B-209852 L/M, FEB 4, 1983, OFFICE OF GENERAL COUNSEL
Highlights
DIGEST: WHERE A DECISION INVOLVING A STATUTORY INTERPRETATION IS TO BE APPLIED PROSPECTIVELY. GAO WILL NOT CONSIDER PROTEST THAT AGENCY IMPROPERLY AWARDED A COOPERATIVE AGREEMENT. THE AGENCY SHOULD USE A CONTRACT WHEN ITS PURPOSE IS TO ACQUIRE THE SERVICES OF AN ORGANIZATION THAT WILL. THE DECISION WAS TO BE APPLIED ONLY PROSPECTIVELY. EMPHASIZED SEVERAL TIMES IN OUR DECISIONS AND IN THE REPORT BY OUR OFFICE UPON WHICH THEY WERE BASED. COOPERATIVE AGREEMENT OR CONTRACT HAVE NOT ALWAYS BEEN CLEAR. WHICH IS RESPONSIBLE FOR IMPLEMENTATION OF THE FEDERAL GRANT AND COOPERATIVE AGREEMENT ACT. THIS AGREEMENT WAS INITIATED AND NEGOTIATED WELL BEFORE THAT TIME. WE THEREFORE ARE TAKING NO FURTHER ACTION ON YOUR PROTEST.
B-209852 L/M, FEB 4, 1983, OFFICE OF GENERAL COUNSEL
DIGEST: WHERE A DECISION INVOLVING A STATUTORY INTERPRETATION IS TO BE APPLIED PROSPECTIVELY, AND THE AGENCY HAS RECOGNIZED AND AGREED TO ALTER ITS POLICY AND PROCEDURES ACCORDINGLY, THE AGENCY SHOULD BE ALLOWED A REASONABLE TIME FOR IMPLEMENTATION OF THE CHANGE. THEREFORE, GAO WILL NOT CONSIDER PROTEST THAT AGENCY IMPROPERLY AWARDED A COOPERATIVE AGREEMENT, RATHER THAN A CONTRACT, ONLY A FEW DAYS AFTER GAO ISSUED DECISION HOLDING THAT CONTRACT SHOULD BE USED IN THAT SITUATION.
MR. HOWARD W. HALLMAN, PRESIDENT, CIVIC ACTION INSTITUTE:
THIS RESPONDS TO YOUR LETTER OF NOVEMBER 12, 1982, PROTESTING THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT'S (HUD) AWARD OF A COOPERATIVE AGREEMENT TO THE NATIONAL ASSOCIATION OF NEIGHBORHOODS FOR THE PURPOSE OF PROVIDING TECHNICAL ASSISTANCE TO COMMUNITY-BASED PUBLIC SERVICE ORGANIZATIONS. YOU ARGUE THAT HUD'S USE OF A NONCOMPETITIVE VIOLATES OUR DECISION CIVIC ACTION INSTITUTE, B-206272, SEPTEMBER 24, 1982, 61 COMP.GEN. , 82-2 CPD 270, AFF'D ON RECONSIDERATION, NOVEMBER 2, 1982, 82-2 CPD 399.
IN THAT DECISION, WE SUSTAINED YOUR PROTEST AGAINST HUD'S AWARD OF A DIFFERENT COOPERATIVE AGREEMENT AND HELD THAT, UNLESS SPECIFICALLY AUTHORIZED BY LEGISLATION OTHER THAN THE FEDERAL GRANT AND COOPERATIVE AGREEMENT ACT OF 1977, 41 U.S.C. SEC. 501 (SUPP. IV 1980), THE AGENCY SHOULD USE A CONTRACT WHEN ITS PURPOSE IS TO ACQUIRE THE SERVICES OF AN ORGANIZATION THAT WILL, IN TURN, ASSIST AUTHORIZED RECIPIENTS OF GRANTS OR COOPERATIVE AGREEMENTS. HOWEVER, THE DECISION WAS TO BE APPLIED ONLY PROSPECTIVELY, AND WE DID NOT RECOMMEND REMEDIAL ACTION.
ON RECONSIDERATION, WE UPHELD PROSPECTIVE APPLICATION OF THE RULING. EMPHASIZED SEVERAL TIMES IN OUR DECISIONS AND IN THE REPORT BY OUR OFFICE UPON WHICH THEY WERE BASED, "AGENCIES NEED BETTER GUIDANCE IN CHOOSING AMONG CONTRACTS, GRANTS, AND COOPERATIVE AGREEMENTS," GGD-81 88, SEPTEMBER 4, 1981, THAT THE DISTINCTIONS RELEVANT TO THE USE OF A GRANT, COOPERATIVE AGREEMENT OR CONTRACT HAVE NOT ALWAYS BEEN CLEAR. MOREOVER, THE OFFICE OF MANAGEMENT AND BUDGET, WHICH IS RESPONSIBLE FOR IMPLEMENTATION OF THE FEDERAL GRANT AND COOPERATIVE AGREEMENT ACT, HAD NOT, AND STILL HAS NOT, PROVIDED ANY SPECIFIC GUIDANCE REGARDING ASSISTANCE RELATIONSHIPS WITH INTERMEDIARIES.
NEVERTHELESS, THE SECRETARY OF HOUSING AND URBAN DEVELOPMENT, IN A LETTER DATED DECEMBER 28, 1982, HAS CONFIRMED HUD'S WILLINGNESS TO COMPLY WITH OUR INTERPRETATION IN THE FUTURE.
YOUR PROTEST CONCERNS A COOPERATIVE AGREEMENT ENTERED INTO BY HUD ON SEPTEMBER 30, 1982 - ONLY 4 WORKING DAYS AFTER THE DATE OF OUR DECISION. CLEARLY, THIS AGREEMENT WAS INITIATED AND NEGOTIATED WELL BEFORE THAT TIME. IN LIGHT OF THE PREPARATION TIME REQUIRED FOR ANY FORMAL AGREEMENT, WE BELIEVE HUD SHOULD BE PERMITTED A REASONABLE TIME IN WHICH TO IMPLEMENT THE NEW POLICY IN ACCORD WITH OUR DECISION. WE THEREFORE ARE TAKING NO FURTHER ACTION ON YOUR PROTEST.