BNUMBER: B-272181.6; B-272181.7; B-272181.8; B-272181.9
DATE: August 16, 1996
TITLE: Fred Schreiber; V. David Pique & Associates; Francene
Tearpock-Martini & Associates, Inc.; Georgette Gerbin; Crawford &
Company; Gary A. Peterson; Wilson Rehabilitation Services; Jane Boyer
McGuigan; Rehabilitation Planning, Inc.
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Matter of:Fred Schreiber; V. David Pique & Associates; Francene
Tearpock-Martini & Associates, Inc.; Georgette Gerbin; Crawford &
Company; Gary A. Peterson; Wilson Rehabilitation Services; Jane Boyer
McGuigan; Rehabilitation Planning, Inc.
File: B-272181; B-272181.2; B-272181.3; B-272181.4; B-272181.5;
B-272181.6; B-272181.7; B-272181.8; B-272181.9
Date:August 16, 1996
Fred Schreiber; V. David Pique for V. David Pique & Associates;
Francene Tearpock-Martini for Francene Tearpock-Martini & Associates,
Inc.; Georgette Gerbin; Kevin W. Bortnyik for Crawford & Company; Gary
A. Peterson; Marian Wilson for Wilson Rehabilitation Services; Jane
Boyer McGuigan; and Robert D. Cipko for Rehabilitation Planning,
Inc., protesters.
Vaughn E. Hill, Esq., Department of Labor, for the agency.
Scott H. Riback, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
Protests against nonselection of vocational rehabilitation counselors
(VRCs) for participation in certification program is dismissed since
agency's actions in selecting which VRCs to include in certification
program do not constitute a procurement of goods or services over
which the General Accounting Office exercises jurisdiction.
DECISION
Fred Schreiber, V. David Pique & Associates, Francene Tearpock-Martini
& Associates, Inc., Georgette Gerbin, Crawford & Company, Gary A.
Peterson, Wilson Rehabilitation Services, Jane Boyer McGuigan, and
Rehabilitation Planning, Inc. protest their nonselection for a
certification program offered by the Department of Labor (DOL) for
vocational rehabilitation counselors (VRC). The protesters contend
that the agency erred in evaluating their applications for this
program.
We dismiss the protests for lack of jurisdiction.
Under the provisions of the Federal Employees' Compensation Act, 5
U.S.C. sec. 8104 (1994), and the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. sec. 939 (1994), the Secretary of Labor is
required to arrange for vocational rehabilitation counseling services
for eligible individuals. Pursuant to this overall direction, DOL has
established a certification program for VRCs to ensure their
availability. Under this program, the agency obtains application
packages from VRCs interested in becoming certified; those applicants
deemed qualified are required to attend a 2-day course, at the
conclusion of which the applicants receive the DOL certification. The
certified VRCs are then included on a list and, when the need arises,
an individual eligible for such services is referred to a certified
VRC for purposes of receiving vocational rehabilitation services. If
the certified VRC is willing to accept the referral, he or she advises
the agency of this fact. The VRC then provides the services, and
receives compensation from the agency.
Here, the protesters timely responded to DOL's Commerce Business Daily
announcement calling for application packages. After reviewing all of
the application packages, DOL selected a number of individuals to
attend the 2-day course and become certified; none of the protesters
was selected for certification, and each maintains that the
nonselection was due to an erroneous evaluation.
The agency action complained of here does not constitute a procurement
of goods or services, and thus is beyond our jurisdiction. The
Competition in Contracting Act, 31 U.S.C. sec. 3551-3556 (1994), which
establishes the procurement protest system under which we review the
contracting actions of federal agencies, limits our review to
consideration of objections to solicitations, proposed awards, and
awards of contracts for the procurement of property. Where an agency
has merely rejected an applicant under a prequalification procedure
that does not involve the issuance of a solicitation or the award or
proposed award of a contract, our Office does not have bid protest
jurisdiction over the agency's actions.
A selection procedure such as this that does not guarantee successful
applicants an opportunity to perform the work in question, require
that they perform any particular work, or obligate the government to
pay for any services is a type of prequalification procedure, not the
award of a contract. See Michael J. O'Kane; Lorna H. Owens, B-257384;
B-257384.2, Sept. 28, 1994, 94-2 CPD para. 120 (General Accounting Office
does not have jurisdiction to consider protest against agency
procedure for creating list of attorneys eligible to represent
defendants pursuant to the Criminal Justice Act, 18 U.S.C. sec. 3006A
(1994), since such procedure is merely a preliminary screening process
that does not guarantee any attorney an appointment as defense
counsel, does not obligate the attorney to provide representation in a
specific case, and does not obligate the government to pay the
attorney for any services).
In this regard, the procedure at issue here clearly is only for the
prequalification of VRCs. Successful applicants are only afforded an
opportunity to attend a course and become certified VRCs. Those
applicants who become certified VRCs are not guaranteed any work as a
result of the procedure, and certified VRCs properly may decline any
particular referral from the agency; the certification arrangement
also does not create an obligation on the part of the government to
pay a certified VRC. In these circumstances, DOL's selection or
nonselection of VRCs for certification under the procedure at issue
here does not involve the solicitation for, or the award or proposed
award of, a contract and therefore is not subject to our bid protest
jurisdiction.[1]
The protests are dismissed.
Comptroller General
of the United States
1. We considered DOL's actions in connection with its VRC
certification procedures in Sevdy and Lockett, Vocational
Consultants--Recon., B-225825.2, July 20, 1987, 87-2 CPD para. 66. There,
however, the issue of our jurisdiction was not raised or considered.
Pursuant to this decision, we will no longer consider a bid protest
challenging nonselection for the VRC certification program.