SHABA Contracting, B-287474, July 2, 2001

B-287474 Jul 02, 2001 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights DIGEST Forest Service reasonably determined that it was not required to incorporate the clauses in Federal Acquisition Regulation 52.228-5. In a solicitation for work on forest lands in a national forest where the Forest Service reasonably concluded that the work was not being performed on a "Government installation. " which is the situation where these clauses are required to be incorporated. The IFB was issued to procure pine site preparation. SHABA first timely protests that the IFB should have included the Federal Acquisition Regulation (FAR) clause requiring the contractor to have insurance for workers' compensation and liability on government installations. FAR Sec. 28.301(b) provides that "[c]ontractors . . . are required by law and this regulation to provide insurance for certain types of perils (e.g. View Decision In Matter of SHABA Contracting, B-287474, July 2, 2001 DIGEST Attorneys DECISION SHABA Contracting protests invitation for bids (IFB) No. FS-WOC-01-1029, issued by the United States Department of Agriculture, Forest Service, Russellville, Arkansas, for forestry work. We deny the protest. The IFB was issued to procure pine site preparation, hardwood site preparation, timber stand improvement, and wildlife stand improvement on National Forest lands in the Buffalo Ranger District, Arkansas under a fixed-price requirements contract. The schedule contained estimated quantities of acres for the four items of services. SHABA first timely protests that the IFB should have included the Federal Acquisition Regulation (FAR) clause requiring the contractor to have insurance for workers' compensation and liability on government installations. FAR Sec. 28.301(b) provides that "[c]ontractors . . . are required by law and this regulation to provide insurance for certain types of perils (e.g., workers' compensation) [and] . . . when commingling of property, type of operation, circumstances of ownership, or condition of the contract make it necessary for the protection of the Government." We have found that the foregoing section does not itself impose a requirement that contractors be required to carry workers' compensation insurance, although we noted that certain state laws and other FAR sections require contractors to obtain various types of insurance in certain situations. See Renewable Forestry Servs., Inc., B-235627, Sept. 20, 1989, 89-2 CPD Para. 253 at 2-3. FAR Sec. 28.310(a) states (with certain exceptions not applicable here): The contracting officer shall insert the clause at [FAR ] 52.228-5, Insurance--Work on a Government Installation, in solicitations and contracts when a fixed-price contract is contemplated, the contract amount is expected to exceed the simplified acquisition threshold, and the contract will require work on a Government installation. FAR Sec. 52.228-5 requires the contractor to provide the insurance elsewhere identified in the contract. FAR Sec. 28.307 specifies the minimum insurance types and coverages where the FAR Sec. 52.228-5 clause is required to be included in a solicitation. FAR Sec. 28.306(b). Consistent with FAR Sec. 28.307, Agriculture Acquisition Regulation (AGAR) Sec. 428-310 (2000) requires the contracting officer to include the clause at AGAR Sec. 452.228-71, Insurance Coverage, in all solicitations that contain FAR Sec. 52.228-5. AGAR Sec. 452.228-71 requires specified coverages of workers' compensation and employers liability, general liability, automobile liability, and aircraft public and passenger liability insurance. The Forest Service argues that the clauses at FAR Sec. 52.228-5 and AGAR Sec. 452.228-71 were not included in this solicitation because the agency does not consider work performed on forest lands within a national forest to be performed on a "Government installation." Agency Legal Memorandum at 5. There is no definition of "Government installation" in the FAR, and we are unaware of any law or regulation that requires the Forest Service to include all publicly-owned lands, such as national forest lands managed by the Forest Service, in the definition, nor has the protester cited such a law or regulation. It would seem that the federal government ownership of certain lands does not necessarily make them a "Government installation"; otherwise, the regulation would seemingly say "Government-owned property." /1/ Under the circumstances, we cannot conclude that the Forest Service's judgment that national forest lands are not government installations is unreasonable. While SHABA complains that the Forest Service has included clauses requiring workers' compensation and other insurance in other solicitations for similar work and asserts that this clause serves the best interest of the government in this case, FAR subpart 28.3 gives contracting officers the discretion to include FAR Sec. 52.228-7 and AGAR Sec.