B-156230, JUN. 10, 1965

B-156230, JUN. 10, 1965

TO STASSEN, KEPHART, SARKIS AND KOSTOS:

FURTHER REFERENCE IS MADE TO YOUR PROTEST ON BEHALF OF BERWICK FORGE AND FABRICATING CORPORATION AGAINST THE REJECTION OF ITS BID OFFERINGM AND S RAIL ANCHORS, SUBMITTED IN RESPONSE TO ITEM 14 OF INVITATION FOR BIDS NO. CIVENG-45-164-65-30, ISSUED BY THE UNITED STATES ENGINEER DISTRICT, WALLA WALLA, WASHINGTON. THE BID WAS REJECTED BECAUSE IT WAS NOT ONE OF FIVE NAMED BRANDS OF RAIL ANCHORS SPECIFIED.

YOU PROTEST THAT THE RAIL ANCHOR SPECIFICATIONS ARE RESTRICTIVE BECAUSE THEY ENUMERATE FIVE NAMED BRANDS WITHOUT PROVIDING FOR THE ACCEPTABILITY OF ITEMS OF EQUAL QUALITY AS REQUIRED BY THE ARMED SERVICES PROCUREMENT REGULATION AND VARIOUS DECISIONS OF THIS OFFICE.

AS YOU HAVE BEEN ADVISED BY THE CORPS OF ENGINEERS, THE INVITATION HERE INVOLVED IS IMPLEMENTAL OF A CONTRACT BETWEEN THE UNITED STATES AND THE SPOKANE, PORTLAND AND SEATTLE RAILWAY COMPANY. UNDER THAT CONTRACT THE GOVERNMENT AGREED, AMONG OTHER THINGS, TO RELOCATE CERTAIN FACILITIES OF THE RAILROAD IN PAYMENT FOR FEE TITLE AND/OR EASEMENT RIGHTS OF THE RAILROAD WHICH WERE NEEDED FOR CONSTRUCTION OF THE JOHN DAY LOCK AND DAM PROJECT ON THE COLUMBIA RIVER, OREGON AND WASHINGTON. THE AGREEMENT ACCORDS THE RAILROAD THE RIGHT TO APPROVE PRIOR TO ADVERTISEMENT, ALL DETAILS OF THE PLANS AND SPECIFICATIONS FOR EQUIPMENT TO BE PROCURED BY THE CORPS OF ENGINEERS AND USED IN RELOCATING THE FACILITIES. THE SPECIFICATIONS FOR THE RAIL ANCHORS (FIVE BRAND NAMES) ARE IN ACCORDANCE WITH THE DICTATES AND DESIRES OF THE RAILROAD, WHICH HAS ADVISED THE CORPS OF ENGINEERS THAT NO OTHER RAIL ANCHOR WILL BE ACCEPTABLE TO IT.

YOU HAVE BEEN INFORMED OF THE ENGINEERS' OPINION THAT IN VIEW OF THE PURPOSE OF THE INVITATION THE ARMED SERVICES PROCUREMENT REGULATION IS NOT APPLICABLE TO THE PROCUREMENT. YOU URGE THAT WERE THIS CONTENTION TO BE SUSTAINED, EACH GOVERNMENT AGENCY MIGHT JUSTIFY THE PROCUREMENT OF NAME BRANDS BY STATING THAT THE COMPANY FOR WHOM THE ITEM WAS TO BE PROCURED WOULD NOT ACCEPT ANY OTHER BRAND, OR SIMILARLY, THAT THE GENERAL IN CHARGE OF THE POST TO WHICH THE MATERIAL WAS DESIGNATED FOR SHIPMENT WOULD ACCEPT NO OTHER BRAND, AND THAT THIS REASONING WOULD UNDERMINE THE STATUTES AND REGULATIONS OF FORMAL ADVERTISING AND CIRCUMVENT PUBLIC POLICY SET FORTH IN ASPR 1 101 AND 1-102.

WHERE AN AGENCY HAS AUTHORITY TO ACQUIRE LAND, INCLUDING EASEMENTS OR OTHER INTERESTS THEREIN, THE QUESTION WHETHER SUCH FEE TITLE OR EASEMENT RIGHTS SHOULD BE ACQUIRED BY PURCHASE OR CONDEMNATION IS PRIMARILY FOR ADMINISTRATIVE DETERMINATION. A CONTRACT TO PAY THE COST OF REMOVAL AND RELOCATION OF EXISTING FACILITIES, REPRESENTING THE VALUE OF THE PROPERTY RIGHTS TAKEN, IS, IN EFFECT, A CONTRACT FOR THE ACQUISITION OF SUCH PROPERTY RIGHTS. THE VALUE OF THE PROPERTY RIGHTS ACQUIRED IS MEASURED BY THE COST OF REMOVING AND RELOCATING THE FACILITIES. B-13574, DATED DECEMBER 2, 1940. AN OWNER HAS THE RIGHT TO PRESCRIBE THE CONDITIONS UNDER WHICH HE WILL VOLUNTARILY CONVEY HIS INTEREST. WHERE GOVERNMENT AGENTS HAVE THE AUTHORITY TO PURCHASE PROPERTY RIGHTS IN SUCH MANNER, THE AUTHORITY MUST OF NECESSITY BE REPOSED IN THE ADMINISTRATIVE OFFICIALS TO MAKE EXPENDITURES REQUIRED TO CARRY OUT THE TERMS OF THE BASIC CONTRACT WITHOUT REFERENCE TO GENERAL REGULATORY OR PROHIBITORY STATUTES OTHERWISE APPLICABLE. FURTHERMORE, ALTHOUGH THE PROPOSED CONTRACT HERE INVOLVED TECHNICALLY MAY NOT ITSELF CONSTITUTE A CONTRACT FOR THE ACQUISITION OF INTERESTS IN LAND, IT IS ONE OF SEVERAL CONTRACTS NECESSARY TO CARRY OUT THE PURCHASE OF LAND AND THE PROVISIONS OF THE ARMED SERVICES PROCUREMENT ACT AND REGULATIONS ISSUED THEREUNDER ARE, BY THEIR TERMS, INAPPLICABLE TO TRANSACTIONS INVOLVING ACQUISITIONS OF INTERESTS IN LAND. 10 U.S.C. 2303 (B), ASPR 1-102 AND 1-201.19.

FOR THE FOREGOING REASONS AND ASIDE FROM THE QUESTION WHETHER OR NOT THE M AND S RAIL ANCHORS OFFERED BY THE BERWICK FORGE AND FABRICATING CORPORATION ARE IN FACT EQUAL TO THE RAIL ANCHORS SPECIFIED IN THE INVITATION, WE PERCEIVE NO LEGAL BASIS ON WHICH TO QUESTION THE ACTION TAKEN BY ADMINISTRATIVE OFFICIALS IN REJECTING YOUR BID AS NONRESPONSIVE TO THE TERMS OF THE INVITATION. ACCORDINGLY YOUR PROTEST MUST BE DENIED.