B-171211, JAN 7, 1971

B-171211, JAN 7, 1971

BID PROTEST - PANAMA CANAL COMPANY DECISION STATING THAT GAO IS WITHOUT AUTHORITY TO RENDER A DECISION CONCERNING THE PROTEST BY LONE STAR MARINE SALVAGE COMPANY AGAINST CONTRACT AWARD TO ANY OTHER BIDDER FOR SALVAGE BARGES, ISSUED BY THE PANAMA CANAL COMPANY. IN VIEW OF THE PANAMA CANAL ZONE CODE (76A STAT. 11 (1962), WHICH STATES THAT THE PANAMA CANAL COMPANY MAY: (1) SUE AND BE SUED IN ITS CORPORATE NAME; (2) DETERMINE THE CHARACTER OF, AND NECESSITY FOR, ITS OBLIGATIONS AND EXPENDITURES - GAO IS WITHOUT AUTHORITY TO RENDER BINDING DECISIONS ON THE PANAMA CANAL COMPANY, AND DECLINES TO RENDER A DECISION ON AN ADVISORY BASIS.

TO LONE STAR MARINE SALVAGE COMPANY:

YOUR RECENT CORRESPONDENCE WITH THE PANAMA CANAL COMPANY, IN WHICH YOU PROTEST AWARDS TO ANY BIDDER OTHER THAN YOURSELF UNDER SOLICITATION NO. 90950-AG-28 FOR SALVAGE BARGES, AND SOLICITATION NO. 91540-JR FOR ONE OIL BARGE, HAS BEEN FORWARDED TO THIS OFFICE WITH A REQUEST THAT WE CONSIDER THE MERITS OF YOUR PROTEST.

THE GENERAL ACCOUNTING OFFICE DERIVES ITS AUTHORITY TO DETERMINE BID PROTESTS THROUGH THE "BUDGET AND ACCOUNTING ACT, 1921" (42 STAT. 20) AS CODIFIED IN TITLE 31 OF THE UNITED STATES CODE; MORE SPECIFICALLY, 31 U.S.C. 71 GIVES AUTHORITY TO THE GENERAL ACCOUNTING OFFICE TO SETTLE AND ADJUST ALL ACCOUNTS IN WHICH THE UNITED STATES IS CONCERNED, EITHER AS DEBTOR OR CREDITOR.

SECTION 65 OF CHAPTER 5 OF THE PANAMA CANAL ZONE CODE (76A STAT. 11 (1962), SETS FORTH IN PART THE GENERAL POWERS OF THE PANAMA CANAL COMPANY AS FOLLOWS:

"(A) THE PANAMA CANAL COMPANY MAY:

(3) SUE AND BE SUED IN ITS CORPORATE NAME, ***

(5) DETERMINE THE CHARACTER OF, AND NECESSITY FOR, ITS OBLIGATIONS AND EXPENDITURES AND THE MANNER IN WHICH THEY SHALL BE INCURRED, ALLOWED, AND PAID, AND INCUR, ALLOW, AND PAY THEM, *** "

IN VIEW OF THIS STATUTORY PROVISION OUR OFFICE IS WITHOUT AUTHORITY TO DETERMINE THE NECESSITY FOR, AND PROPRIETY OF, EXPENDITURES WHICH ARE INCURRED, ALLOWED OR PAID, BY THE PANAMA CANAL COMPANY. THE COMPANY IS NOT REQUIRED AS A MATTER OF LAW TO FOLLOW OUR DECISIONS INTERPRETING THE LEGALITY OF ITS EXPENDITURES (SEE B-109766, JANUARY 20, 1959 AND B-137581, MAY 9, 1960). ANY DETERMINATION THIS OFFICE MIGHT MAKE WITH REGARD TO A PROTEST AGAINST A PROCUREMENT ACTION BY THE COMPANY WOULD THEREFORE BE ADVISORY ONLY, AND WE MUST DECLINE TO RENDER A DECISION ON THAT BASIS.

SINCE THE RECORD INDICATES THAT THE COMPANY HAS ALREADY CONSIDERED AND DENIED YOUR PROTEST, WE ARE UNABLE TO RECOMMEND ANY FURTHER ACTION. REGRET THAT WE ARE UNABLE TO OFFER ANY ADDITIONAL ASSISTANCE IN THIS MATTER.