B-172412, JUN 30, 1971

B-172412: Jun 30, 1971

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IS NOT SUBJECT TO SCRUTINY BY GAO WHERE THE BOARD OF DIRECTORS OF TVA DETERMINES THE EXPENDITURES TO BE NECESSARY TO CARRY OUT THE PROVISIONS OF TITLE 16. SINCE THE AWARD TO BRUCE WAS APPROVED BY THE BOARD. THERE IS NO LEGAL BASIS FOR GAO REVIEW. INCORPORATED: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 30. WE ARE ENCLOSING A COPY OF A LETTER DATED JUNE 3. IT IS REPORTED THAT NO BASIS WAS FOUND FOR CONSIDERING THE BID OF BRUCE GM DIESEL. THAT A CONTRACT WAS AWARDED TO IT FOLLOWING APPROVAL OF SUCH ACTION BY THE BOARD OF DIRECTORS OF THE TENNESSEE VALLEY AUTHORITY. THE DRAFTING OF PROPER SPECIFICATIONS AND THE FACTUAL DETERMINATIONS AS TO WHETHER OFFERED EQUIPMENT CONFORMS TO THE SPECIFICATIONS ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY.

B-172412, JUN 30, 1971

BID PROTEST - TVA - REVIEW BY GAO DECISION DENYING PROTEST AGAINST THE AWARD OF A CONTRACT TO BRUCE GM DIESEL, INC., BY THE TVA FOR DIESEL ENGINE-DRIVEN EMERGENCY GENERATOR POWER PACKAGES FOR THE SEQUOYAH NUCLEAR PLANT. THE CONTRACTING AUTHORITY OF TVA AS SPECIFIED IN 16 U.S.C. 831H, SUBSECTION (B), IS NOT SUBJECT TO SCRUTINY BY GAO WHERE THE BOARD OF DIRECTORS OF TVA DETERMINES THE EXPENDITURES TO BE NECESSARY TO CARRY OUT THE PROVISIONS OF TITLE 16. SINCE THE AWARD TO BRUCE WAS APPROVED BY THE BOARD, THERE IS NO LEGAL BASIS FOR GAO REVIEW.

TO STEWART AND STEVENSON SERVICES, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 30, 1971, AND TO SUBSEQUENT CORRESPONDENCE, RELATIVE TO YOUR PROTEST AGAINST AWARD OF A CONTRACT ON MARCH 25, 1971, TO BRUCE GM DIESEL, INCORPORATED, BY THE TENNESSEE VALLEY AUTHORITY, FOR DIESEL ENGINE-DRIVEN EMERGENCY GENERATOR POWER PACKAGES FOR THE SEQUOYAH NUCLEAR PLANT.

IN ACCORDANCE WITH YOUR REQUEST DURING A MEETING AT OUR OFFICE ON APRIL 8, 1971, WE ARE ENCLOSING A COPY OF A LETTER DATED JUNE 3, 1971, FROM THE GENERAL MANAGER, TENNESSEE VALLEY AUTHORITY, REPORTING ON YOUR PROTEST. THE LETTER APPEARS TO BE FULLY RESPONSIVE TO YOUR CONTENTION THAT THE GENERATORS AND RELATED EXCITER/REGULATOR SYSTEMS OFFERED IN THE BID OF BRUCE GM DIESEL, INCORPORATED, DO NOT MEET THE SPECIFICATIONS OF INVITATION FOR BIDS NO. 61-92652. IT IS REPORTED THAT NO BASIS WAS FOUND FOR CONSIDERING THE BID OF BRUCE GM DIESEL, INCORPORATED, TO BE NONRESPONSIVE, AND THAT A CONTRACT WAS AWARDED TO IT FOLLOWING APPROVAL OF SUCH ACTION BY THE BOARD OF DIRECTORS OF THE TENNESSEE VALLEY AUTHORITY.

AS INDICATED IN 49 COMP. GEN. 195 (1969), THE DRAFTING OF PROPER SPECIFICATIONS AND THE FACTUAL DETERMINATIONS AS TO WHETHER OFFERED EQUIPMENT CONFORMS TO THE SPECIFICATIONS ARE MATTERS PRIMARILY WITHIN THE JURISDICTION OF THE PROCURING AGENCY. WE MAY NOT UNDERTAKE TO SUBSTITUTE OUR JUDGMENT FOR THAT OF THE AGENCY IN THE ABSENCE OF A CLEAR SHOWING OF ABUSE OF THE DISCRETION PERMITTED IT AND, AS A MATTER OF POLICY, WE WILL NOT QUESTION THE JUDGMENT OF THE TECHNICAL PERSONNEL OF THE AGENCY INVOLVED WHERE THERE IS A DIFFERENCE OF EXPERT TECHNICAL OPINION, UNLESS SUCH JUDGMENT IS SHOWN TO BE CLEARLY AND UNMISTAKABLY IN ERROR.

ON THE BASIS OF THE RECORD PRESENTLY BEFORE US, WE HAVE NO REASON TO BELIEVE THAT THE DETERMINATION TO CONSIDER THE BID OF BRUCE GM DIESEL, INCORPORATED, AS RESPONSIVE TO THE SPECIFICATIONS OF INVITATION FOR BIDS NO. 61-92652 WAS ARBITRARY. ALSO TO BE CONSIDERED IN CONNECTION WITH YOUR PROTEST IS THE FACT THAT THE TENNESSEE VALLEY AUTHORITY IS A GOVERNMENT CORPORATION WHOSE PURCHASING AND CONTRACTING AUTHORITY IS SET FORTH IN SUBSECTION (B) OF SECTION 831H, TITLE 16, U.S.C. WHICH PROVIDES IN PART AS FOLLOWS:

" *** PROVIDED, THAT, SUBJECT ONLY TO THE PROVISIONS OF THIS CHAPTER, THE CORPORATION IS AUTHORIZED TO MAKE SUCH EXPENDITURES AND TO ENTER INTO SUCH CONTRACTS, AGREEMENTS AND ARRANGEMENTS, UPON SUCH TERMS AND CONDITIONS AND IN SUCH MANNER AS IT MAY DEEM NECESSARY, INCLUDING THE FINAL SETTLEMENT OF ALL CLAIMS AND LITIGATION BY OR AGAINST THE CORPORATION; AND, NOTWITHSTANDING THE PROVISIONS OF ANY OTHER LAW GOVERNING THE EXPENDITURE OF PUBLIC FUNDS, THE GENERAL ACCOUNTING OFFICE *** SHALL NOT DISALLOW CREDIT FOR, NOR WITHHOLD FUNDS BECAUSE OF, ANY EXPENDITURE WHICH THE BOARD SHALL DETERMINE TO HAVE BEEN NECESSARY TO CARRY OUT THE PROVISIONS OF THIS CHAPTER."

SINCE THE AWARD TO BRUCE GM DIESEL, INCORPORATED, WAS APPROVED BY THE BOARD OF DIRECTORS OF THE TENNESSEE VALLEY AUTHORITY, AND IN VIEW OF THE ABOVE PROVISION OF LAW, AS WELL AS THE ABSENCE OF ANY INDICATION OF BAD FAITH OR FRAUD IN THE SELECTION OF THE SUCCESSFUL BIDDER, THERE EXISTS NO BASIS UPON WHICH WE COULD LEGALLY OBJECT TO THE AWARD.