B-169879, JUL. 15, 1970

B-169879, JUL. 15, 1970

TO NEW ENGLAND GROUP MAREMONT CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER (WITH ENCLOSURES) DATED MAY 18, 1970, SUGGESTING THAT ALL DEPARTMENT OF DEFENSE PROCURING ACTIVITIES AUTOMATICALLY AND UNIFORMLY INCLUDE IN ALL FORMALLY ADVERTISED PROCUREMENTS A STANDARD "GOVERNMENT-OWNED EQUIPMENT" CLAUSE AS CONTEMPLATED BY SECTION 13 OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR).

THE DEPARTMENT OF THE ARMY HAS REPORTED TO US THE FACTS CONCERNING INVITATION FOR BIDS NO. DAAG05-70-B-0547, ISSUED BY THE SAN FRANCISCO PROCUREMENT AGENCY. ADMINISTRATIVE RESPONSIBILITY FOR THE CONTRACT AWARDED TO STERLING TOOL, INC., IS NOW VESTED IN THE ROCK ISLAND ARSENAL. THE CONTRACTING OFFICER OF THAT ACTIVITY HAS REPORTED THAT THE UNITED STATES ARMY WEAPONS COMMAND HAS ADOPTED THE STANDARD PRACTICE OF INSERTING THE ARTICLE CONCERNING GOVERNMENT-OWNED EQUIPMENT IN ALL INVITATIONS FOR BIDS. HE ALSO HAS STATED THAT HE CONCURS IN YOUR SUGGESTION RELATIVE TO THE MANDATORY INCLUSION OF SUCH AN ARTICLE IN INVITATIONS ISSUED BY DEPARTMENT OF DEFENSE PROCURING AGENCIES. HOWEVER, HE OBSERVES THAT YOUR PROPOSAL WOULD REQUIRE MODIFICATION OF THE PROCUREMENT REGULATIONS BY THE ASPR COMMITTEE.

IN ADDITION, THE FILE INCLUDES A LEGAL ANALYSIS FROM AN ARMY ATTORNEY ADVISOR, APPROVED BY THE CHIEF COUNSEL OF ROCK ISLAND ARSENAL, IN WHICH HE STATES:

" *** THIS COMMAND CAN PERCEIVE OF NO REASON WHY SUCH CLAUSE SHOULD BE OMITTED FROM INVITATIONS FOR BIDS AND IS OF THE OPINION THAT THE GOVERNMENT SHOULD, IN ACCORDANCE WITH THE 'POLICY STATEMENT' SET FORTH IN SECTION 13 OF ASPR RECEIVE THE MAXIMUM POSSIBLE BENEFIT FROM THE USE OF GOVERNMENT OWNED FACILITIES CURRENTLY IN THE POSSESSION OF CONTRACTORS. HOWEVER, THE MATTER OF REQUIRING THE INSERTION OF A GOVERNMENT FURNISHED PROPERTY ARTICLE IN IFB'S AS A MANDATORY CLAUSE IS WITHIN THE COGNIZANCE OF THE ASPR COMMITTEE. IT IS TO BE NOTED THAT THE ASPR COMMITTEE IS CURRENTLY CONSIDERING CERTAIN CHANGES TO ARMED SERVICES PROCUREMENT REGULATION, SECTION 13, PART 4, 'SUBJECT: ASPR CASE 69-73, ELIMINATION OF COMPETITIVE ADVANTAGE-GOVERNMENT PROPERTY USED ON A RENT-FREE BASIS.' THIS ASPR CASE COULD, IF THE ASPR COMMITTEE DEEMS SUCH ACTION APPROPRIATE, BE AMENDED SO AS TO PROPOSE THE MANDATORY INCLUSION OF A GOVERNMENT FURNISHED PROPERTY ARTICLE IN INVITATIONS FOR BIDS ISSUED BY DEPARTMENT OF DEFENSE PROCURING AGENCIES. IF THIS AMENDMENT WERE ISSUED, THIS COMMAND WOULD CONCUR IN SUCH PROPOSAL."

WE HAVE BEEN ADVISED BY THE ASSISTANT GENERAL COUNSEL OF THE ARMY MATERIAL COMMAND THAT A RECOMMENDATION HAS BEEN MADE TO THE DEPUTY FOR PROCUREMENT, OFFICE OF THE ASSISTANT SECRETARY OF THE ARMY (INSTALLATIONS AND LOGISTICS), THAT HE CONSIDER REFERRING THE PROBLEM TO THE ASPR COMMITTEE. IN VIEW OF THE FOREGOING, WE SUGGEST THAT ANY FURTHER COMMUNICATIONS BE DIRECTED EITHER TO THE DEPARTMENT OF THE ARMY OR TO THE ASPR COMMITTEE.