tion that has uniformly been applied to the rule that such moneys must be deposited into miscellaneous receipts is where the appropriation or fund involved is by statute made reimbursable, as for example, the Veterans Administration Supply System under 72 Stat. 1105, 38 U.S.C. 5011, where the statute setting up the Revolving Supply Fund provides for the fund being credited with "receipts from carriers and others for loss of or damages to personal property," or where the agency involved has specific statutory authority to deposit such receipts into the appropriation such as the military agencies have under Public Law 617, 84th Cong., 70 Stat. 336, 31 U.S.C. 489a. Where such specific authority of law exists, the receipts, of course, would be credited as directed by law to the applicable appropriation or fund but if there is no such specific authority, the receipts are considered for the general use of the United States and for credit to miscellaneous receipts.

The only exception made to the rule enunciated above is in cases coming strictly within the holding of the decision cited by you, 21 Comp. Dec. 632, in which it was held that where, in the settlement of a claim for freight charges, an amount is withheld or deducted therefrom offsetting the amount paid for damages from the same appropriation, and the sum found due the claimant merely reduced, no charge should be raised against said appropriation for the amount thus set off. The decision in 21 Comp. Dec. 632 was amplified in 8 Comp. Gen. 615 and 28 id. 666. Those decisions set forth the general rule that recoveries from common carriers either in actual cash or by deductions from carriers' bills for damage to or loss of Government property while in transit are for depositing and covering into the Treasury as miscellaneous receipts, the only exception being in cases strictly within the holding in 21 Comp. Dec. 632, that is, where the freight bill for the particular shipment of the property damaged or lost is in excess of the amount paid for repairs or replacement, in which event, the same appropriation being involved, the bill is merely reduced, and the amount deducted to cover the cost of repairs or replacement is allowed to remain to the credit of the appropriation. In the instant case, the amount withheld by our Office does not represent freight on the particular shipment on which the damage occurred but deductions from the carrier's bills other than that for the shipment on which the loss or damage occurred. Hence the rule in 21 Comp. Dec. 632 as amplified in 8 Comp. Gen. 615 and 28 id. 666 would not authorize deposit of the $14,882 to your agency's appropriation but, on the contrary, would require such amount to be credited to miscellaneous receipts of the Treasury.

Although you state that the original cost of the damaged property and the costs of repair were all charged against "no-year" funds,

such fact does not make the no-year fund reimbursable or supply statutory authority for covering into such fund receipts from carriers for loss or damage such as 31 U.S.C. 489a does for the military agencies. Therefore, it does not appear that the present situation qualified as an exception to our general rule of depositing funds recovered for loss and damage into miscellaneous receipts either by reason of specific statutory authority or under the special circumstances appearing in 21 Comp. Dec. 632, 8 Comp. Gen. 615 and 28 Comp. Gen. 666. Also, under such rule the sum of $5,118 in freight charges withheld by your agency together with the sum of $14,882 balance together equal the $20,000 which the Government recovered on account of its damage claim and under the stated rule is for deposit into miscellaneous receipts. It is requested that appropriate deposit action be taken accordingly by your agency with advice to us when such transfer has been accomplished. As far as the matter of augmenting appropriations is concerned, both the initial costs of the property and its repair are understood to have been properly payable from and were charged to your agency's no-year funds. Also, the freight on the damaged shipment is properly payable therefrom and was awarded the carrier by the judgment which in effect directed that sum which was included in the amount of $33,682.62 withheld (less the $20,000 awarded on the Government's damage claim) be paid it. Under the circumstances to permit the $5,118 to remain in the no-year account would amount to an improper augmentation of the fund.

We trust what is said above will explain why we do not feel warranted in approving the adjustment proposed or in granting an exception to the longstanding decisions of the Government accounting officers.

[B-158865]

Bids-Two-Step Procurement-Technical Proposals-Disclosure Under a Letter Request for Technical Proposals (LRFTP), the request of a bidder after the opening of bids but prior to award, to inspect both the second step bids and the first step technical proposals of lower bidders to determine bidder responsiveness to the specifications was properly denied, the contracting officer at the request of the low bidder obliged to safeguard technical proposals against disclosure to unauthorized persons, notwithstanding noncompli ance with marking procedures prescribed by paragraph 3-507.1 of the Armed Services Procurement Regulation, the LRFTP not specifying the manner in which offerors should designate confidential material or data submitted with proposals, and the responsiveness of the low proposal under the step two procedure not affected by the continued exercise of the confidential privileges reasonably afforded the step one proposal, material marked in accordance with paragraph 3-507.1 remaining confidential during the step two processes, a different rule is not required for material restricted by other means.

Bids Two-Step Procurement-Technical Proposals-Disclosure The publication of the names of firms submitting acceptable technical proposals in the first step of a two-step formal advertised procurement although not required under paragraph 1-1003.6(a)(2) of the Armed Services Procurement Regulation when it is determined by the contracting agency that publication is not in the Government's interest or subcontracting opportunities do not exist, had a firm submitting a bid under a Letter Request for Technical Proposals identified his request for a list of responsive step one offerors as an attempt to obtain subcontracting procedures, the contracting agency would have informed the firm that step one offerors did not propose to use its equipment.

Bids Two-Step Procurement-Technical Proposals-Alternative Proposals Evaluation Criteria

Notwithstanding a Letter Request for Technical Proposals on an automated material handling system authorized and encouraged offerors to submit new designs and different basic approaches but omitted the evaluation criteria required by paragraph 2-503.1 of the Armed Services Procurement Regulation for evaluating any new design or different approach submitted, the acceptance of the low proposal will not be questioned, prospective contractors having been informed that the acceptability of proposals presenting new designs or different approaches would be dependent upon the fulfillment of the basic requirements of the specifications rather than full compliance with detail; however, future requests for proposals describing an acceptable conventional type system, with prescribed evaluation criteria, and soliciting multiple or alternate proposals presenting new designs and different approaches should set forth the specific criteria required by paragraph 2-503.1 for the evaluation of new designs and different approaches.

To the Columbus McKinnon Corporation, July 13, 1966:

Reference is made to your telegram of April 1 and to your letters of April 19 and June 28, 1966, protesting any award of a contract for an automated material handling system at Hill Air Force Base, Utah, pursuant to Invitation for Bids No. 42-600-66-105 which was step two in the two-step formal advertising method used for the proposed procurement.

The step one Letter Request for Technical Proposal (LRFTP) was mailed November 12, 1965, for return on December 10, 1965, which date was extended to December 29, 1965. Six proposals were received in response to the LRFTP and upon evaluation five thereof, including the Columbus McKinnon proposal, were determined to be within the range of acceptable proposals pending receipt of additional information and clarification, which was subsequently accomplished. The step two invitation for bids (IFB) was issued on February 24, to the five firms which had submitted acceptable proposals, for return on the extended date of March 31, 1966. After receipt of your copy of the IFB, you requested the names of the responsive offerors under step one but such information was not published in the Commerce Business Daily or otherwise disclosed to your firm, or to any other firm, prior to the opening on March 31 of the five bids received in response to the step two IFB. Three bids, including that

of FMC Corporation (the low bidder), were lower than the Columbus McKinnon bid. After the public opening you asked the procuring activity to permit you to inspect both the second-step bids and the first-step technical proposals of the three lower firms prior to any award under the IFB. Your request was denied by the contracting officer on the basis that he has a definite obligation to safeguard technical proposals against disclosure to unauthorized persons at any time prior to award of the contract.

In your letter of April 19 to this Office you cite several specific portions of paragraphs 1 and 5 of the LRFTP and of paragraphs 4.1 and 12.2.1 of the specifications pursuant to which you conclude that "At no time did the language of the LRFTP or specification permit, imply or state that departures from the specifications would be tolerated." You say that you stress such point for the reason that you believe one or more of the lower bidders has materially deviated from the specifications. In such respect you state:

In essence, the basic concern of Columbus McKinnon, in this context, was that they would offer a system which, in fact, would meet the specifications and that the potential competitors would offer a system which might appear capable of meeting the specifications, but which, in fact, would not completely do so to the mutual disadvantage of the Government and Columbus McKinnon.

Inasmuch as you were administratively denied the opportunity to inspect any part of the proposal packages of the three lower bidders, you assert that "Columbus McKinnon does not know whether or not all of the technical dissertation submitted by its competitors is properly restricted according to ASPR 3-507.1." You also contend that Armed Services Procurement Regulation 3-507.1 "provides the means for offerors in Two-Step Formal Advertising procedures to protect their proprietary submissions, and it is submitted that only those sheets properly and individually marked can be considered beyond the scrutiny of competitors." In view thereof you request access to any such unclassified information on the offerings of your competitors in order to ascertain whether or not the offerings are responsive to the specifications as set forth in the original LRFTP and subsequent solicitations.

We do not agree with your view that under two-step formal advertising procedures the marking of material pursuant to ASPR 3-507.1 provides the only basis upon which a prospective contractor may properly be denied access to a competing firm's proposal package. It should be noted that ASPR 3-507.1 has basic application to negotiated procurements (ASPR 3-500) and under ASPR 3-501 (b) (xxi) offerors in such procurements are normally informed in the request for proposals of the procedures prescribed in ASPR 3-507.1 for restricting the use of proposal data, whereas the subject LRFTP did not specify a manner in which offerors should designate confiden

tial material or data submitted with their proposals. While subparagraph (ii) of ASPR 2-503.1 (c) states that technical proposals submitting data "marked” in accordance with 3-507.1 shall be accepted and handled in accordance with that paragraph, we do not view that provision as requiring such marking in order to permit the protection otherwise requested for material submitted in a step one proposal or as nullifying the proscription against disclosure of proposals to “unauthorized persons" contained in the preceding subparagraph (i). Although subparagraph (i) does not define the term "unauthorized persons" it is administratively reported that the low bidder (FMC), whose proposal is therefore for principal consideration here, specifically requested that all drawings and other material supplied not be disclosed outside of the Government without the firm's express authorization. It was with such understanding that the Government accepted FMC's proposal for evaluation, and in that connection the procuring activity has reported that it was not feasible to segregate the information in the technical proposal between proprietary and nonproprietary information. Under such circumstances, we feel that your firm, not having obtained FMC's authorization to examine any part of its proposal, was reasonably regarded by the contracting officer as being an "unauthorized person" within the contemplation of ASPR 2-503.1 (c) (i), and we cannot conclude that his denial of your request, which honored the understanding between FMC and the procuring activity against disclosure, was contrary to the public interest or constituted an abuse of the discretion vested in that official. Accordingly, we see no valid basis on which to disagree with the administrative decision concerning such matter.

In your letter of June 28 you contend that FMC's request, that the material submitted with its proposal not be disclosed, rendered its offering nonresponsive pursuant to ASPR 2-404.4 (a) inasmuch as such restriction did not permit competing bidders to examine even the "descriptive literature" required to accompany the proposal and thereby precludes you from protesting against the award on technical grounds. In support of such contention you point out that paragraph 2-501 (ii) of section II (Procurement by Formal Advertising) of ASPR provides that "Bids submitted in step two are evaluated and the awards made in accordance with Parts 3 and 4 of this Section" and that paragraph 2-503.2 provides that "Upon completion of step one, a formally advertised procurement in accordance with Parts 2, 3 and 4 of this Section will be conducted

"Such provisions, you say, indicate that all rules in those parts relating to firm fixed-price contracts and to formal advertising are for application to the step two procedures including the proposals submitted under step one which, you assert, form an in