TITLE:  	Timberland Logging, B-282461, July 8, 1999
BNUMBER:  B-282461
DATE:  July 8, 1999
**********************************************************************
Timberland Logging, B-282461, July 8, 1999

Decision

Matter of: Timberland Logging

File: B-282461

Date: July 8, 1999

Mark D. Gibson for the protester.

Alan D. Groesbeck, Esq., Department of Agriculture, for the agency.

Robert C. Arsenoff, Esq., and Paul I. Lieberman, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.

DIGEST

Protest that agency deliberately excluded the incumbent protester from
competition is denied where record establishes that protester's name was
inadvertently dropped from bidders' mailing list and adequate competition
was obtained.

DECISION

Timberland Logging protests its alleged exclusion from competition under
invitation for bids (IFB) No. R5-99-08, issued as a total small business
set-aside by the Forest Service Region 5 (California) contracting office for
"Call When Needed" (CWN) helicopter services. Timberland, an incumbent which
had a CWN helicopter services contract awarded by Region 5 in 1997 that
expired in May 1999, asserts that the agency deliberately failed to send it
a copy of the solicitation.

We deny the protest.

On January 8, 1999, the procurement was synopsized in the Commerce Business
Daily (CBD). The synopsis indicated that the solicitation would be issued on
or about March 1. The IFB, contemplating multiple 1-year contracts beginning
in May 1999 with two 1-year option periods, was actually issued on February
23, with bid opening scheduled for March 23. Timberland, which apparently
did not see the CBD synopsis, first contacted the Region 5 contracting
office on March 30 to inquire about obtaining a copy of the solicitation
only to learn that bid opening had occurred a week earlier. Thereupon,
Timberland filed this protest on April 7, alleging that it was improperly
excluded from the competition and suggesting that the sole reason for the
exclusion was that the firm held a CWN helicopter services contract awarded
by the Forest Service's Region 6 (Oregon and Washington).

During a June 15 telephone conference held with the parties at the request
of our Office, the agency explained that it has a nationwide program for
obtaining CWN helicopter services. These services are used for fire support,
project, law enforcement and administrative flights. IFB sect. C.1(2). During
the conference, the agency explained that each Forest Service region
periodically solicits bids for these services; both parties agreed that the
contract periods for Region 5 and Region 6 are approximately coextensive.
Multiple awards are made to bidders submitting responsive bids and offering
reasonable prices to obtain a sufficient number of helicopters to meet
anticipated agency needs. IFB sect.sect. M.3(1), (2). In this case, approximately 27
firms were solicited, 19 bids were received and 17 contracts were awarded.
As a result, Region 5 has 51 helicopters under contract and the agency
reports that this number of aircraft meets its needs. Contracting Officer's
Statement, Apr. 19, 1999, at 2.

Although the IFB was issued by the Forest Service's Region 5, the scope of
the awarded contracts is not limited to performing within that region.
Rather, as explained by the agency during the telephone conference, as with
all CWN helicopter contracts awarded by the agency, all CWN helicopter
services solicitations provide that the government may dispatch aircraft
under resultant contracts for use wherever the Forest Service has
interagency or cooperative agreements with "State Agencies and private
landholders." See IFB sect.C.1(3). Thus, CWN contracts awarded by any Forest
Service region are effectively nationwide in scope.

Orders for services needed within or outside a given Forest Service region
are to be filled based on "performance and cost" considerations. IFB sect.
F.4(1). The government does not guarantee the placement of any orders and
contractors are not obligated to accept any orders; however, once an order
is accepted, the contractor is obligated to perform in accordance with the
terms and conditions of its contract. IFB sect. F.4(2). Performance relates to a
government-determined ability of the contractor's helicopter to perform a
needed service, IFB sect. F.4(1), while cost involves the daily availability
rate bid by firms when competing for CWN helicopter services contracts as
well as an hourly flight rate which is standardized by the Forest Service
for all CWN helicopter services contractors. See IFB sect.sect. B.1.A, J.2(19), J.7.
Thus, proximity to an area where services are required is an important cost
factor in the placement of orders. In this regard, the Forest Service
official responsible for placing orders in response to needs arising in
Northern California states in a declaration that he dispatches, or causes to
be dispatched, the closest available helicopter under a CWN helicopter
services contract, irrespective of what Forest Service region awarded the
contract. Declaration of North Zone Dispatch Center Logistics Coordinator
para.para. 2-4.

From 1992 to 1997, Timberland held a CWN contract awarded by Forest Service
Region 6. Timberland is located in Region 6, approximately 12 miles north of
the border with Region 5 (Protest at 1), and, therefore, expected to receive
orders for work in Northern California at sites to which it is proximate;
however, during this period of time, Timberland received no orders for work
in Region 5. Protester's Supplemental Comments at 1. The protester
attempted, unsuccessfully, to compete for contracts awarded by Region 5
during this time; finally, in 1997, the protester was awarded a CWN contract
by Region 5 and began to receive orders for work in that region. The Region
5 contract expired in May 1999. Timberland currently holds a CWN contract
awarded by Region 6. The protester contends that the Forest Service
deliberately did not solicit Timberland for the Region 5 procurement at
issue because of the agency's unwritten policy that firms with a contract
awarded by another region do not need a contract awarded by Region 5 in
order to receive orders for Region 5 work.

Where an agency inadvertently fails to solicit a successfully performing
incumbent with the result that there is only a minimal level of competition,
or makes a deliberate or conscious attempt to preclude the entity from
competing, it does not meet its obligation of obtaining full and open
competition. Interproperty Invs., Inc., B-281600, Mar. 8, 1999, 99-1 CPD 55
at 3. However, where adequate competition is achieved resulting in
reasonable prices, we will not sustain a protest in the absence of
conclusive evidence that the agency deliberately excluded an incumbent from
the competition. Id. at 4-5.

Here, adequate competition was achieved since, as indicated above, the
agency received 19 bids and awarded 17 contracts for 51 helicopters at
prices it determined to be reasonable, which determination the protester
does not dispute. The only question presented is whether the agency
deliberately excluded Timberland from the competition. For the reasons set
forth below, we conclude that Timberland was not deliberately excluded.

In preparing to issue the IFB, the contracting officer apparently annotated
a nationwide bidders' list with asterisks and check marks indicating those
firms to be solicited; on that list, Timberland's entry was checked,
denoting that it was to be sent a copy of the solicitation. The annotated
list was sent to a procurement assistant in El Dorado National Forest who
had agreed to distribute solicitations while the contracting office was
changing locations within California. Declaration of Contracting Officer para.
2. The procurement assistant explicitly states that she was not instructed
to, nor did she intend to, exclude Timberland from the final mailing list,
and explains that, in transcribing the annotated list to a format suitable
for making mailing labels, Timberland's name was inadvertently dropped from
the list. Declaration of Procurement Assistant para. 7. Timberland's submissions
provide no evidence to the contrary. Rather, after a review of this
information during the above-referenced June 15 conference call, Timberland
submitted written comments in which it did not rebut the account of events
presented by agency representatives and, instead, noted that Timberland has
been receiving orders for work in Region 5 under its Region 6 contract since
this protest was filed but expressed a concern that the agency might revert
to a policy where all Region 5 resources will allegedly be exhausted before
helicopters from Region 6 contractors are dispatched. However, that is
essentially a question of contract administration which is not for
consideration by our Office. Bid Protest Regulations, 4 C.F.R. sect. 21.5(a)
(1999). Since the record does not contain any evidence of Timberland's
deliberate exclusion and the agency otherwise obtained adequate competition
and reasonable prices, the protest is without merit. Interproperty Invs.,
Inc., supra, at 4-5.

The protest is denied.

Comptroller General of the United States