TITLE:  SHABA Contracting, B-287430, June 18, 2001
BNUMBER:  B-287430
DATE:  June 18, 2001
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SHABA Contracting, B-287430, June 18, 2001

Decision

Matter of: SHABA Contracting

File: B-287430

Date: June 18, 2001

Hadley H. Gross for the protester.

Lynn W. Flanagan., Esq., Department of Agriculture, for the agency.

Charles W. Morrow, Esq., and James A. Spangenberg, Esq., Office of the
General Counsel, GAO, participated in the preparation of the decision.

DIGEST

Procuring agency properly determined tree thinning services were a
commercial item and used Federal Acquisition Regulation subpart 12.6,
Streamlined Procedures for Evaluation and Solicitation for Commercial Items,
to acquire the services.

DECISION

SHABA Contracting protests the terms of request for proposals (RFP) No.
RMAST-01-047, issued by the Forest Service, United States Department of
Agriculture,
for tree thinning services.

We deny the protest.

The RFP was issued as a combined synopsis/solicitation posted in the
Commerce Business Daily Online (CBDNet) on February 28, 2001, pursuant to
Federal Acquisition Regulation (FAR) subpart 12.6, Streamlined Procedures
for Evaluation and Solicitation for Commercial Items. [1] Proposals were
sought to perform tree thinning in five designated areas in the Black Hills
National Forest, South Dakota. The RFP stated that the provisions, and
clauses incorporated in the RFP were those "in effect through Federal
Acquisition Circular 97-23." The notice further advised that a copy of the
applicable Forest Service specifications, supplemental instructions, and map
locations of the areas could be obtained from the Forest Service and
identified the applicable clauses and instructions. [2] The notice also
identified the applicable Service Contract Act wage determination. Price was
said to be the only evaluation factor.

SHABA timely protested that the synopsis "actually [is] for services instead
of commercial items" and argues that different clauses were required than
those listed in the notice. SHABA also complains that the notice improperly
failed to incorporate certain required clauses.

Contrary to SHABA's apparent belief, services can be commercial items. In
this regard, FAR sect. 2.101 states that services are commercial items if they
are:

Services of a type offered and sold competitively in substantial quantities
in the commercial marketplace based on established catalog or market prices
for specific tasks performed under standard commercial terms and conditions.

Determining whether a particular service is a commercial item is a
determination largely within the agency's discretion, which will not be
disturbed by our Office, unless it is shown to be unreasonable. Crescent
Helicopters, B-284706 et al., May 30, 2000, 2000 CPD para. 90 at 2. Agencies are
required to conduct market research pursuant to FAR part 10 to determine
whether commercial items are available that could meet the agency's
requirements. FAR sect. 12.101(a). If through market research the agency
determines that the government's needs can be met by an item customarily
available in the commercial marketplace that meets the FAR sect. 2.101
definition of a commercial item, the agency is required to use the
procedures in FAR part 12 to solicit and award any resultant contract. [3]
FAR sect.sect. 10.002(d)(1), 12.102(a).

Here, the record shows that the Forest Service concluded, based upon an
informal market survey, that these tree thinning services qualify as a
commercial item because the services are not unique, are not used
exclusively by the government, and are offered and sold competitively by
forestry and nursery firms. For example, the Forest Service reports that
there were more than 150 potential offerors on the mailing list for the
services, that the local telephone book contained numerous sources for tree
thinning services, and that the agency has personal knowledge of several
commercial companies engaged in various types of tree services. SHABA does
not dispute any of these findings. Thus, there is no basis to object to the
agency's determination that these services constituted a commercial item and
were required to be solicited under FAR part 12.

Although SHABA questions the Forest Service's motivations for using a
different procurement strategy than it previously used in acquiring these
services, including the omission of certain clauses, FAR subpart 12 permits
the agency to utilize the streamlined procedures contained in subpart 12.6
to solicit commercial items. This subpart supplants the normal solicitation
process and requires only those clauses specified in the subpart to be
incorporated in the combined synopsis/solicitation notice. Since the notice
included the clauses required by FAR subpart 12.6, there is no merit to
SHABA's contentions that the notice did not identify the appropriate clauses
and that the Forest Service was trying to avoid applicable regulations.

SHABA notes several clauses that it asserts were improperly omitted from the
solicitation, including a clause entitled "Alien Employees," which at one
time was included in the Forest Service Acquisition Regulation (FSAR); FAR
sect. 52.236-7,"Permits and Responsibilities;" and Agricultural Acquisition
Regulation sect. 452.236-72, "Use of Premises." The agency advises that the
"Alien Employees" clause is no longer included in the FSAR, and that the
other two clauses are generally for use in construction contracts and are
not required to be used in tree thinning services contracts. SHABA has not
rebutted the agency's position and we find no basis to find these clauses
were required to be included in the solicitation. [4]

SHABA finally claims that the awards under this solicitation will be to
firms who can and will propose a very low price because they will not comply
with labor and other laws. These issues are not for our consideration, even
if they were not premature and speculative. A protester's claim that a
bidder or offeror submitted an

unreasonably low price--or even that the price is below the cost of
performance--
is not a valid basis for protest. An offeror, in its business judgment,
properly may decide to submit a price that is extremely low. Brewer-Taylor
Assocs., B-277845, Oct. 30, 1997, 97-2 CPD para.124 at 4. An agency decision
that the contractor can perform the contract at the offered price is an
affirmative determination of responsibility, which we will not review absent
a showing of possible bad faith on the part of procurement officials, or
that definitive responsibility criteria in the solicitation may not have
been met. Bid Protest Regulations, 4 C.F.R. sect. 21.5(c) (2001). Where, as
here, there is no such showing, we have no basis to review the protest. [5]
Moreover, an allegation that a contractor will engage in illegal practices
after award of the contract is a question of contract administration, which
is the responsibility of the procuring agency and other cognizant federal
agencies, such as the DOL, and which cannot be reviewed by our Office under
our bid protest function. Bid Protest Regulations, 4 C.F.R. sect. 21.5(a)(2);
see Galveston Aviation Weather Partnership, B-252014.2, May 5, 1993,
93-1 CPD para. 370 at 2. [6]

The protest is denied.

Anthony H. Gamboa

General Counsel

Notes

1. These procedures are intended to simplify the process of acquiring
commercial items.

2. The clauses from the FAR identified in the notice were section 52.212-1,
Instructions to Offerors--Commercial Items; section 52.212-2,
Evaluation-Commercial Items; section 52.212-3, Offeror Representations and
Certifications--Commercial Items; section 52.212-4, Contract Terms and
Conditions-Commercial Items; and selected clauses from section 52.212-5,
Contract Terms and Conditions Required to Implement Statutes or Executive
Orders-Commercial Items. In addition, the notice incorporated clauses
concerning insurance coverage, work on a government installation, progress
reporting, and value engineering.

3. According to FAR sect. 10.002(b), the degree of market research depends on
the circumstances involved in each situation, but should include determining
whether the items are customarily available in the commercial marketplace.
FAR sect. 10.002(b)(1)(i).

4. The Forest Service reports that certain other clauses that the protester
asserts should have been included in the solicitation, covering such things
as employment of eligible workers, labor standards for contracts involving
migrant and agricultural workers, and migrant and seasonal agricultural
worker protection act registration were added by amendment 2 to the
solicitation. Thus, the protest that these clauses should have been included
in the solicitation is academic and will not be considered.

5. In fact, we understand that SHABA proposed extremely low prices in
response to this solicitation, and the agency, suspecting that SHABA may
have made mistakes, has requested SHABA to verify its prices.

6. SHABA also asserted that the wrong wage determination was included in the
solicitation. By amendment 3, the Forest Service included a more recent wage
determination that included the brush/precommercial thinning rate requested
by SHABA in its protest. Thus, this protest issue is academic and will not
be considered further.