Intertribal Bison Cooperative, B-288658, November 30, 2001

B-288658 Nov 30, 2001 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Is improper. That "[a]dditional awards will only be made if a single Offeror is not able to fulfill all the production and processing requirements for this program in the required time frames.". The cooperative will produce ground bison by slaughtering live bison supplied by Native American producers under contract with USDA. Which the record shows is primarily. The agency will pay the cooperative for the "commercial" bison meat used at a fixed price per pound as offered in the cooperative's price proposal. The final ground bison product will consist of 15 to 20 percent USDA contracted bison meat (that is. The bison meat obtained from Native American producers) and 80 to 85 percent "commercial" bison meat (that is. View Decision Intertribal Bison Cooperative, B-288658, November 30, 2001 DIGEST Attorneys DECISION Intertribal Bison Cooperative (IBC) protests request for proposals (RFP) No. LS-80, issued by the Department of Agriculture (USDA) for the production and delivery of ground bison and bison stew meat to participants in the Food Distribution Program for Indians on Reservations (FDPIR). IBC protests that the RFP violates an applicable appropriation statute. We sustain the protest. The Agriculture, Rural Development, Food and Drug Administration, and Related Agencies-Appropriations Act for fiscal year ending September 30, 2001, Pub. L. No. 106-387, 114 Stat. 1549 (2000), at Title IV, Domestic Food Programs, Food Stamp Program, stated the following: For necessary expenses to carry out the Food Stamp Act (7 U.S.C. 2011 et seq.), $20,114,293,000 . . .: Provided, That of the funds made available under this heading and not already appropriated to the [FDPIR] established under section 4(b) of the Food Stamp Act of 1977 (7 U.S.C. 2013(b)), not to exceed $3,000,000 shall be used to purchase bison for the FDPIR: Provided further, That the Secretary shall purchase such bison from Native American producers and Cooperative Organizations without competition . . . . 114 Stat. at 1549A-24. Prior to issuing the RFP, the agency issued to Native American bison producers a notice that set forth the agency's intent to purchase bison products for the FDPIR, and stating that purchasing bison from Native American bison producers would be a major part of the program. /1/ The agency, through designated slaughter facilities under contract with the agency, would purchase bison from qualifying Native American producers on a non-competitive basis. The notice set out the qualification requirements and the price per pound to be paid. Once qualified, a producer would deliver a specified number of bison to a designated slaughter facility for processing. Agency Report, Tab 4, Notice to Native American Bison Producers (March 2001). The RFP, issued on June 12, 2001, contemplates the award of a fixed-priced contract to a cooperative organization on a "best value" basis, considering production capability and capacity, quality assurance program, past performance and price. /2/ RFP at 11-12. The RFP states that the agency intends to award a contract to a single offeror, and that "[a]dditional awards will only be made if a single Offeror is not able to fulfill all the production and processing requirements for this program in the required time frames." RFP at 1. The RFP's statement of work (SOW) states that the cooperative organization that receives the contract must produce ground bison products and bison stew meat. RFP, exh. B, SOW, at 1. The cooperative will produce ground bison by slaughtering live bison supplied by Native American producers under contract with USDA, which the SOW refers to as "USDA contracted bison," and blending that bison meat with "commercial" bison meat supplied by the cooperative, which the record shows is primarily, if not exclusively, from non-Native American sources. Id. at 2. The agency will pay the cooperative for the "commercial" bison meat used at a fixed price per pound as offered in the cooperative's price proposal. RFP, exh. E, Sample Cost Proposal. The final ground bison product will consist of 15 to 20 percent USDA contracted bison meat (that is, the bison meat obtained from Native American producers) and 80 to 85 percent "commercial" bison meat (that is, bison meat obtained non-Native American sources). Id. The SOW states that the cooperative will produce the bison stew meat entirely from "commercial" bison. RFP, exh. B, SOW, at 1; exh. E, Sample Cost Proposal. IBC protests that the $3 million appropriated for bison for the FDPIR can only be used to purchase bison from Native American sources, whether they be producers or cooperative organizations, and thus the RFP is defective in that it solicits proposals to provide bison meat from sources that include non-Native American cooperative organizations.