B-183685, B-183689, MAY 6, 1975

B-183685,B-183689: May 6, 1975

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ACTION OF TVA IN REJECTING BID AND ISSUING SECOND SOLICITATION FOR SAME REQUIREMENT WILL NOT BE CONSIDERED SINCE TVA IS A GOVERNMENT CORPORATION WHOSE ACCOUNTS ARE NOT SUBJECT TO SETTLEMENT BY GENERAL ACCOUNTING OFFICE. IT IS ABBOTT'S POSITION THAT THE CLAUSE IN QUESTION IS BEING IMPROPERLY USED BY TVA AS A MEANS TO DISCRIMINATE AGAINST SMALL BUSINESSES. ABBOTT PROTESTS AGAINST TVA'S ACTION IN ISSUING SOLICITATION NO. 4-85796 FOR THE SAME EQUIPMENT WHICH ORIGINALLY WAS TO BE PROCURED UNDER SOLICITATION NO. 8-85796. ABBOTT CONTENDS THAT TVA'S ACTION UNDER THE TWO SOLICITATIONS IS DISCRIMINATORY AGAINST SMALL BUSINESSES IN GENERAL AND INDEPENDENT ELECTRICAL MANUFACTURERS IN PARTICULAR. BY OR FOR AN AGENCY OF THE FEDERAL GOVERNMENT WHOSE ACCOUNTS ARE SUBJECT TO SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE.

B-183685, B-183689, MAY 6, 1975

PROTESTS AGAINST ALLEGED IMPROPRIETY IN SOLICITATION ISSUED BY TVA, AND ACTION OF TVA IN REJECTING BID AND ISSUING SECOND SOLICITATION FOR SAME REQUIREMENT WILL NOT BE CONSIDERED SINCE TVA IS A GOVERNMENT CORPORATION WHOSE ACCOUNTS ARE NOT SUBJECT TO SETTLEMENT BY GENERAL ACCOUNTING OFFICE.

ABBOTT POWER CORPORATION:

BY TELEGRAM OF APRIL 17, 1975, ABBOTT POWER CORPORATION (ABBOTT) PROTESTS AGAINST THE INCLUSION OF A CLAUSE REGARDING A BIDDER'S EXPERIENCE IN SOLICITATION NO. 3-85526, ISSUED BY THE TENNESSEE VALLEY AUTHORITY (TVA). IT IS ABBOTT'S POSITION THAT THE CLAUSE IN QUESTION IS BEING IMPROPERLY USED BY TVA AS A MEANS TO DISCRIMINATE AGAINST SMALL BUSINESSES. ALSO, BY MAIL GRAM OF APRIL 17, 1975, ABBOTT PROTESTS AGAINST THE ACTION OF TVA UNDER SOLICITATION NO. 8-85796, IN REJECTING ABBOTT'S BID AS NONRESPONSIVE ON THE GROUNDS THAT IT DID NOT INCLUDE A QUALITY ASSURANCE MANUAL AND DID NOT LIST CERTAIN DUCT INSTALLATIONS. FURTHERMORE, ABBOTT PROTESTS AGAINST TVA'S ACTION IN ISSUING SOLICITATION NO. 4-85796 FOR THE SAME EQUIPMENT WHICH ORIGINALLY WAS TO BE PROCURED UNDER SOLICITATION NO. 8-85796. ABBOTT CONTENDS THAT TVA'S ACTION UNDER THE TWO SOLICITATIONS IS DISCRIMINATORY AGAINST SMALL BUSINESSES IN GENERAL AND INDEPENDENT ELECTRICAL MANUFACTURERS IN PARTICULAR.

SECTION 20.1(A) OF OUR BID PROTEST PROCEDURES AND STANDARDS, 4 C.F.R. SEC. 20.1(A) (1974), SPECIFICALLY AUTHORIZES THIS OFFICE TO CONSIDER PROTESTS BY INTERESTED PARTIES WISHING TO PROTEST THE PROPOSED AWARD OF A CONTRACT, OR THE AWARD OF A CONTRACT, BY OR FOR AN AGENCY OF THE FEDERAL GOVERNMENT WHOSE ACCOUNTS ARE SUBJECT TO SETTLEMENT BY THE GENERAL ACCOUNTING OFFICE.

HOWEVER, TVA IS A GOVERNMENT CORPORATION WHOSE PURCHASING AND CONTRACTING AUTHORITY IS SET FORTH IN 16 U.S.C. SEC. 831HB) (1970), 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 SAID CHAPTER."

SINCE TVA'S ACCOUNTS ARE NOT SUBJECT TO SETTLEMENT BY THIS OFFICE, WE COULD NOT TAKE ANY REMEDIAL ACTION WITH RESPECT TO AWARD ACTION UNDER EITHER SOLICITATION EVEN IF WE SHOULD FIND SUCH ACTION QUESTIONABLE UNDER THE RULES GENERALLY APPLICABLE TO FEDERAL PROCUREMENTS. IN THE CIRCUMSTANCES, WE MUST CONCLUDE THAT NO USEFUL PURPOSE WOULD BE SERVED BY OUR CONSIDERATION OF THESE PROTESTS. MATTER OF DELTA SWITCHBOARD COMPANY, B-182891, JANUARY 3, 1975; MATTER OF ENGINEERING, INCORPORATED, B-182767, DECEMBER 16, 1974; MATTER OF NATIONAL VALVE AND MANUFACTURING COMPANY, B- 180725, MARCH 12, 1974.