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B-180969, NOV 14, 1974, 54 COMP GEN 390

B-180969 Nov 14, 1974
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CONTRACTS - REQUIREMENTS - SPECIFICATION DEVIATION - NOT PERMITTED CONTRACT CLAUSE WHICH STATES THAT "WHEN HELICOPTERS IN ADDITION TO THE ONE UNDER CONTRACT ARE REQUIRED *** THE CONTRACTOR AGREES TO FURNISH *** (SAME) IF AVAILABLE (AT A RATE SET OUT IN THE IFB)" DOES NOT ALLOW FOR SUPPLYING OF HELICOPTERS AT ANY BASE OTHER THAN ONE UNDER CONTRACT. AWARD WAS NOT IMPROPER. CONTRACTS - OPTIONS - NOT TO BE EXERCISED - NEGOTIATED PROCUREMENT NOT JUSTIFIED "AWARD" MADE TO PARTY AFTER COMPETITIVE NEGOTIATION BY INCORPORATING ITEM IN QUESTION INTO PARTY'S THEN CURRENT CONTRACT CONTAINING OPTION PROVISION WAS IMPROPER - SINCE IT IS INCONGRUOUS FOR CONTRACT NEGOTIATED OUT OF URGENCY TO CONTAIN OPTION PROVISION.

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B-180969, NOV 14, 1974, 54 COMP GEN 390

CONTRACTS - REQUIREMENTS - SPECIFICATION DEVIATION - NOT PERMITTED CONTRACT CLAUSE WHICH STATES THAT "WHEN HELICOPTERS IN ADDITION TO THE ONE UNDER CONTRACT ARE REQUIRED *** THE CONTRACTOR AGREES TO FURNISH *** (SAME) IF AVAILABLE (AT A RATE SET OUT IN THE IFB)" DOES NOT ALLOW FOR SUPPLYING OF HELICOPTERS AT ANY BASE OTHER THAN ONE UNDER CONTRACT. MORE PERMISSIVE INTERPRETATION WOULD RENDER COMPETITIVE BIDDING PROCESS VIRTUAL NULLITY AND ALLOW ITS CIRCUMVENTION AT WHIM OF CONTRACTING OFFICER. CONTRACTS - NEGOTIATION - PUBLIC EXIGENCY - COMPETITION SUFFICIENCY NOTWITHSTANDING INFORMALITY OF FOREST SERVICE'S METHODS OF NEGOTIATING PROCUREMENT UNDER PUBLIC EXIGENCY EXCEPTION, INCLUDING FAILURE TO CONTACT POTENTIAL SUPPLIER, AWARD WAS NOT IMPROPER. SEE B 178693, SEPTEMBER 14, 1973, WHICH PERMITTED REASONABLE RESTRICTION OF NUMBER OF POTENTIAL COMPETITORS BY VIRTUE OF CIRCUMSTANCES OF URGENCY. MOREOVER, FOREST SERVICE VIEWED OUR EARLIER DECISION IN MATTER AS TEMPORARILY NOT DECLARING ITS SPECIFICATION TO BE RESTRICTIVE AND UNREASONABLY PRECLUDING USE OF PROTESTER'S HELICOPTER. CONTRACTS - OPTIONS - NOT TO BE EXERCISED - NEGOTIATED PROCUREMENT NOT JUSTIFIED "AWARD" MADE TO PARTY AFTER COMPETITIVE NEGOTIATION BY INCORPORATING ITEM IN QUESTION INTO PARTY'S THEN CURRENT CONTRACT CONTAINING OPTION PROVISION WAS IMPROPER - SINCE IT IS INCONGRUOUS FOR CONTRACT NEGOTIATED OUT OF URGENCY TO CONTAIN OPTION PROVISION. THEREFORE, OPTION SHOULD NOT BE EXERCISED.

IN THE MATTER OF GLOBE AIR, INC., NOVEMBER 14, 1974:

THE SUBJECT PROTEST IS RELATED IN LARGE MEASURE TO AN EARLIER DECISION BY OUR OFFICE, MATTER OF GLOBE AIR, INC., B-180969, JUNE 4, 1974, REGARDING THE ALLEGED RESTRICTIVENESS OF SPECIFICATIONS UNDER INVITATION FOR BIDS (IFB) R4-74-14.

THE REFERENCED IFB WAS ISSUED BY THE FOREST SERVICE ON MARCH 6, 1974. SOUGHT BIDS ON PROVIDING HELICOPTER SERVICES IN THE CHALLIS, PAYETTE AND SALMON NATIONAL FORESTS OF IDAHO. ITEMS 1 AND 2 OF THAT SOLICITATION CALLED FOR A TYPE "D" HELICOPTER, I.E., ONE WITH A MAXIMUM IN SPEED OF NOT LESS THAN 130 M.P.H. AND A MAIN ROTOR DIAMETER OF NOT GREATER THAN 37 FEET.

GLOBE FILED A PROTEST AGAINST THE ALLEGEDLY UNWARRANTED USE OF THESE SPECIFICATIONS WHICH IT ARGUED COULD BE MET ONLY BY THE ALOUETTE III HELICOPTER.

DURING THE PENDENCY OF THE PROTEST, ON MAY 6, 1974, BIDS WERE OPENED. THE FOLLOWING BIDS WERE RECEIVED:

ITEM BIDDER PRICE TYPE OF

HELICOPTER

1(SALMON) GLOBE $575.00/HR S-55T.

TIMBERLINE HELICOPTERS $1,242.50/HR ALOUETTE III.

2 (PAYETTE) ROCKY MOUNTAIN $410.00/HR ALOUETTE III.

HELICOPTERS.

TIMBERLINE $1,242.50/HR ALOUETTE III.

ON MAY 20, 1974, BOTH GLOBE AND TIMBERLINE WERE ADVISED THAT THEIR BIDS FOR ITEM 1 WERE CONSIDERED EXCESSIVE AND THAT ALL BIDS ON THAT ITEM WERE BEING REJECTED. AN AWARD WAS, HOWEVER, MADE TO ROCKY MOUNTAIN FOR ITEM 2.

THE FOREST SERVICE RELATES THAT:

AT THE TIME ITEM 1 WAS REJECTED, IT WAS INTENDED THAT THIS ITEM WOULD BE READVERTISED (INDEED GLOBE WAS SO ADVISED ON MAY 20). HOWEVER, IN REEVALUATING THE SITUATION, IT WAS THE JUDGMENT OF THE CONTRACTING OFFICER THAT IT WAS NECESSARY TO ACQUIRE A HELICOPTER FOR THE SALMON NATIONAL FOREST AS RAPIDLY AS POSSIBLE. DUE TO THE APPROACHING FIRE SEASON, TIME WOULD NOT PERMIT READVERTISEMENT.

A DETERMINATION WAS MADE THAT BECAUSE OF RESTRICTED ROTOR CLEARANCE IN BACK COUNTRY HELISPOTS, ONLY AN ALOUETTE III HELICOPTER WOULD MEET THE NEEDS OF THE SALMON NATIONAL FOREST. FIVE CONTRACTORS: SKY CHOPPERS OF PROVO, UTAH; INTERMOUNTAIN AVIATION OF MARANA, ARIZONA; AG HELICOPTERS OF COLORADO SPRINGS, COLORADO; INTERMOUNTAIN HELICOPTERS OF BOISE, IDAHO; AND ROCKY MOUNTAIN HELICOPTERS OF PROVO, UTAH, WERE CONTACTED TO DETERMINE IF THEY COULD PROVIDE AN ALOUETTE III HELICOPTER. INTERMOUNTAIN AVIATION AND INTERMOUNTAIN HELICOPTERS DID NOT HAVE AN ALOUETTE III AVAILABLE. SKY CHOPPERS COULD NOT FURNISH A HELICOPTER WITHIN A REASONABLE TIME. HELICOPTERS OFFERED TO PROVIDE THE NEEDED HELICOPTER FOR $1000 PER HOUR. ROCKY MOUNTAIN HELICOPTERS WAS WILLING TO FURNISH AN ALOUETTE III FOR $410 PER HOUR TO REPORT ON BASE BY APPROXIMATELY JUNE 17.

THEREFORE, THE FOREST SERVICE STATES THAT NEGOTIATIONS WERE CONDUCTED WITH ROCKY MOUNTAIN "*** PURSUANT TO THE ADDITIONAL HELICOPTER CLAUSE ***" OF ROCKY MOUNTAIN'S CONTRACT FOR ITEM 2. THE SALMON FOREST BASE REQUIREMENTS WERE THEREAFTER INCORPORATED INTO ROCKY MOUNTAIN'S CONTRACT BY CHANGE ORDER NO. 1, DATED JUNE 10, 1974.

IFB R4-74-17, AFTER LISTING THE FOUR ITEMS OR BASES FOR WHICH THESE SERVICES WERE BEING PROCURED, READ:

ADDITIONAL HELICOPTERS & PILOTS: WHEN HELICOPTERS, IN ADDITION TO THE ONE UNDER CONTRACT, ARE REQUIRED BY THE GOVERNMENT, THE CONTRACTOR AGREES TO FURNISH ADDITIONAL HELICOPTERS AND PILOTS, IF AVAILABLE (AT A RATE SET OUT IN THE IFB). ***

THE PROTESTER, WHO SEEKS TO PREVENT EXERCISE OF THE OPTION PERIODS FOR ITEM 1, ALLEGES THAT THE AWARD OF THE SALMON FOREST BASE (ITEM 1) ON A SUPPLEMNTARY BASIS WAS NOT PROPER UNDER THE TERMS OF THE ROCKY MOUNTAIN CONTRACT.

WE AGREE WITH THE PROTESTER THAT THE LANGUAGE OF THE SOLICITATION NOTED ABOVE WAS MEANT ONLY TO ALLOW THE CONTRACTING OFFICER THE OPTION OF HAVING THE CONTRACTOR AT A GIVEN BASE SUPPLY ADDITIONAL AIRCRAFT FOR THAT BASE UNDER CONTRACT IF NEEDED. IT DOES NOT ALLOW FOR THE SUPPLYING OF HELICOPTERS AT ANY OTHER BASE AS THE FOREST SERVICE'S POSITION IMPLIES. INDEED, ANY SUCH PERMISSIVE INTERPRETATION OF THE ADDITIONAL HELICOPTER AND PILOTS CLAUSE COULD WITHOUT DOUBT RENDER THE COMPETITIVE BIDDING PROCESS A VIRTUAL NULLITY AND ALLOW ITS CIRCUMVENTION AT THE WHIM OF THE CONTRACTING OFFICER. SEE, GENERALLY, 41 COMP. GEN. 484 (1962).

IN THE PRESENT SITUATION WE DO NOT FEEL THAT AN AGENCY DETERMINATION TO NEGOTIATE, PRESUMABLY UNDER THE PUBLIC EXIGENCY EXCEPTION, 41 U.S.C. SEC. 251 (C)(2) (1970), WAS UNREASONABLE IN LIGHT OF THE MOUNTING FOREST FIRE DANGER. ACCORDINGLY, SINCE THE FOREST SERVICE CONDUCTED COMPETITIVE NEGOTIATIONS, ALTHOUGH IN THE INFORMAL MANNER NOTED ABOVE, AND NOTWITHSTANDING DEFICIENCIES IN ITS METHODS, SUCH AS THE FAILURE TO INCLUDE GLOBE IN THE SALMON FOREST PROCUREMENT ACTION, OUR OFFICE CANNOT SAY THAT THE AWARD WAS IMPROPER. SEE B-178693, SEPTEMBER 14, 1973, WHICH PERMITTED A REASONABLE RESTRICTION OF THE NUMBER OF COMPETITORS DUE TO THE URGENCY OF THE SITUATION. SEE, ALSO, B-177547, MAY 29, 1973. IN THIS RESPECT, IT SHOULD BE NOTED THAT THE FOREST SERVICE VIEWED OUR DECISION OF JUNE 4 AS AT LEAST TEMPORARILY NOT DECLARING ITS SPECIFICATION FOR A 37- FOOT MAXIMUM ROTOR BLADE (A FEATURE FOUND ONLY ON THE ALOUETTE III) TO BE RESTRICTIVE AND UNREASONABLY PRECLUDING THE USE OF THE S-55T'S FLOWN BY GLOBE. (FN1)

FN1 THE QUESTION OF THE FOREST SERVICE'S TESTING OF THE S-55T WITH REGARD TO ITS ABILITY TO LAND IN RESTRICTED SPACES NOTWITHSTANDING ITS 53-FOOT BLADE DIAMETER IS STILL PENDING IN OUR OFFICE.

ACCORDINGLY, WHILE IT WOULD NOT HAVE BEEN IMPROPER FOR THE FOREST SERVICE TO HAVE AWARDED A CONTRACT TO ROCKY MOUNTAIN FOR THE SALMON FOREST BASE, THE QUESTION REMAINS, HOWEVER, AS TO WHETHER IT WAS PERMISSABLE FOR THIS NEWLY CREATED OBLIGATION TO BE IMPLEMENTED BY A CHANGE ORDER TO ROCKY MOUNTAIN'S CONTRACT FOR ITEM 2 (PAYETTE).

ROCKY MOUNTAIN'S CONTRACT FOR PAYETTE INCLUDED THE FOLLOWING CLAUSE:

THE GOVERNMENT SHALL HAVE THE RIGHT TO RENEW *** (THIS) CONTRACT FOR TWO ADDITIONAL ONE-YEAR PERIODS. ***

THUS, BY THE USE OF THE CHANGE ORDER THE SALMON FOREST BASE BECAME A PART OF THIS CONTRACT AND ALSO SUBJECT TO THE RENEWAL PERIOD. THIS SEEMS IMPROPER, HOWEVER, SINCE IT IS INCONGRUOUS FOR A CONTRACT RESULTING FROM NEGOTIATIONS HELD DUE TO THE PUBLIC EXIGENCY TO CONTAIN AN OPTION PROVISION (MATTER OF ALTON IRON WORKS, INC., B-179212(1), MARCH 6, 1974).

ACCORDINGLY, WHILE THE AWARD TO ROCKY MOUNTAIN WAS NOT IMPROPER PER SE, BECAUSE OF ITS INCLUSION INTO ROCKY MOUNTAIN'S EXISTING CONTRACT, WE SUGGEST TO THE FOREST SERVICE THAT IT NOT EXERCISE ROCKY MOUNTAIN'S OPTION WITH REGARD TO THE SALMON FOREST BASE.

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