B-222455.2, NOV 25, 1986, OFFICE OF GENERAL COUNSEL

B-222455.2: Nov 25, 1986

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PROCUREMENT - BID PROTEST - INFORMATION DISCLOSURE - ADMINISTRATIVE DETERMINATION - GAO REVIEW DIGEST: WHILE THE COMPETITION IN CONTRACTING ACT GIVES THE GENERAL ACCOUNTING OFFICE (GAO) AUTHORITY TO PRESCRIBE DEADLINES FOR THE DISCLOSURE OF INFORMATION THAT AN INTERESTED PARTY IS AUTHORIZED BY LAW TO RECEIVE. EACH AGENCY SHALL PROVIDE AN INTERESTED PARTY ANY DOCUMENT RELEVANT TO A PROTESTED PROCUREMENT ACTION (INCLUDING THE AGENCY REPORT) THAT WOULD NOT GIVE THE PARTY A COMPETITIVE ADVANTAGE AND THE PARTY IS OTHERWISE AUTHORIZED BY LAW TO RECEIVE. 31 U.S.C. CICA THUS GIVES US AUTHORITY TO PRESCRIBE DEADLINES FOR THE DISCLOSURE OF INFORMATION THAT AN INTERESTED PARTY IS OTHERWISE AUTHORIZED BY LAW TO RECEIVE.

B-222455.2, NOV 25, 1986, OFFICE OF GENERAL COUNSEL

PROCUREMENT - BID PROTEST - INFORMATION DISCLOSURE - ADMINISTRATIVE DETERMINATION - GAO REVIEW DIGEST: WHILE THE COMPETITION IN CONTRACTING ACT GIVES THE GENERAL ACCOUNTING OFFICE (GAO) AUTHORITY TO PRESCRIBE DEADLINES FOR THE DISCLOSURE OF INFORMATION THAT AN INTERESTED PARTY IS AUTHORIZED BY LAW TO RECEIVE, GAO HAS NO AUTHORITY TO DETERMINE WHAT INFORMATION MUST BE DISCLOSED BY AGENCIES IN CONNECTION WITH BID PROTESTS.

THE HONORABLE BYRON L. DORGAN:

THIS RESPONDS TO YOUR LETTER DATED SEPTEMBER 8, 1986, REQUESTING WHETHER THE CORPS OF ENGINEERS' PROPERLY INTERPRETED THE FREEDOM OF INFORMATION ACT (FOIA), 5 U.S.C. SEC. 552 (1982), IN REFUSING TO DISCLOSE CERTAIN EXHIBITS IN ITS REPORT TO THIS OFFICE ON A PROTEST FILED BY TWIN CITY CONSTRUCTION CO., WHICH WE DENIED IN TWIN CITY CONSTR. CO., B-222455, JULY 25, 1986, 86-2 CPD PARA. 113. YOU STATE THAT TWIN CITY HAD APPEALED TO US THE CORPS' REFUSAL TO DISCLOSE THE EXHIBITS AND WE FAILED TO RESOLVE THE ISSUE.

WE CONSIDER BID PROTESTS UNDER THE AUTHORITY GIVEN US BY THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), 31 U.S.C. SECS. 3551 3556 (SUPP. III 1985). CICA PROVIDES THAT UPON REQUEST AND WITHIN SUCH DEADLINES AS OUR OFFICE PRESCRIBES, EACH AGENCY SHALL PROVIDE AN INTERESTED PARTY ANY DOCUMENT RELEVANT TO A PROTESTED PROCUREMENT ACTION (INCLUDING THE AGENCY REPORT) THAT WOULD NOT GIVE THE PARTY A COMPETITIVE ADVANTAGE AND THE PARTY IS OTHERWISE AUTHORIZED BY LAW TO RECEIVE. 31 U.S.C. SEC. 3553(F). CICA THUS GIVES US AUTHORITY TO PRESCRIBE DEADLINES FOR THE DISCLOSURE OF INFORMATION THAT AN INTERESTED PARTY IS OTHERWISE AUTHORIZED BY LAW TO RECEIVE, BUT NOT TO OVERRULE AGENCY DETERMINATIONS THAT CERTAIN INFORMATION MAY NOT BE DISCLOSED OUTSIDE THE GOVERNMENT.

IT IS FOIA THAT GENERALLY GOVERNS A PARTY'S ACCESS TO PROCUREMENT RECORDS AND THE AGENCIES' RIGHTS TO RESTRICT DISCLOSURE. UNDER FOIA, OUR OFFICE HAS NO AUTHORITY TO DETERMINE WHAT INFORMATION MUST BE DISCLOSED TO A PARTY BY GOVERNMENT AGENCIES IN CONNECTION WITH BID PROTESTS. PROTESTER'S SOLE RECOURSE, WHERE INFORMATION IS WITHHELD, IS TO PURSUE THE REMEDIES PROVIDED UNDER FOIA, WHICH PROVIDES FOR APPEAL TO THE DISTRICT COURTS OF THE UNITED STATES.

ALTHOUGH TWIN CITY WAS NOT PERMITTED TO SEE THE EXHIBITS, WE REVIEWED THEM IN CAMERA AND FULLY CONSIDERED THEM IN REACHING OUR DECISION THAT THE CORPS ACTED REASONABLY IN REJECTING TWIN CITY'S PROPOSAL. WE FURTHER POINT OUT THAT THE PORTIONS OF THE REPORT DISCLOSED TO THE PROTESTER DID IDENTIFY THE BASES FOR REJECTION OF TWIN CITY'S PROPOSAL AND THE PROTESTER WAS ABLE TO RESPOND AND CHALLENGE THE REJECTION.

WE TRUST THIS EXPLANATION WILL BE HELPFUL TO YOU.