B-227454, JUN 18, 1987, OFFICE OF GENERAL COUNSEL

B-227454, JUN 18, 1987, OFFICE OF GENERAL COUNSEL

PROCUREMENT - BID PROTESTS - ADMINISTRATIVE POLICIES - INFORMATION DISCLOSURE - ADMINISTRATIVE DETERMINATION - GAO REVIEW DIGEST: 1. THE GENERAL ACCOUNTING OFFICE HAS NO AUTHORITY UNDER THE FREEDOM OF INFORMATION ACT TO DIRECT A CONTRACTING AGENCY TO RELEASE DOCUMENTS TO A PROTESTER. PROCUREMENT - BID PROTESTS - ADMINISTRATIVE POLICIES - VIOLATION - GAO REVIEW PROCUREMENT - BID PROTESTS - NON-PREJUDICIAL ALLEGATION - GAO REVIEW 2. BID PROTEST FUNCTION OF THE GENERAL ACCOUNTING OFFICE IS RESERVED FOR CONSIDERING TIMELY RAISED ALLEGATIONS CONCERNING WHETHER AN AWARD OR PROPOSED AWARD OF A SPECIFIC CONTRACT COMPLIES WITH STATUTORY, REGULATORY AND OTHER LEGAL REQUIREMENTS. CONSEQUENTLY, GAO, AS PART OF ITS BID PROTEST FUNCTION, DOES NOT CONSIDER GENERAL ALLEGATIONS CONCERNING THE OVERALL CONDUCT, BUSINESS PHILOSOPHY OR POLICIES OF AN AGENCY.

MR. BRIAN DONOVAN:

WE REFER TO YOUR LETTER TO OUR OFFICE, DATED JUNE 4, 1987, PROTESTING THE DENIAL OF YOUR FREEDOM OF INFORMATION ACT (FOIA) REQUEST BY THE UNITED STATES DEPARTMENT OF TRANSPORTATION, MARITIME ADMINISTRATION (MARAD) AND REQUESTING THAT OUR OFFICE INVESTIGATE THE MATTERS RAISED IN YOUR FOIA REQUEST.

TO THE EXTENT THAT YOU ARE REQUESTING THAT WE ASSIST YOU IN GAINING THE RELEASE OF THE DOCUMENTS REQUESTED BY YOU PURSUANT TO FOIA, 5 U.S.C. SEC. 552 (1982), ONLY THE CONTRACTING AGENCY (HERE, MARAD) AND THE COURTS HAVE THE AUTHORITY TO DECIDE WHAT INFORMATION THE AGENCY MUST DISCLOSE UNDER FOIA. SEE FLIGHT SYSTEMS, INC., B-225463, FEB. 24, 1987, 87-1 CPD PARA. 210; ACTUS CORP. ET AL., B-225455, FEB. 24, 1987, 87-1 CPD PARA. 209. THEREFORE, WE ARE UNABLE TO ASSIST YOU WITH THIS MATTER.

IN YOUR LETTER YOU ADDITIONALLY REQUEST THAT OUR OFFICE INVESTIGATE PROCEDURES EMPLOYED BY MARAD IN ITS REPOSSESSION OF CERTAIN VESSELS. PARTICULAR, YOU STATE THAT IT IS YOUR UNDERSTANDING THAT "A LARGE PERCENTAGE OF THE CUSTODIAN CONTRACTS FOR THESE REPOSSESSED VESSELS WERE AWARDED BY MARAD WITHOUT THE NEED OF AN R.F.P." IN ADDITION, YOU STATE THAT YOU ARE "CONCERNED ABOUT THE OVERALL CONDUCT AND BUSINESS PHILOSOPHY OF MARAD" IN CERTAIN SPECIFIED AREAS.

OUR OFFICE DOES NOT CONDUCT INVESTIGATIONS IN CONNECTION WITH OUR BID PROTEST FUNCTION FOR THE PURPOSE OF ESTABLISHING THE VALIDITY OF A PROTESTER'S ASSERTIONS. SEE WATER RESOURCES EDUCATION, B-224684, JAN. 7, 1987, 87-1 CPD PARA. 25. MOREOVER, GAO'S BID PROTEST FUNCTION IS RESERVED FOR CONSIDERING WHETHER AN AWARD OR PROPOSED AWARD OF A CONTRACT COMPLIES WITH STATUTORY, REGULATORY AND OTHER LEGAL REQUIREMENTS. C.F.R. SECS. 21.2 AND 21.3(F) (1986); RECLAMATION TECHNOLOGY, INC., B-225223 ET AL., DEC. 5, 1986, 86-2 CPD PARA. 650. IN ORDER TO BE CONSIDERED BY OUR OFFICE, OBJECTIONS MUST BE TIMELY RAISED AND MUST PERTAIN TO A PARTICULAR SOLICITATION OR TO THE PROPOSED AWARD OR AWARD OF A PARTICULAR CONTRACT. A. MOE & CO., INC., 64 COMP.GEN. 755 (1985), 85-2 CPD PARA. 144. THEREFORE, WE ARE UNABLE TO ADDRESS, AS A PART OF OUR BID PROTEST FUNCTION, ANY OF THE QUESTIONS RAISED IN YOUR LETTER, BECAUSE THEY EXPRESS GENERAL CONCERN ABOUT THE "OVERALL CONDUCT AND BUSINESS PHILOSOPHY OF MARAD," RATHER THAN DETAILING A PROBLEM OR PROBLEMS WITH A SPECIFIC SOLICITATION, PROCUREMENT, OR CONTRACT AWARD.