B-169707, AUG. 31, 1970

B-169707, AUG. 31, 1970

BID PROTEST DISMISSAL OF PROTEST AGAINST REJECTION OF BID FOR VIDEO TAPE RECORDS FOR GOVERNMENT OF AMERICAN SAMOA ON THE BASIS THAT CONTRACT DOES NOT INVOLVE THE EXPENDITURE OF APPROPRIATED FUNDS. SINCE FEDERAL FUNDS ARE NOT INVOLVED AMERICAN SAMOA IS NOT A FEDERAL AGENCY WITHIN THE MEANING OF THE FEDERAL PROCUREMENT REGULATIONS. WHEN FEDERAL GRANT MONEY IS COMMINGLED WITH LOCAL REVENUES OF AMERICAN SAMOA AND USED FOR A PROCUREMENT, APPROPRIATED FUNDS ARE NOT INVOLVED. ADMINISTRATIVE REPORT INDICATES THAT PROTESTANT, SECOND LOW BIDDER WAS ALLOWED TO BID TO ITS OWN SPECIFICATIONS CONSEQUENTLY BID WAS REJECTED AS NONRESPONSIVE.

TO RCA CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR TELEGRAM OF MAY 1, 1970, PROTESTING AGAINST THE AWARD OF A CONTRACT UNDER INVITATION FOR BIDS NO. 46-70, ISSUED BY THE GOVERNMENT OF AMERICAN SAMOA.

AN ADMINISTRATIVE REPORT HAS BEEN RECEIVED FROM THE DEPARTMENT OF THE INTERIOR ON THE MATTERS RAISED BY YOUR TELEGRAM. HOWEVER, RESOLUTION OF YOUR PROTEST ON ITS MERITS IS NOT REQUIRED SINCE OUR OFFICE IS WITHOUT JURISDICTION TO RENDER AN AUTHORITATIVE DECISION ON THE MATTER.

IN OUR DECISION REPORTED AT 46 COMP. GEN. 586 (1966), WE CONCLUDED THAT SAMOA IS AN ENTITY ANALOGOUS TO A STATE AND, CONSEQUENTLY, SAMOA IS NOT A FEDERAL AGENCY FOR PURPOSES OF THE RULE THAT WHERE ONE FEDERAL AGENCY DAMAGES PROPERTY OF ANOTHER FEDERAL AGENCY, FUNDS AVAILABLE TO THE FIRST MAY NOT BE USED TO PAY CLAIMS FOR DAMAGES BY THE SECOND. INSOFAR AS THIS HOLDING RELATES TO STATUS, IT IS CONSISTENT WITH OUR PRIOR ACCEPTANCE OF THE VIEW THAT THE GOVERNMENT OF AMERICAN SAMOA IS NOT A FEDERAL AGENCY. -131569, JUNE 11, 1957.

THE GOVERNMENT OF AMERICAN SAMOA COLLECTS AND EXPENDS REVENUES NOT WHOLLY APPROPRIATED BY THE CONGRESS, AND THE DEPARTMENT OF THE INTERIOR IS OF THE OPINION THAT SAMOA IS NOT AN INTEGRAL ORGANIZATIONAL COMPONENT OF THAT DEPARTMENT.

IN VIEW OF THESE CIRCUMSTANCES AND SINCE, AS STATED BELOW, FEDERALLY APPROPRIATED FUNDS ARE NOT INVOLVED IN THE PROCUREMENT, WE ARE OF THE OPINION THAT THE GOVERNMENT OF AMERICAN SAMOA IS NOT A FEDERAL AGENCY WITHIN THE MEANING OF SECTION 1-1.203 OF THE FEDERAL PROCUREMENT REGULATIONS (FPR). SEE, ALSO, 40 U.S.C. 472(A) AND (B). THOSE REGULATIONS ARE THEREFORE NOT APPLICABLE TO PROCUREMENTS MADE BY SAMOA. SEE FPR SEC. 1-1.004.

MOREOVER, WE ARE INFORMALLY ADVISED BY THE DEPARTMENT OF THE INTERIOR THAT THE FUNDING FOR THIS PROCUREMENT WAS DRAWN FROM AN ACCOUNT CONSISTING OF COMMINGLED FEDERAL GRANT MONEY AND LOCAL REVENUES. FEDERAL GRANT FUNDS SO COMMINGLED LOSE THEIR CHARACTER AS PUBLIC FUNDS. B-131569, SUPRA. IN SHORT, NO APPROPRIATED FUNDS WERE INVOLVED IN THE PROCUREMENT AT HAND.

SINCE YOUR PROTEST DOES NOT INVOLVE THE EXPENDITURE OF APPROPRIATED FUNDS, THE APPLICATION OF THE POLICIES AND PROCEDURES PRESCRIBED BY FPR, OR 41 U.S.C. 253, PROVIDING ADVERTISING REQUIREMENTS FOR THE FEDERAL EXECUTIVE AGENCIES, WE MUST DECLINE TO CONSIDER YOUR PROTEST UNDER OUR BID PROTEST JURISDICTION.

HOWEVER, FOR YOUR INFORMATION, THE ADMINISTRATIVE REPORT FROM THE DEPARTMENT OF THE INTERIOR INDICATES THAT WHILE RCA OFFERED A LOWER PRICE ON THE BASIC EQUIPMENT BEING PROCURED, THE PRICE OF RCA'S EQUIPMENT WITH OPTIONAL COLOR CONVERTER WAS $80,085. THIS PRICE WAS $85 GREATER THAN THE BID OF AMPEX FOR COMPARABLE EQUIPMENT IN THE AMOUNT OF $80,000. MOREOVER, IT APPEARS FROM THE REPORT THAT ALTHOUGH RCA WAS ALLOWED TO BID TO ITS OWN SPECIFICATIONS, THE INVITATION FOR BIDS WAS NOT AMENDED AND, CONSEQUENTLY, RCA'S BID WAS DETERMINED TO BE NONRESPONSIVE. FINALLY, THE REPORT POINTS OUT THAT RCA SHOULD HAVE PROTESTED ITS BID REJECTION TO THE CONTRACTING OFFICER AND NOT TO OUR OFFICE.