Link: GAO Opinion
Agency: Department of the Air Force
Disposition: Protest dismissed.
General Counsel P.C. Highlight: GAO is authorized to decide bid protests concerning an alleged violation of a procurement statute or regulation. It does not have authority to consider alleged violations of other statutes that are not procurement statutes or that do not bear directly on federal agency procurements
Triad Logistics Services Corporation (Triad) protests the Department of the Air Force’s decision to convert to in-house performance vehicle operations and maintenance services at Columbus Air Force Base, Mississippi, previously performed under Triad’s contract No. FA3022-07-C-0001.
The contract awarded to Triad in 2006 provided for a one-year base period, with services to commence on October 1, 2006, and included four one-year options. Prior to expiration of the third option period, the Air Force advised Triad that the agency “will initiate the process of in-sourcing” performance of the vehicle operations and maintenance services. Triad submitted a request under the Freedom of Information Act (FOIA) for documents concerning the agency’s determination to in-source the requirement, including documents relating to a comparison of the costs of continuing performance by Triad and the cost of in-house performance. Triad received a number of documents in response to its FOIA request, including the agency’s July 21 business case analysis for in-sourcing, an attachment to which indicated that in-house performance would be approximately 10.14% less expensive than contract performance.
Triad challenges the determination that in-house performance would be less expensive. However, Triad’s protest fails to state a valid basis of protest. GAO has considered a similar protest challenging the agency’s decision to cancel a solicitation to perform work in-house on the basis that the cost comparison performed by the agency violated DOD’s in-sourcing guidance (as well as that the requirement was not one given priority under section 2463). GAO held that the protest failed to state a valid basis of protest, finding that section 2463 does not require a cost comparison and that, since the cited guidance issued pursuant to section 2463 was only internal DOD policy, the assertion that the agency did not adhere to that policy guidance is not a basis for challenging the agency’s actions.
Triad asserts that GAO’s review of the cost comparison nevertheless is authorized by 10 U.S.C. sect. 129a (2000), General Personnel Policy. GAO disagrees. Under the Competition in Contracting Act of 1984 (CICA), GAO is authorized to decide bid protests “concerning an alleged violation of a procurement statute or regulation.” Although protests usually involve alleged violations of statutes that are indisputably procurement statutes (such as CICA) governing procurements of property or services by federal agencies, GAO also will consider protests alleging violations of other statutes or regulations where those statutes or regulations bear directly on federal agency procurements. Here, the statute on which the protester’s argument is founded??10 U.S.C. § 129a??is not a procurement statute. Nor does it bear directly on federal agency procurements; rather, it sets forth the general personnel policy of DOD. Moreover, the provision does not require a cost comparison between agency and contractor performance; it requires only that agencies use the “least costly form of personnel consistent with military requirements and other needs of the Department.” The protest is dismissed.