECAUSE HIS APPOINTMENT HAD BEEN RENEWED PREVIOUSLY WITHOUT HIS REQUEST. THEREFORE, HE EXPLAINED THAT THROUGH THE MONTH OF JANUARY, HE CONTINUED TO RESPOND TO REQUESTS FOR ASSISTANCE MADE BY MEMBERS OF THE HOLOCAUST COUNCIL.

IT DOES NOT APPEAR THAT MR. MENDELSOHN SERVED DURING THESE PERIODS UNDER COLOR OF AUTHORITY OR WITH THE ASSURANCE OR REASONABLE EXPECTATION THAT HE WOULD RECEIVE COMPENSATION. IT WAS CLEARLY EXPRESSED TO MR. MENDELSOHN, AND HE APPARENTLY AGREED THAT HE WAS NOT TO BECOME AN EMPLOYEE OF THE HOLOCAUST COUNCIL UNTIL NOVEMBER 5, 1981. THE LETTER FROM THE COUNCIL'S VICE CHAIRMAN INVITING MR. MENDELSOHN TO ATTEND THE MEETING WITH THE ARMY'S CHIEF OF MILITARY HISTORY DID NOT SUPERSEDE THAT AGREEMENT, AND DID NOT PROVIDE AUTHORITY FOR HIM TO BEGIN WORK, ESPECIALLY IN LIGHT OF THE NOT UNCOMMON PRACTICE OF THE GOVERNMENT TO INVITE AN INDIVIDUAL WITH A PARTICULAR EXPERTISE TO ATTEND A MEETING AND TO SHARE THE BENEFIT OF HIS VIEWS WITHOUT COMPENSATION. SEE DR. FRANK VON HIPPEL, B-196088, NOVEMBER 1, 1979.

SIMILARLY, THE COUNCIL DIRECTOR'S MEMO OF DECEMBER 30, 1981, TO MR. MENDELSOHN DID NOT PROVIDE HIM WITH AUTHORITY TO WORK AFTER THE EXPIRATION OF HIS APPOINTMENT, WHICH MR. MENDELSOHN KNEW WAS TO OCCUR ON DECEMBER 31, 1980. IN ORDER TO SATISFY THE GOOD FAITH REQUIREMENT FOR DE FACTO EMPLOYMENT MR. MENDELSOHN SHOULD HAVE MADE INQUIRY AS TO WHETHER HIS APPOINTMENT WAS BEING RENEWED.

IN SUMMARY, WE DO NOT BELIEVE THAT THE HOLOCAUST COUNCIL PROVIDED MR. MENDELSOHN ANY ASSURANCE THAT HE WOULD BE COMPENSATED FOR SERVICES PERFORMED BEFORE OR AFTER THE PERIOD OF HIS APPOINTMENT, AND, THEREFORE, HIS EXPECTATION OF COMPENSATION FOR THOSE SERVICES WAS NOT REASONABLE. MR. MENDELSOHN'S CLAIM IS DENIED.

IT APPEARS THAT AFTER THE DETERMINATION MADE BY OUR CLAIMS GROUP, MR. MENDELSOHN REPAID A SUM EQUAL TO THE COMPENSATION FOR THE CONTESTED 53 HOURS. IF ALL COMPENSATION EXCEPT FOR THAT ATTRIBUTABLE TO THE 61.5 HOURS MR. MENDELSOHN WORKED DURING HIS APPOINTMENT HAS BEEN REPAID, NO FURTHER ACTION NEED BE TAKEN.