B-219272, OCT 23, 1985, OFFICE OF GENERAL COUNSEL

B-219272, OCT 23, 1985, OFFICE OF GENERAL COUNSEL

CONTRACTS - PROTESTS - AUTHORITY TO CONSIDER - BONNEVILLE POWER ADMINISTRATION PROCUREMENTS DIGEST: LETTER TO DEPUTY GENERAL COUNSEL, BONNEVILLE POWER ADMINISTRATION (BPA), EXPRESSING GAO'S PRELIMINARY VIEWS ON LEGAL MEMORANDUM SUBMITTED BY BPA FOR GAO COMMENT, CONCLUDES THAT BPA IS SUBJECT TO GAO'S BID PROTESTS JURISDICTION UNDER THE COMPETITION IN CONTRACTING ACT OF 1984.

MR. OMAR W. HALVORSON: DEPUTY GENERAL COUNSEL BONNEVILLE POWER ADMINISTRATION P.O. BOX 3621 PORTLAND, OREGON 97208

THIS IS IN RESPONSE TO YOUR LETTER TO ME DATED JUNE 6, 1985, IN WHICH YOU REQUEST OUR OPINION REGARDING OUR JURISDICTION UNDER THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA). IN YOUR VIEW, CICA DOES NOT REQUIRE OUR OFFICE TO REVIEW BID PROTESTS CONCERNING PROCUREMENTS BY THE BONNEVILLE POWER ADMINISTRATION (BPA).

AS DISCUSSED IN RECENT TELEPHONE CONVERSATIONS WITH YOU, WE BELIEVE IT IS MORE APPROPRIATE TO RESOLVE THIS ISSUE IN THE CONTEXT OF A SPECIFIED BID PROTEST, IN ORDER TO AFFORD POTENTIAL AND OTHER INTERESTED PARTIES, AS WELL AS BPA, THE OPPORTUNITY TO PRESENT THEIR VIEWS. THIS LETTER CONVEYS SOME COMMENTS ON THE ARGUMENTS YOU RAISE; IT IS NOT OUR FINAL POSITION ON THE MATTER.

OUR RECENT DECISION IN MONARCH WATER SYSTEM, INC., B-218441, AUG. 8, 1985, 64 COMP.GEN. ---, 85-2 CPD PARA. 146, A PROTEST CONCERNING A PROCUREMENT BY THE TENNESSEE VALLEY AUTHORITY (TVA), ADDRESSES A NUMBER OF YOUR ARGUMENTS.

FIRST, YOU ARGUE, AS TVA DID IN MONARCH, THAT BPA IS NOT AN "EXECUTIVE AGENCY" WITHIN THE MEANING OF CICA, 31 U.S.C.A. SEC. 3551(1) (WEST SUPP. 1985), AND, THEREFORE, IS NOT SUBJECT TO OUR BID PROTEST JURISDICTION. DISAGREE. ALTHOUGH THE TERM "EXECUTIVE AGENCY" IS USED IN THE CICA DEFINITION OF BID PROTEST, WE DO NOT VIEW THAT TERM AS DISPOSITIVE OF THE SCOPE OF OUR JURISDICTION. AS WE EXPLAINED IN DETAIL IN MONARCH, WE BELIEVE THAT, VIEWING CICA AS A WHOLE, OUR JURISDICTION EXTENDS TO PROTESTS OF PROCUREMENT ACTIONS BY ANY "FEDERAL AGENCY," DEFINED IN CICA BY REFERENCE OF SECTION 3 OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 (FPASA), 40 U.S.C. SEC. 472 (1982). SEE 31 U.S.C.A. SEC. 3551(3).

WHILE YOU AGREE THAT BPA FITS THE DEFINITION OF FEDERAL AGENCY IN 40 U.S.C. SEC. 472(B), YOU ARGUE THAT BPA IS NEVERTHELESS OUTSIDE OUR JURISDICTION UNDER CICA BECAUSE 40 U.S.C. SEC. 474(20) EXEMPTS BPA'S PROCUREMENTS FOR PROGRAM OPERATIONS FROM THE FPASA. /1/WE AGREE THAT SECTION 474(20) REMOVES BPA'S PROGRAM OPERATIONS PROCUREMENTS FROM THE SUBSTANTIVE REQUIREMENTS OF THE FPASA. HOWEVER, WE SEE NO BASIS ON WHICH TO INTERPRET IT AS EXEMPTING BPA FROM THE DEFINITION OF FEDERAL AGENCY IN SECTION 472. IT IS THE DEFINITION THAT IS SPECIFICALLY REFERRED TO IN CICA, NOT FPASA AS A WHOLE. 31 U.S.C.A. SEC. 3551(3).

YOU ALSO ARGUE THAT, SINCE BPA IS A NONAPPROPRIATED FUND ACTIVITY, PROTESTS INVOLVING BPA PROCUREMENTS ARE BEYOND THE SCOPE OF OUR BID PROTEST JURISDICTION AS RECOGNIZED IN OUR BID PROTEST REGULATIONS, 4 C.F.R. SEC. 21.3(F)(8)(1985). WE DO NOT AGREE THAT BPA IS A NONAPPROPRIATED FUND ACTIVITY WITHIN THE MEANING OF OUR REGULATIONS; RATHER AS DISCUSSED ABOVE, BPA IS A FEDERAL AGENCY SUBJECT TO OUR BID PROTEST JURISDICTION AS DEFINED IN CICA BECAUSE, IN FACT, BPA IS NOT SUPPORTED BY NONAPPROPRIATED FUNDS. BPA OPERATES USING A REVOLVING FUND ESTABLISHED BY 16 U.S.C SEC. 838I, WHICH SPECIFIES BOTH THE FUNDS THAT ARE TO BE DEPOSITED IN THE BPA FUND AND THE PERMISSIBLE USES OF THOSE FUNDS. WHERE, AS HERE, CONGRESS HAS AUTHORIZED THE COLLECTION OR COLLECTION OR RECEIPT OF CERTAIN FUNDS BY AN AGENCY AND HAS SPECIFIED OR LIMITED THE PURPOSES FOR WHICH THEY MAY BE USED, THE AUTHORIZATION CONSTITUTES A "CONTINUING APPROPRIATION." SEE MONARCH WATER SYSTEMS, INC., B-218441, SUPRA; FORTEC CONSTRUCTORS-- RECONSIDERATION, 57 COMP.GEN. 311, 313-314 (1978), 78-1 CPD PARA. 153. THUS, IN OUR VIEW, BPA IS SUPPORTED BY APPROPRIATED FUNDS.

YOU ALSO POINT OUT THAT PRIOR TO ENACTMENT OF CICA, OUR OFFICE DID NOT REVIEW BID PROTESTS CONCERNING BPA PROCUREMENTS. PRIOR TO CICA, WE DECLINED TO CONSIDER BPA-RELATED PROTESTS IN LIGHT OF THE BPA ADMINISTRATOR'S AUTHORITY UNDER 16 U.S.C. SEC. 832AF) TO SETTLE ANY CLAIMS ARISING UNDER BPA CONTRACTS; SINCE OUR OFFICE THEREFORE COULD NOT TAKE EXCEPTION TO PAYMENTS UNDER BPA CONTRACTS, WE CONCLUDED THAT WE COULD NOT TAKE ANY EFFECTIVE REMEDIAL ACTION. SEE BONNEVILLE POWER ADMINISTRATION, B-114858, JULY 13, 1976, 76-2 CPD PARA. 36. THIS RATIONAL IS NO LONGER GERMANE SINCE OUR BID PROTEST JURISDICTION NOW IS BASED ON CICA, NOT ON OUR AUTHORITY TO SETTLE ACCOUNTS UNDER 31 U.S.C. SEC. 3526. MOREOVER, THE BPA ADMINISTRATOR'S BROAD DISCRETION TO CONDUCT BPA'S CONTRACTING ACTIVITIES, WHICH WAS ALSO CITED AS JUSTIFYING OUR EARLIER DECISIONS, CANNOT BE VIEWED AS CONTROLLING SINCE, AS DISCUSSED ABOVE, BPA OTHER WISE FITS THE ACT'S DEFINITION OF A FEDERAL AGENCY WHOSE PROCUREMENT ACTIONS ARE SUBJECT TO OUR REVIEW.

FINALLY, YOUR DISCUSSION OF CICA'S LEGISLATIVE HISTORY RELIES PRINCIPALLY ON THE ABSENCE OF ANY SPECIFIC MENTION OF PROTESTS INVOLVING BPA PROCUREMENTS AS SUPPORT FOR YOUR POSITION THAT CONGRESS DID NOT INTEND SUCH PROTESTS TO BE SUBJECT TO OUR REVIEW. WE CANNOT AGREE THAT SILENCE IN THE LEGISLATIVE HISTORY REGARDING CICA'S APPLICATION TO BPA IS SUFFICIENT TO OVERCOME THE FACT THAT THE STATUTORY LANGUAGE ITSELF SUBJECT BPA TO OUR JURISDICTION.