under 5 U.S.C. § 4503 where the agency determines that a reception with refreshments, in accordance with Office of Personnel Management regulations, would materially enhance the effectiveness of its awards ceremony. See also B-167835, Nov. 18, 1969, involving the cost of an awards banquet and 66 Comp. Gen. 536 (1987) involving an awards ceremony reception with refreshments. The awards in this case were not made by the Bureau of Mines and the awards ceremony was not conducted by the Bureau of Mines. However, the awards were based on nominations submitted by each agency in the Pittsburgh area to an interagency coordinating group2 and were designed to recognize the employees of those agencies. Thus, in view of our decision in 65 Comp. Gen. 738, we believe the fee charged in connection with the attendance of nominees, award recipients, and supervisors or managers at that ceremony falls within the scope of the Incentive Awards Act.3 Accordingly, we conclude that the agency may reimburse those employees who attended the ceremony for the cost of attendance. B-238419, October 9, 1990 Miscellaneous Topics Environment/Energy/Natural Resources ■Regulatory agencies ☐☐ Authority ☐☐☐ Civil penalties ■■■Mitigation The Nuclear Regulatory Commission (NRC) lacks authority to permit licensees who violate NRC requirements to fund nuclear safety research projects in lieu of paying monetary civil penalties. See 42 U.S.C. § 2282(a). Matter of: Nuclear Regulatory Commission's Authority to Mitigate This responds to a request from the General Counsel, Nuclear Regulatory Commission (NRC), regarding the Commission's authority to mitigate civil penalties levied against licensees who violate NRC requirements. The General Counsel asks whether NRC may permit a licensee, in lieu of paying a penalty, to fund nuclear safety research projects at universities or other nonprofit institutions. We conclude that NRC has no authority to mitigate penalties in such a manner. 2 Federal Executive Boards are interagency coordinating groups which rely on voluntary participation by its members and which are subject to the oversight of the Office of Personnel Management. See 67 Comp. Gen. 27 (1987); 65 Comp. Gen. 689 (1986). 'Such reimbursement would not appear to conflict with the prohibition on interagency financing of boards or commissions. See 67 Comp. Gen. 254 (1988); 67 Comp. Gen. 27 (1987). Background Pursuant to the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2011, and the Energy Reorganization Act of 1974, as amended, 42 U.S.C. § 5811, the NRC carries out an enforcement program to promote and protect the radiological health and safety of the public. Section 234 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2282, authorizes the NRC to impose civil penalties, not to exceed $100,000 per violation per day, for the violation of certain specified licensing provisions of the act, rules, orders, and license terms implementing these provisions, and for violations for which licenses can be revoked. Section 234 also authorizes the NRC to "mitigate" such penalties. In this regard, the NRC proposes to "mitigate" civil penalties by permitting violators to fund nuclear safety research projects. The NRC notes that it has authority under section 31 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2051(a), to award contracts to nonprofit educational institutions to conduct nuclear safety-related research. As part of an effort to expand its research program, the NRC asks whether it has authority, without further legislation, to implement any of the following options: - The NRC would accept "contributions" from a violator, in lieu of a civil penalty, for use by the NRC Office of Research to fund research grants to universities and other nonprofit institutions. Currently, the NRC deposits in the Treasury penalties paid to it by licensees. See 31 U.S.C. § 3302(b) (1982). - In lieu of paying a civil penalty, the violator would agree to contribute the amount of the penalty, or a portion thereof, directly to a university or nonprofit institution to fund a research project competitively selected by the Office of Research. In lieu of paying a civil penalty, the violator would agree to contribute the amount of the penalty, or a portion thereof, to a university to fund a research project selected by the violator. As a general matter, NRC states that the contributions under each of these three options would be treated as fines for Internal Revenue Code purposes and not as charitable contributions. Discussion In a 1983 decision, we concluded that the Commodity Futures Trading Commission (CFTC) lacked authority to adopt an enforcement scheme similar to that proposed by NRC. B-210210, Sept. 14, 1983. CFTC had proposed that in lieu of imposing a monetary civil penalty, it might accept, as a remedy for violating the Commodity Exchange Act, a promise from the violator to make an educational donation. We noted that although the Congress empowered the CFTC with discretion in enforcing that act, the Congress specifically defined the remedies available to the CFTC. We determined that CFTC's discretion did not extend to remedies, such as that proposed by CFTC, that are not within the ambit of CFTC's statutorily authorized prosecutorial objectives, i.e., correction or termination of a condition or practice, punishment, and deterrence. For similar reasons, we conclude that NRC is not authorized to impose its proposed alternative punishment. As we pointed out in the CFTC decision, an agency's authority is limited to the powers delegated to it by the Congress. The Congress, in section 234, has specifically defined NRC's enforcement authority as follows: [a]ny person who (1) violates any licensing provision, . . . or any rule, regulation, or order issued thereunder, or any term, condition or limitation of any license issued thereunder, or (2) commits any violation for which a license may be revoked . . ., shall be subject to a civil penalty, to be imposed by the Commission, of not to exceed $100,000 for each such violation. 42 U.S.C. § 2282(a). By its terms, section 234 authorizes the NRC to impose civil monetary penalties. Section 234 also provides that "the Commission shall have the power to compromise, mitigate, or remit" such penalties. Id. Clearly, this authority confers discretion. "Mitigate," for example, means "to make less severe; to alleviate; to diminish." United States v. One Ford Coach Automobile (Motor No. 18-2396048), 20 F. Supp. 44, 46 (W.D. Va. 1937). Thus, with authority to compromise, mitigate or remit, NRC may adjust the penalty to reflect the special circumstances of the violation or concessions exacted from the violator. Such discretion, however, like CFTC's prosecutorial discretion, does not empower the NRC to impose punishments unrelated to prosecutorial objectives. See B-210210, Sept. 14, 1983. Under NRC's proposal, a violator would contribute funds to an institution that, in all likelihood, has no relationship to the violation and has suffered no injury from the violation. From an appropriations law perspective, such an interpretation would require us to infer that the Congress intended to allow the NRC to circumvent 31 U.S.C. § 3302 and the general rule against augmentation of appropriations. Section 3302(b) requires the NRC to deposit into the Treasury as miscellaneous receipts moneys collected under section 234. Section 3302(b) provides that an official or agent of the Government receiving money for the Government from any source shall deposit the money in the Treasury as soon as practicable.... 31 U.S.C. § 3302(b). See, e.g., 39 Comp. Gen. 647, 649 (1960). The purpose of section 3302(b) is to ensure that the Congress retains control of the public purse, and to effectuate Congress' constitutional authority to appropriate moneys. See, e.g., 67 Comp. Gen. 353, 355 (1988); 51 Comp. Gen. 506, 507 (1972). Each of the three proposals identified by the NRC would result in an augmentation of NRC's appropriations, allowing the NRC, in varying degrees, to control, in circumvention of the congressional appropriations process, the amount of funds available for nuclear safety research projects. See 59 Comp. Gen. 294, 296 (1980); B-210210, Sept. 14, 1983. We are unwilling to interpret "compromise, mitigate, or remit" in such a manner where neither the language B-239880, October 4, 1990 Procurement Competitive Negotiation Requests for proposals ■■Competition rights Contractors Exclusion Protest by incumbent contractor challenging its exclusion from a limited competition for an interim contract for waste collection and disposal services is sustained where contracting agency failed to obtain maximum practicable competition by not inviting protester to respond to solicitation on the basis that the solicitation required submission of supporting cost data with proposals and protester had been unwilling to provide such data when offered an extension to its then-current contract to cover these services. The agency's exclusion of the contractor on this basis is unreasonable since such data would not have been required if adequate price competition were achieved. Matter of: Bay Cities Services, Inc. Timothy H. Power, Esq., for the protester. Vasio Gianulias, Esq., Department of the Navy, for the agency. Ralph O. White, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. Bay Cities Services, Inc. protests its exclusion from the limited competition conducted pursuant to request for proposals (RFP) No. N68711-90-R-5647, issued by the Navy Public Works Center, Department of the Navy, San Diego, California, for solid waste collection and disposal for a 4-month period at various Navy facilities in the San Diego area. Only two potential sources were solicited based on the Navy's determination of unusual and compelling urgency for these services; only one of those sources submitted a proposal. That offeror, U.S. Disposal Services, was awarded the contract. Bay Cities, the previous contractor providing these services, argues that it was improperly excluded from the solicitation process and thereby excluded from submitting a proposal under the solicitation. We sustain the protest. Background The procurement challenged by Bay Cities resulted in a 4-month interim contract awarded on May 21, 1990, by the Navy on an urgent basis to assure uninterrupted waste collection and disposal services for several Navy facilities in the San Diego area. The previous full-term contract for these services expired on March 31, and included a full range of facility maintenance services, such as custodial and grounds maintenance, as well as solid waste disposal and collection services for the Navy. Bay Cities performed the waste collection and dispos al services portion of that full-term facilities maintenance contract as a subcontractor to the prime contractor. During March 1990, when the Navy became aware that it would not have a new contractor in place prior to October 1, the agency conducted a limited competition for its facility maintenance services for the 6-month period-April 1 to September 30-during which the Navy would have no coverage. The solicitation for this 6-month "bridge contract" permitted companies to respond to any or all of several line items for the different services included within the facility maintenance services contract. Bay Cities was the only company responding to the solicitation for a 6-month interim contract that offered to provide the waste collection and disposal services. However, the Navy declined to accept Bay Cities' offer because its price, approximately $90,000 per month, exceeded the government estimate by 17 percent, and exceeded Bay Cities' previous price for the same services by nearly 35 percent. In addition, Bay Cities refused to provide a price breakdown in support of its offer. The Navy next redesignated the waste collection and disposal services as a separate solicitation apart from the larger facilities contract, and requested that Bay Cities submit a best and final offer (BAFO) along the lines of its initial submission in response to the facilities management services solicitation. For this solicitation, Bay Cities was asked to provide prices for 1-, 2- and 6-month periods. Bay Cities offered the same price as before for a 1- or 2-month contract, and a slightly lower price for a 6-month contract. Although unsatisfied with Bay Cities' price, the Navy awarded the company a 2-month interim contract to cover the agency's immediate need for waste collection and disposal, and continued its attempts to obtain limited competition for the remaining 4-month period. After conducting an extensive market survey of sources for the remaining 4-month period and locating only two potential sources, the Navy asked Bay Cities to submit a proposal for a 4-month extension of its 2-month contract. The Navy also requested that Bay Cities submit, along with its proposal, cost data on a standard form (SF) 1411. Although Bay Cities provided a proposal to the Navy, it did not provide data in support of its price, and did not complete the SF 1411. Despite several requests by contracting officials for the cost information, and despite warnings that its contract would not be extended without such data, Bay Cities refused to provide the cost data. As a result, the Navy refused to consider Bay Cities' proposal and did not extend its 2-month contract. On May 11, the two companies identified by the market survey as potential sources were given copies of a solicitation for the waste collection and disposal services covering the 4-month period of June 1 to September 30. The solicitation, RFP No. N68711-90-R-5647, was a copy of Bay Cities' 2-month interim contract. The Navy invited both companies to submit a proposal and requested that any offer be accompanied by cost data, set forth on SF 1411. Only one of |