B-153430, DEC. 15, 1965

B-153430, DEC. 15, 1965

TO MR. VINCENT S. LUKAS:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 3, 1965, COMPLAINING THAT OFFICIALS IN THE VETERANS ADMINISTRATION (VA) HAVE SUGGESTED THAT YOU SHOULD FURNISH FREE OF CHARGE A SAMPLE OF YOUR AIR PURIFIER FOR TESTING IN ORDER THAT THE VA MAY CONSIDER WHETHER IT WOULD BE INTERESTED IN PURCHASING SUCH A PRODUCT WHICH YOU WANT TO SELL TO IT.

YOU CONTEND THAT THE AGENCIES OF THE GOVERNMENT ARE PRECLUDED BY LAW FROM ACCEPTING DONATIONS AND, THEREFORE, YOU SUGGEST THAT THE VA SHOULD NOT EXPECT YOU TO DONATE YOUR DEVICE. HOWEVER, THE VA HAS ADVISED THAT IT IS NOT THE INTENTION OF THAT AGENCY THAT YOU MAKE A GIFT OF YOUR DEVICE BUT ONLY THAT YOU PERMIT THE VA TO BORROW A SAMPLE FOR THE PURPOSE OF TESTING IT UNDER ATMOSPHERIC CONDITIONS FOR WHICH IT IS INTENDED FOR USE WITH THE INTENTIONS OF RETURNING THE BORROWED UNIT TO YOU AFTER THE TESTING IS COMPLETED.

SHOULD YOU MAKE YOUR UNIT AVAILABLE TO THE VA UNDER SUCH CIRCUMSTANCES THERE WOULD NOT BE INVOLVED ANY QUESTION CONCERNING A GIFT OR DONATION TO A FEDERAL AGENCY. RATHER SUCH PROCEDURE WOULD SUBSTANTIALLY CONFORM WITH THE BID SAMPLE PROCEDURE WHICH IS SPECIFICALLY AUTHORIZED BY THE FEDERAL PROCUREMENT REGULATIONS. UNDER THAT PROCEDURE GOVERNMENT AGENCIES LEGALLY MAY REQUIRE PROSPECTIVE CONTRACTORS TO FURNISH A SAMPLE TO SHOW THE CHARACTERISTICS OF THE PRODUCT THEY ARE OFFERING IN THEIR BIDS. SUCH SAMPLES ARE USED ONLY FOR THE PURPOSE OF ASSURING THE PROCUREMENT OF AN ACCEPTABLE PRODUCT AND IT IS GENERALLY PROVIDED THAT IF THE SAMPLES ARE NOT DESTROYED IN TESTING THEY SHALL BE RETURNED TO THE BIDDERS AT THEIR REQUEST AND EXPENSE. SEE FPR 1-2.202-4.

IT IS SIGNIFICANT ALSO THAT THE VA ITSELF HAS PROMULGATED REGULATIONS PROVIDING FOR A PROCEDURE WHEREBY SUPPLIERS SO DESIRING SHALL BE GIVEN AN OPPORTUNITY TO HAVE THEIR PRODUCTS TESTED FOR ACCEPTABILITY. THIS PROCEDURE SPECIFICALLY CONTEMPLATES THAT THE SUPPLIERS SHALL BE REQUIRED TO BEAR THE COST OF THE SAMPLE AND ITS TRANSPORTATION TO THE INSPECTION POINT, AND ALSO THAT THE SAMPLE SHALL BE RETURNED TO THE SUPPLIER "AS IS" UNLESS DESTROYED BY INSPECTION OR DISPOSED OF OR RETAINED BY THE VETERANS ADMINISTRATION AS AUTHORIZED BY THE SUPPLIER, 41 CFR 8-1.1101. THIS PROCEDURE IS ENTITLED "QUALIFIED PRODUCTS" AND IS AN IMPLEMENTATION OF THE QUALIFIED PRODUCTS PROCEDURE PRESCRIBED BY THE GENERAL SERVICES ADMINISTRATION. FPR 1-1.1101. IT IS ALSO SIMILAR TO THE QUALIFIED PRODUCTS PROCEDURE AUTHORIZED BY THE ARMED SERVICES PROCUREMENT REGULATION. ASPR 1 1101. THE QUALIFIED PRODUCTS PROCEDURE PERMITS THE PROCURING AGENCIES OF THE GOVERNMENT TO TEST A PRODUCT IN ADVANCE OF AND INDEPENDENT OF ANY SPECIFIC PROCUREMENT ACTION. FURTHERMORE, SUCH PROCEDURE IS NECESSARY AND PROPER TO PROTECT THE INTEREST OF THE GOVERNMENT IN APPROPRIATE CASES AND HAS BEEN HELD TO BE LEGALLY AUTHORIZED. SEE 36 COMP. GEN. 809.

OF COURSE, YOU ARE UNDER NO OBLIGATION TO FURNISH A SAMPLE TO THE VA IF YOU DO NOT DESIRE TO DO SO. ON THE OTHER HAND, NEITHER IS THE VA UNDER AN OBLIGATION TO PURCHASE ANY PRODUCT WITHOUT BEING GIVEN AN OPPORTUNITY TO TEST IT BEFOREHAND IF IT CONSIDERS THAT TO BE NECESSARY. IN FACT, IN OUR VIEW, A GOVERNMENT AGENCY SHOULD NOT PROCEED WITH A PROCUREMENT WITHOUT FIRST DETERMINING THAT THE MATERIALS OR EQUIPMENT INVOLVED WILL SATISFACTORILY MEET THE NEEDS OF THE AGENCY.

TO CORRECT ANY MISUNDERSTANDING WHICH MAY EXIST CONCERNING THE RESPECTIVE DUTIES OF THE VA AND OUR OFFICE, IT IS THE PROVINCE OF THE VA, AS IT IS WITH EACH PROCURING AGENCY, TO DETERMINE THE KIND OF ARTICLES IT NEEDS FOR THE CONDUCT OF ITS ACTIVITIES AND THE TYPE OF CONTRACT PERMITTED BY LAW IT WILL ENTER INTO TO OBTAIN THOSE ARTICLES. IT IS THE DUTY OF OUR OFFICE TO SEE THAT THE CONTRACTS FOR THOSE ARTICLES ARE LEGALLY ENTERED INTO WITHIN THE CONTEMPLATION OF AVAILABLE APPROPRIATIONS AND IN CONFORMITY WITH THE APPLICABLE PROCUREMENT STATUTES AND REGULATIONS. SINCE APPARENTLY THE VA DOES NOT INTEND TO ENTER INTO A CONTRACT FOR THE PURCHASE OF A SAMPLE IN THIS CASE, THERE DOES NOT APPEAR TO BE PRESENT A QUESTION OF CONTRACT LEGALITY WHICH WOULD CONCERN OUR OFFICE. MOREOVER, AS THE REQUEST OF THE VA DOES NOT IN OUR OPINION INVOLVE ANY ILLEGALITY, IT IS NOT NECESSARY OR PROPER FOR OUR OFFICE TO TAKE ANY FURTHER ACTION IN THIS MATTER.