Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest dismissed.
Designated Employee Agent is not an interested party to protest actions other than agency’s final selection of the source of performance with regard to a public-private competition conducted pursuant to Office of Management and Budget Circular A-76 that was initiated prior to January 28, 2008.
General Counsel P.C. Highlight:
The DEA challenges various aspects of the competition. GAO states that pursuant to the bid protest provisions of the Competition in Contracting Act of 1984 (CICA) 31 U.S.C. sections 3551-3556 (2000 and Supp. IV 2004), only an “interested party” may protest a federal procurement to GAO. The issue of whether federal employees and/or their representatives qualify as “interested parties” for the purpose of protesting public-private competitions conducted pursuant to OMB Circular A-76 has a lengthy history. In 2004, GAO concluded that an in-house competitor in an A-76 competition did not meet the statutory definition of an “interested party,” and subsequently expressed our view that “it is for Congress to determine the circumstances under which an in-house entity has standing to protest the conduct of an A-76 competition.” GAO states that following its decision in Dan Duefrene, legislation was enacted that expanded the definition of an interested party. First, under the Ronald Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, 118 Stat. 1811, 1848 (2004), an ATO was given interested party status for GAO bid protest purposes, with certain limitations. Subsequently, under the National Defense Authorization Act for Fiscal Year 2008 (NDAA), Pub. L. No 110-181, 122 Stat. 3 (2008), enacted on January 28, 2008, the definition of an interested party was again amended, eliminating the prior limitations with regard to the number of affected FTEs, and expanding the definition to include a DEA.
Nonetheless, the NDAA also limited the applicability of the expanded interested party definition with regard to A-76 competitions that were ongoing at the time of the NDAA’s enactment. Specifically, the Act provided that, with regard to then-ongoing A-76 competitions, the expanded “interested party” definition was only applicable to a protest that “challenges final selection of the source of performance.” In short, the NDAA drew a distinction between permissible protest issues with regard to A-76 competitions that were already ongoing as opposed to competitions that would be subsequently initiated. For the former–that is, A-76 competitions such as the one at issue here that were ongoing at the time of the NDAA’s enactment–the NDAA expressly limited the scope of permissible protests to those challenging the agency’s final selection of the source of performance. Thus, while the NDAA contemplates that, ultimately, DEAs will be authorized to protest any matter “that relates to a public-private competition,” a more limited scope of protests is authorized for A-76 competitions that were ongoing–and thus, partially completed–at the time of the NDAA’s enactment.
Here, none of the issues raised in the DEA’s protest challenges the agency’s source selection decision. That is, nothing in the protest indicates that the agency’s evaluation of proposals was flawed, or asserts that the agency’s conclusion that the private-sector offeror submitted the lowest cost, technically acceptable proposal, as contemplated by the terms of the competition, was inconsistent with the existing record. Specifically, with regard to Johnson’s assertions that the agency failed to complete the A-76 cost comparison within the statutory timeframe established for expenditure of appropriated funds, or the timeframe established by OMB Circular A-76, GAO has held that such an allegation does not constitute a challenge to the agency’s final source selection decision. Similarly, the DEA’s various assertions that the A-76 competition process was improperly conducted do not constitute challenges to the agency’s source selection decision. That is, all of the remaining DEA assertions regarding the alleged impropriety in the competition process–that the competed function is allegedly undergoing a reorganization; that employees’ rights were violated because access to certain information was only accessible to offerors; that offerors improperly communicated with the employees who are currently performing the competed activities; and that the agency improperly performed the A-76 competition “at OMB’s direction”–are procedural matters that preceded the agency’s source selection decision and, as such, are not properly within the scope of protests authorized by the NDAA. The protest is dismissed.