B-153430, MAY 21, 1964

B-153430, MAY 21, 1964

TO MR. VINCENT S. LUKAS:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1964, AND SUBSEQUENT CORRESPONDENCE, WRITTEN AS THE OWNER OF ANCHOR SERVICE AND PRESENTING A CLAIM IN VARYING AMOUNTS OF $12,650 AND $30,000 FOR THE ALLEGED UNAUTHORIZED USE OF YOUR RUBBISH CONTAINERIZATION IDEA BY THE U.S. COAST GUARD AT BOSTON, MASSACHUSETTS.

YOUR CLAIM ARISES OUT OF THE FACT THAT ON FEBRUARY 29, 1960, THE CONTRACTING OFFICER, OFFICE OF THE COMMANDER, FIRST COAST GUARD DISTRICT, ISSUED INVITATION NO. SO-581-60 FOR THE REMOVAL OF RUBBISH FROM THE COAST GUARD BASE, BOSTON, MASSACHUSETTS, AND THE COAST GUARD MOORING, CASTLE ISLAND TERMINAL, SOUTH BOSTON, FOR THE PERIOD JULY 1, 1960 THROUGH JUNE 30, 1961. THE DATE OF THE BID OPENING WAS MARCH 24, 1960, AND THE INVITATION SET OUT THREE BID ITEMS AS FOLLOWS:

1. TO BE PICKED UP IN OPEN-TYPE TRUCKS (UNIT PRICE TO BE QUOTED PER CUBIC YARD--- TOTAL BID BASED ON GOVERNMENT ESTIMATE OF NUMBER OF CUBIC YARDS).

2. TO BE PICKED UP IN PACKER-TYPE TRUCKS (SAME AS ABOVE).

3. FLAT BID PER MONTH FOR REMOVAL OF RUBBISH.

THE COAST GUARD RECORDS INDICATE THAT, ON OR ABOUT MARCH 22, 1960, YOU SUBMITTED A BROCHURE AND SURVEY OF THE BASE AT BOSTON AND AT CASTLE ISLAND TERMINAL. THE BROCHURE WAS DATED MARCH 22, 1960, AND CONTAINED A PROPOSAL BY "ANCHOR SERVICE" FOR FURNISHING MOBILE TRASH AND GARBAGE CONTAINER SERVICE TO THE COAST GUARD. A YEAR'S SERVICE CHARGE OF $6,864 WAS PROPOSED FOR USE AND PICK-UP OF TRASH CONTAINERS BASED ON RECOMMENDED CONTAINER STATIONS. THE VOLUME OF INDIVIDUAL TRASH AND GARBAGE CONTAINERS RECOMMENDED WAS SPECIFIED. A YEAR'S SERVICE CHARGE OF $2,340 WAS PROPOSED FOR USE AND PICK-UP OF GARBAGE CONTAINERS.

ON MARCH 23, 1960, THE CONTRACTING OFFICER ADVISED BOTH GREENBERG BROTHERS DISPOSAL, INC., AND ANCHOR SERVICE BY TELEGRAM THAT THE BID OPENING WAS DELAYED AND THAT AN ADDENDUM WOULD BE ISSUED. SIX OF THE PROSPECTIVE BIDDERS WERE SO NOTIFIED BY TELEPHONE. NOTWITHSTANDING YOUR CONTENTION THAT AN ADDENDUM WAS NOT ISSUED UNTIL APRIL 23, 1960, THE COAST GUARD RECORDS SHOW ADDENDUM NO. 1 WAS ISSUED ON MARCH 23, 1960. IT ADDED A NEW ITEM (4) AS FOLLOWS:

"FLAT BID PER MONTH FOR REMOVAL OF RUBBISH IN CONTRACTOR FURNISHED CONTAINERS. CONTAINERS PROVIDED BY CONTRACTOR SHALL BE SANITARY, FIREPROOF, ODOR FREE, LIQUID TIGHT CONTAINERS OF ADEQUATE CAPACITY AND EASY LOADING FOR EACH LOCATION.'

ADDENDUM NO. 1 ALSO MADE PROVISION FOR "PICKUP" AT SIX LOCATIONS AT THE BASE AND TWO AT CASTLE ISLAND, AND MADE CERTAIN OTHER CHANGES NOT MATERIAL HERE. ON MAY 12, 1960, SEALED BIDS RECEIVED IN RESPONSE TO INVITATION NO. SO-581-60 WERE OPENED. BIDS WERE RECEIVED FROM HENRY B. RUSSEL AND SONS, ACE DISPOSAL SERVICE, ANCHOR SERVICE, JAMES A. FREANY, INC., AND GREENBERG BROTHERS DISPOSAL, INC. ALL BIDDERS UTILIZED STANDARD FORM 33 AND AN ACKNOWLEDGED COPY OF ADDENDUM NO. 1, WITH THE EXCEPTION OF ANCHOR SERVICE. ANCHOR SERVICE SUBMITTED AN UNDATED LETTER AND PROPOSED A YEAR'S SERVICE AT $9,984, A PRICE WHICH WAS HIGHER THAN THAT QUOTED IN ITS PROPOSAL SUBMITTED MARCH 22, 1960. JAMES A. FREANY, INC., WAS DETERMINED TO BE THE LOW RESPONSIVE BIDDER AT A QUOTED RATE FOR ITEM 4 OF $483 PER MONTH OR AN ANNUAL COST OF $5,796, AND ON MAY 18, 1960, THE CONTRACTING OFFICER AWARDED CONTRACT NO. TO1CG-6237 TO THAT FIRM FOR THE REMOVAL OF RUBBISH AT THE BASE IN BOSTON AND AT CASTLE ISLAND TERMINAL FOR THE PERIOD JULY 1, 1960 THROUGH JUNE 30, 1961.

YOU THEN FILED CLAIM AGAINST THE COAST GUARD IN VARIOUS AMOUNTS, CONTENDING THAT YOU FURNISHED PICTURES OF THE OLD METHOD OF HANDLING RUBBISH AND GARBAGE AT THE COAST GUARD BASE AND CASTLE ISLAND TERMINAL, TOGETHER WITH FOUR BROCHURES DESCRIBING THE HANDLING OF SUCH MATERIAL BY CONTAINERIZATION; THAT THE COAST GUARD, IN ISSUING ADDENDUM NO. 1 TO THE INVITATION AND IN DISTRIBUTING YOUR BROCHURES TO OTHER BIDDERS, USED YOUR IDEA WITHOUT YOUR PERMISSION; AND THAT YOU ARE ENTITLED TO COMPENSATION FOR SUCH UNAUTHORIZED USE.

THE RECORDS OF THIS PROCUREMENT INDICATE THAT THE INTELLIGENCE AND LAW EMBRACEMENT BRANCH OF THE COAST GUARD INVESTIGATED THE ALLEGATIONS UPON WHICH YOUR CLAIM IS BASED AS EARLY AS 1961, AND THAT FURTHER CONSIDERATION HAS BEEN ACCORDED TO YOUR CLAIM BY OTHER DIVISIONS OF THE AGENCY SINCE THAT DATE. FROM OUR REVIEW OF SUCH RECORDS, TOGETHER WITH OUR ANALYSIS OF THE VARIOUS CORRESPONDENCE AND DOCUMENTS SUBMITTED WITH YOUR CLAIM TO THIS OFFICE, WE MUST CONCLUDE THAT THERE IS NO SUBSTANTIAL EVIDENCE THE COAST GUARD USED THE INFORMATION RELATIVE TO CONTAINERIZATION, WHICH YOU SUBMITTED IN ONE OR MORE BROCHURES, FOR THE PURPOSE OF SOLICITING BIDS ON THAT BASIS. ADDITIONALLY, THERE DOES NOT APPEAR TO BE ANY EVIDENCE THAT THE CONTAINERIZATION PROPOSAL WHICH YOU SUBMITTED INVOLVED A PROCESS WHICH YOU HAD PATENTED, OR THAT THE INFORMATION CONTAINED IN YOUR BROCHURE WAS COPYRIGHTED, OR THAT YOUR PROPOSAL OR BROCHURE INCLUDED ANY REQUEST THAT THE INFORMATION CONTAINED THEREIN BE CONSIDERED AND TREATED AS CONFIDENTIAL OR PROPRIETARY INFORMATION. UNDER THE CIRCUMSTANCES WE MUST CONCLUDE THAT THERE IS NO EVIDENCE OF AN AGREEMENT, EITHER EXPRESS OR IMPLIED, THAT THE COAST GUARD WOULD NOT USE SUCH INFORMATION, OR THAT IT WOULD COMPENSATE YOU IN THE EVIDENCE OF AN AGREEMENT, EITHER EXPRESS OR IMPLIED, THAT THE COAST GUARD THEREIN BE CONSIDERED AND TREATED AS CONFIDENTIAL OR PROPRIETARY WOULD NOT USE SUCH INFORMATION, OR THAT IT WOULD COMPENSATE YOU IN THE EVENT IT DID USE SUCH INFORMATION. IN VIEW OF THE FOREGOING IT IS APPARENT THAT, IF THERE IS ANY LIABILITY TO YOU ON THE PART OF THE GOVERNMENT IT MUST BE BASED UPON TORT RATHEN THAN CONTRACT. SINCE THE AUTHORITY TO ALLOW PAYMENT FOR DAMAGES RESULTING FROM TORTIOUS CONDUCT OF THE GOVERNMENT IS VESTED SOLELY IN THE AGENCY WHICH COMMITS THE TORT AND IN THE COURTS, THERE IS NO AUTHORITY IN THIS OFFICE TO DETERMINE, IN THE FIRST INSTANCE, WHETHER THE ACTIONS OF AN AGENCY ARE SUCH AS TO RENDER THE GOVERNMENT LIABLE FOR DAMAGES ARISING OUT OF TORT. NECESSARILY FOLLOWS THAT ANY FURTHER INVESTIGATION BY THIS OFFICE FOR THE PURPOSE OF DETERMINING WHETHER YOUR ALLEGATIONS, OR THE RECORDS OF THE COAST GUARD, ARE CORRECT WOULD NOT ONLY BE IMPROPER BUT WOULD SERVE NO USEFUL PURPOSE. SINCE YOUR ALLEGATION THAT THE COAST GUARD FAILED TO RETURN THREE OF THE BROCHURES YOU CLAIM TO HAVE ORIGINALLY SUBMITTED TO THAT AGENCY WOULD, IF CORRECT, ALSO SOUND IN TORT, WE DO NOT CONTEMPLATE ANY FURTHER INVESTIGATION THEREOF.

IN THE CIRCUMSTANCES WE MUST ADVISE THAT THIS OFFICE IS WITHOUT AUTHORITY TO AUTHORIZE PAYMENT, OR PASS UPON THE MERITS, OF YOUR CLAIM, AND YOUR CLAIM MUST THEREFORE BE DENIED.

THE BROCHURE, CORRESPONDENCE, AND COPIES OF CORRESPONDENCE, WHICH YOU SUBMITTED WITH YOUR CLAIM LETTERS AND DELIVERED IN PERSON, ARE RETURNED.