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B-214035, JAN 24, 1984

B-214035 Jan 24, 1984
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IF NO HIGHER BIDS WERE FORTHCOMING AT ORAL AUCTION. WHEN IT IS CLEAR FROM A PROTESTER'S INITIAL SUBMISSION THAT THE PROTEST IS WITHOUT LEGAL MERIT. GAO WILL NEITHER REQUEST AN AGENCY REPORT NOR HOLD A CONFERENCE ON THE PROTEST. VALENTINE ALSO OBJECTS TO THE FACT THAT THE SALE WAS NOT HELD AT THE PLACE STATED IN THE NOTICE. WHICH ADVISED HIM THAT EVEN THOUGH FAILURE TO FILL IN A BID PRICE MAY HAVE BEEN AN OVERSIGHT. WOULD NOT HAVE RESULTED IN A BINDING CONTRACT. VALENTINE EXPLAINS THAT THE CHANGE WAS MADE DUE TO RELOCATION OF OFFICES WHICH OCCURRED BETWEEN THE DATE OF ADVERTISEMENT AND THE DATE OF SALE. THAT THE LOCATIONS WERE WITHIN 200 FEET OF EACH OTHER. THAT TWO INDIVIDUALS WERE STATIONED AT THE ORIGINAL LOCATION TO REDIRECT BIDDERS.

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B-214035, JAN 24, 1984

DIGEST: 1. REGULATIONS FOR COMPETITIVE SALES OF NATIONAL FOREST TIMBER CLEARLY REQUIRE THAT AS A PREREQUISITE TO PARTICIPATION IN AN ORAL AUCTION, A BIDDER MUST SUBMIT A WRITTEN SEALED BID AT LEAST EQUAL TO THE MINIMUM ADVERTISED PRICE. SEALED BID WITH NO PRICE INDICATED DOES NOT MEET THIS REQUIREMENT, AND FOREST SERVICE'S ACCEPTANCE OF IT, IF NO HIGHER BIDS WERE FORTHCOMING AT ORAL AUCTION, WOULD NOT RESULT IN A BINDING CONTRACT. 2. WHEN IT IS CLEAR FROM A PROTESTER'S INITIAL SUBMISSION THAT THE PROTEST IS WITHOUT LEGAL MERIT, GAO WILL NEITHER REQUEST AN AGENCY REPORT NOR HOLD A CONFERENCE ON THE PROTEST, SINCE NO USEFUL PURPOSE WOULD BE SERVED.

LEROY VALENTINE:

LEROY VALENTINE PROTESTS THE FOREST SERVICE'S ALLEGEDLY IMPROPER REFUSAL TO ACCEPT HIS APPLICATION FOR AN ORAL BID ON THE PROTERVILLE LODGEPOLE TIMBER SALE, COVERING TIMBER IN THE WALLOWA-WHITMAN NATIONAL FOREST, BAKER, OREGON. MR. VALENTINE ALSO OBJECTS TO THE FACT THAT THE SALE WAS NOT HELD AT THE PLACE STATED IN THE NOTICE. WE SUMMARILY DENY THE PROTEST.

CORRESPONDENCE SUBMITTED WITH THE PROTEST INDICATES THAT SHORTLY BEFORE BID OPENING ON DECEMBER 12, 1983, MR. VALENTINE PRESENTED THE AUCTIONING OFFICER WITH AN UNSEALED BID ENVELOPE; THE OFFICER REQUESTED MR. VALENTINE TO SEAL AND RETURN IT, WHICH HE DID. WHEN SUBSEQUENTLY OPENED, HOWEVER, MR. VALENTINE'S BID DID NOT INCLUDE ANY PRICE. THE AUCTIONING OFFICER, RELYING ON FOREST SERVICE MANUAL SEC. 2431.74-6 (AMEND. 132, AUGUST 1983), WHICH STATES THAT "A BID WITH ONE SPECIES UNBID OR BID AT LESS THAN MINIMUM ... SHOULD BE CONSIDERED UNRESPONSIVE," REJECTED THE BID AND REFUSED TO LET MR. VALENTINE PARTICIPATE IN THE ORAL AUCTION.

MR. VALENTINE PROTESTED TO THE FOREST SERVICE, WHICH ADVISED HIM THAT EVEN THOUGH FAILURE TO FILL IN A BID PRICE MAY HAVE BEEN AN OVERSIGHT, THE AUCTIONING OFFICER'S ACTIONS HAD BEEN PROPER. WE AGREE. THE PROCEDURES FOR COMPETITIVE SALES OF NATIONAL FOREST TIMBER CLEARLY REQUIRE THAT AS A PREREQUISITE TO PARTICIPATION IN AN ORAL AUCTION, A BIDDER MUST SUBMIT A WRITTEN SEALED BID AT LEAST EQUAL TO THE MINIMUM ACCEPTABLE PRICE SPECIFIED IN THE ADVERTISEMENT. SEE 36 C.F.R. SEC. 223.6(B)(1983). MR. VALENTINE'S BID DID NOT MEET THIS CRITERION. WITHOUT AT LEAST A MINIMUM PRICE, THE BID COULD NOT SERVE AS CONSIDERATION FOR THE RIGHT TO CUT TIMBER, AND THE FOREST SERVICE'S ACCEPTANCE OF IT, IF NO HIGHER BIDS HAD BEEN FORTHCOMING AT THE ORAL AUCTION, WOULD NOT HAVE RESULTED IN A BINDING CONTRACT.

AS FOR MR. VALENTINE'S OBJECTION TO THE FACT THAT THE ACTUAL SALE TOOK PLACE AT A LOCATION DIFFERENT THAN THE ADVERTISED ONE, THE FOREST SERVICE'S LETTER TO MR. VALENTINE EXPLAINS THAT THE CHANGE WAS MADE DUE TO RELOCATION OF OFFICES WHICH OCCURRED BETWEEN THE DATE OF ADVERTISEMENT AND THE DATE OF SALE; THAT THE LOCATIONS WERE WITHIN 200 FEET OF EACH OTHER; THAT TWO INDIVIDUALS WERE STATIONED AT THE ORIGINAL LOCATION TO REDIRECT BIDDERS; AND THAT DIRECTIONAL SIGNS ALSO WERE USED. SINCE MR. VALENTINE ARRIVED AT THE NEW SITE BEFORE BID OPENING, WE FAIL TO SEE HOW THE CHANGE IN LOCATION PREJUDICED HIM OR PROVIDES A BASIS FOR PROTEST.

FINALLY, MR. VALENTINE REQUESTS A CONFERENCE TO DISCUSS HIS PROTEST. CASES SUCH AS THIS, WHERE IT IS CLEAR FROM THE PROTESTER'S INITIAL SUBMISSION THAT THE PROTEST IS WITHOUT LEGAL MERIT, WE NEITHER REQUEST AN AGENCY REPORT NOR HOLD A CONFERENCE, SINCE TO DO SO WOULD NOT SERVE ANY USEFUL PURPOSE. NORFOLK DREDGING COMPANY - REQUEST FOR RECONSIDERATION, B-212514.2, SEPTEMBER 19, 1983, 83-2 CPD 345.

THE PROTEST IS DENIED.

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