B-400153, Gary M. Williamson--Agency Tender Official, August 1, 2008
Decision
Matter of: Gary M. Williamson--Agency Tender Official
Iris Miranda-Kirschner, Esq., Department of the Air Force, for the protester.
Gary R. Allen, Esq., Department of Air Force, Headquarters Air Force Legal Operations Agency, for the agency.
Brent Reynolds, Designated Employee Agent, an intervenor.
Glenn G. Wolcott, Esq., and Ralph O. White, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.
DIGEST
Agency tender official is not an interested party to protest agency actions other than final selection of the source of performance with regard to a pending public-private competition, to be conducted pursuant to Office of Management and Budget Circular No. A-76, that was initiated prior to enactment of the National Defense Authorization Act of 2008.
DECISION
Gary M. Williamson, the designated agency tender official (ATO) for the U.S. Air Force Mobility Command’s tender in a public-private competition to be conducted pursuant to Office of Management and Budget (OMB) Circular No. A-76, protests various actions taken by the agency in preparation for release of solicitation No. FA4452-08-R-0008 that was issued in connection with the pending competition.[1] The ATO asserts that, in preparing to conduct the A‑76 competition, the agency improperly released to other potential offerors certain cost and staffing information about the in-house organization currently performing the activities to be competed.
We dismiss the protest on the basis that the ATO does not qualify as an “interested party,” as defined by applicable statute.
BACKGROUND
The record establishes that, on
The ATO maintains that the information released in the CSDP was proprietary to the in-house organization currently performing the PMEL requirements. Accordingly, the ATO asserts that the pending A-76 competition should be canceled and that in‑house performance of the PMEL functions should continue without further competition.
DISCUSSION
Under the bid protest provisions of the Competition in Contract 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. The issue of whether federal employees qualify as “interested parties” for the purpose of protesting public-private competitions conducted pursuant to OMB Circular No. A-76 has a lengthy history. In 2004 this Office concluded that an in-house competitor in an A-76 competition did not meet the statutory definition of an “interested party,” Dan Duefrene et al., B-293590.2 et al., Apr. 19, 2004, 2004 CPD para. 82 at 4-5, 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.” See 70 Fed. Reg. 19,679 (Apr. 14, 2005); Mark Whetstone--Designated Employee Agent, B- 311284, May 9, 2008, 2008 CPD para. 93 at 4.
Following our decision in Dan Duefrene, Congress expanded the definition of an “interested party” to include the official responsible for submitting the federal agency tender in an A-76 competition with regard to an activity or function performed by more than 65 full-time equivalent employees of the federal agency. Ronald W. Reagan National Defense Authorization Actor for Fiscal Year 2005, Pub. L. No. 108-375, 118 Stat. 1811, 1848 (2004).
On
(1) a protest or civil action that challenges final selection of the source of performance of an activity or function of a Federal agency that is made pursuant to a study initiated under Office of Management and Budget Circular A-76 on or after January 1, 2004; and
(2) any other protest or civil action that relates to a public-private competition initiated under Office of Management and Budget Circular A-76 . . . on or after the date of the enactment of this Act.
Pub. L. No. 110-181, 122 Stat. 63.
On June 20, 2008, the Air Force requested that we dismiss the ATO’s protest here, noting that the protest does not challenge the final selection of the source of performance, but rather challenges the agency’s disclosure of information in connection with an A-76 competition that was initiated in August 2007, prior to enactment of the NDAA. Accordingly, the agency maintains that neither of the “Applicability” provisions in section 326(d) of the NDAA provide interested party status to the ATO for purposes of challenging the agency’s actions in this matter. We agree.
As the agency first points out, the ATO does not qualify
as an “interested party” under section 326(d)(1) of the NDAA--that is, the
protest does not challenge the “final selection of the source of performance”
pursuant to an A-76 study initiated after
Similarly, the agency points out that the ATO does not
qualify as an “interested party” under the criteria established in section
326(d)(2) of the NDAA--that is, the protest does not “relate to a public-private
competition initiated . . . on or after the date of the enactment of this Act
[January 28, 2008].” Rather, the protest
relates to a competition that was initiated in August 2007--several months prior
to the
In short, the protest does not fit within either situation that triggers applicability of the NDAA’s “interested party” definition. Accordingly, we must conclude that the ATO does not qualify as an “interested party” to protest the agency’s actions taken in connection with the pending public-private competition.[2]
The protest is dismissed.
Gary L. Kepplinger
General Counsel
[1] The solicitation contemplates submission of proposals to provide precision measurement equipment laboratory (PMEL) services for various Air Force bases.
[2] We note that, even if the prior statutory definition of “interested party” were applied to this protest, the ATO would not qualify because, under the prior definition, an ATO had standing as an “interested party” to file a protest only with regard to an A‑76 competition involving a function performed by more than 65 full-time equivalent federal agency employees. Here, the agency’s CSDP specifically stated that the function to be competed “encompasses 34 full time equivalents (FTEs).” Agency Report, Tab 9, at 2.