B-182794, JUL 8, 1975

B-182794, JUL 8, 1975

WHERE REGULATION REQUIRES BIDDERS ON TIMBER SALE TO AGREE TO (1) FURNISH DESIGNATED EXPORT INFORMATION, AND (2) MAKE ALL EXPORT RECORDS AVAILABLE TO GOVERNMENT, OMISSION FROM IFB OF CLAUSES REQUIRED BY REGULATION PROVIDED COMPELLING REASON FOR SOLICITATION TO BE CANCELED AFTER BID OPENING EVEN THOUGH ONE BIDDER DID SUBMIT REQUISITE MATERIAL, SINCE THAT BIDDER WAS NOT HIGH, AND AWARD UNDER SOLICITATION WOULD BE PREJUDICIAL TO THOSE OTHERWISE RESPONSIVE BIDDERS WHO SUBMITTED HIGHER BIDS.

THE INTERMOUNTAIN COMPANY:

THE SUBJECT PROTEST CONCERNS THE FOREST SERVICE SEELEY CREEK TIMBER SALE. THE SALE PROPOSAL CONTAINED AN ESTIMATED 1,220 M BOARD FEET OF TIMBER.

THE SALE WAS ADVERTISED FOR 30 DAYS PRECEDING THE BID OPENING WHICH WAS HELD ON NOVEMBER 25, 1974. ADDITIONALLY, THE INVITATION AND PROSPECTUS WERE SENT TO INTERESTED PURCHASERS. THE PROSPECTUS AND THE INVITATION, HOWEVER, CONTAINED NEITHER THE CLAUSES REGARDING TIMBER EXPORT NOR THE CERTIFICATE OF NONSUBSTITUTION REQUIRED BY 36 C.F.R. SEC. 221.25(F) (1974).

SIX BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION. OF THE BIDS RECEIVED ONLY THE INTERMOUNTAIN COMPANY (INTERMOUNTAIN) (THE FOURTH HIGH BIDDER) CONTAINED A FORM WHICH INCLUDED BOTH THE CERTIFICATE OF NONSUBSTITUTION AND REQUISITE CLAUSES. INTERMOUNTAIN HAD OBTAINED THIS FORM INDEPENDENT OF THE SALE MATERIAL SENT IT.

AFTER BID OPENING INTERMOUNTAIN QUESTIONED THE RESPONSIVENESS OF THE THREE HIGH BIDDERS TO THE SALE SINCE THEY HAD NOT SUBMITTED THIS FORM WITH THEIR BIDS. THE FOREST SERVICE THEREAFTER DECIDED THAT THE SALE OFFERING WAS NOT IN CONFORMANCE WITH THE REGULATION DUE TO ITS ERROR IN NOT PROVIDING FOR OR REQUIRING THE CERTIFICATE OF NONSUBSTITUTION. THEREFORE, IN ACCORDANCE WITH 36 C.F.R. SEC. 221.8(C)(7) (1974) THE FOREST SERVICE REJECTED ALL BIDS.

INTERMOUNTAIN PROTESTED THIS ACTION TO OUR OFFICE ON THE GROUNDS THAT IT WAS WITHOUT MERIT, IN CONTRAVENTION OF THE POLICY, PRACTICE AND REQUIREMENTS OF THE FOREST SERVICE AND WAS PREJUDICIAL TO THE ONLY RESPONSIVE BIDDER. INTERMOUNTAIN ALSO ARGUES THAT AWARD SHOULD HAVE BEEN MADE TO IT AS THE ONLY RESPONSIVE BIDDER.

36 C.F.R. SEC. 221.25 STATES IN PERTINENT PART THAT:

"(B) UNPROCESSED TIMBER *** MAY NOT BE EXPORTED FROM THE UNITED STATES NOR USED AS A SUBSTITUTE FOR TIMBER FROM PRIVATE LANDS EXPORTED BY THE PURCHASER. ***

"(E) *** SUBSTITUTION IS THE PURCHASE OF TIMBER FROM NATIONAL FOREST SYSTEM LANDS TO BE USED AS REPLACEMENT FOR TIMBER EXPORTED FROM PRIVATE LANDS. SUCH REPLACEMENT OCCURS WHEN WITH RESPECT TO HISTORIC LEVELS, (1) THE PURCHASER CONTINUES TO EXPORT AND INCREASES HIS PURCHASE OF NATIONAL FOREST TIMBER, OR (2) THE PURCHASE OF NATIONAL FOREST TIMBER CONTINUES WHILE THE PURCHASER INCREASES HIS EXPORT OF UNPROCESSED TIMBER FROM PRIVATE LANDS TRIBUTARY TO THE PLANT FOR WHICH NATIONAL FOREST TIMBER COVERED BY A SPECIFIC CONTRACT IS EXPECTED TO BE DELIVERED. HISTORIC LEVEL IS DEFINED AS THE PURCHASE OR EXPORT DURING 1974 OR ANY SUBSEQUENT CALENDAR YEAR OF NOT TO EXCEED 110 PERCENT OF THE AVERAGE ANNUAL VOLUME PURCHASED OR EXPORTED IN CALENDAR YEARS 1971, 1972, AND 1973.

"(F) TO BE ELIGIBLE TO BID ON A SALE OF TIMBER FROM NATIONAL FOREST SYSTEM LANDS WEST OF THE 100TH MERIDIAN IN THE 48 CONTIGUOUS STATES, A BIDDER MUST:

"(1) CERTIFY THAT PURCHASE OF THE TIMBER WILL NOT CONSTITUTE SUBSTITUTION AS DEFINED IN PARAGRAPH (E) OF THIS SECTION;

"(2) AGREE TO FURNISH TO THE FOREST SERVICE PRIOR TO BEGINNING OPERATIONS UNDER THE CONTRACT: THE NAMES AND ADDRESSES OF PROCESSING PLANTS OR OTHER LOCATIONS TO WHICH THE TIMBER IS EXPECTED TO BE DELIVERED; THE NAMES AND ADVERTISED VOLUMES OF TIMBER SALES PURCHASED BY THE PURCHASER FOR DELIVERY TO EACH SUCH LOCATION IN CALENDAR YEARS 1971, 1972, AND 1973; THE VOLUMES OF TIMBER FROM PRIVATE LANDS TRIBUTARY TO EACH LOCATION LISTED, EXPORTED BY THE PURCHASER IN CALENDAR YEARS 1971, 1972, AND 1973.

"(3) AGREE TO FURNISH THE INFORMATION REQUIRED BY ITEM (2) TO THE FOREST SERVICE PRIOR TO LOG HAULING TO ANY LOCATION NOT INCLUDED IN THE LIST REQUIRED BY ITEM (2).

"(4) AGREE TO MAKE AVAILABLE TO THE FOREST SERVICE, UPON REQUEST, ALL OF HIS RECORDS DEALING WITH ORIGIN AND DESTINATION OF EXPORTED TIMBER.

FOR FALSE CERTIFICATION THE FOREST SERVICE MAY CANCEL THE CONTRACT, DEBAR THE PURCHASER FROM BIDDING ON FEDERAL TIMBER, AND IMPOSE SUCH OTHER PENALTIES AS MAY BE PROVIDED BY LAW OR REGULATION."

SECTIONS (F)(2), (3) AND (4) OF 36 C.F.R. SEC. 221.25 REQUIRE THAT A BIDDER AGREE (1) TO FURNISH CERTAIN DESIGNATED EXPORT INFORMATION, AND (2) TO MAKE ALL EXPORT RECORDS AVAILABLE TO THE GOVERNMENT. SINCE NEITHER THE SOLICITATION NOR OTHER REGULATIONS REQUIRED A BIDDER EITHER TO FURNISH THE INFORMATION OR MAKE THE RECORDS AVAILABLE, IN THE ABSENCE OF A SIGNED AGREEMENT TO THIS EFFECT, A BIDDER WOULD NOT BE SO OBLIGATED. THEREFORE, THE FOREST SERVICE'S OMISSION FROM THE IFB OF CLAUSES EFFECTING (F)(2)-(4) CANNOT BE REMEDIED BY A BIDDER'S AGREEMENT EXECUTED SUBSEQUENT TO BID OPENING FOR THIS WOULD BE A MATERIAL VARIANCE OF THE OBLIGATION OF THE SUCCESSFUL BIDDER FROM THAT SET OUT IN THE ORIGINAL IFB. SEE GENERALLY, YARDNEY ELECTRIC CORPORATION, B 180988, DECEMBER 24, 1974, CITING 49 COMP. GEN. 553, 556 (1970).

OUR OFFICE HAS HELD THAT EVEN THE UTILIZATION OF INADEQUATE, AMBIGUOUS, OR OTHERWISE DEFICIENT SPECIFICATIONS IS NOT IN AND OF ITSELF A "COMPELLING" REASON TO CANCEL AN IFB AND READVERTISE WHERE AN AWARD UNDER THE SOLICITATION AS ISSUED WOULD SERVE THE ACTUAL NEEDS OF THE GOVERNMENT AND WOULD NOT PREJUDICE OTHER BIDDERS. IMMIGRATION AND NATURALIZATION SERVICE, B-182949, MARCH 19, 1975; SPICKARD ENTERPRISES, INC.; COTTRELL ENGINEERING CORPORATION, 54 COMP. GEN. 145 (1974); GAF CORPORATION; MINNESOTA MINING AND MANUFACTURING COMPANY, 53 COMP. GEN. 586 (1974); JOY MANUFACTURING COMPANY, 54 COMP. GEN. 237 (1974); 52 COMP. GEN. 285 (1972); 49 ID. 211 (1969); 48 ID. 731 (1969). WHILE IT IS TRUE THAT INTERMOUNTAIN'S BID DID INCLUDE CLAUSES CONTAINING ALL THE AGREEMENTS REQUIRED BY THE REGULATION AND CONSTITUTED AN OFFER TO PERFORM IN THE MANNER REQUIRED BY THE GOVERNMENT, INTERMOUNTAIN WAS NOT THE HIGH BIDDER TAKING INTO CONSIDERATION THOSE HIGHER BIDS WHICH WERE RESPONSIVE TO THE SOLICITATION IN OTHER RESPECTS. THEREFORE, AN AWARD TO INTERMOUNTAIN WOULD BE PREJUDICIAL TO THOSE OTHER BIDDERS. SEE COLUMBIA VAN LINES, INC.; DISTRICT MOVING AND STORAGE, INC., B-182855, MAY 14, 1975; JOY MANUFACTURING COMPANY, SUPRA. SEE, GENERALLY, IMMIGRATION AND NATURALIZATION SERVICE, SUPRA.

ACCORDINGLY, THE OMISSION OF THOSE CLAUSES REQUIRED BY (F)(2)-(4) PROVIDED A COMPELLING REASON FOR THE FOREST SERVICE TO CANCEL THE SOLICITATION AFTER BID OPENING. (FN1) 51 COMP. GEN. 457, 465 (1972). SEE KLEEN-RITE JANITORIAL SERVICES, INC., B-180345, APRIL 23, 1974; 49 COMP. GEN. 135 (1969). MOREOVER, EVEN IF THE OMISSION OF CLAUSES (F)(2)-(4) WAS NOT THE SPECIFIC BASIS UPON WHICH THE FOREST SERVICE RELIED IN CANCELING, SINCE A VALID REASON DID EXIST FOR THE AGENCY'S ACTIONS, WE FIND NO BASIS TO OJBECT TO THE AGENCY'S ACTION. B-172061, AUGUST 24, 1971.

FN1 NOTE, THE OMISSION COULD NOT HAVE BEEN REMEDIED THROUGH THE APPLICATION OF THE RULE EXPRESSED IN G.L. CHRISTIAN & ASSOCIATES V. UNITED STATES, 312 F.2D 418 (CT. CL. 1963), RELATING TO THE READING IN OF REQUIRED CLAUSES, FOR AS WE HAVE HELD IN 47 COMP. GEN. 682, 685 (1967), THE SO-CALLED CHRISTIAN DOCTRINE "*** MUST OF NECESSITY BE LIMITED TO SITUATIONS WHEREIN MANDATORY CONTRACT PROVISIONS IMPOSED BY STATUTORY PROCUREMENT REGULATIONS ARE INCORPORATED BY OPERATION OF LAW IN OTHERWISE PROPERLY AWARDED GOVERNMENT CONTRACTS ***."

FOR THE REASONS NOTED ABOVE, INTERMOUNTAIN'S PROTEST IS ACCORDINGLY DENIED.