B-220364, OCT 28, 1985, OFFICE OF GENERAL COUNSEL
Highlights
THIS IS IN RESPONSE TO YOUR LETTER DATED OCTOBER 18. YOU INDICATE THAT TVA'S DECISION TO PROCEED WITH AWARD IS BASED ON ITS POSITION THAT. TVA IS NOT SUBJECT TO OUR BID PROTEST JURISDICTION UNDER CICA. YOU REQUEST THAT OUR OFFICE BRING SUIT TO COMPEL TVA TO TERMINATE THE CONTRACT AWARDED AND SUSPEND PERFORMANCE WHILE THE PROTEST IS PENDING. YOU POINT OUT THAT TVA'S DECISION TO AWARD A CONTRACT MAY PRECLUDE EFFECTIVE RELIEF IF THE PROTEST ULTIMATELY IS SUSTAINED. YOUR CLIENT'S POSITION IS SIMILAR TO THAT OF OTHER PROTESTERS EARLIER THIS YEAR. OUR ROLE UNDER CICA IS TO DECIDE THE MERITS OF BID PROTESTS AND RECOMMEND RELIEF IN APPROPRIATE CASES. THERE IS NO PROVISION IN CICA AUTHORIZING OUR OFFICE TO BRING SUIT.
B-220364, OCT 28, 1985, OFFICE OF GENERAL COUNSEL
PRECIS-UNAVAILABLE
PIERSON, BALL & DOWD: 1200 18TH STREET, N.W. WASHINGTON, D.C. 20036 ATTENTION: STEVEN B. CLARKSON, ESQ.
THIS IS IN RESPONSE TO YOUR LETTER DATED OCTOBER 18, 1985, REGARDING BID PROTEST B-220364, FILED ON OCTOBER 15 BY NEWPORT NEWS INDUSTRIAL CORPORATION AND SIMULATION ASSOCIATES, INC., CHALLENGING AWARD TO ANY OTHER BIDDER UNDER INVITATION FOR BIDS (IFB) NO. 60-972166, ISSUED BY THE TENNESSEE VALLEY AUTHORITY (TVA).
YOU STATE THAT, ON OCTOBER 16, THE TVA BOARD OF DIRECTORS DECIDED TO MAKE AN AWARD UNDER THE CHALLENGED IFB, DESPITE THE PENDENCY OF THE PROTEST BEFORE OUR OFFICE, IN CONTRAVENTION OF THE REQUIREMENT IN THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), 31 U.S.C.A. SEC. 3553(C)(1) (WEST SUPP. 1985), THAT AWARD BE WITHHELD WHERE A PROTEST CHALLENGING THE PROCUREMENT HAS BEEN FILED BEFORE AWARD HAS BEEN MADE. YOU INDICATE THAT TVA'S DECISION TO PROCEED WITH AWARD IS BASED ON ITS POSITION THAT, CONTRARY TO OUR RECENT DECISION IN MONARCH WATER SYSTEMS, INC., B-218441, AUG. 8, 1985, 64 COMP.GEN. ---, 85-2 CPD PARA. 146, AFF'D ON RECONSIDERATION, B-218441.2, SEPT. 25, 1985, 85-2 CPD PARA. ---, TVA IS NOT SUBJECT TO OUR BID PROTEST JURISDICTION UNDER CICA. IN VIEW OF TVA'S ACTION, YOU REQUEST THAT OUR OFFICE BRING SUIT TO COMPEL TVA TO TERMINATE THE CONTRACT AWARDED AND SUSPEND PERFORMANCE WHILE THE PROTEST IS PENDING.
YOU POINT OUT THAT TVA'S DECISION TO AWARD A CONTRACT MAY PRECLUDE EFFECTIVE RELIEF IF THE PROTEST ULTIMATELY IS SUSTAINED. IN THIS REGARD, YOUR CLIENT'S POSITION IS SIMILAR TO THAT OF OTHER PROTESTERS EARLIER THIS YEAR, WHEN THE EXECUTIVE BRANCH INITIALLY DECIDED NOT TO FOLLOW CICA'S STAY PROVISIONS. IN BOTH THOSE CASES AND HERE, WHILE WE RECOGNIZE THE DIFFICULTIES PROTESTERS MAY FACE, WE NEVERTHELESS BELIEVE THAT BRINGING SUIT AGAINST THE CONTRACTING AGENCY WOULD BE INCONSISTENT WITH THE ROLE CONGRESS ENVISIONED FOR OUR OFFICE IN ENACTING CICA.
IN OUR VIEW, OUR ROLE UNDER CICA IS TO DECIDE THE MERITS OF BID PROTESTS AND RECOMMEND RELIEF IN APPROPRIATE CASES. THERE IS NO PROVISION IN CICA AUTHORIZING OUR OFFICE TO BRING SUIT, EITHER TO COMPEL AGENCIES TO FOLLOW THE STAY PROVISIONS OR TO IMPLEMENT THE RELIEF WE RECOMMEND. WE BELIEVE THAT CONGRESS, IF IT HAD INTENDED OUR OFFICE TO HAVE ENFORCEMENT AUTHORITY AGAINST FEDERAL AGENCIES, WOULD HAVE SPECIFICALLY SO PROVIDED IN CICA, AS IT HAS IN THE AREA OF IMPOUNDMENT OF FUNDS. SEE IMPOUNDMENT CONTROL ACT OF 1974, 2 U.S.C. SEC. 687 (1982). IN ADDITION, CONGRESS' INTENT IN CICA WAS TO CODIFY OUR EXISTING FUNCTION AS A BID PROTEST REVIEW FORUM. THERE IS NO INDICATION IN THE LEGISLATIVE HISTORY THAT ENFORCEMENT ACTION, A SIGNIFICANT EXPANSION OF OUR PRE-CICA BID PROTEST FUNCTION, WAS CONTEMPLATED.
IN THE ABSENCE OF STATUTORY ENFORCEMENT AUTHORITY AND IN VIEW OF THE LEGISLATIVE INTENT BEHIND ENACTMENT OF CICA'S BID PROTEST PROVISIONS, WE BELIEVE IT WOULD BE INAPPROPRIATE TO INITIATE LITIGATION AGAINST ONE OF THE PARTIES TO THE PROTEST, AS YOU REQUEST.