B-167003, SEP 9, 1969

B-167003, SEP 9, 1969

BID PROTEST - RENEWAL OPTIONS DECISION TO FLIGHT ENTERPRISES, INC., CONCERNING DEPARTMENT OF AGRICULTURE'S PROPOSAL TO RESOLICIT OFFERS FOR AIR TANKER FIREFIGHTING SERVICES FOR 1970 FIRE SERVICES. A CURRENT CONTRACTOR WHOSE CONTRACT WITH RENEWAL OPTION WAS NOT RENEWED MAY NOT HAVE SUCH FAILURE REGARDED AS CHANGE OF CONTRACT SINCE RENEWAL CLAUSE PROVIDED THAT GOVERNMENT MUST SERVE NOTICE OF DESIRE TO RENEW AND CONTRACTOR MUST AGREE IN WRITING. THEREFORE POSSIBILITY THAT THERE MIGHT NOT BE RENEWAL IS INHERENT IN CONTRACT.

TO MR. RALPH E. MARTIN:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 13, 1969, COMMENTING UPON THE PROPOSAL OF THE DIRECTOR, OFFICE OF PLANT AND OPERATIONS, DEPARTMENT OF AGRICULTURE, TO RESOLICIT OFFERS FOR THE 1970 FIRE SEASON FOR AIR TANKER FIREFIGHTING SERVICES OPERATING OUT OF BASES LOCATED AT ALAMOGORDO/GRANT COUNTY, NEW MEXICO; WINSLOW, ARIZONA; SANTA FE, NEW MEXICO; AND GRAND CANYON, ARIZONA.

A COPY OF OUR DECISION B-167003 OF JUNE 9, 1969, WHICH HELD THAT THERE WERE DEFECTS IN THE NEGOTIATION PROCEDURES EMPLOYED UNDER FOREST SERVICE SOLICITATION R3-69-64, HAS PREVIOUSLY BEEN FURNISHED TO YOU AND THEREFORE WILL NOT BE REPEATED HERE.

AS A RESULT OF THE DEFECTS IN THE NEGOTIATION PROCEDURES, THE DEPARTMENT OF AGRICULTURE HAS PROPOSED TO SOLICIT NEW OFFERS FOR THE 1970 FIRE SEASON FOR THE BASES INVOLVED INSTEAD OF EXERCISING THE OPTION IN THE CONTRACT PERMITTING RENEWAL FOR 2 ADDITIONAL YEARS.

YOU OBJECT TO THE SOLICITATION OF NEW OFFERS. YOU STATE THAT YOU HAVE FURNISHED AIR TANKER SERVICES TO, AND HAVE HAD A GOOD WORKING RELATIONSHIP WITH, THE FOREST SERVICE SINCE 1960; THAT THE ACCEPTANCE OF AN "ALL OR NONE" BID WOULD UNDERMINE COMPETITION IN THAT SMALL BUSINESS CONCERNS WOULD NOT BE ABLE TO COMPETE WITH BIG BUSINESS CONCERNS; AND THAT THE FAILURE TO EXERCISE THE RENEWAL OPTION WOULD BE AN ADMINISTRATIVE CHANGE BY THE GOVERNMENT THAT YOUR COMPANY COULD NOT ANTICIPATE. FURTHER, YOU INDICATE THE BASIS UPON WHICH YOU BELIEVE OFFERS SHOULD BE EVALUATED IF THERE IS TO BE FURTHER NEGOTIATION FOR THE SERVICES INVOLVED.

THE RESPONSIBILITY OF YOUR COMPANY IS NOT IN ISSUE AND, IN THE ABSENCE OF A SET-ASIDE FOR SMALL BUSINESS AS PROVIDED IN FPR SUBPART 1 1.7, THE FACT THAT SMALL BUSINESS CONCERNS MAY NOT BE ABLE OR WILLING TO COMPETE WITH BIG BUSINESS CONCERNS IS NOT PARTICULARLY SIGNIFICANT IN THE LIGHT OF THE UNRESTRICTIVE CHARACTER OF THE PROCUREMENT. FURTHER, THE CONTRACT DID NOT PROVIDE THAT IT WOULD BE RENEWED AUTOMATICALLY. RATHER, RENEWAL IS PERMISSIVE AND REQUIRES THE AGREEMENT OF BOTH THE CONTRACTOR AND THE GOVERNMENT. THE RENEWAL CLAUSE PROVIDES SPECIFICALLY THAT TO ACCOMPLISH THE RENEWAL THE GOVERNMENT MUST SERVE NOTICE OF ITS DESIRE TO RENEW, AND THE CONTRACTOR MUST AGREE IN WRITING. THUS, THE FAILURE TO EXERCISE THE OPTION WOULD NOT BE A CHANGE IN THE CONTRACT AND THE POSSIBILITY EXISTS UNDER THE CLAUSE THAT EITHER OF THE PARTIES, THE GOVERNMENT OR THE CONTRACTOR, MIGHT NOT CONSENT TO A RENEWAL. THE POSSIBILITY THAT THERE WOULD BE NO RENEWAL IS THEREFORE INHERENT IN THE CONTRACT.

WE NOTE THAT A CARBON COPY OF YOUR LETTER CONTAINING THE SUGGESTIONS AS TO HOW FUTURE OFFERS SHOULD BE EVALUATED HAS BEEN FURNISHED TO THE OFFICE OF PLANT AND OPERATIONS. THAT OFFICE HAS RECENTLY ADVISED US THAT THE FOREST SERVICE IS REVIEWING THE PROCEDURES FOR EVALUATING TECHNICAL EVALUATION PROCEDURES WITH EMPHASIS ON EVALUATION FACTORS AND THEIR RELATIVE WEIGHTS SO OFFERORS WILL KNOW THE BASIS ON WHICH THEY ARE BEING JUDGED.

IN VIEW OF THE DEFECTS IN THE NEGOTIATION PROCEDURE WHICH WERE OBSERVED IN OUR DECISION OF JUNE 9, 1969, OUR OFFICE CONCURS IN THE PROPOSAL OF THE DEPARTMENT OF AGRICULTURE TO RESOLICIT PROPOSALS FOR THE FOUR BASES INVOLVED.