B-172827, JUL 6, 1971

B-172827, JUL 6, 1971

CONTRACTS - SURPLUS PROPERTY - AGENCY DECISION CONCERNING THE REFUSAL BY THE DSA TO ISSUE A BILL OF SALE SHOWING SHAMROCK SHIPPING COMPANY AS PURCHASER OF A TUG BOAT SOLD BY THE GOVERNMENT TO HIGH BIDDER, CLEMENS STEVE BRANDL. AS THE RECORD INDICATES THAT BRANDL WAS THE AGENT OF SHAMROCK AND THE MERCHANT VESSEL DOCUMENTATION DIVISION OF THE COAST GUARD HAS VOICED NO OBJECTION, THE BILL OF SALE MAY BE ISSUED IN SHAMROCK'S NAME IF THAT COMPANY WOULD HAVE BEEN AN ELIGIBLE BIDDER UNDER THE SALES INVITATION.

TO GENERAL HEDLUND:

FURTHER REFERENCE IS MADE TO THE LETTER OF APRIL 30, 1971, FROM THE ATTORNEYS FOR SHAMROCK SHIPPING COMPANY, PROTESTING THE REFUSAL OF THE DEFENSE SUPPLY AGENCY TO ISSUE A BILL OF SALE SHOWING THE PROTESTING COMPANY THE PURCHASER OF TUGBOAT EX-YTM 150, WHICH WAS THE SUBJECT OF A REPORT DATED JUNE 10, 1971, FROM YOUR ASSISTANT COUNSEL.

THE TUGBOAT IN QUESTION WAS OFFERED FOR SALE BY THE DEFENSE SURPLUS SALES OFFICE, NEWPORT, RHODE ISLAND, AS ITEM 2 UNDER INVITATION 16 0071. BIDS WERE OPENED ON APRIL 29, 1970, AND THE HIGH BID IN THE AMOUNT OF $32,345.67, ON ITEM 2 WAS SUBMITTED BY CLEMENS STEVE BRANDL (ACTUALLY SUBMITTED UNDER THE SIGNATURE OF "BRANDL CLEMENS STEVE"). THERE WAS NO INDICATION THAT THE BID WAS SUBMITTED OTHER THAN IN HIS OWN BEHALF. AWARD WAS MADE TO MR. BRANDL ON APRIL 30, 1970. ON MAY 18, 1970, THE BALANCE DUE WAS PAID AND THE VESSEL DELIVERED TO AMERICAN MARINE UNDERWRITERS AS AGENT FOR MR. BRANDL. THE BILL OF SALE WAS ISSUED ON MAY 25, 1970, IN THE NAME OF THE SUCCESSFUL BIDDER, "BRANDL CLEMENS STEVE."

ON DECEMBER 29, 1970, A REPRESENTATIVE OF SHAMROCK CONTACTED THE SALES OFFICE AND REQUESTED THAT A CORRECTED BILL OF SALE FOR THE TUGBOAT BE ISSUED IN ITS NAME AS MR. BRANDL WAS AT ALL TIMES ACTING AS ITS AGENT IN THE TRANSACTIONS RELATED TO THE PURCHASE. IT WAS EXPLAINED TO THE SALES OFFICE THAT SINCE MR. BRANDL IS AN ALIEN AND LISTED AS THE PURCHASER OF THE VESSEL THE UNITED STATES COAST GUARD WAS PRECLUDED FROM REGISTERING THE VESSEL FOR COASTWISE TRADE UNDER THE PROVISIONS OF 46 U.S.C. 883. CONNECTION WITH ITS REQUEST FOR THE ISSUANCE OF A CORRECTED BILL OF SALE, SHAMROCK SUBMITTED MR. BRANDL'S AFFIDAVIT AND OTHER INFORMATION TO SUBSTANTIATE THE AGENCY RELATIONSHIP. IT IS REPORTED THAT THE DEFENSE SUPPLY AGENCY HAS NO BASIS UPON WHICH TO QUESTION THE FACTUAL INFORMATION OR GOOD FAITH OF MR. BRANDL OR SHAMROCK IN THIS RESPECT. WHILE IT APPEARS THERE IS NO OBJECTION TO COMPLYING WITH SHAMROCK'S REQUEST, DOUBT IS EXPRESSED AS TO DSA'S AUTHORITY TO DO SO. IN THIS CONNECTION, SEVERAL DECISIONS OF OUR OFFICE HAVE BEEN CITED. THE MATTER AT ISSUE IN THOSE CASES WAS THE PROPRIETY OF AN AWARD TO A FIRM ON A BID SUBMITTED BY A PURPORTED AGENT ON BEHALF OF A PRINCIPAL. IN THE INSTANT CASE, AWARD HAS BEEN MADE, THE CONTRACT COMPLETELY EXECUTED, AND THE ONLY ISSUE IS WHETHER THE APPLICABLE DOCUMENTS MAY BE CHANGED TO SHOW THE ALLEGED AGENT - PRINCIPAL RELATIONSHIP. THEREFORE, WE DO NOT VIEW THE CITED CASES CONTROLLING IN THE INSTANT MATTER.

FURTHER, IT IS REPORTED THAT THE MATTER WAS INFORMALLY DISCUSSED WITH MR. ROBERT O. MCDONALD IN THE MERCHANT VESSEL DOCUMENTATION DIVISION OF THE COAST GUARD, AND THAT HE STATED THAT THE COAST GUARD WOULD HAVE NO OBJECTION TO DSA'S CORRECTING THE AWARD DOCUMENT AND BILL OF SALE TO REFLECT THE PURCHASER AS SHAMROCK.

IN THESE CIRCUMSTANCES, OUR OFFICE HAS NO LEGAL OBJECTION TO CORRECTION OF THE APPLICABLE DOCUMENTS TO SHOW THE PURCHASER AS SHAMROCK SHIPPING COMPANY, PROVIDED, HOWEVER, THAT SAID COMPANY WOULD HAVE BEEN AN ELIGIBLE BIDDER FOR THE TUGBOAT UNDER THE SALES INVITATION.