TITLE:  Performance Excavators, Inc.ï¿½, B-291771, March 17, 2003
BNUMBER:  B-291771
DATE:  March 17, 2003
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Performance Excavators, Inc. , B-291771, March 17, 2003

   Decision
    
    
Matter of:   Performance Excavators, Inc. 
    
File:            B-291771
    
Date:              March 17, 2003
    
Bonnie Freeman, Esq., Senneff Freeman & Bluestone, for the protester.
Brian A. Bannon, Esq., and David A. Leib, Esq., Blank Rome, for the
agency.
David A. Ashen, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
The Presidio Trust, a wholly-owned government corporation, is not subject
to the General Accounting Office's bid protest jurisdiction under the
Competition in Contracting Act of 1984 (CICA), since the Trust is
statutorily exempt from all federal procurement laws and regulations but
for certain enumerated exceptions that do not include CICA.
DECISION
    
Performance Excavators, Inc. (PerfEx) protests the Presidio Trust's award
of a contract to ERRG, Inc. and Associates, Joint Venture (ERRG), under
invitation for bids (IFB) No. IFB-2002-016, for environmental cleanup. 
PerfEx asserts that award to ERRG was improper because ERRG did not
satisfy a solicitation requirement for a specific business license.
    
We dismiss the protest for lack of jurisdiction.
    
The Presidio Trust is a wholly-owned government corporation established to
exercise administrative jurisdiction over the Presidio, a former military
post in San Francisco, and to manage the leasing, maintenance,
rehabilitation, repair and improvement of property within the Presidio
under its administrative jurisdiction.  Omnibus Parks and Public Lands
Management Act of 1996 (Act), Pub.L. No. 104-333, S:S: 103(a), (b),
104(a)-(c), 110 Stat. 4093, 4098, 4101 (1996).  The IFB contemplated award
of a contract for environmental remediation of a landfill and fill site on
the Presidio, and required firms to possess a valid Class A Hazardous
California State Contractor's License at the time of bid opening.  IFB at
9. 
    
After bid opening, but prior to award, PerfEx advised the contracting
officer that it believed that one of the two companies forming the ERRG
joint venture (Denbeste Transportation, Inc.), the apparent low bidder,
did not hold a valid California General Engineering Contractor's License
with Hazardous Waste and Remedial Actions Certification; according to
PerfEx, that company's license was defective because the designated
responsible managing employee required by California law in fact was not a
bona fide employee, and thus the joint venture's license also was
defective.  In response to PerfEx's allegations, the Trust:  (1) verified
on the state licensing board's website, and then confirmed in a telephone
call to the board, that the licenses of ERRG and each of its component
companies were current, active and in good standing, and (2) verified with
Denbeste that the designated responsible managing employee was a bona fide
employee.  Agency Report at 3.  Upon learning of the ensuing award to
ERRG, PerfEx filed an agency-level protest.  When that protest was denied,
PerfEx filed this protest with our Office.
    
The Presidio Trust asserts that it is not subject to our bid protest
jurisdiction, and that the protest therefore should be dismissed.  We
agree.
    
Under the Competition in Contracting Act of 1984 (CICA), our Office has
jurisdiction to resolve bid protests concerning solicitations and contract
awards that are issued *by a Federal agency.*  31 U.S.C. S: 3551(1)
(2000).  CICA provides that the term *Federal agency* has the meaning
given in 40 U.S.C. S: 102 (2000).  31 U.S.C.A. S: 3551(3) (West Supp.
2002).  Section 102 of Title 40 defines the term *Federal agency* as
including any *executive agency,* which it defines as including any
executive department or independent establishment in the executive branch
of the government, and any wholly-owned government corporation.  40 U.S.C.
S: 102(4), (5).  Therefore, the Trust, as a wholly-owned government
corporation (Pub.L. No. 104‑333, S: 103(a), 110 Stat. 4093, 4098),
is an executive agency that otherwise would be subject to our bid protest
jurisdiction under CICA.
    
However, the statute establishing the Trust expressly limits the extent to
which the Trust is subject to federal procurement laws and regulations. 
Specifically, the statute provides as follows with respect to the Trust's
authority to enter into contracts and other agreements:
    
Federal laws and regulations governing procurement by Federal agencies
shall not apply to the Trust, with the exception of laws and regulations
related to Federal government contracts governing working conditions and
wage rates, including the provisions of sections 276a--276a--6 of title
40, United States Code (Davis-Bacon Act), and any civil rights provisions
otherwise applicable thereto.  The Trust, in consultation with the
Administrator of Federal Procurement Policy, shall establish and
promulgate procedures applicable to the Trust's procurement of goods and
services including, but not limited to, the award of contracts on the
basis of contractor qualifications, price, commercially reasonable buying
practices, and reasonable competition.
Pub.L. No. 104-333, S: 104(b), 110 Stat. 4093, 4101.  Pursuant to this
statutory authority, the Trust has promulgated a Presidio Trust
Procurement Policy (PTPP), which expressly provides that CICA does not
apply to the Trust's procurements.  PTPP S: 1.2. 
    
Since the Trust's establishing legislation provides that federal
procurement laws and regulations do not apply to the Trust but for the
listed exceptions, which do not include CICA, and the PTPP expressly
provides that CICA does not apply to the Trust's procurements, we conclude
that the Trust is not subject to the terms of CICA.  Since the bid protest
jurisdiction of our Office derives directly from CICA, we must further
conclude that the Trust is not subject to that jurisdiction. 
    
We note that the rationale that leads us to our conclusion is similar to
that on which we have based our determination that the United States
Postal Service (USPS) is not subject to our bid protest jurisdiction.  The
USPS is an independent establishment of the executive branch, 39 U.S.C. S:
201 (2000), and thus is a federal agency that would otherwise be subject
to our bid protest jurisdiction.  31 U.S.C. S: 3551(3); 40 U.S.C.
S: 102(4), (5).  However, under 39 U.S.C. S: 410(a) (2000), USPS is
expressly exempted from any *Federal law dealing with public or Federal
contracts,* except for those laws enumerated in 39 U.S.C. S: 410(b). 
Since CICA is not included in the list of statutes expressly made
applicable to USPS under section 410(b), we have concluded that USPS is
not subject to our bid protest jurisdiction.  Falcon Sys., Inc., B-222549,
May 14, 1986, 86-1 CPD P: 462 at 1, aff'd, Falcon Sys.,
Inc.‑‑Recon., B‑222549.2, June 5, 1986, 86-1 CPD P: 526
at 2.  The Court of Appeals for the Federal Circuit has reached the same
conclusion regarding our USPS jurisdiction.  See Emery Worldwide Airlines,
Inc. v. United States, 264 F.3d 1071, 1079 n.7 (Fed. Cir. 2001) (because
USPS is exempt from all federal procurement laws not specifically
enumerated in 39 U.S.C. S: 410(b), and CICA is not specifically enumerated
in 39 U.S.C. S: 410(b), USPS is not subject to the General Accounting
Office's bid protest jurisdiction).
    
Since the Trust is exempt from federal laws and regulations governing
procurement by federal agencies, and CICA is not included in the list of
statutes made applicable to the Trust under the Act, the Trust is not
subject to our bid protest jurisdiction.
    
The protest is dismissed.
    
Anthony H. Gamboa
General Counsel