B-174324, JAN 12, 1972

B-174324: Jan 12, 1972

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SINCE THE EXPENDITURE OF APPROPRIATED FUNDS IS NOT INVOLVED IN THE CONTRACT. THE MATTER IS NOT SUBJECT TO AUDIT BY THE GAO. MARTIN & OPPENHEIMER: REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 27 AND NOVEMBER 24. THE SUBJECT INVITATION WAS THE SECOND STEP OF A TWO-STEP ADVERTISED PROCUREMENT UTILIZING NONAPPROPRIATED FUNDS FOR THE CONSTRUCTION OF 1. THE AIR FORCE CENTRAL WELFARE FUND IS AN INSTRUMENTALITY OF THE UNITED STATES GOVERNMENT. YOU CONTEND THAT THE CST FIRST-STEP TECHNICAL PROPOSAL WAS NONRESPONSIVE TO THE REQUEST FOR TECHNICAL PROPOSALS AND THAT CST WAS NOT A RESPONSIBLE BIDDER. A COPY OF WHICH WAS FURNISHED TO YOU. YOU CONTEND THAT OUR OFFICE SHOULD RENDER A DECISION IN RESPONSE TO THE PROTEST SINCE THE AIR FORCE CENTRAL WELFARE FUND IS AN INSTRUMENTALITY OF THE UNITED STATES AND HAS UTILIZED THE ARMED SERVICES PROCUREMENT REGULATION IN THIS PROCUREMENT AS PROVIDED BY AIR FORCE REGULATIONS.

B-174324, JAN 12, 1972

BID PROTEST - BIDDER RESPONSIVENESS - NONAPPROPRIATED FUNDS DECISION DENYING PROTEST OF TIMMONS, BUTT AND HEAD, INC., AGAINST THE AWARD OF A CONTRACT TO COMMUNITY SCIENCE TECHNOLOGY, INC., FOR THE CONSTRUCTION OF TEMPORARY LODGING QUARTERS UNDER AN IFB ISSUED BY WRIGHT- PATTERSON AFB, OHIO. SINCE THE EXPENDITURE OF APPROPRIATED FUNDS IS NOT INVOLVED IN THE CONTRACT, THE MATTER IS NOT SUBJECT TO AUDIT BY THE GAO. ACCORDINGLY, THE COMP. GEN. CANNOT RENDER AN AUTHORITATIVE DECISION AND NO ACTION MAY BE TAKEN ON THE PROTEST.

TO LEVA, HAWES, SYMINGTON, MARTIN & OPPENHEIMER:

REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 27 AND NOVEMBER 24, 1971, PROTESTING ON BEHALF OF TIMMONS, BUTT AND HEAD, INC. (TBH), AGAINST THE AWARD OF A CONTRACT TO COMMUNITY SCIENCE TECHNOLOGY, INC. (CST), UNDER INVITATION FOR BIDS NO. F33615-72-B-0006, ISSUED BY WRIGHT PATTERSON AIR FORCE BASE, OHIO.

THE SUBJECT INVITATION WAS THE SECOND STEP OF A TWO-STEP ADVERTISED PROCUREMENT UTILIZING NONAPPROPRIATED FUNDS FOR THE CONSTRUCTION OF 1,020 TEMPORARY LODGING QUARTERS AT 24 BASES. IN THIS RESPECT, SECTION 17 OF THE ADDITIONAL GENERAL PROVISIONS OF THE INVITATION PROVIDED AS FOLLOWS:

"(B) NONAPPROPRIATED FUND INSTRUMENTALITY. THE AIR FORCE CENTRAL WELFARE FUND IS AN INSTRUMENTALITY OF THE UNITED STATES GOVERNMENT. HOWEVER, NO APPROPRIATED FUNDS OF THE UNITED STATES SHALL BECOME DUE OR BE PAID TO THE CONTRACTOR BY REASON OF THIS CONTRACT."

YOU CONTEND THAT THE CST FIRST-STEP TECHNICAL PROPOSAL WAS NONRESPONSIVE TO THE REQUEST FOR TECHNICAL PROPOSALS AND THAT CST WAS NOT A RESPONSIBLE BIDDER. THE CONTRACTING OFFICER'S STATEMENT OF FACTS AND FINDINGS REGARDING THE TBH PROTEST, A COPY OF WHICH WAS FURNISHED TO YOU, DISAGREED WITH THESE CONTENTIONS.

YOU CONTEND THAT OUR OFFICE SHOULD RENDER A DECISION IN RESPONSE TO THE PROTEST SINCE THE AIR FORCE CENTRAL WELFARE FUND IS AN INSTRUMENTALITY OF THE UNITED STATES AND HAS UTILIZED THE ARMED SERVICES PROCUREMENT REGULATION IN THIS PROCUREMENT AS PROVIDED BY AIR FORCE REGULATIONS.

HOWEVER, NOTWITHSTANDING THE FOREGOING, THE EXPENDITURE OF APPROPRIATED FUNDS IS NOT INVOLVED IN THE CONTRACT AND THE MATTER IS NOT SUBJECT TO AUDIT BY OUR OFFICE. SEE B-171418, DECEMBER 17, 1970; B 167822, JANUARY 16, 1970; B-165923, APRIL 14, 1969; B-165618, JANUARY 27, 1969; AND B- 153800, APRIL 3, 1964.

IN THE CIRCUMSTANCES, WE ARE UNABLE TO RENDER AN AUTHORITATIVE DECISION AND WE THEREFORE ARE UNABLE TO TAKE ANY ACTION ON THE PROTEST.