Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest denied.
Keywords: A-76 Protest
General Counsel P.C. Highlight: No function of the Department of Defense performed by Department of Defense civilian employees may be converted, in whole or in part, to performance by a contractor unless the conversion is based on the results of a public-private competition.
John P. Santry-Designated Employee Agent and representative of federal workers who could be displaced by the award of a proposed contracting action, protests the Department of the Air Force’s (Air Force) issuance of request for quotations (RFQ), which sought submission of quotations from private-sector food service contractors to provide various food service activities at specified Air Force bases.
The RFQ required vendors to submit quotations for “core” requirements, defined as “operation of the mission essential [appropriated fund] dining facilit[ies] at each installation” along with providing non-appropriated fund “catering operations.” Santry asserts that, by seeking proposals from private-sector contractors, the agency has failed to comply with the statutory requirements in 10 USC §2461 and OMB Circular A-76 regarding “civilian employees.” Specifically, Santry asserts that the agency is not conducting a public-private competition for performance of the food service functions to determine whether the function should be performed by federal government employees or should be contracted out to private contractors. A “civilian employee” is defined as “An individual who works for a federal agency on an appointment without time limitation who is paid from appropriated funds, which includes working capital funds. A foreign national employee, temporary employee, term employee, non-appropriated fund employee, or uniformed personnel is not included in this definition.”
GAO states that non-appropriated fund employees are expressly excluded from the definition of “civilian employee.” GAO states that Santry’s argument that the agency’s alleged conversion of government functions to contractor performance is unfounded where the record establishes that the jobs of the employees performing services are not at risk and there is no conversion of work to the private sector since the federal employees’ jobs are not at stake. GAO concluded that the provisions of 10 USC §2461 do not apply to functions performed by non-appropriated fund employees and where the agency amended the solicitation to provide that no appropriated fund employee will be “displaced, reassigned, subjected to reduction in force, or otherwise adversely affected,” the ongoing procurement actions do not constitute conversion of functions performed by those employees to private sector performance. The protest is denied.