B-167382, FEB. 17, 1970

B-167382, FEB. 17, 1970

BID PROTEST--RECORD AVAILABILITY LETTER REQUESTING DOCUMENTS INCIDENT TO DECISION 49 COMP. GEN. (B-167382, OCT. 16, 1969), RYAN STEVEDORING CO; INC. CASE. IN ADDITION TO THE COPIES OF THE PROTEST LETTER, AND ADMINISTRATIVE REPORTS A COPY OF AN AFFIDIAVIT IS MADE AVAILABLE TO THE PROTESTANT. HOWEVER, CERTAIN STATEMENTS HAVE BEEN RETURNED TO THE PROCURING AGENCY- DEPARTMENT OF THE ARMY--AND REQUESTS SHOULD BE DIRECTED TO THAT DEPARTMENT. REGARDING NOTES, MEMORANDUMS, ETC; WHICH REPRESENTATIVES OF GAO PREPARED IN CONNECTION WITH THE PROTEST ARE CONSIDERED INTERNAL IN NATURE AND NOT FOR DISCLOSURE.

TO HOLTZMANN, WISE & SHEPARD:

WE REFER TO YOUR LETTERS OF NOVEMBER 17 AND DECEMBER 12, 1969, AND JANUARY 6, 1970, WITH ENCLOSURE. YOU EXPRESS THE VIEW THAT OUR DECISION TO THE SECRETARY OF THE ARMY OF OCTOBER 16, 1969, B-167382, 49 COMP. GEN. , IS INCORRECT AND MAY HAVE RESULTED FROM ERRONEOUS INFORMATION.

ON GAO FORM 339 ENCLOSED WITH YOUR LETTER OF JANUARY 6, YOU REQUEST COPIES OF AFFIDAVITS, STATEMENTS, LETTERS OR OTHER DOCUMENTS SUBMITTED BY OR ON BEHALF OF RYAN STEVEDORING COMPANY, INC; OR ITS ATTORNEYS, ARMBRECHT, JACKSON & DEMOUY, OR ANY EMPLOYEE, AGENT, REPRESENTATIVE OR MEMBER OF SAID FIRMS, WHICH WERE SUBMITTED TO THE DEPARTMENT OF DEFENSE OR THE GENERAL ACCOUNTING OFFICE IN CONNECTION WITH RYAN'S PROTEST.

YOU SPECIFICALLY REQUEST A COPY OF LETTER DATED JUNE 16, 1969, FROM JOHN L. MCCARRON, JR; VICE PRESIDENT AND GENERAL SUPERINTENDENT OF RYAN, TO CARY KENNEDY, JR; COMMANDING OFFICER, MILITARY OCEAN TERMINAL AT SUNNY POINT, AND COPIES OF ITS ATTACHMENTS OR ENCLOSURES, TOGETHER WITH COPIES OF THE AFFIDAVITS AND STATEMENTS ATTACHED TO OR ENCLOSED WITH THE PROTEST LETTER DATED JUNE 27, 1969. IN ADDITION, YOU REQUEST COPIES OF ALL WRITTEN REPORTS, NOTES, AND OTHER RECORDS PREPARED OR OBTAINED IN CONNECTION WITH THE INVESTIGATION OF RYAN'S PROTEST BY MAJOR A. BONFANTI OR OTHER REPRESENTATIVES OF THE UNITED STATES GOVERNMENT, INCLUDING ALL SUCH REPORTS, NOTES, AND RECORDS OF CONVERSATIONS WITH ATTORNEYS FOR, OR AGENTS, REPRESENTATIVES OR EMPLOYEES OF, RYAN.

WHILE THE DECISIONS OF THE COMPTROLLER GENERAL ARE ALWAYS SUBJECT TO RECONSIDERATION IF A PARTY AFFECTED THEREBY BELIEVES THE DECISION IS FOUNDED UPON MATERIAL ERROR IN EITHER FACT OR LAW, AND IDENTIFIES THE EXACT LEGAL OR FACTUAL ERRORS ON WHICH HIS BELIEF IS PREMISED, IT DOES NOT APPEAR THAT YOU ALLEGE ERROR IN, OR CONTEST THE VALIDITY OF, ANY SPECIFIC FACTUAL OR LEGAL STATEMENT IN THE DECISION.

THE PRINCIPAL FACTORS AND REASONS FORMING THE BASIS FOR OUR CONCLUSIONS IN THE SUBJECT DECISION ARE SET FORTH THEREIN. IT SHOULD BE NOTED THAT IN EXPRESSING THE VIEW THAT AN AWARD UNDER THE SOLICITATION WOULD BE DETRIMENTAL TO THE COMPETITIVE BIDDING SYSTEM, WE DID NOT MAKE A FACTUAL DETERMINATION AS TO WHETHER YOUR CLIENT COULD OR COULD NOT HAVE ACCURATELY ESTIMATED RYAN'S COST ELEMENTS AND TONS OF CARGO LOADED PER HOUR, NOR DID WE STATE ANY CONCLUSION AS TO WHETHER YOUR CLIENT DID, IN FACT, RECEIVE CONFIDENTIAL INFORMATION FROM THE GOVERNMENT EMPLOYEE AT SUNNY POINT.

CONCERNING YOUR REQUEST FOR COPIES OF THE DESIGNATED MATERIAL, WHILE THE GENERAL ACCOUNTING OFFICE IS NOT SUBJECT TO THE ADMINISTRATIVE PROCEDURE ACT, WE HAVE TAKEN COGNIZANCE OF, AND HAVE ADOPTED IN PRACTICE TO THE EXTENT APPROPRIATE TO THE FUNCTIONS AND DUTIES OF THIS OFFICE, THE PUBLIC INFORMATION SECTION OF THAT ACT, 5 U.S.C. 552, PUB. L. 90-23, APPROVED JUNE 5, 1967. BY OUR LETTER OF SEPTEMBER 10, 1969, YOUR CLIENT WAS FURNISHED COPIES OF THE ADMINISTRATIVE REPORTS OF AUGUST 18 AND 29, 1969; THE FINDINGS AND RECOMMENDATION OF THE CONTRACTING OFFICER; AND RYAN'S PROTEST LETTER OF JUNE 27, 1969. THE ORIGINALS OF THE STATEMENTS ENCLOSED WITH THE LETTER OF JUNE 27 HAVE BEEN SUBMITTED TO THE ARMY IN CONNECTION WITH ITS INVESTIGATION OF THE MATTER AND MAY BE A PART OF ITS INVESTIGATIVE FILE. A REQUEST FOR COPIES OF SUCH ITEMS OR MR. MCCARRON'S LETTER DATED JUNE 16, 1969, OR OTHER RECORDS OF THE DEPARTMENT OF THE ARMY SHOULD BE ADDRESSED TO THAT DEPARTMENT. THERE IS ENCLOSED, HOWEVER, A COPY OF THE AFFIDAVIT OF MARSHALL J. DEMOUY DATED JUNE 27, 1969, THE ORIGINAL OF WHICH IS ON FILE IN THIS OFFICE, TOGETHER WITH A COPY OF THE PROTEST LETTER OF THAT DATE. OUR FILES DO NOT CONTAIN ADDITIONAL ORIGINAL DOCUMENTS RECEIVED FROM RYAN, ITS ATTORNEYS OR EMPLOYEES, NOR DOES IT CONTAIN ANY OTHER DOCUMENTS WHICH OUR OFFICE, AS AN ARM OF THE CONGRESS, WOULD CONSIDER APPROPRIATE FOR RELEASE BY US.

REGARDING ANY NOTES, MEMORANDUMS, ETC; WHICH REPRESENTATIVES OF THIS OFFICE MAY HAVE PREPARED IN CONNECTION WITH THE CONDUCT OF THEIR DUTIES REGARDING THE PROTEST, SUCH MATERIAL IS CONSIDERED TO BE OF AN INTERNAL NATURE AND NOT FOR DISCLOSURE.