B-225959, FEB 6, 1987

B-225959, FEB 6, 1987

PROCUREMENT - SEALED BIDDING - FEDERAL PROCUREMENT REGULATIONS/LAWS - APPLICABILITY PROCUREMENT - COMPETITIVE NEGOTIATION - FEDERAL PROCUREMENT REGULATIONS/LAWS - APPLICABILITY DIGEST: 1. IN RESPONSE TO A REQUEST FROM IMTEC, THE OFFICE OF THE GENERAL COUNSEL CONCLUDES THAT THE OFFICE OF THE COMPTROLLER OF THE CURRENCY IS A FEDERAL AGENCY, SUBJECT TO THE COMPETITION IN CONTRACTING ACT AND THE BROOKS ACT AND VOLUNTARILY FOLLOWS THE FEDERAL ACQUISITION REGULATION.

APPLICABILITY OF PROCUREMENT STATUTES AND REGULATIONS TO THE OFFICE OF THE COMPTROLLER OF THE CURRENCY (B-225959):

THIS RESPONDS TO YOUR MEMORANDUM OF DECEMBER 22, 1986, REQUESTING OUR OPINION ON WHETHER THE OFFICE OF THE COMPTROLLER OF THE CURRENCY (OCC) IS SUBJECT TO THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), TITLE VII, DIVISION B, PUB.L. 98-369, 98 STAT. 1175 (1984), THE BROOKS ACT, 40 U.S.C. SEC. 754 ET SEQ. (1982) AND THE FEDERAL ACQUISITION REGULATION (FAR). CONCLUDE THAT OCC IS A FEDERAL AGENCY AND THUS SUBJECT TO CICA AND THE BROOKS ACT. ALTHOUGH OCC MAY NOT USE APPROPRIATED FUNDS FOR ITS PROCUREMENTS, IT VOLUNTARILY FOLLOWS THE FAR.

CICA

CICA AMENDED THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949 (FPASA). THUS, CICA APPLIES TO PROCUREMENTS TO THE SAME EXTENT AS DOES FPASA. SEE MONARCH WATER SYSTEMS, INC., 64 COMP.GEN. 756 (1985), 85-2 CPD PARA. 146. EXCEPT FOR SPECIFIC LISTED EXCEPTIONS WHICH DO NOT SEEM TO ENCOMPASS OCC, FPASA APPLIES TO PROCUREMENTS BY MOST CIVILIAN EXECUTIVE AGENCIES. 41 U.S.C. SEC. 252(A) (1982); 40 U.S.C. SEC. 474 (1982). THE TERM "EXECUTIVE AGENCY" IS DEFINED IN FPASA AT 40 U.S.C. SEC. 472(A) AS "*** ANY EXECUTIVE DEPARTMENT OR INDEPENDENT ESTABLISHMENT IN THE EXECUTIVE BRANCH OF THE GOVERNMENT. ***"

THE LEGISLATION CREATING OCC SAYS THAT IT IS A BUREAU IN THE DEPARTMENT OF THE TREASURY CHARGED WITH THE EXECUTION OF ALL NATIONAL CURRENCY LAWS. 12 U.S.C. SEC. 1 (1985). THE DEPARTMENT OF THE TREASURY IS AN EXECUTIVE AGENCY. WE THINK OCC, THEREFORE, CLEARLY IS AN EXECUTIVE AGENCY UNDER 40 U.S.C. SEC. 472(A). SINCE IT IS AN EXECUTIVE AGENCY UNDER THE FPASA IT IS SUBJECT TO THE SUBSTANTIVE PORTIONS OF CICA WHICH IN PART AMEND THE FPASA.

WE THINK THAT OCC IS ALSO SUBJECT TO OUR CICA BID PROTEST JURISDICTION. UNDER CICA, OUR JURISDICTION TO DECIDE BID PROTESTS EXTENDS TO ALL PROCUREMENTS BY "FEDERAL AGENCIES." /1/ SEE GENERALLY 31 U.S.C. SEC. 3551 ET SEQ. (SUPP. III 1985). THE TERM "FEDERAL AGENCY," FOR PURPOSES OF CICA BID PROTEST AUTHORITY, HAS THE SAME MEANING GIVEN TO THE TERM BY 40 U.S.C. SEC. 472(B), WHICH DEFINES THE TERM AS INCLUDING "ANY EXECUTIVE AGENCY OR ANY ESTABLISHMENT IN THE LEGISLATIVE OR JUDICIAL BRANCH OF THE GOVERNMENT. ***" AS INDICATED ABOVE, OCC IS AN "EXECUTIVE AGENCY" WITHIN THE MEANING OF THAT TERM AS USED IN 40 U.S.C. SEC. 472(A). SINCE THE TERM "EXECUTIVE AGENCY" IS INCLUDED IN THE 40 U.S.C. SEC. 472(B) DEFINITION OF "FEDERAL AGENCY," WE CONCLUDE THAT OUR OFFICE HAS JURISDICTION TO DECIDE PROTESTS CONCERNING OCC PROCUREMENTS.

WE RECOGNIZE THAT OCC APPEARS TO BE A NONAPPROPRIATED FUND ACTIVITY PURSUANT TO 12 U.S.C. SEC. 481. NEVERTHELESS, WE THINK THAT STATUS IS NOT RELEVANT TO OUR JURISDICTION. ALTHOUGH OUR BID PROTEST REGULATIONS, 4 C.F.R. PART 21 (1986), STATE THAT PROCUREMENTS BY NONAPPROPRIATED FUND ACTIVITIES ARE BEYOND OUR PROTEST JURISDICTION, 4 C.F.R. SEC. 21.3(F)(8), THE TERM NONAPPROPRIATED FUND ACTIVITY AS USED IN OUR REGULATIONS DOES NOT INCLUDE OCC, A FEDERAL AGENCY CREATED BY CONGRESS. RATHER, THAT TERM REFERS TO ENTITIES SUCH AS DEPARTMENT OF DEFENSE NONAPPROPRIATED FUND INSTRUMENTALITIES WHICH ARE NOT ESTABLISHED BY CONGRESS, BUT CREATED BY THE AGENCIES THEMSELVES. THESE ACTIVITIES ARE BEYOND OUR BID PROTEST JURISDICTION, SINCE THEY ARE NOT "FEDERAL AGENCIES" UNDER FPASA. SEE 58 COMP.GEN. 94 (1978), 78-2 CPD PARA. 353. THE BROOKS ACT WAS AN AMENDMENT TO THE FPASA, ADDED BY PUB.L. NO. 89-306, 79 STAT. 1127 (1965). THE BROOKS ACT APPLIES TO THE PURCHASE, LEASE AND MAINTENANCE OF AUTOMATIC DATA PROCESSING EQUIPMENT (ADPE) BY FEDERAL AGENCIES. 40 U.S.C. SEC. 759(E). AS DISCUSSED ABOVE, THE FPASA DEFINITION OF "FEDERAL AGENCY," 40 U.S.C. SEC. 472(B), INCLUDES "EXECUTIVE AGENCIES" LIKE OCC. THUS, WE BELIEVE THAT THE BROOKS ACT APPLIES TO OCC'S ADPE PROCUREMENTS, AND THAT PROTESTS OF SUCH PROCUREMENTS MAY BE CONSIDERED BY THE GENERAL SERVICES ADMINISTRATION BOARD OF CONTRACT APPEALS, AS WELL AS BY OUR OFFICE.

FAR

THE FAR APPLIES ONLY TO ACQUISITIONS USING APPROPRIATED FUNDS. FAR, 48 C.F.R. SEC. 2.101 (1986). WHILE THERE IS SOME QUESTION WHETHER OCC'S PROCUREMENTS ARE MADE WITH APPROPRIATED FUNDS, SEE 12 U.S.C. SEC. 481, WE UNDERSTAND THAT OCC DOES IN FACT VOLUNTARILY FOLLOW THE FAR.

/1/ ON THE OTHER HAND, AS INDICATED EARLIER, THE REMAINDER OF FPASA, INCLUDING CICA'S TERMS GOVERNING THE AWARD OF CONTRACTS, APPLIES TO EXECUTIVE AGENCIES.