|October 28, 2013|
Previously published on October 24, 2013
A Brief Review of the Forest Service’s Suggestions to Deal with Bid Submissions in Light of the Government Shutdown
The Forest Service’s Acting Director of Forest Management has issued a memo (copy attached) to all the Regional Foresters addressing four scenarios:
A. Timber sales, the bid opening for which occurred prior to the recent government shutdown;
B. Timber sales, the bid opening for which was scheduled to occur during the government shutdown but never took place;
C. Timber sales, the bid opening for which did take place during the government shutdown; and
D. Timber sales, the bid opening for which is/was scheduled to occur between October 16th and November 1st and has not occurred.
The memo suggests that on sales for which bid opening actually occurred prior to the shutdown, the Forest Service should simply go ahead with the normal award process. This, of course, makes sense in that the government shutdown really had or reasonably should have had, no effect on the submission of bids in that instance.
With regard to timber sales, the bid opening for which was scheduled to (but did not) occur during the government shutdown, the Forest Service’s proposed course is also reasonable (even though it does not use the correct terminology). That is, for this scenario the stated course of action is for the Forest Service to “extend the bid acceptance period.” However, a bid acceptance period is the time after bid opening during which the Forest Service can accept the bid; something that is irrelevant to the circumstances. Clearly, what the Forest Service intends is simply that the date for receipt of bids (i.e., the date for bid opening) be extended.
The rationale for extending the bid opening date is both simple and evident in the memo - the Forest Service fears that due to the shutdown it may not have received all bids that were “submitted” and/or that not all bidders who wanted to participate submitted bids.
The Forest Service goes on to indicate that bids already submitted (1) may be withdrawn unopened at any time prior to the revised date and time for each bid opening and, (2) if not withdrawn, will be considered when all bids are opened. Although unstated, the Forest Service appears implicitly to be giving any bidder who has already submitted its bid the opportunity to withdraw it and replace it with a new one prior to the revised date and time for bid opening.
Where bids were actually opened during the government shutdown (or immediately after it), the memo appears to suggest that the Forest Service simply proceed to award in the normal course. This suggestion does not, however, take into account the possibility (already recognized by the agency in the memo) that, as a result of the shutdown, not all bidders who wanted to participate did in fact submit bids. Indeed, a company that is a regular bidder on sales of the type in question in the general locale, but did not bid because of the shutdown, may have a decent argument that there was insufficient competition upon which to base any award. Needless to say, any such argument should best be made forcefully and quickly, to have any chance of success. Conversely, the high bidder in such a situation would argue that the circumstances did not create the requisite compelling reason to reject all bids and resolicit the sale.
Finally, the extension of the bid opening date for sales that were scheduled to open during the government shutdown, but did not, simply makes eminent sense, as does the further suggestion that if the extension is a long one that a new reappraisal should be considered.
Needless to say, neither the Forest Service memo nor this brief assessment of it is likely to cover every situation that will deal with the general subject. Nevertheless, we hope that this assessment will be of help to companies who bid on Forest Service timber sales.