B-171135(1), FEB 1, 1971

B-171135(1): Feb 1, 1971

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OF A LETTER ADDRESSED TO THE DEFENSE CONTRACT ADMINISTRATION REQUESTING APPROVAL FOR USE OF GOVERNMENT-OWNED PROPERTY WHICH WAS APPROVED BY THE ADMINISTRATIVE CONTRACTING OFFICER'S SIGNING HIS NAME TO THE SECOND PAGE OF THE LETTER. SATISFIED THIS REQUIREMENT DEFEATING THE PROTESTANT'S CONTENTION THAT THERE IS AN ADDITIONAL REQUIREMENT THAT THE CONTRACTING OFFICER SUBMIT PROOF THAT HE IS THE CONTRACTING OFFICER HAVING COGNIZANCE OF THE FACILITIES. TO ROBERT SHERIFFS MOSS: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 10. THE SUBJECT SOLICITATION WAS ISSUED ON SEPTEMBER 22. TEN BIDS WERE RECEIVED AND OPENED ON OCTOBER 26. THE LOW EVALUATED BID WAS SUBMITTED BY NORRIS INDUSTRIES. WE WERE NOTIFIED ON DECEMBER 23.

B-171135(1), FEB 1, 1971

BID PROTEST - BIDDER RESPONSIVENESS - USE OF GOVERNMENT OWNED PROPERTY DENYING PROTEST OF AFM, INCORPORATED AGAINST THE AWARD OF AN ADVERTISED CONTRACT FOR 85,905 MK 81 MOD 1 BOMB BODIES ISSUED BY NAVAL SHIP PARTS CONTROL CENTER, MECHANICSBURG, PA., TO NORRIS INDUSTRIES, INCORPORATED. WITH RESPECT TO THE AUTHORIZATION FOR USE OF GOVERNMENT-OWNED PRODUCTION PROPERTY HELD UNDER A FACILITIES CONTRACT, THE APPLICABLE PROVISIONS OF THE INVITATION AND THE ASPR REQUIRE NO MORE THAN WRITTEN PERMISSION FROM THE CONTRACTING OFFICER HAVING COGNIZANCE OF THE FACILITIES AUTHORIZING ITS USE; THE SUBMISSION OF NORRIS, WITH ITS BID, OF A LETTER ADDRESSED TO THE DEFENSE CONTRACT ADMINISTRATION REQUESTING APPROVAL FOR USE OF GOVERNMENT-OWNED PROPERTY WHICH WAS APPROVED BY THE ADMINISTRATIVE CONTRACTING OFFICER'S SIGNING HIS NAME TO THE SECOND PAGE OF THE LETTER, SATISFIED THIS REQUIREMENT DEFEATING THE PROTESTANT'S CONTENTION THAT THERE IS AN ADDITIONAL REQUIREMENT THAT THE CONTRACTING OFFICER SUBMIT PROOF THAT HE IS THE CONTRACTING OFFICER HAVING COGNIZANCE OF THE FACILITIES.

TO ROBERT SHERIFFS MOSS:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 10, 1970, AND SUPPLEMENTAL CORRESPONDENCE, PROTESTING ON BEHALF OF AMF, INCORPORATED, AGAINST AWARD OF A CONTRACT TO NORRIS INDUSTRIES, INCORPORATED, BY THE NAVAL SHIPS PARTS CONTROL CENTER, MECHANICSBURG, PENNSYLVANIA, PURSUANT TO SOLICITATION NO. N00104-71-B-0543.

THE SUBJECT SOLICITATION WAS ISSUED ON SEPTEMBER 22, 1970, FOR THE PROCUREMENT OF 85,905 MK 81, MOD 1, BOMB BODIES. TEN BIDS WERE RECEIVED AND OPENED ON OCTOBER 26, 1970. THE LOW EVALUATED BID WAS SUBMITTED BY NORRIS INDUSTRIES. WE WERE NOTIFIED ON DECEMBER 23, 1970, PURSUANT TO ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2 407.8(B)(3)(III) THAT AWARD WAS BEING MADE TO NORRIS INDUSTRIES PRIOR TO RESOLUTION OF THE PROTEST AS NORRIS HAD REFUSED TO GRANT AN EXTENSION OF ITS BID ACCEPTANCE PERIOD WHICH EXPIRED ON DECEMBER 23, 1970.

THE INVITATION INCLUDES THE FOLLOWING PROVISION, IN PERTINENT PART, APPLICABLE TO YOUR PROTEST:

"EVALUATION FACTOR FOR USE OF GOVERNMENT-OWNED RESEARCH AND PRODUCTION PROPERTY AND SPECIAL TOOLING.

"1. IF THE OFFEROR OR ITS ANTICIPATED SUBCONTRACTORS REQUIRE THE USE OF GOVERNMENT-OWNED PRODUCTION AND RESEARCH PROPERTY AND/OR SPECIAL TOOLING, AS DEFINED IN ARMED SERVICES PROCUREMENT REGULATION (ASPR) PARAGRAPH 13- 101.9, IN ITS OR ITS SUBCONTRACTORS' POSSESSION, THE OFFEROR SHALL NOT INCLUDE IN ITS OFFER PRICE ANY 'RENTAL FEE' OR 'USE CHARGE' FOR USE OF SUCH PROPERTY. THE OFFEROR SHALL LIST AND IDENTIFY, IN THE OFFER OR BY SEPARATE ATTACHMENT HERETO, A COMPLETE DESCRIPTION OF EACH SUCH ITEM, IN ACCORDANCE WITH PARAGRAPH 2 BELOW. OFFERS WILL BE EVALUATED BY ADDING TO THE TOTAL AMOUNT OF EACH ITEM REQUIRING USE OF GOVERNMENT PRODUCTION AND RESEARCH PROPERTY, A 'RENTAL FEE' AS CALCULATED BY THE CONTRACTING OFFICER IN ACCORDANCE WITH PARAGRAPH 3 BELOW.

"2. OFFEROR SHALL PROVIDE THE FOLLOWING DATA:

"(I) DESCRIPTION OF EACH ITEM OF GOVERNMENT PROPERTY AND QUANTITY THEREOF REQUIRED.

"(II) ACQUISITION COST TO THE GOVERNMENT OF EACH SUCH ITEM;

"(III) THE FACILITIES CONTRACT OR OTHER INSTRUMENT UNDER WHICH THE GOVERNMENT FACILITIES ARE HELD, TOGETHER WITH THE WRITTEN PERMISSION OF THE CONTRACTING OFFICER HAVING COGNIZANCE THEREOF AUTHORIZING ITS USE;"

IN RESPONSE TO THIS REQUIREMENT, NORRIS SUBMITTED WITH ITS BID A LETTER DATED OCTOBER 1, 1970, ADDRESSED TO THE DEFENSE CONTRACT ADMINISTRATION SERVICES REGION, 11099 SOUTH LA CIENEGA BOULEVARD, LOS ANGELES, CALIFORNIA 90045, TO THE ATTENTION OF MR. THEODORE E. LIRINGIS, ACO, REQUESTING APPROVAL FOR USE OF GOVERNMENT-OWNED PROPERTY HELD UNDER CONTRACTS NOS. DAAG07-70-C-0336 AND DAAG07-70-C-0250. R. B. PATTERSON, DCAS ADMINISTRATIVE CONTRACTING OFFICER, APPROVED THE REQUEST ON OCTOBER 2, 1970, BY SIGNING THE SECOND PAGE OF THE LETTER AS THE "CONTRACTING OFFICER HAVING COGNIZANCE OF THE FACILITIES."

IT IS YOUR CONTENTION THAT THE ABOVE LETTER DID NOT CONSTITUTE COMPLIANCE WITH THE FOREGOING GOVERNMENT-OWNED PROPERTY CLAUSE AND, THEREFORE, NORRIS' BID SHOULD HAVE BEEN REJECTED AS NONRESPONSIVE. YOU CONTEND THAT PATTERSON'S SIGNATURE AS ADMINISTRATIVE CONTRACTING OFFICER (ACO) WAS NOT SUFFICIENT IN ITSELF TO ESTABLISH THAT HE HAD AUTHORITY AS THE "CONTRACTING OFFICER HAVING COGNIZANCE OF THE FACILITIES" TO GRANT PERMISSION FOR USE OF THE FACILITIES. IN THIS CONNECTION, YOU POINT OUT THAT UNDER ASPR 1-406(C)(XXIV) THE AUTHORITY OF AN ACO WITH RESPECT TO APPROVING USE OF FACILITIES IS LIMITED TO NON GOVERNMENT USE. THEREFORE, YOU CONTEND THAT SINCE PATTERSON IDENTIFIED HIMSELF AS AN ACO THE CONTRACTING OFFICER COULD NOT PROPERLY ASSUME THAT HE HAD AUTHORITY TO GIVE PERMISSION FOR USE OF THE FACILITIES.

SUBSEQUENT TO YOUR RAISING THE ISSUE CONCERNING THE ACO'S AUTHORITY, THE CONTRACTING OFFICER FURNISHED OUR OFFICE A SUPPLEMENTAL REPORT. ADVISES THAT THE FACILITIES CONTRACTS REFERENCED IN NORRIS' LETTER CONTAIN THE "USE AND CHARGES" CLAUSE PRESCRIBED IN ASPR 7-702.12, UNDER WHICH THE CONTRACTOR MAY USE THE FACILITIES WITHOUT CHARGE IN THE PERFORMANCE OF OTHER GOVERNMENT CONTRACTS WHICH AUTHORIZE SUCH USE. FURTHER, HE ADVISES THAT IN BOTH CASES THE ASSIGNMENTS OF THE SUBJECT CONTRACTS TO DCAS, LOS ANGELES, SPECIFICALLY INCLUDED AUTHORITY TO APPROVE USE OF FACILITIES IN ADDITION TO THE NORMALLY ASSIGNED FUNCTIONS. YOU WERE FURNISHED A COPY OF THIS REPORT.

ALTHOUGH SUCH AUTHORITY HAD BEEN SPECIFICALLY DELEGATED TO DCAS AS PROVIDED IN ASPR 20-703.3, YOU ARGUE THAT THE EVIDENCE OF SUCH DELEGATION WAS REQUIRED TO BE SUBMITTED WITH THE BID AND LETTER GRANTING USE OF THE FACILITIES. OTHERWISE, IT IS YOUR CONTENTION THAT THE BID WAS NONRESPONSIVE AS SUBMITTED AND SUBSEQUENT SUBMISSION OF SUCH EVIDENCE MAY NOT PROPERLY BE CONSIDERED.

WITH RESPECT TO AUTHORIZATION FOR USE OF GOVERNMENT-OWNED PRODUCTION AND RESEARCH PROPERTY HELD UNDER A FACILITIES CONTRACT, THE APPLICABLE PROVISIONS OF THE INVITATION AND ASPR REQUIRE NO MORE THAN WRITTEN PERMISSION FROM THE CONTRACTING OFFICER HAVING COGNIZANCE OF THE FACILITIES AUTHORIZING ITS USE. WE SEE NO BASIS FOR READING INTO THESE PROVISIONS THE ADDITIONAL REQUIREMENT THAT THE BIDDER OR THE COGNIZANT CONTRACTING OFFICER SUBMIT PROOF THAT HE IS THE CONTRACTING OFFICER HAVING COGNIZANCE OF THE FACILITIES. WHETHER THE CONTRACTING OFFICER, BE HE A PCO OR ACO, HAS THE REQUISITE AUTHORITY IS A MATTER OVER WHICH THE BIDDER HAS NO CONTROL AND IS AN ASCERTAINABLE FACT CAPABLE OF BEING VERIFIED WITHIN THE GOVERNMENT.

IN SUPPORT OF YOUR POSITION, YOU HAVE CITED SEVERAL DECISIONS OF OUR OFFICE WHICH WE BELIEVE ARE READILY DISTINGUISHABLE. IN B-165799, FEBRUARY 27, 1969, NOT ONLY WAS THE LETTER APPROVING USE OF THE FACILITIES NOT SUBMITTED WITH THE BID, IT WAS NOT EVEN SIGNED BY THE COGNIZANT CONTRACTING OFFICER UNTIL AFTER BIDS WERE OPENED. THE CASE REPORTED AT 45 COMP. GEN. 572 (1966), AND CITED BY YOU, IS ALSO DISTINGUISHABLE FROM THE FACTS INVOLVED HERE, AS THE NONRESPONSIVE BID WAS NOT ACCOMPANIED BY ANY WRITTEN AUTHORIZATION FOR USE OF THE FACILITIES. B-154188, JUNE 26, 1964, AND B-154598, NOVEMBER 16, 1964, ARE ALSO DISTINGUISHABLE FOR THE SAME REASON.

YOU ALSO CITE THE HOLDING IN 48 COMP. GEN. 369 (1968), AS BEING APPLICABLE TO THE SITUATION HERE. IN THAT CASE, WHERE A CORPORATION'S BID WAS SIGNED BY AN INDIVIDUAL AS AGENT, WE SAID THAT TO PERMIT PROOF OF AN UNKNOWN AGENT'S AUTHORITY AFTER BID OPENING WOULD GIVE A BIDDER AN OPTION TO ELECT TO ABIDE BY A BID OR CLAIM THE BID WAS SUBMITTED IN ERROR BY A PERSON WITHOUT AUTHORITY TO ENTER INTO CONTRACTS ON ITS BEHALF. YOU CONTEND THAT NORRIS HAD THE SAME SORT OF OPTION HERE. HOWEVER, WE MUST POINT OUT THAT THE RULE STATED IN 48 COMP. GEN. 369 HAS BEEN MODIFIED BY OUR OFFICE. IN 49 COMP. GEN. 527, B-167297, MARCH 2, 1970, WE CONCLUDED THAT PROOF OF AGENCY COULD PROPERLY BE SUBMITTED AFTER BID OPENING SINCE IT WAS NOT LIKELY THAT PRINCIPALS WOULD BE IN A POSITION TO FALSELY DISAVOW THEIR AGENT'S AUTHORITY IN ANY EVENT. WE THEREFORE DO NOT REGARD 48 COMP. GEN. 369 AS A PERSUASIVE AUTHORITY. ALSO, IN THIS CASE IT IS APPARENT THAT ASCERTAINMENT OF PATTERSON'S AUTHORITY IS A MATTER OVER WHICH NORRIS HAS NO CONTROL.

ACCORDINGLY, THERE IS NO BASIS FOR OUR OFFICE TO DISTURB THE AWARD TO NORRIS. FOR YOUR INFORMATION, ENCLOSED IS A COPY OF OUR LETTER OF TODAY TO THE ATTORNEYS FOR INTERCONTINENTAL MANUFACTURING COMPANY, INCORPORATED, DENYING ITS PROTEST AGAINST THE AWARD OF A CONTRACT TO NORRIS.