TITLE: B-296533, Jess Bruner Fire Suppression, August 19, 2005
BNUMBER: B-296533
DATE: August 19, 2005
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B-296533, Jess Bruner Fire Suppression, August 19, 2005

   Decision

   Matter of: Jess Bruner Fire Suppression

   File: B-296533

   Date: August 19, 2005

   Todd A. Plimpton, Esq., Belanger & Plimpton, for the protester.

   Byron W. Waters, Esq., Department of Agriculture, for the agency.

   John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency's posting of a pre-solicitation notice and solicitation conducted
   under simplified acquisition procedures on the Federal Business
   Opportunities Internet site did not deprive the protester of an
   opportunity to compete for a contract for fire engine services to be
   provided in a particular national forest where the pre-solicitation notice
   and solicitation were accessible on the Internet site by searching by
   geographic location.

   DECISION

   Jess Bruner Fire Suppression protests the award of a contract to any other
   vendor under request for quotations (RFQ) No. R5SC0605049, issued by the
   Forest Service, Department of Agriculture, for regional fire engine
   support. Bruner argues that the agency did not properly post the
   pre-solicitation notice and solicitation to the Federal Business
   Opportunities (FedBizOpps) Internet site or specifically solicit Bruner,
   even though it had previously provided this type of services, thus denying
   Bruner an opportunity to compete for a contract.

   We deny the protest.

   The Forest Service has long fought wildland fires using in-house resources
   as well as those from other federal and state entities. The work required
   is performed in "forest and rangeland environments with steep terrain
   where surfaces may be extremely uneven, rocky, covered with thick tangled
   vegetation," and under extreme temperatures accompanied by smoke and dust.
   The Forest Service uses wildland fire engines in fighting these fires,
   which it has obtained in part through private contractors. RFP at 58.

   The acquisition here concerns services for the Forest Service's Pacific
   Southwest region, also referred to by the Forest Service as Region Five or
   "R-5". Contracting Officer's Statement at 1. Region Five is comprised of
   five "provinces," with each province consisting of a "group of forests
   within a geographic area." Id. Specifically, Region Five is comprised of
   the Sierra Cascade Province, the IBET Province, the Northern Province, the
   Pacific Southwest Province, and the Southern California Province.

   The Forest Service "determined that it would competitively procure" the
   wildland fire engine services needed by Region Five for the 2005 fire
   season, and that "[n]eeds for fifteen fire engines in four locations were
   identified."[1] Id. at 2. The contracting officer for the Sierra Cascade
   Province was tasked to procure the wildland fire engine services needed
   for Region Five.[2] Id. at 4.

   On March 23, 2005, a pre-solicitation notice for RFQ No. R5SC0605049 was
   posted to the FedBizOpps Internet site on the Forest Service's Sierra
   Cascade Province website within FedBizOpps.[3] The notice provided the
   contracting office address as the "Department of Agriculture, Forest
   Service, R-5 Sierra Cascade Province (Lassen Plumas and Modoc [National
   Forests])." The notice stated that the purpose of the acquisition was to
   obtain the services of two fire engines for the Shasta-Trinity National
   Forest, three fire engines for the Tahoe National Forest, eight fire
   engines for the Plumas National Forest, and two fire engines for the Six
   Rivers National Forest (only the Plumas National Forest is in the Sierra
   Cascade Province).[4] The notice continued by stating that the
   solicitation would only be available electronically, and provided the
   names and contact information for the designated contracting officer and
   procurement assistant. The contracting officer also "contacted at meetings
   and by telephone" all contractors who had active agreements with any
   contracting office within Region Five to provide wildland fire engine
   services.[5] Contracting Officer's Statement at 4.

   The RFQ for the wildland fire engine services was posted to FedBizOpps on
   the Forest Service's Sierra Cascade Province website on April 21. The
   solicitation provided for the award of multiple requirements-type, daily
   rate contracts with per-day pricing, for a base period of 1 year with two
   1-year options. RFQ at 6. The RFQ's schedule of services listed,
   consistent with the pre-solicitation notice, the previously mentioned four
   national forests and fire engine requirements for each of the national
   forests. For example, item number 4 of the schedule set forth the agency's
   requirement for the Tahoe National Forest as three of a certain type of
   wildland fire engine, with a mandatory availability period of June 1
   through September 30, and required that the fire engines be located within
   50 miles of the forest. RFQ at 7. The RFQ further provided that successful
   contractors would be "responsible for all equipment, materials, supplies,
   transportation, lodging, trained/certified personnel, and supervision and
   management of those personnel." RFQ at 58. The RFQ requested that
   responses to the solicitation be submitted by May 19.

   Bruner filed this protest with our Office on June 2, arguing that it was
   not aware of the existence of the pre-solicitation notice or solicitation
   until shortly before filing its protest. Protest at 2. The protester
   contends that the agency erred by posting the pre-solicitation notice and
   solicitation to FedBizOpps on the Forest Service's Sierra Cascade Province
   website, arguing that the notice and solicitation should have been posted
   on either the Forest Service's Region Five website, or on the websites of
   each of the provinces in which the services were required to be performed
   (i.e., the Sierra Cascade, IBET, and Northern Provinces' websites).
   Protest at 3.

   In this regard, the record here reflects that the pre-solicitation
   synopsis and RFQ were accessible only through the Sierra Cascade
   Province's FedBizOpps website, and could not be accessed through the
   websites of the IBET Province, Northern Province, or Region Five. As such,
   a vendor, such as Bruner, who was looking for contracting opportunities in
   the IBET Province (which includes the Tahoe National Forest) by browsing
   the IBET Province's website would not have found either the
   pre-solicitation notice or RFQ at issue here.

   Under the Federal Acquisition Streamlining Act of 1994 (FASA), simplified
   acquisitions are excepted from the general requirement that agencies
   obtain full and open competition through the use of competitive procedures
   when conducting acquisitions. See 41 U.S.C. sections 253(a)(1)(A), (g)(1),
   (g)(4). Part 13 of the FAR establishes procedures for simplified
   acquisitions, which are designed to promote economy and efficiency in
   contracting, and to avoid unnecessary burdens for agencies and
   contractors. To facilitate these objectives, FASA requires that agencies
   obtain competition to the maximum extent practicable. 41 U.S.C. sect.
   427(c); FAR sect. 13.104; Information Ventures, Inc., B-293541, April 9,
   2002, 2004 CPD para. 81 at 3.

   The simplified acquisition procedures require notice of procurements in
   excess of $25,000 in accordance with the Small Business Act, 15 U.S.C.
   sect. 637(e), and the Office of Federal Procurement Policy Act, 41 U.S.C.
   sect. 416 (2000).[6] A notice must provide an "accurate description" of
   the property or services to be purchased and must be sufficient to allow a
   prospective contractor to make an informed business judgment as to whether
   to request a copy of the solicitation. 15 U.S.C. sect. 637(f) (2000);
   Information Ventures, Inc., supra. Additionally, "[a] publication of a
   notice of solicitation by electronic means meets the requirements for
   accessibility . . . if the notice is electronically accessible in a form
   that allows convenient and universal user access" through the GPE. 41
   U.S.C. sect. 416 (a)(7) (2000).

   The agency explains that, although the fire engines are needed in three of
   the Region Five provinces, the pre-solicitation notice and RFQ were posted
   only to the Sierra Cascade Province website because the contracting
   officer for that province was tasked with conducting this acquisition, and
   that contracting officer is authorized to post notices and solicitations
   only on the Sierra Cascade Province's FedBizOpps website. The agency
   concedes that "it was possible for the Forest Service to have posted the
   [pre-solicitation notice and] RFQ on the FedBizOpps website differently,"
   but states that this would "have been cumbersome." Agency Supplemental
   Comments at 2. The agency also points out that both the pre-solicitation
   notice and RFQ included the correct North American Industry Classification
   System (NAICS) code (115310, Natural Resources and Conservation Services)
   for this acquisition, and that both the pre-solicitation notice and the
   RFQ could thus have been found by searching the FedBizOpps website using
   the NAICS code. Id. at 5. The agency also states that the pre-solicitation
   notice and RFQ were "searchable by  . . .  geographic criteria," that is,
   by searching the FedBizOpps website using the names of the particular
   national forest for which the wildland fire engines were needed. Id. at 2.
   The agency concludes that in its view, the pre-solicitation notice and RFQ
   were properly posted on the FedBizOpps, given that they contained the
   correct NAICS code and were searchable by specific geographic location.

   We first note that the agency has not stated or otherwise explained in any
   manner why the "process of coordinating with other provinces" was so
   "cumbersome," or why that would relieve it of any of its statutory and
   regulatory obligations regarding the proper posting of procurement
   actions. In this regard, we note that during a telephone hearing, the
   basic process of coordinating with the IBET and Northern Province
   contracting offices was described as nothing more than sending them the
   pre-solicitation notice and RFQ, and requesting that they be posted on the
   provinces' respective websites. Additionally, although the agency is
   correct that the pre-solicitation notice and RFQ could have been accessed
   by searching the FedBizOpps site using the correct NAICS code, we note
   that this code includes many divergent services and postings nationwide;
   indeed, during the course of a telephone hearing with the parties, such a
   search was conducted and it yielded well over 900 different postings.[7]
   Given the circumstances here, it would be quite burdensome for a
   contractor to have to regularly search such a large database in order for
   the contractor to be assured that it remained aware of potential
   contracting opportunities.

   Nevertheless, under the circumstances here, we do not agree with the
   protester that the agency's posting of its requirements on only the Sierra
   Cascade Province's FedBizOpps website failed to meet the statutory
   requirement that the notice be "electronically accessible in a form that
   allows convenient and universal user access." See 41 U.S.C. sect. 416
   (a)(7) (2000). We have long held that prospective vendors have an
   affirmative duty to make every reasonable effort to obtain solicitation
   materials. USA Info. Sys., Inc., B-291488, Dec. 2, 2002, 2002 CPD para.
   205 at 3; American Material Handling, Inc., B-281261, Jan. 19, 1999, 99-1
   CPD para. 13 at 2; see Upside Down Prods., B-243308, July 17, 1991, 91-2
   CPD para. 66 at 3. As noted above, each particular contracting opportunity
   set forth in the RFQ could have been readily located on the FedBizOpps
   website by searching by geographic location. That is, the contracting
   opportunity that the protester is interested in, the provision of wildland
   fire engine services for the Tahoe National Forest in the IBET Province,
   could have been readily located by searching the FedBizOpps website for
   contracting opportunities in that forest--that is, by searching the
   FedBizOpps website using the term "Tahoe."[8] See Protest at 2. Had the
   protester done this, the protester would have found both the
   pre-solicitation notice and RFQ. Given this, we conclude that the agency's
   actions satisfied the legal requirements.

   The protest is denied.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] The wildland fire engine services were previously not competitively
   acquired, but rather were procured through emergency equipment rental
   agreements (EERA). Contracting Officer's Statement at 4.

   [2] According to the agency, each province within Region Five, as well as
   Region Five itself, has its own contracting staff, including its own
   contracting officer. Agency's Supplemental Comments at 2.

   [3] FedBizOpps is the government-wide point of entry (GPE) for the
   electronic publication of notices. Federal Acquisition Regulation (FAR)
   sections 5.003, 5.101, 5.201.

   [4] Bruner's protest is focused on the requirement for wildland fire
   engines for the Tahoe National Forest in the IBET Province. Protest at 2.

   [5] The protester was not contacted because it did not have an active EERA
   to provide wildland fire engine services within Region Five. Contracting
   Officer's Statement at 4. The protester, which apparently previously had
   an EERA covering these services in Region Five, makes a variety of
   contentions relating to the EERAs and concerning restrictions on its
   ability to compete for these services, all of which are not germane to the
   protest of this solicitation and which we will not consider.

   [6] Exceptions to the notice requirement are set forth in the regulations,
   but none are applicable here (nor has the agency asserted that any are
   applicable). See FAR sections 13.105, 5.101(a)(1), 5.202.

   [7] During the hearing, the IBET Province's website had approximately 60
   postings.

   [8] During the telephone conference, a search using the term "Tahoe"
   yielded about the same number of postings as were listed on the IBET
   Province's site.