B-180771, AUG 7, 1974

B-180771, AUG 7, 1974

1. SINCE PROCUREMENT WAS NEGOTIATED RATHER THAN FORMALLY ADVERTISED, AND FACTORS OTHER THAN PRICE MAY BE CONSIDERED IN SELECTING THE AWARDEE, PROTESTER'S ARGUMENT THAT AS LOWEST RESPONSIVE AND RESPONSIBLE OFFEROR IT SHOULD HAVE RECEIVED AWARD IS WITHOUT LEGAL FOUNDATION, SINCE AWARDEE WAS SELECTED ON BASIS THAT ITS OFFER WAS MORE TECHNICALLY ACCEPTABLE AND MORE LIKELY TO ACCOMPLISH CONTRACT PURPOSE THAN PROTESTER'S OFFER; AND ABSENT EVIDENCE THAT CONTRACTING OFFICER EXCEEDED HIS DISCRETION IN EVALUATING TECHNICAL MERITS OF PROPOSALS, GAO HAS NO BASIS TO OBJECT TO AWARD. 2. SPECIFICATIONS IN TREE PLANTING SOLICITATION CALLING FOR "REASONABLE EFFORTS" TO BE EMPLOYED IN FURTHERANCE OF CONTRACT OBJECTIVES FOUND BY GAO TO BE TOO BROAD TO PERMIT OFFERORS TO COMPETE ON EQUAL BASIS; CONSEQUENTLY, RECOMMENDATION MADE TO AGENCY TO FURTHER DEFINE SCOPE OF CONTRACT REQUIREMENTS. 3. SINCE CONTRACT WAS REPROCURED FOLLOWING DEFAULT, USUAL STATUTORY REQUIREMENT THAT CONTRACTS BE LET AFTER COMPETITIVE BIDDING DOES NOT APPLY, AND CONTRACTING OFFICER IS GIVEN CONSIDERABLE LATITUDE SUBJECT ONLY TO REQUIREMENT OF REASONABLENESS IN DECIDING WHAT FORM CONTRACT MAY BE RELET.

CHARLES KENT:

REQUEST FOR PROPOSALS (RFP) R3-74-87 WAS ISSUED BY THE DEPARTMENT OF AGRICULTURE, FOREST SERVICE (SERVICE), ON FEBRUARY 27, 1974, FOR THE REPROCUREMENT OF A DEFAULTED TREE PLANTING CONTRACT AT THE LINCOLN NATIONAL FOREST. REPROCUREMENT WAS NEGOTIATED PURSUANT TO THE AUTHORITY OF 41 U.S.C. 252(C)(2).

IN REPROCUREMENTS FOLLOWING DEFAULT, CONSIDERABLE LATITUDE IS GIVEN THE CONTRACTING OFFICER, SUBJECT ONLY TO THE RULE THAT HIS ACTIONS MUST BE REASONABLE IN DECIDING WHAT FORM THE RELET CONTRACT SHOULD TAKE, AND MUST BE CONSISTENT WITH HIS DUTY TO MITIGATE DAMAGES. MOREOVER, THE STATUTORY REQUIREMENT THAT CONTRACTS BE LET AFTER COMPETITIVE BIDDING DOES NOT APPLY. SEE 42 COMP. GEN. 193 (1963), AND B-176070, DECEMBER 7, 1972.

THE SERVICE HAD APPROXIMATELY 352,000 TREE SEEDLINGS WORTH $17,862, WHICH HAD TO BE PLANTED WITHIN 30 DAYS, SINCE THE GROUND MOISTURE WAS DRYING UP OR THE TREES WOULD PERISH AND THE INVESTMENT WOULD BE LOST. AWARD WAS MADE TO M.A.C., INC., AT $69,59 PER ACRE.

MR. CHARLES KENT, REPRESENTING GEORGE REFORESTATION, ONE OF FOUR OFFERORS ON THE INSTANT SOLICITATION, CONTENDS THAT HIS FIRM SUBMITTED THE LOW CONFORMING OFFER AND SHOULD HAVE RECEIVED THE AWARD.

THE CONTRACTING OFFICER'S REPORT STATES THAT THE DECISIVE FACTOR EMPLOYED IN MAKING THE SELECTION WAS THE METHOD OF TREE PLANTING THAT THE CONTRACTOR SOUGHT TO UTILIZE.

THE RECORD INDICATES THAT KENT'S PROPOSAL OFFERED TWO METHODS FOR PLANTIN THE TREES. ONE, AT $90.45 PER ACRE, WAS FOUND TOO COSTLY. THE OTHER, CHARACTERIZED AS A "HUNT AND PECK" SYSTEM, WAS DETERMINED TO BE LESS DESIRABLE THAN THE METHOD OFFERED BY M.A.C., INC., THE SUCCESSFUL OFFEROR.

THE "HUNT AND PECK" SYSTEM OFFERED BY KENT CALLED FOR SCALPING AN 18 INCH AREA AND THEN TO DRIVE A HOEDAG INTO THE GROUND AT THE CENTER AND AT EACH OF THE FOUR CORNERS OF THE SCALPED AREA. IF THE GROUND COULD NOT BE PENETRATED 5 INCHES WITH A SINGLE BLOW, THAT PARTICULAR LOCATION WOULD BE CONSIDERED UNPLANTABLE. THIS METHOD WAS PRICED AT $59,45 PER ACRE.

WHILE KENT'S "HUNT AND PECK" METHOD WAS THE LOWEST PRICED OFFER, IT WAS CONSIDERED BY THE CONTRACTING OFFICER TO BE THE LEAST DESIRABLE BECAUSE THE GOVERNMENT WOULD BE LIABLE FOR THE TOTAL CONTRACT PRICE EVEN THOUGH FEW TREES MIGHT BE PLANTED. THE CONTRACTING OFFICER, IN SUPPORT OF HIS POSITION, STATED THAT SINCE THE TERRAIN WAS VERY ROCKY WHERE THE TREES WOULD BE PLANTED, THE CONTRACTOR WOULD HAVE DIFFICULTY IN PENETRATING THE GROUND 5 INCHES WITH ONE BLOW FROM ITS HOEDAG, AND THEREFORE MANY AREAS WHICH PROBABLY COULD BE PLANTED USING A DIFFERENT METHOD WOULD BE UNPLANTABLE UNDER THE "HUNT AND PECK" PROCEDURE.

IN VIEW OF THE FACT THAT THE TERRAIN WAS VERY ROCKY AND WOULD PRESENT SOME DIFFICULTY TO THE CONTRACTOR PLANTING THE TREES, THE RFP ONLY CALLED FOR "REASONABLE EFFORTS" TO BE USED BY THE OFFERORS IN DETERMINING WHICH LOCATIONS WERE PLANTABLE. M.A.C. MET THIS CRITERIA IN ITS PROPOSAL. CONSEQUENTLY, IT DID NOT OFFER A SELF-IMPOSED LIMITATION IN DETERMINING WHAT AREAS OF THE TERRAIN WERE PLANTABLE OR UNPLANTABLE AS KENT DID. THE CONTRACTING OFFICER CONSIDERED M.A.C.'S "REASONABLE EFFORTS" METHOD OF TREE PLANTING TO BE MORE TECHNICALLY ACCEPTABLE AND MORE LIKELY TO ACCOMPLISH THE CONTRACT PURPOSE THAN KENT'S "HUNT AND PECK" SYSTEM. ACCORDINGLY, AWARD WAS MADE TO M.A.C. AT ITS OFFERED PRICE OF $69,59 PER ACRE.

GENERALLY, WE HAVE RECOGNIZED IN SIMILAR CASES THAT THE FINAL SELECTION OF A CONTRACTOR UNDER NEGOTIATED PROCUREMENTS IS LARGELY A MATTER OF JUDGMENT AND, IN THE ABSENCE OF A CLEAR SHOWING THAT A DETERMINATION REGARDING TECHNICAL MERIT OF A PROPOSAL WAS AN ARBITRARY ABUSE OF DISCRETION OR MADE IN BAD FAITH, OUR OFFICE DOES NOT QUESTION A DEPARTMENT'S DECISION TO RATE ONE PROPOSAL OVER ANOTHER BASED ON ITS TECHNICAL SUPERIORITY. SEE B-172395, JULY 7, 1971.

SINCE THERE IS NO EVIDENCE THAT THE CONTRACTING OFFICER EXCEEDED HIS DISCRETION IN EVALUATING THE TECHNICAL MERITS OF THE PROPOSALS, WE FIND NO LEGAL BASIS FOR OBJECTION TO THE AWARD TO M.A.C. AND THE PROTEST IS THEREFORE DENIED.

WE OBSERVE, HOWEVER, THAT THE RFP SPECIFICATION CALLING FOR "REASONABLE EFFORTS" BY THE CONTRACTOR WAS EXCEEDINGLY BROAD AND OFFERORS COULD HAVE DIFFERING VIEWS AS TO WHAT IS REQUIRED. CONSEQUENTLY, WE ARE RE RECOMMENDING TO THE SECRETARY OF AGRICULTURE THAT IN FUTURE PROCUREMENTS OF THIS NATURE CRITERIA SUCH AS "REASONABLE EFFORTS" BE FURTHER DEFINED. THIS WOULD PERMIT OFFERORS TO COMPETE ON AN EQUAL BASIS.