[Protest of Navy Contract Award]
Highlights
A firm protested a Navy contract award, contending that the proposed awardee was not eligible for award, since it was not a small disadvantaged business. GAO held that it would not consider the protest, since the Small Business Administration had jurisdiction to determine the awardee's size status. Accordingly, the protest was dismissed.
B-209643-OM, FEB 18, 1983
SUBJECT: MACE SELF-DEFENSE COURSE - B-209643-O.M.
DIRECTOR, OFFICE OF SECURITY AND SAFETY:
THIS IS IN RESPONSE TO YOUR OCTOBER 25, 1982, MEMORANDUM REQUESTING A LEGAL OPINION ON CERTAIN ISSUES RAISED BY A PROPOSAL INITIATED BY THE SAN FRANCISCO REGIONAL OFFICE TO SPONSOR A COURSE FOR EMPLOYEES OF THAT OFFICE IN THE USE OF CHEMICAL MACE FOR SELF-DEFENSE. YOUR MEMORANDUM QUESTIONED WHETHER IT WOULD BE PROPER FOR GAO TO EXPEND APPROPRIATED FUNDS FOR THE PROPOSED COURSE AND WHETHER THE INTRODUCTION OF CHEMICAL MACE INTO GOVERNMENT OFFICES MIGHT SUBJECT GAO TO INCREASED POTENTIAL LIABILITY AS A RESULT OF EMPLOYEE NEGLIGENCE IN HANDLING THIS CHEMICAL. WE HAVE CONCLUDED THAT IT WOULD BE PROPER FOR GAO TO EXPEND APPROPRIATED FUNDS FOR THE COURSE PROVIDED CERTAIN CRITERIA DISCUSSED BELOW ARE SATISFIED. ALSO, WE HAVE CONCLUDED THAT THE INCREASED POTENTIAL LIABILITY WOULD NOT BE SO GREAT AS TO PRECLUDE GAO FROM SPONSORING THE COURSE.
GENERAL SERVICES ADMINISTRATION (GSA) REGULATIONS GOVERNING CONDUCT ON FEDERAL PROPERTY ARE APPLICABLE TO THE GAO SAN FRANCISCO REGIONAL OFFICE. A PROVISION OF THESE REGULATIONS CONTAINED IN 41 CFR 101 20.313 PROHIBITS ANY PERSON ENTERING A FEDERAL BUILDING FROM CARRYING OR POSSESSING "DANGEROUS OR DEADLY WEAPONS *** EXCEPT FOR OFFICIAL PURPOSES." INFORMALLY DISCUSSED THE REQUIREMENTS OF THE ABOVE MENTIONED PROVISION WITH A REPRESENTATIVE OF GSA'S OFFICE OF GENERAL COUNSEL AND WERE ADVISED THAT GSA DOES NOT CLASSIFY MACE AS A DANGEROUS OR DEADLY WEAPON AND THEREFORE IT IS NOT PROHIBITED ON FEDERAL PROPERTY BY GSA REGULATIONS.
HOWEVER, IF CARRYING MACE SHOULD VIOLATE THE LAWS OF THE STATE IN WHICH THE FEDERAL PROPERTY IS LOCATED, THE ASSIMILATIVE CRIMES ACT, 18 U.S.C. 13, ADOPTS THE STATE LAW, AND THE OFFENSE IS THEN CONSIDERED A VIOLATION OF FEDERAL CRIMINAL LAW. CHAPTER 4 OF THE CALIFORNIA PENAL CODE, SECTIONS 12401-12458 DEALS WITH THE SUBJECT OF TEAR GAS WEAPONS AND PROVIDES, AMONG OTHER THINGS, THAT POSSESSION OF A TEAR GAS WEAPON EXCEPT AS PERMITTED UNDER THE CHAPTER, IS A CRIME. IN ADDITION TO AN EXEMPTION FOR PEACE OFFICERS, SECTION 12403.7 AUTHORIZES ANY PERSON, SUBJECT TO CERTAIN REQUIREMENTS, TO POSSESS A TEAR GAS WEAPON IF THE WEAPON IS APPROVED BY THE CALIFORNIA DEPARTMENT OF JUSTICE AND IT IS USED SOLELY FOR SELF- DEFENSE PURPOSES. ACCORDINGLY, EMPLOYEES WHO CARRY TEAR GAS DEVICES NOT APPROVED BY THE CALIFORNIA DEPARTMENT OF JUSTICE INTO THE REGIONAL OFFICE WOULD VIOLATE BOTH CALIFORNIA AND FEDERAL CRIMINAL LAW. ON THE OTHER HAND, NO VIOLATION WOULD BE INVOLVED IF THE TEAR GAS DEVICE WERE APPROVED.
THE GOVERNMENT EMPLOYEES TRAINING ACT, 5 U.S.C. 4101 ET SEQ. AUTHORIZES THE HEAD OF EACH GOVERNMENT AGENCY TO ESTABLISH TRAINING PROGRAMS "TO INCREASE ECONOMY AND EFFICIENCY IN THE OPERATIONS OF THE AGENCY AND TO RAISE THE STANDARDS OF PERFORMANCE BY EMPLOYEES ***." SEE B-182398, OCTOBER 24, 1979. THE COMPTROLLER GENERAL OR HIS DESIGNEE (IN THIS CASE THE OFFICIAL HAVING AUTHORITY TO APPROVE TRAINING REQUESTS) COULD REASONABLY MAKE A DETERMINATION THAT THE ECONOMY AND EFFICIENCY OF THE SAN FRANCISCO REGIONAL OFFICE WOULD BE IMPROVED THROUGH THE PRESENTATION OF CERTAIN SAFETY INSTRUCTION DESIGNED TO MAKE EMPLOYEES FEEL MORE SECURE WHILE MOVING ABOUT THEIR WORK PLACE. THE SAFETY INSTRUCTION COULD LOGICALLY INCLUDE SUBJECTS SUCH AS ACTIONS EMPLOYEES COULD TAKE TO MINIMIZE THEIR CHANCES OF BECOMING VICTIMS OF CRIME AS WELL AS EMPLOYMENT OF SELF-DEFENSE TECHNIQUES SUCH AS CHEMICAL MACE.
THE IMPROVEMENT IN EMPLOYEE MORALE COULD REASONABLY BE EXPECTED TO RESULT IN ENHANCED JOB PERFORMANCE. HOWEVER, THIS DETERMINATION IS A POLICY DECISION WHICH MUST TAKE INTO CONSIDERATION A NUMBER OF FACTORS. THE OFFICIAL MAKING THE DETERMINATION SHOULD DOCUMENT HIS RATIONALE IN ORDER TO SUPPORT THE REQUIREMENTS OF 5 U.S.C. SEC. 4101 ET SEQ.
THE POTENTIAL LIABILITY OF THE GOVERNMENT FOR NEGLIGENT ACTS OF ITS EMPLOYEES COULD BE SLIGHTLY INCREASED THROUGH THE SPONSORSHIP OF THE MACE TRAINING COURSE. HOWEVER, UNLESS THE RISKS PRESENTED BY A PARTICULAR ACTIVITY ARE EXTRAORDINARY, THE INTRODUCTION OF THE ACTIVITY WOULD NOT BE PRECLUDED. ON THE BASIS OF OUR PRESENT KNOWLEDGE, IT DOES NOT APPEAR THAT THE RISKS ASSOCIATED WITH THE MACE TRAINING ARE OF SUCH EXTRAORDINARY NATURE AS TO PRECLUDE THE PRESENTATION OF THE TRAINING, ASSUMING IT IS DETERMINED TO BE NECESSARY FROM A POLICY STANDPOINT.