BNUMBER:  B-271505
DATE:  June 5, 1996
TITLE:  Clifford La Tourelle

**********************************************************************

Matter of:Clifford La Tourelle

File:     B-271505

Date:June 5, 1996

Clifford La Tourelle for the protester.
Allen W. Smith for the Department of Agriculture, Forest Service, the 
agency.
Christine Davis, Esq., and James A. Spangenberg, Esq., Office of the 
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

The inspection system established by a solicitation to evaluate the 
quality of a contractor's tree thinning services is sufficiently 
definite and unambiguous, where it gives bidders adequate guidance as 
to which trees to cut and which trees to leave and contains an 
inspection system that corresponds with this tree thinning guidance.

DECISION

Clifford La Tourelle protests the terms of invitation for bids (IFB) 
No. R10-03-96-02, issued by the Department of Agriculture, Forest 
Service, to obtain tree thinning services in various areas of the 
Tongass National Forest, Alaska.  The protester contends that the 
inspection system established by the IFB is unclear.

We deny the protest.

The IFB requested firm, fixed-prices for three line items.  Each line 
item corresponded with specific areas of the forest and units of 
acreage to be thinned.  The contractor was responsible for selecting 
those trees to be cut and those to be left, based upon guidance 
provided in the IFB specifications.  In selecting which trees to 
retain, the contractor was to favor the larger, better-formed, more 
vigorous trees over diseased, forked, malformed, or damaged trees.  In 
addition, the contractor was to maintain a distance of approximately 
14 feet, stem to stem, between the trees to be retained.  The 
contractor could increase or decrease the 14-foot distance between 
individual trees by 25 percent, if this was necessary to retain a 
better tree.  However, the contractor could not exercise this spacing 
variation in such a way as to alter the average number of trees per 
acre that the government wished to retain.  The IFB estimated that the 
contractor should retain 222 trees per acre, based upon the "14-foot 
by 14-foot spacing."

The IFB established an inspection system to gauge the contractor's 
compliance with the tree thinning specifications.  The government 
would conduct inspections based upon a series of .0315-acre plots.  At 
each plot, the government inspector would estimate the number of trees 
that the contractor should have retained within that plot.  The IFB 
assumed a "target" number of 7 retained trees per plot, which 
corresponds with 222 trees per acre.  The IFB also stated that the 
inspector would adjust the target number according to the stocking of 
the plot and the 25-percent spacing variation allowed in the 14-foot 
distance between individual trees.

To measure the contractor's compliance, the inspector would count the 
number of uncut trees in a plot and determine which of these trees met 
the specifications.  If, for example, a contractor retained a diseased 
or damaged tree, the tree would be deemed unsatisfactory.  In 
addition, if the contractor retained too few or too many trees based 
upon the target number established for that plot, each tree beneath or 
beyond the target number would be deemed unsatisfactory.  After 
inspecting a sampling of plots, the inspector would add the total 
target number of trees and the total number of unsatisfactory trees; 
the ratio between these figures would reflect the quality of the 
contractor's tree thinning services.  If the contractor achieved a 
quality ratio of at least 86 percent, the work would be deemed 
satisfactory and the contractor would receive full payment.  If the 
contractor's quality ratio was less than 86 percent, the government 
was entitled to reduce payment, or to direct the contractor to rework 
an area, or to terminate the contract for default after repeated 
unsatisfactory performance.

Mr. La Tourelle protests that the inspection system established by the 
IFB is unclear.  The protester states that he does not understand how 
the government inspector will adjust the target number of 7 trees per 
plot, based upon the stocking of the plot and the 25-percent variation 
allowed in the 14-foot distance between trees.  The protester claims 
that the application of a 25-percent variable implies a target range, 
rather than a target number, of trees per plot.

While specifications must be sufficiently definite and unambiguous to 
inform bidders of the minimum requirements of contract performance so 
they may bid intelligently and on a common basis, there is no 
requirement that specifications be so detailed as to eliminate all 
performance uncertainties and risks.  Sunnybrook, Inc., B-225642, Apr. 
10, 1987, 87-1 CPD  para.  399; Crimson Enters., Inc., B-209918.2, June 27, 
1983, 83-2 CPD  para.  24.  The contracting agency has the primary 
responsibility for determining its minimum needs and for drafting 
specifications to reflect those needs, and we will not question an 
agency's specifications unless there is a clear showing that they have 
no reasonable basis.  Tri-Ark Indus., Inc., B-266239; B-270192, Jan. 
17, 1996, 96-1 CPD  para.  87.  Here, the protester has not shown that the 
IFB inspection scheme is so imprecise or ambiguous as to prevent 
bidders from competing intelligently and on a common basis.

As noted above, the IFB allows the contractor to vary the 14-foot 
distance between individual trees by 25 percent to retain the best 
tree, so long as the contractor maintains an average 14-foot distance 
and an average 222 trees per acre.  The IFB inspection system 
incorporates this tree thinning criterion, so that the inspection will 
not penalize a contractor which properly exercises its discretion to 
vary the spacing between individual trees.  The inspection system 
contemplates that the inspector will assign a specific target number 
for each plot, but that the target numbers will vary between the 
plots, in consideration of each plot's unique features, including the 
optimal distance between trees.  In other words, the inspector will 
consider the optimal distance between trees in designating a plot's 
target number, but will maintain an average target number of 7 trees 
between the various plots.  In our view, the inspection system 
established by IFB is sufficiently definite and unambiguous, since the 
IFB gives bidders adequate tree thinning guidance and bases the 
inspection system upon this guidance. 

The protester also complains that the IFB's designation of a target 
number of 7 trees for purposes of inspection is ambiguous because the 
use of 14-foot by 14-foot spacing within the designated .0315-acre 
plot area does not necessarily yield an average of 7 trees per 
inspection plot for the entire acreage to be thinned, but will yield 
closer to an average of 8 trees per inspection plot.  However, the 
protester's own calculations evidence that an average target of 7 
trees per plot can be achieved with 14-foot by 14-foot spacing if a 
radial spacing pattern is employed.  

Mr. La Tourelle also protests that certain tree thinning 
specifications are impossible to meet.  A protester must present clear 
and convincing evidence that specifications are in fact impossible to 
meet or otherwise unduly restrict competition.  California Inflatables 
Co., Inc., B-249348, Nov. 9, 1992, 92-2 CPD  para.  331; Citrech, Inc., 
B-227958, Nov. 16, 1987, 87-2 CPD  para.  487.  Furthermore, an agency may 
offer for competition a proposed contract that imposes maximum risks 
on the contractor and minimum burdens on the agency, and a bidder 
should account for this in formulating its bid.  Eagle Fire Inc., 
B-257951, Nov. 30, 1994, 94-2 CPD  para.  214.

In this case, Mr. La Tourelle protests the requirement that the 
contractor must cut trees beneath the "lowest live limb."  The 
protester argues that a tree's lowest live limb can be very small and 
near the ground, making the requirement much more onerous than if the 
agency permitted cutting the tree beneath the lowest live limb that 
was longer than 12 inches, for example.  However, as the protester 
recognizes, a contractor can meet the stated IFB requirement by 
cutting trees near ground level or by shaving limbs from the stump.  
While this may prove time-consuming, it is not impossible, and a 
bidder can account for the increased performance costs in its bid.

Mr. La Tourelle also protests the requirement that a contractor may 
not cut any conifer whose diameter is 8 inches or greater.  The 
protester claims that the agency should allow the contractor a 2-inch 
margin of error if it cuts a tree whose diameter is less than 8 
inches.  The Forest Service states that a tree thinning contractor can 
rather easily estimate a tree's diameter.  Since there is no dispute 
that the agency may specify some dimension, and since the agency does 
not wish to retain trees whose diameters are 6 inches, we see no basis 
for the agency to revise the specification.[1]

The protest is denied.

Comptroller General
of the United States

1. In addition, Mr. La Tourelle initially protested that an IFB 
amendment conflicted with another IFB provision.  In its protest 
report, the agency stated that the inconsistency stemmed from an 
obvious typographical error, which should not have confused bidders.  
The protester did not respond to the agency's explanation, and we 
accordingly consider the issue abandoned.  See Monfort, Inc., 
B-256706, July 5, 1994, 94-2 CPD  para.  2.