B-173216, OCT 30, 1972

BID PROTEST - SALE CONTRACTS - CONTRACTING OFFICER RESPONSIBILITIES DECISION AFFIRMING THE PRIOR DENIAL OF A COMPLAINT BY FRED SCHWARTZ ARISING OUT OF A SURPLUS SALES CONTRACT AWARDED BY THE DEFENSE SUPPLY AGENCY. THERE IS NO REQUIREMENT IN THE PERTINENT REGULATIONS THAT A SALES CONTRACTING OFFICER MUST VERIFY EVERY WEIGHT SHOWN IN THE SALES DESCRIPTIONS OF ITEMS PREPARED BY THE HOLDING ACTIVITIES. THE REQUIREMENT IMPOSED UPON SALES PERSONNEL IN SUCH MATTERS IS THAT THE DESCRIPTION OF THE PROPERTY BE BASED ON THE BEST INFORMATION AVAILABLE TO THE SALES OFFICE. THIS REQUIREMENT IS MET WHEN SALES PERSONNEL USE THE SAME INFORMATION SUPPLIED BY THE REPORTING AGENCY, WITHOUT NOTICE THAT IT MAY BE IN ERROR, AND THAT IN SUCH SITUATIONS THE SALES PERSONNEL ARE UNDER NO DUTY TO DETERMINE THE ACCURACY OF THE INFORMATION FURNISHED.

TO MR. FRED SCHWARTZ:

WE REFER TO YOUR LETTER OF SEPTEMBER 18, 1972, EXPRESSING FURTHER OBJECTIONS TO OUR DECISION OF NOVEMBER 15, 1971, B-173216, WHICH WAS AFFIRMED BY OUR LETTER TO YOU DATED AUGUST 14, 1972.

YOU STATE THAT THE GRAVAMEN OF YOUR COMPLAINT IS THAT THE SALES CONTRACTING OFFICER DID NOT PROPERLY DISCHARGE THE DUTY OF FULLY ACQUAINTING HERSELF WITH THE PROPERTY SHE WAS SELLING, WHICH DUTY, YOU SAY, IS IMPOSED BY SUBPARAGRAPH A.3, CHAPTER VIII, PART 3, DEFENSE SUPPLY AGENCY MANUAL 4160.1, PROVIDING THAT SALES CONTRACTING OFFICERS SHOULD "STRIVE CONSISTENTLY FOR KNOWLEDGE OF THE ITEMS FOR WHICH THEY ARE RESPONSIBLE FOR SELLING." IN THIS CONNECTION YOU ASK THE FOLLOWING QUESTION:

"IF THE GOVERNMENT HAD AVAILABLE RECORDS REFLECTING THAT EACH PLATE WEIGHED 380-381 POUNDS ACCORDING TO THE SIGNED STATEMENT OF THE CONTRACTING OFFICER, AND THIS 'AVAILABLE INFORMATION' WAS AVAILABLE PRIOR TO DATE OF CIRCULATION OF THE INVITATION FOR BID, WHY WASN'T THIS INFORMATION PRINTED IN THE DESCRIPTION FOR THE ITEM (SEE EXHIBIT B) BY STATING THAT ITEM NO. 28 WEIGHED 3800 POUNDS, INSTEAD OF FALSELY AND FRAUDULENTLY STATING THAT ITEM 28, CONSISTING OF 10 COPPER PLATES, WEIGHED 4,280 POUNDS?"

IT SHOULD BE NOTED THAT THE REGULATION WHICH YOU CITE AS SUPPORT FOR YOUR ARGUMENT HAS BEEN SUPERSEDED, AND A PROVISION SIMILAR TO THAT ON WHICH YOU RELY WAS NOT CONTAINED IN THE APPLICABLE REGULATION, DEFENSE DISPOSAL MANUAL DOD 4160.21M, WHICH WAS IN EFFECT AT THE TIME OF THE SUBJECT SALE. HOWEVER, WE BELIEVE THE ANSWER TO YOUR QUESTION IS CLEARLY SHOWN IN THE SECOND PARAGRAPH ON PAGE 2 OF OUR DECISION OF NOVEMBER 15, WHEREIN IT IS STATED THAT THE WEIGHT INFORMATION USED IN THE PREPARATION OF THE SALES DESCRIPTION BY THE HOLDING ACTIVITY WAS TAKEN FROM THE TURN-IN DOCUMENT. IT IS ALSO INDICATED IN THAT PARAGRAPH THAT WHILE THE HOLDING ACTIVITY COULD HAVE CHECKED THE FEDERAL SUPPLY CATALOG TO ASCERTAIN THE ACTUAL WEIGHT OF THE PLATES, IT DID NOT DO SO BECAUSE THE ACTIVITY HAD NO REASON AT THAT TIME TO SUSPECT THAT THE WEIGHT OF THE TEN PLATES WAS LESS THAN THE 4,280 POUNDS SHOWN ON THE TURN-IN DOCUMENT. IT IS FURTHER STATED THEREIN THAT THE SALES OFFICE USED THE SALES DESCRIPTION WITHOUT CHANGE IN PREPARING THE INVITATION FOR BIDS; THAT THE SALES PERSONNEL (AS IN THE CASE OF THE HOLDING ACTIVITY PERSONNEL) DID NOT HAVE ANY NOTICE AT THE TIME BIDS WERE SOLICITED THAT THE ACTUAL WEIGHT OF THE PLATES MIGHT NOT HAVE BEEN FAIRLY REPRESENTED; AND THAT THE SALES CONTRACTING OFFICER HAD NO KNOWLEDGE THAT THE CORRECT WEIGHT WAS APPROXIMATELY 3800 POUNDS UNTIL, AT LEAST, ELEVEN DAYS AFTER ITEM NO. 28 WAS AWARDED TO YOUR COMPANY.

ALTHOUGH YOU CONTEND THAT HAD THE SALES CONTRACTING OFFICER PROPERLY DISCHARGED HER DUTIES AND CHECKED ALL AVAILABLE INFORMATION, SHE WOULD HAVE DISCOVERED THAT THE WEIGHT OF THE PLATES WAS NOT CORRECTLY STATED IN THE SALES DESCRIPTION, WE FIND NO REQUIREMENT IN THE PERTINENT REGULATIONS THAT A SALES CONTRACTING OFFICER MUST VERIFY EVERY WEIGHT SHOWN IN THE SALES DESCRIPTIONS OF ITEMS PREPARED BY THE HOLDING ACTIVITIES.

THE REQUIREMENT IMPOSED UPON SALES PERSONNEL IN SUCH MATTERS, AS EXPRESSED IN THE GENERAL SALE TERMS AND CONDITIONS (CONDITION AND LOCATION OF PROPERTY) PROMULGATED FOR USE IN SALES OFFERED BY THE DEFENSE SURPLUS SALES OFFICES, IS THAT THE DESCRIPTION OF THE PROPERTY BE BASED ON THE BEST INFORMATION AVAILABLE TO THE SALES OFFICE. AS STATED IN OUR DECISION TO YOU OF NOVEMBER 15, THIS REQUIREMENT IS MET WHEN SALES PERSONNEL USE THE SAME INFORMATION SUPPLIED BY THE REPORTING AGENCY, WITHOUT NOTICE THAT IT MAY BE IN ERROR, AND THAT IN SUCH SITUATIONS THE SALES PERSONNEL ARE UNDER NO DUTY TO DETERMINE THE ACCURACY OF THE INFORMATION FURNISHED.

ACCORDINGLY, IT IS OUR VIEW THAT THE SALES CONTRACTING OFFICER DID NOT ACT IMPROPERLY, AS YOU CONTEND, IN ADVERTISING THE PLATES ON THE BASIS OF THE ESTIMATED WEIGHT FURNISHED IN THE SALES DESCRIPTION WITHOUT OBTAINING A VERIFICATION OF SUCH WEIGHT, AND OUR DECISION OF NOVEMBER 15 IS THEREFORE AGAIN AFFIRMED.