B-167687, NOVEMBER 13, 1969, 49 COMP. GEN. 303

B-167687, NOVEMBER 13, 1969, 49 COMP. GEN. 303

UNIFORMS -- MILITARY PERSONNEL -- SALE -- REMOVAL OF MILITARY INSIGNIA AN ITEM DESCRIBED IN A SURPLUS SALE AS "JUMPERS, MEN'S: UNDRESS, COTTON UNIFORM TWILL WHITE, ENLISTED MEN, NAVY *** " IS CONSIDERED A DISTINCTIVE MILITARY UNIFORM WITHIN THE CONTEMPLATION OF 10 U.S.C. 771, AND, THEREFORE, THE SALE OF THE ITEM IS SUBJECT TO AN ADMINISTRATIVELY IMPOSED CONDITION REQUIRING THE MUTILATION OR MODIFICATION OF THE ARTICLE BY REMOVING MILITARY INSIGNIA TO MAKE THE UNIFORM NONDISTINCTIVE. WHILE THE CONDITION IS NOT BASED ON SPECIFIC STATUTORY AUTHORITY, ITS PURPOSE IS TO PRESERVE THE INTEGRITY OF THE NAVY UNIFORM, A PURPOSE THAT IS CONSISTENT WITH 10 U.S.C. 771, WHICH RESTRICTS THE WEARING OF MILITARY UNIFORMS TO MILITARY PERSONNEL.

TO THE AMERICAN WASTE AND WIPER COMPANY, NOVEMBER 13, 1969:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 7, 1969, CONCERNING A REQUIREMENT THAT CERTAIN ITEMS OF UNUSED MILITARY APPAREL, ACQUIRED BY YOUR FIRM THROUGH DEPARTMENT OF DEFENSE (DOD) SEALED BID SALE NO. 41 9108 (INVITATION FOR BIDS 41-9108) CONDUCTED BY THE DEFENSE SURPLUS SALES OFFICE (DSSO), OGDEN, UTAH, BE MUTILATED IN A MANNER THAT WOULD RENDER THESE ITEMS UNUSABLE AS GARMENTS.

YOUR FIRM WAS THE SUCCESSFUL BIDDER FOR ITEMS 126 THROUGH 130, DESCRIBED AS "JUMPERS, MEN'S: UNDRESS, COTTON UNIFORM TWILL WHITE, ENLISTED MEN, NAVY, *** " EACH ITEM DESCRIPTION DIFFERING ONLY AS TO SIZE OF THE JUMPERS AND THE QUANTITY OFFERED FOR SALE. ALL OF THE JUMPERS OFFERED FOR SALE WERE UNUSED. THESE ITEMS WERE SOLD SUBJECT TO ARTICLE FA OF THE CONDITIONS OF SALE, ON PAGE 12 OF THE SALES CATALOG, WHICH REQUIRES THE PURCHASER OF THESE ITEMS TO EITHER MUTILATE OR DESTROY THE ITEMS, OR TO RENDER THEM NONDISTINCTIVE AS AN ARTICLE OF A MILITARY UNIFORM, BY REMOVING THE COLLAR FLAP OR ALTERING THE FRONT OF THE JUMPER TO BUTTON-UP FRONT AND TO MUTILATE OR DESTROY ANY DISTINCTIVE INSIGNIA (EXCEPT WHEN RETURNED TO THE RESPECTIVE MILITARY SERVICE) SO AS TO CAUSE THEM TO LOSE THEIR DISTINCTIVE CHARACTERISTICS PRIOR TO ANY LOAN, DONATION, TRANSFER, OR RESALE OF THE JUMPERS.

ARTICLE FA WAS MADE PART OF THE SALES CONTRACT PURSUANT TO SECTION 101- 45.304-8A OF THE FEDERAL PROPERTY MANAGEMENT REGULATIONS (FPMR) WHICH AUTHORIZES THE USE OF NECESSARY SPECIAL PROVISIONS IN SALES CONTRACTS SUCH AS STANDARD FORM 114-A (PRESCRIBED FOR USE IN THE PRESENT PROCUREMENT). ALSO, PARAGRAPH "A," CHAPTER VII, OF THE DEFENSE DISPOSAL MANUAL PERMITS DLSC TO AUTHORIZE INTERIM INVITATIONS OR CHANGES TO THE SPECIAL CONDITIONS PRESCRIBED FOR USE IN ALL SALES OF SURPLUS, FOREIGN EXCESS AND EXCHANGE/SALE PROPERTY.

IN YOUR LETTER OF AUGUST 7 YOU QUESTION THE VALIDITY OF THE REQUIREMENT THAT THESE JUMPERS BE MUTILATED, MAKING THEM UNUSABLE AS AN ITEM OF APPAREAL. YOU STATE THAT SHOULD WE UPHOLD THE USE OF THE MUTILATION CLAUSE, WE WILL FIND THAT IN THE FUTURE YOUR FIRM, AS WELL AS MANY OTHERS, WILL NOT BID ON SUCH ITEMS DUE TO THE FACT THAT THE COST OF PREPARING THE ITEMS FOR SALE WILL EXCEED THEIR VALUE. ADDITIONALLY, YOU POINT OUT THAT THE JUMPERS HAVE NO DISTINCTIVE INSIGNIA WHICH WOULD IDENTIFY THEM AS PART OF A MILITARY UNIFORM. YOU ALSO STATE THAT, SINCE THESE ITEMS ARE UNUSED AND ARE BEING DISPOSED OF AS EXCESS PERSONAL PROPERTY, THEY MUST BE OBSOLETE.

THE CRUX OF YOUR PROTEST APPEARS TO BE THAT THERE IS NO STATUTORY OR LEGAL AUTHORITY REQUIRING MUTILATION OF THE ITEMS PURCHASED BY YOU AND, PRESUMABLY, YOUR FIRM, AS WELL AS OTHER FIRMS, MIGHT OFFER A SUBSTANTIALLY HIGHER RETURN TO THE GOVERNMENT IF SUCH A CONDITION WERE NOT INCLUDED IN SURPLUS SALES CONTRACTS. THIS OFFICE HAS HELD THAT CONDITIONS IN GOVERNMENT SURPLUS SALES CONTRACTS WHICH MAY REDUCE THE RETURN TO THE GOVERNMENT FROM SUCH SALES ARE GENERALLY IMPROPER UNLESS AUTHORIZED BY STATUTE. 43 COMP. GEN. 15, 17 (1963). WHILE ADMITTEDLY THERE IS NO STATUTORY AUTHORITY SPECIFICALLY AUTHORIZING SUCH A CONDITION IN A SURPLUS SALES CONTRACT, THE UNDERLYING PURPOSE OF ARTICLE FA IS TO PRESERVE THE INTEGRITY OF THE NAVY UNIFORM, SUCH PURPOSE BEING CONSISTENT WITH THE STATUTORY GOAL OF 10 U.S.C. 771, WHICH STATES:

EXCEPT AS OTHERWISE PROVIDED BY LAW, NO PERSON EXCEPT A MEMBER OF THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS, AS THE CASE MAY BE, MAY WEAR--

(1) THE UNIFORM OR A DISTINCTIVE PART OF THE UNIFORM, OF THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS: OR (2) A UNIFORM ANY PART OF WHICH IS SIMILAR TO A DISTINCTIVE PART OF THE UNIFORM OF THE ARMY, NAVY, AIR FORCE, OR MARINE CORPS.

TO SELL ANY ITEMS OF THE KINDS DESCRIBED IN THAT STATUTE WITHOUT REMOVING OR REQUIRING THE REMOVAL OF THE DISTINCTIVE FEATURES THEREOF WOULD ENCOURAGE VIOLATIONS OF THE ABOVE STATUTE, AND WE THEREFORE BELIEVE THAT THE PROVISIONS OF ARTICLE FA ARE A PROPER AND REASONABLE IMPLEMENTATION OF THE LAW. THE MATERIAL QUESTIONS PRESENTED BY YOUR PROTEST THEREFORE ARE (1) ARE THE ITEMS PURCHASED BY YOUR FIRM DISTINCTIVE ARTICLES OF A MILITARY UNIFORM" AND (2) DO THE PARTICULAR METHODS PRESCRIBED BY ARTICLE FA FOR RENDERING THE ITEMS NONDISTINCTIVE REQUIRE MORE ALTERATION THAN NECESSARY FOR THAT PURPOSE AND THUS REDUCE THE PROBABLE VALUE REALIZABLE BY THE GOVERNMENT? WHILE THE JUMPERS HAVE NO DISTINCTIVE INSIGNIA WHICH WOULD IDENTIFY THEM AS PART OF A MILITARY UNIFORM, ATTACHMENT 11 TO PART 3, CHAPTER XV, OF THE DEFENSE DISPOSAL MANUAL (DOD 4160.21M) LISTS NAVY WHITE JUMPERS AS DISTINCTIVE ARTICLES OF THE NAVY UNIFORM AND, ACCORDING TO INFORMAL ADVICE GIVEN TO THE DEFENSE SUPPLY AGENCY BY THE NAVY UNIFORM BOARD, USE OF THE PATCH POCKET WHITE JUMPER BY NAVY PERSONNEL WHO HAVE SUCH JUMPERS, IS STILL AUTHORIZED ALTHOUGH THE ARTICLE IS NO LONGER BEING ISSUED. THE JUMPER IS THEREFORE STILL A DISTINCTIVE ARTICLE OF THE NAVY UNIFORM, EVEN THOUGH THE STOCK ON HAND HAS BEEN DETERMINED TO BE EXCESS AND AUTHORIZED TO BE SOLD AS SURPLUS.

AS TO WHETHER THE METHODS PRESCRIBED BY ARTICLE FA FOR RENDERING THE ITEMS NONDISTINCTIVE ARE SUCH AS MIGHT UNNECESSARILY REDUCE THE GOVERNMENT'S RETURN FROM SUCH SALES, WE NOTE THAT UNDER ARTICLE FA THE PURCHASER IS NOT REQUIRED TO MUTILATE THE GARMENT, BUT IS GIVEN THE ALTERNATIVE OF MODIFYING IT BY REMOVING THE COLLAR FLAPS AND/OR ALTERING THE FRONT OF THE JUMPER TO A BUTTON-UP FRONT. WE DO NOT KNOW HOW COSTLY ALTERATION OF THESE ITEMS WOULD BE OR IF THERE IS AN ACCEPTABLE ALTERNATIVE TO MUTILATION OR ALTERATION. ACCORDING TO THE ADMINISTRATIVE REPORT, AT ONE TIME ALL THE NAVY REQUIRED WAS THAT THE PURCHASER DYE THE DISTINCTIVE ARTICLE AND DESTROY OR MUTILATE THE DISTINCTIVE INSIGNIA. HOWEVER, THE NAVY LATER CONCLUDED THAT THIS WAS NOT SUFFICIENT TO MAKE THE ARTICLE NONDISTINCTIVE. AS TO THE METHOD PROPOSED IN YOUR LETTER OF AUGUST 7, I.E., AFFIXING TO EACH JUMPER A PROMINENT COLORED STENCIL, THERE IS NO EVIDENCE IN THE RECORD INDICATING THAT THIS METHOD WAS EVER CONSIDERED BY THE NAVY. BUT, IN ANY EVENT, THE QUESTION OF WHAT CHANGE IN A GARMENT IS SUFFICIENT TO MAKE IT NONDISTINCTIVE WOULD APPEAR TO BE ONE BEST ANSWERED BY THE AGENCY INVOLVED. IN THE PRESENT CASE WE DO NOT FIND THAT THE METHODS PRESCRIBED BY ARTICLE FA, IN FURTHERANCE OF THE LEGITIMATE PURPOSE OF PRESERVING THE INTEGRITY OF THE MILITARY UNIFORM, ARE SO UNREASONABLE AS WOULD UNNECESSARILY REDUCE THE GOVERNMENT'S RETURN FROM SURPLUS SALES.

IN ANY EVENT, THE OFFERING AND YOUR BID WERE CLEARLY CONDITIONED UPON MUTILATION OR MODIFICATION IN ACCORDANCE WITH ARTICLE FA AND IT WOULD BE PREJUDICIAL BOTH TO THE INTERESTS OF THE GOVERNMENT AND TO THOSE OF OTHER BIDDERS TO REMOVE THE RESTRICTION FOR YOUR BENEFIT AFTER ACCEPTANCE OF YOUR BID, WHICH CONSUMMATED A VALID AND BINDING CONTRACT OF SALE.

FOR THE REASONS STATED, YOUR PROTEST MUST BE REJECTED.