BNUMBER:  B-261250
DATE:  September 7, 1995
TITLE:  Collins Pine Company

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Matter of:  Collins Pine Company

File:       B-261250

Date:       September 7, 1995
                                                            
Alan I. Saltman, Esq., and Ruth G. Tiger, Esq., Saltman & Stevens, 
P.C., for the protester.
Gerald Bendix for Hi-Ridge Lumber Company; and James A. Zito, Esq., 
Dun & Martinek, for Sierra Pacific, interested parties.
Lori Polin Jones, Esq., Department of Agriculture, for the agency.
Behn Miller, Esq., and Ralph O. White, Esq., Office of the General 
Counsel, GAO, participated in the preparation of the decision.
                                                            
DIGEST

Protest that agency's refusal to extend bid opening date precluded 
purchasers from bidding equally and intelligently for timber sale 
requirement is denied where:  (1) agency reasonably was concerned that 
delaying the bid opening date might jeopardize forestry research 
project milestones; and (2) despite lack of physical access to the 
timber site, agency provided best available estimates--and access to 
the information upon which these estimates were based--from which all 
purchasers could reasonably prepare their bids, particularly given 
their timber harvesting expertise.
                                                            
DECISION

Collins Pine Company protests the opening of bids under a timber sale 
solicitation, issued by the Forest Service, Department of Agriculture, 
for the harvest of various areas of timber in the Blacks Mountain 
Experimental Forest located in Susanville, California.  Collins 
protests the Forest Service's refusal to extend the bid opening date 
to permit Collins and other prospective purchasers to physically 
inspect the timber sale site.  Collins argues that heavy snowfall in 
the months prior to bid opening barred potential bidders from 
inspecting the site, and without a site inspection, it could not 
intelligently prepare its bid or compete on an equal basis with at 
least one of the other potential bidders for this requirement. 

We deny the protest.

BACKGROUND

The Requirement

The timber sale at issue here is required as part of a large-scale, 
long-term interdisciplinary research project in the Blacks Mountain 
Forest that will provide information necessary to evaluate ecosystem 
management processes, particularly as these processes relate to old 
growth forests.[1]  The solicitation provided that the timber sale 
would be conducted as a sealed bid/oral auction procurement and 
contemplated the award of a 3-year contract.  Under the Forest 
Service's sealed bid/oral auction procedures, the submission of a 
qualifying sealed bid is a prerequisite to participation in the 
subsequent oral auction.  36 C.F.R.  223.88(b) (1994); Fort Apache 
Timber Co., B-237377, Feb. 22, 1990, 90-1 CPD  199.  The solicitation 
set forth estimated volume quantities for various species of available 
timber, and required purchasers to bid a minimum lump-sum 
amount--$3,929,156.49--for the total timber harvest.  The solicitation 
also contained a construction requirement for repairing approximately 
52 miles of existing road and building 2 miles of new road to access 
the various timber sites; bidders were to include the cost of this 
construction in their total bid prices.

To qualify for the oral auction after the bid opening, purchasers were 
required to bid at least the minimum lump-sum amount, and to provide a 
properly executed bid guarantee and other certifications required by 
the solicitation.  In a sealed bid/oral auction procurement, once 
written bids are opened, the highest bid amount is then posted and 
used as the minimum bid amount for the subsequent oral auction.

Because of the limited harvesting season in the Blacks Mountain 
Forest, extensive efforts were made by the Forest Service early in the 
procurement process to inform prospective timber purchasers about the 
timber sale.  On August 8, 1993, the Forest Service held a timber sale 
planning meeting in Quincy, California, which Collins attended; at 
this meeting, the agency distributed information about the upcoming 
Blacks Mountain Forest timber sale, including preliminary timber 
volume estimates and site locations.  On December 16, the Forest 
Service held a second information meeting in Susanville, California; 
it held a third meeting in Redding, California on April 21, 1994.  At 
each meeting, prospective purchasers were furnished with estimated 
timber volume quantities, site locations, and a Forest Service contact 
available to provide additional information about the sale.[2]
 
In October 1994, the agency flagged and marked the site where the new 
road was required to access some of the available timber; by November 
18 of that year, the marking of all timber designated for the Blacks 
Mountain Forest sale was completed.  On December 13, the Forest 
Service synopsized the timber sale in the Lassen County Times, 
advising the public of the sale site, and prospective timber quantity 
estimates.  The synopsis also advised prospective purchasers that 
"[i]nformation and maps concerning the proposed sale" could be 
obtained at the Forest Service offices in Susanville, California.

On February 28, 1995, the Forest Service resynopsized the Blacks 
Mountain Forest timber sale in the Lassen County Times with increased 
timber estimates, as well as an estimate for the construction 
requirement.  According to the second synopsis, bid opening was 
scheduled for April 3, 1995; bidders were also advised that in 
addition to a prospectus about the sale, "[c]omplete information 
concerning the timber, conditions of sale and submission of  bids is 
available to the public" from the Susanville, California Forest 
Service offices.

Although the timber sale solicitation and corresponding prospectus set 
forth estimated volume quantities for each timber species harvest, 
both documents specifically disclaimed any warranty by the Forest 
Service as to the accuracy of these estimates.  Specifically, the 
solicitation contained a "Disclaimer of Estimates" clause, a standard 
Forest Service provision, which requires bidders to warrant that the 
bid was based on an "examination and inspection of the quality and 
quantity of the timber offered for sale" without reliance on the 
solicitation's estimates.  The accompanying timber sale prospectus 
similarly urged prospective purchasers "to examine the timber sale and 
to make their own estimates" and warned that "[e]stimated quantities 
in the [solicitation] are not guaranteed." 

Requests for Bid Opening Date Extension

By March 25, as a result of heavy snowfall which prevented physical 
access to most of the timber sale area, the Forest Service received 
two requests--including one from Collins--to postpone bid opening 
until the site area could be inspected.  On March 31, the Forest 
Service extended bid opening from April 3 to April 17--and later to 
May 1.  Notwithstanding these extensions, heavy snowfall continued to 
prevent Collins and other prospective purchasers from visiting the 
sale area to inspect the trees.  Consequently, on May 1, shortly 
before the bid opening deadline, Collins protested that bid opening be 
postponed until purchasers could inspect the timber sale site.  When 
the contracting officer denied Collins' agency-level protest and 
refused to extend the bid opening date, Collins filed this protest at 
our Office.  

When bids were opened the Forest Service received the following 
purchase prices:

     Collins                $3,929,156.49
     Big Valley             $3,929,157.00
     Sierra Pacific         $3,930,000.00
     Hi Ridge               $4,000,000.00

After bid opening, the results of the subsequent oral auction were

     Collins                $5,547,000.00
     Big Valley             $7,051,000.00
     Sierra Pacific         $7,411,000.00
     Hi Ridge               $7,410,000.00

As a result, the agency identified Sierra Pacific, the highest bidder, 
as the intended awardee.

PROTESTER'S CONTENTIONS

Collins contends that the agency's failure to extend the bid opening 
date to permit inspection of the timber sale site violates the 
National Forest Management Act, which requires the Forest Service to 
use bidding methods that "insure open and fair competition."  16 
U.S.C.  472a(e)(1)(A) (1994); 36 C.F.R.  223.88(a)(1).  Collins 
maintains that because it has not been able to inspect the sale area, 
it cannot meaningfully compete "because it cannot bid as high as it 
otherwise might."  In this regard, Collins asserts that without a site 
inspection to evaluate or verify the estimated quantities set forth in 
the solicitation, purchasers run the risk of overpaying the Forest 
Service for an overestimated quantity of timber.  Collins also 
contends that the agency must postpone bid opening because another 
purchaser/bidder--Sierra Pacific--has an improper competitive 
advantage given its greater familiarity with the sale site area.

DISCUSSION

Collins does not argue or otherwise suggest that the Forest Service 
has prepared the timber quantity estimates arbitrarily, or in bad 
faith.  Rather, the protester contends that without a site inspection 
the solicitation imposes an undue risk on prospective 
purchasers--i.e., Collins argues that without the ability to 
physically "cruise" the site, it cannot ascertain the accuracy of the 
Forest Service's timber volume estimates.[3] 

While, as a general rule, a procuring agency must give sufficiently 
detailed information in a solicitation to enable bidders to compete 
intelligently and on a relatively equal basis, there is no requirement 
that a solicitation be so detailed as to eliminate all performance 
uncertainties and risks.  KCA Corp., B-236260, Nov. 27, 1989, 89-2 CPD
 498.  In fact, we have consistently recognized that there is some 
amount of risk present in any procurement, and offerors are expected 
to use their professional expertise and business judgment in taking 
these risks into account in computing their bids and offers.  LBM 
Inc., 70 Comp. Gen. 493 (1991), 91-1 CPD  476; Neil Gardis & Assocs., 
Inc., B-238672, June 25, 1990, 90-1 CPD  590.

We conclude that the Forest Service decision to proceed with the sale 
here was reasonable under the circumstances.  The record shows that, 
after extensive efforts beginning in 1993 to inform prospective 
bidders of the sale, the Forest Service twice extended the bid opening 
date in response to requests for additional time to inspect the sale 
site.  When--given its concern about the impact of further delay on 
the Blacks Mountain Forest project--the Forest Service then decided to 
proceed with bid opening, it made available sufficient information to 
permit meaningful competition under the circumstances.  Purchasers 
were given access to the data used by the Forest Service in 
calculating each of the timber volume estimates and the road 
construction estimate.  In addition to disseminating information and 
agency contact points at the series of informational meetings, 
paragraph 4 of the timber sale prospectus, "TIMBER VOLUMES AND RATES," 
specifically provided that "[t]he quality, size, and age class of the 
timber are estimates based on detailed cruise information on file and 
available for inspection at the Forest Service offices listed within 
the advertisement."

Since prospective purchasers could have used the raw cruising data to 
adequately--if perhaps not optimally--evaluate the accuracy of the 
Forest Service's timber estimates, we conclude that bidders should 
have been able to formulate a bidding strategy for competing 
intelligently and equally on this requirement.[4]  In reaching this 
conclusion, we note that each of the competitors under this 
procurement is a seasoned timber company, and each is familiar with 
Forest Service sales in the vicinity of the Blacks Mountain Forest.  
As such, each of the competitors is familiar with potential variances 
between agency timber quantity estimates and actual harvest volumes.  
Thus, we see no reason why the risk of bidding without physically 
cruising the timber site could not be alleviated by building such 
considerations into the offered purchase price.[5]   See Bean Dredging 
Corp., B-239952, Oct. 12, 1990, 90-2 CPD  286; Neil Gardis & Assocs., 
Inc., supra.

To the extent Collins asserts that Sierra Pacific will obtain contract 
award as a result of an improper competitive advantage, the record 
simply does not support this contention.  The record shows that 
shortly after attending the December 1994 Forest Service meeting in 
Susanville, California, and prior to the release of the solicitation, 
Sierra Pacific began inspecting and conducting its own cruise of the 
prospective timber site.  Although the protester now contends that 
this initial site visit gave Sierra Pacific an improper competitive 
advantage, and that the Forest Service must equalize the advantage by 
postponing bid opening to permit Collins to inspect the site, we 
conclude that the Forest Service is under no requirement to equalize 
this aspect of the competition.

The competitive advantage allegedly enjoyed by Sierra Pacific's site 
visit did not result from any agency  preference or other unfair 
treatment by the Forest Service.  Rather, all prospective 
purchasers--including Collins--were furnished with the same 
information about the upcoming sale, and any one of the prospective 
purchasers could have performed the same kind of presolicitation 
inspection of the site.  Both Collins and Sierra Pacific are 
experienced timber contractors; however, the protester chose not to 
exercise the same initiative as Sierra Pacific and inspect the sale 
area prior to issuance of the solicitation.  Thus, any competitive 
advantage enjoyed by Sierra Pacific in this procurement resulted only 
from an exercise of that firm's business judgment, and not from any 
preference or other unfair action by the government.  The Forest 
Service was under no obligation to equalize any competitive advantage 
enjoyed by Sierra Pacific as the result of its own efforts.  See 
Continental Lumber Co., Inc., B-258330, Jan. 9, 1995, 95-1 CPD  12.

The protest is denied.

 /s/ Christine S. Melody
 for Robert P. Murphy
     General Counsel

1. The Forest Service reports that research under this project will 
increase understanding of the basic biology and ecology of forests, 
and will provide information on sustaining forest productivity and 
protecting inherent biological diversity.  

2. The Forest Service also gave radio interviews and conducted media 
tours in an effort to apprise the public about this sale.

3. Within the timber industry, the value and volume of standard timber 
is determined by means of a timber appraisal procedure referred to as 
"cruising."  Using one of several standard cruising methods, the 
timber seller and purchaser derive tree volume estimates which serve 
as the basis for subsequent soliciting, bidding, and payment on timber 
sales.  Because the Forest Service and the timber purchaser frequently 
rely on different cruising methods, the timber volume estimates 
derived by each party can reasonably differ.  In addition, because of 
the volume of forest typically involved, most cruising methods measure 
only a sample of trees, and from the sample, a total estimate of 
volume is extrapolated.  Since estimated timber volume often varies 
from the actual timber harvested due to differences in tree density, 
incidence of disease, or age, the Forest Service relies on the 
disclaimer and inspection provisions referenced above to apprise 
timber purchasers of potential discrepancies and variations between 
the agency's estimated timber quantities and the actual volume of 
timber.

4. For example, we note that Sierra Pacific and several other bidders 
requested additional information from the Forest Service regarding 
this sale and reviewed the cruising data.

5. Collins also suggests that the solicitation's standard disclaimer 
clause indicates that the government's estimate may not be reliable.  
Despite the apparent intent of such a disclaimer to limit the exposure 
of the government in cases where a timber estimate proves unreliable, 
our review shows that these disclaimers have been narrowly interpreted 
when conditions exist that suggest their application would be 
unfair--such as including a significant mistake in the estimate.  See 
K & K Logging, Inc., Agriculture Board of Contract Appeals (AGBCA) No. 
85-271-3, Oct. 17, 1985, 85-1 BCA  18,487; Bohemia, Inc., AGBCA No. 
82-242-3, Dec. 7, 1982, 83-1 BCA  16,157.  While we are aware of no 
timber sale case where a bidder or offeror challenged the estimate on 
the basis that it was unable to inspect the site itself, a 
contractor's reliance on such estimates--despite a disclaimer, and 
despite a contractor's duty to perform its own inspection--has been 
permitted if a reasonable inspection would not have disclosed the 
discrepancies.  Marmot Constr. Works, Ltd., AGBCA No. 82-131-3, June 
21, 1982, 82-2 BCA  15,863; Willamette Timber Sys., Inc., AGBCA No. 
77-112-4, 80-2 BCA  14,751.  Accordingly, we see no  basis to 
conclude that where, as here, conditions prevent site inspection, mere 
inclusion of the standard disclaimer clause precludes reliance on the 
government estimate.