Intertribal Bison Cooperative
Highlights
A firm protested a Department of Agriculture (USDA) solicitation for the production and delivery of ground bison and bison stew meat to participants in the Food Distribution Program for Indians on Reservations (FDPIR), contencing that the solicitation violates an applicable appropriation statute. GAO held a solicitation, issued by USDA contemplating a contract for such purchases that permits submission of proposals from non-Native American cooperative organizations under a competition limited to cooperative organizations and GAO recommended that USDA:(1) cancel the solicitation and purchase bison from Native American sources consistent with the statute; (2) to the extent it needs to further process bisono purchased from Native American sources in order to deliver it to FDPIR participants, acquire these processing services under appropriated competitive procedures using otherwise available appropriations; (3) not use the funds earmarked for this purchase of bison to purchase or process bison acquired from non-Native American sources; and (4) reimburse the protester its cost of pursuing its protest, including reasonable attorney's fees. Accordingly, the protest was sustained.
B-186559, OCTOBER 19, 1976
FOREST SERVICE PROPERLY REJECTED ALL BIDS ON TIMBER SALE WHERE ERRONEOUS APPRAISAL VALUES OF TIMBER SPECIES INCLUDED IN SOLICITATION COULD HAVE RESULTED IN SALE AT LESS THAN ACTUAL APPRAISED VALUE IN VIOLATION OF STATUTE.
VANPORT MANUFACTURING COMPANY:
THIS IS A PROTEST BY THE VANPORT MANUFACTURING COMPANY OF THE REJECTION OF ALL BIDS AND THE SUBSEQUENT READVERTISEMENT OF THE PATCH SALVAGE TIMBER SALE OF AN ESTIMATED 300,000 BOARD FEET (300 MBF) DOUGLAS-FIR, 500 MBF WESTERN HEMLOCK (AND OTHER), AND 28 ACRES OF "PER ACRE MATERIAL", LOCATED ON THE ST. HELENS RANGER DISTRICT, GIFFORD PINCHOT NATIONAL FOREST.
THE APPRAISAL SUMMARY DATED MARCH 11, 1976, WHICH ACCOMPANIED THE "TIMBER SALE PROSPECTUS", SHOWED THE FOLLOWING APPRAISAL VALUES FOR THE STANDING TIMBER SUBJECT TO THE SALE IN QUESTION.
DOUGLAS-FIR $45.97 MBF WESTERN HEMLOCK AND OTHER 44.76 MBF
PER ACRE MATERIAL 112.71/ACRE
THE SALE WAS APPROPRIATELY ADVERTISED, WITH SEALED BIDS RECEIVED ON APRIL 28, 1976, FOLLOWED IMMEDIATELY BY ORAL BIDDING. FINAL BIDS WERE RECEIVED AS FOLLOWS:
VANPORT MANUFACTURING CO. SPECIES BID TOTAL BID DOUGLAS-FIR $46.00 MBF WESTERN HEMLOCK AND OTHER 45.00 MBF
PER ACRE MATERIAL 15.78 MBF $39,456.00*
FORT VANCOUVER PLYWOOD CO. SPECIES BID TOTAL BID DOUGLAS-FIR $45.97 MBF WESTERN HEMLOCK AND OTHER 44.76 MBF
PER ACRE MATERIAL $15.78 MBF $39,327.00*
* BASED ON ESTIMATED QUANTITIES
SUBSEQUENT TO THE DETERMINATION OF THE HIGH BID, THE FOREST SUPERVISOR'S OFFICE DISCOVERED THAT THE APPRAISAL VALUE FOR THE OFFERING WAS IN ERROR, AND INSTRUCTED THE DISTRICT (RANGER) OFFICE TO REJECT ALL BIDS ON THE BASIS OF INCORRECT APPRAISAL DATA. THE SERVICE STATES THAT THE FOREST SUPERVISOR OVERLOOKED THE REQUIREMENT OF FOREST SERVICE MANUAL (FSM) 2431.71, THAT A TIMBER SALE BE AWARDED TO THE HIGHEST BIDDER WHO QUALIFIES UNDER THE TERMS OF THE ADVERTISEMENT UNLESS THE REGIONAL FORESTER (A LEVEL HIGHER THAN THE FOREST SUPERVISOR) AUTHORIZES "OTHER ACTION" UNDER 36 C.F.R. 221.10(1975).
THE REPORT OF THE FOREST SERVICE TO THIS OFFICE STATES THAT THE APPRAISAL WAS IN ERROR IN THE FOLLOWING RESPECTS:
ORIGINAL CORRECTED HIGH
SPECIES APPRAISAL APPRAISAL BID
DOUGLAS-FIR $45.97 MBF $77.32 MBF $46.00 WESTERN HEMLOCK AND OTHER $44.76 MBF $16.94 MBF $45.00
THERE WAS NO ERROR IN THE APPRAISAL OF THE "PER ACRE MATERIAL".
EXTENDING THE CORRECTED APPRAISAL RATES BY THE ESTIMATED QUANTITIES SHOWN IN THE PROSPECTUS WOULD INDICATE A TOTAL ESTIMATED VALUE OF $34,822, VIS-A -VIS THE TOTAL EVALUATED BID OF THE PROTESTER OF $39,456, OR AN APPARENT HIGH BID WHICH WAS $4,634 HIGHER THAN THE TOTAL ESTIMATED APPRAISAL VALUE FOR THE OFFERING.
THE PROTESTER ASSERTS THE FOLLOWING GROUNDS FOR ITS PROTEST:
1. THE REGIONAL FORESTER DID NOT AUTHORIZE REJECTION OF ALL BIDS, AND THE FOREST SUPERVISOR LACKED SUCH AUTHORITY.
2. THE REGIONAL FORESTER WAS AUTHORIZED TO REJECT ALL BIDS "' * * * ONLY WHEN SUCH REJECTION IS IN THE INTEREST OF THE UNITED STATES.' FSM2430.71", AND THERE WAS NO EXPLANATION AS TO HOW A REJECTION BASED SOLELY ON AN APPRAISAL ERROR WAS IN THE INTEREST OF THE UNITED STATES.
3. THERE WAS NO BASIS FOR THE REJECTION BECAUSE THE HIGH BID EXCEEDED THE CORRECTED APPRAISAL VALUE OF THE TREES.
THUS, ACCORDING TO THE PROTESTER, THE ACTION TAKEN BY THE FOREST SERVICE IN THIS INSTANCE WAS PROCEDURALLY DEFICIENT AND SUBSTANTIVELY INCORRECT.
ON THE OTHER HAND, THE AGENCY IN EFFECT CONTENDS THAT ALTHOUGH THE REJECTION MAY HAVE BEEN PROCEDURALLY DEFICIENT, THE REGIONAL FORESTER (WHO POSSESSES THE NECESSARY AUTHORITY) HAS "INDICATED THAT UNDER THE CIRCUMSTANCES HE WOULD HAVE CONCURRED IN THE DECISION * * * ", AND THAT A SALE AT LESS THAN THE APPRAISED VALUES "CONSTITUTED AN ILLEGAL OFFERING (WHICH) COULD BE TO THE DISADVANTAGE OF THE GOVERNMENT."
HAVING CONSIDERED THE ARGUMENTS ADVANCED BY THE PORTESTER IN SUPPORT OF THE PROTEST, WE THINK THE ISSUE DISPOSITIVE OF THE MATTER IS WHETHER THE SALE AS ORIGINALLY ADVERTISED COULD BE EFFECTED IN ACCORDANCE WITH STATUTORY REQUIREMENTS.
THE SALE OF TIMBER UPON NATIONAL FORESTS IS GOVERNED BY 16 U.S.C. 476(1970), WHICH PROVIDES IN PERTINENT PART:
"* * * (THE SECRETARY OF AGRICULTURE, UNDER SUCH RULES AND REGULATIONS AS HE SHALL PRESCRIBE, MAY CAUSE TO BE DESIGNATED AND APPRAISED SO MUCH OF THE DEAD, MATURED, OR LARGE GROWTH OF TREES * * * AS MAY BE COMPATIBLE WITH THE UTILITIZATION OF THE FORESTS THEREON, AND MAY SELL THE SAME FOR NOT LESS THAN THE APPRAISED VALUE IN SUCH QUANTITIES * * * AS HE SHALL PRESCRIBE * * * ."
THERE IS NO DISPUTE THAT THE APPRAISED VALUE FOR THE DOUGLAS-FIR WAS SUBSTANTIALLY UNDERSTATED, OR THAT THE APPRAISED VALUE FOR THE HEMLOCK AND "OTHER" WAS SUBSTNATIALLY OVERSTATED; NOR IS THERE ANY QUESTION THAT THE PROTESTER'S TOTAL BID, BASED ON THE COMBINATION OF THE ESTIMATED QUANTITIES, WAS HIGHER THAN THE CORRECT APPRAISED VALUE FOR THOSE COMBINED QUANTITIES. THE PROTESTER CONTENDS THAT THIS LATTER FACT SATISFIES THE STATUTORY REQUIREMENTS. HOWEVER, THE POSITION OF THE FOREST SERVICE APPEARS TO BE THAT THE STATUTE CAN BE SATISFIED ONLY IF THE CONTRACT PRICE FOR EACH SPECIES IS NOT LESS THAN THE APPRAISED VALUE FOR THAT SPECIES OF TIMBER, NOTWITHSTANDING THE FACT THAT AN AVERAGE OF THE TOTAL PRICE PAID FOR ALL SPECIES AMONG THE INDIVIDUAL SPECIES WOULD PRODUCE A PRICE FOR A PARTICULAR SPECIES IN EXCESS OF THE APPRAISED VALUE, BECAUSE OF "THE EFFECT OF VARIATION BETWEEN ESTIMATED AND ACTUAL VOLUMES ON STUMPAGE VALUES ON THIS * * * SALE * * * ."