SHABA Contracting, B-287430, June 18, 2001

B-287430 Jun 18, 2001 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Procuring agency properly determined tree thinning services were a commercial item and used Federal Acquisition Regulation subpart 12.6. The RFP was issued as a combined synopsis/solicitation posted in the Commerce Business Daily Online (CBDNet) on February 28. 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. Clauses incorporated in the RFP were those "in effect through Federal Acquisition Circular 97-23.". 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. View Decision Matter of: SHABA Contracting File: B-287430 Date: June 18, 2001 DIGEST Attorneys 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 Sec. 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 Sec. 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 Sec. 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 Secs. 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.