BNUMBER:  B-271636
DATE:  July 12, 1996
TITLE:  Northwest Ecosystem Alliance

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Matter of:Northwest Ecosystem Alliance

File:     B-271636

Date:July 12, 1996

Gary K. Kahn, Esq., Reeves, Kahn & Eder, for the protester.
Michael J. Gippert, Esq., Department of Agriculture, for the agency.
Jerold D. Cohen, Esq., Office of the General Counsel, GAO, 
participated in the preparation of the decision.

DIGEST

Forest Service properly found high bidder for salvage timber sale to 
be nonresponsible after the bidder stated that it intended to leave 
the area unlogged instead of meeting the contract obligation to cut 
and log the timber. 

DECISION

Northwest Ecosystem Alliance (NWEA) protests the determination by the 
Forest Service, Department of Agriculture that NWEA is not a 
responsible contractor for purposes of award of a contract for the 
Thunder Salvage Timber Sale. 

We deny the protest.

NWEA was the high bidder in the sale auction.  Following the auction, 
however, NWEA advised the Forest Service that it had no intention of 
performing logging operations in the sale area, stating its desire 
that the area remain unlogged for a normal timber rotation period.  
The Forest Service then found NWEA nonresponsible and thus ineligible 
for the award on the grounds that NWEA had neither the ability nor the 
intent to perform the logging operations as required by the 
contemplated contract.  In this respect, Forest Service regulations 
preclude a contracting officer from awarding a timber sale contract 
without first determining the purchaser responsible, considering 
factors such as the purchaser's ability to perform the contract within 
the contract term, the purchaser's performance record on timber sale 
contracts, and the purchaser's present possession of, or ability to 
obtain, equipment and supplies suitable for logging.  36 C.F.R.  sec.  
223.100, 223.101.  

NWEA points out that by the sale's terms the contract was to be 
awarded based on the bid "most advantageous to the United States."  
NWEA argues that it submitted the "most advantageous" bid in that the 
bid was the highest one received, award to NWEA would entail no 
contract administration or environmental management (e.g., 
reforestation) costs, and award to NWEA would yield substantial 
ecological and resource benefits.  

We will not consider NWEA's protest to the extent it involves the 
Forest Service's decision to conduct the sale in the first instance, 
that is, NWEA's concerns about the sale's environmental and ecological 
impacts and NWEA's evident disagreement with the Forest Service 
regarding the need for and utility of the sale.  Section 2001 of the 
fiscal year 1995 Rescissions Act, Pub. L. No. 104-19, 16 U.S.C.A.  sec.  
1611 note (West Supp. 1996), addresses the Department of Agriculture's 
emergency salvage timber sale program.  According to section 
2001(a)(3), an important reason for a salvage timber sale is the 
removal of diseased or insect-infested trees, dead, damaged or down 
trees, and trees affected by fire or imminently susceptible to fire or 
insect attack, as well as "associated trees or trees lacking the 
characteristics of a healthy and viable ecosystem."  Section 2001(e) 
provides that decisions by the Secretary of Agriculture in connection 
with salvage timber sales are not subject to administrative review, 
and section 2001(f) limits the judicial review of such decisions.[1] 
[2]

Regarding whether the Forest Service properly found NWEA 
nonresponsible, the Thunder Salvage Timber Sale was to be awarded "to 
that responsible bidder whose bid, conforming to the invitation for 
bids, is most advantageous to the United States on the basis of total 
value at rates bid for the estimated quantities."  NWEA's bid on its 
face conformed in that it evidenced no exception to the sale 
requirements, and its price in fact was the "most advantageous" on the 
advertised basis.[3]  (The other alleged advantages to the bid focus 
on factors other than the basis for the competition and, as noted 
above, are not appropriate for our review.)  Nevertheless, the Sample 
Contract to which prospective bidders were referred for the material 
terms of the sale provided:  "Forest Service agrees to sell and permit 
Purchase to cut and remove and Purchaser agrees to purchase, cut and 
remove Included Timber."  Thus, the sale clearly contemplated cutting 
and removing timber, so that acceptance of NWEA's bid would obligate 
NWEA, as a contractual matter, to pursue that effort. 

Responsibility reviews are to ensure that the government does not 
enter into contracts with firms that despite their apparently 
successful competitive offers will not be able to meet contract 
obligations--agencies are precluded from contracting with 
nonresponsible concerns.  See 36 C.F.R.  sec.  223.100; Federal Acquisition 
Regulation  sec.  9.103 (regarding purchases).  While responsibility 
generally is judged in terms of factors such as financial and other 
resources, experience, and integrity, see 36 C.F.R.  sec.  223.101, it also 
encompasses a company's intent to perform the requirement on which the 
competition was based.  See, e.g., Glenn T. Anderson, Inc., B-213640, 
B-213641, Dec. 14, 1983, 83-2 CPD  para.  689; Anderson Columbia Co., Inc., 
B-249475.3, Oct. 27, 1992, 92-2 CPD  para.  288; Jersey Maid Distributors, 
Inc., 
B-217307, March 13, 1985, 85-1 CPD  para.  307.  The government thus will 
not enter into a contract with a party that has stated its intent not 
to perform a requirement as advertised and to which the party 
therefore would be bound if its offer were accepted.

Our Office will not question a determination of nonresponsibility 
absent a showing of bad faith on the part of the contracting agency or 
that the determination lacked a reasonable basis.  See North Am. 
Constr. Corp., B-270085, Feb. 6, 1996, 96-1 CPD 
 para.  44.  Since intent to meet contract obligations properly is a 
responsibility matter, and since NWEA expressly stated its intent not 
to fulfill its part of the contract agreement, we see no legal basis 
to object to the Forest Service's decision that NWEA is not 
responsible for purposes of the sale award. 

The protest is denied.

Comptroller General 
of the United States

1. For example, any challenge to a sale must be filed in the U.S. 
district court for the district in which the affected federal lands 
are located, and within 15 days after the date of the initial sale 
advertisement.

2. We also point out that our Bid Protest Regulations require that a 
protest of a solicitation's provisions be filed before bids are 
opened.  4 C.F.R.  sec.  21.2(a)(1) (1996).

3. After rejecting NWEA as nonresponsible, the Forest Service awarded 
the contract to the next high bidder but at NWEA's high bid price, 
pursuant to 36 C.F.R.   sec.  223.102.  We note in this regard that section 
2001(c)(6) of the Rescissions Act permits salvage timber sales even 
where costs are likely to exceed revenues.