TITLE:  William A. Van Auken, B-293590, February 6, 2004
BNUMBER:  B-293590
DATE:  February 6, 2004
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William A. Van Auken, B-293590, February 6, 2004

   Decision
    
    
Matter of:   William A. Van Auken
    
File:            B-293590
    
Date:              February 6, 2004
    
William A. Van Auken, the protester.
Richard L. Moorhouse, Esq., and Stephen M. Sorett, Esq., Reed Smith, for
SERCO Management Services, Inc., an intervenor.
Daniel N. Hylton, Esq., United States Department of Agriculture, for the
agency.
Michael R. Golden, Esq., Office of the General Counsel, GAO, participated
in the preparation of the decision.
DIGEST
    
Protest filed by federal employee on behalf of himself and other federal
employees who assert that they are directly affected by agency*s decision
made pursuant to a competition conducted under Office of Management and
Budget Circular A-76, as revised on May 29, 2003, to contract for work
rather than to have the work performed in‑house, is dismissed where
agency requests dismissal and protester does not oppose that request;
protester has apparently filed identical protest with agency, which agency
intends to consider; dismissal is without prejudice to protester*s filing
a later protest with General Accounting Office if he is dissatisfied with
agency*s action on his agency-level protest.
DECISION
    
William A. Van Auken protests the United States Department of
Agriculture*s (USDA) decision, pursuant to Office of Management and Budget
Circular A-76, that it would be more economical to perform the fleet
maintenance services for the Forest Service in the Pacific Southwest
region by contract awarded to SERCO Management Services, Inc. under
request for proposals (RFP) No. R5SCO603058, rather than have the services
performed in-house.
    

   We dismiss the protest.
    
On January 20, 2004, Mr. Van Auken filed this protest challenging the
USDA*s decision to award a contract to SERCO.  On the same date, Mr. Van
Auken apparently filed a virtually identical challenge with USDA.  With
regard to the filing at USDA, the Revised Circular (May 29, 2003) provides
that *a directly interested party* may contest certain enumerated agency
actions *taken in connection with the standard competition.*  Revised
Circular at B-20.  The Revised Circular further provides that *the pursuit
of a contest by a directly interested party and the resolution of such
contest by the agency shall be governed by the procedures of FAR [Federal
Acquisition Regulation] Subpart 33.103.*  Id.  FAR S: 33.103 provides the
procedures for filing and resolving agency-level protests.
    
USDA has requested dismissal of Mr. Van Auken*s protest because the agency
views the protest filed with our Office as premature.  The agency states
that it *intends to address [the] agency-level contest through its normal
procedures under FAR section 33.103.*  USDA Request for Dismissal at 1. 
The agency further states that *dismissal of the current protest would
allow the Government an opportunity to review the competition, address the
allegations, and take appropriate action.*  Id. at 2.  Finally, the agency
states that *pursuant to FAR section 33.103 [and the General Accounting
Office*s (GAO) Bid Protest Regulations], agency-level protesters have a
subsequent opportunity to assert their rights before the GAO should the
agency-level protest be denied,* and that *any dismissal as premature
would be without prejudice.*  Id. at 3.  In response to the agency*s
dismissal request, Mr. Van Auken states that *we see no reason to object
to this dismissal as long as this does not affect our . . . protest rights
at the GAO level in the future.*  Protester*s Response at 1.
    
In view of the unopposed request that we dismiss the protest, we will do
so.  With respect to Mr. Van Auken*s concern that our dismissal of the
protest not affect his right to file a subsequent protest at GAO, we point
out that, in accordance with our Bid Protest Regulations, 4 C.F.R. S:
21.2(a)(3) (2003), a protester may file a protest with our Office if the
protester is dissatisfied with an agency*s initial action in response to
the agency-level protest.  We direct the protester*s attention to the
rules governing the timeliness of such a protest, as set out in the cited
provision of our regulations and the published decisions of our Office.
    
In dismissing this protest, we are not addressing the issue of whether Mr.
Van Auken has standing to file a bid protest with our Office.  The
Competition in Contracting Act of 1984 (CICA) establishes the standard for
standing to file a protest here by stating that a protest may only be
filed by an *interested party,* which is defined in the statute as *an
actual or prospective bidder or offeror whose direct economic interest
would be affected by the award of the contract or by failure to award the
contract.*  31 U.S.C. S: 3551(2); see also Bid Protest Regulations, 4
C.F.R S: 21.0(a).  As we discussed in our Federal Register notice at 68
Fed. Reg. 35411 (June 13, 2003), the May 2003 revisions to the Circular
raise a number of legal questions, most significantly, whether the
revisions affect the standing of an in-house entity to file a bid protest
at the GAO, and, if so, who should have the representational capacity to
file such a protest.
    
In light of the dismissal of the protest, we do not reach the question of
federal employees* standing to file protests with our Office under CICA,
and this dismissal should not be read as an indication of how our Office
will ultimately resolve that question.[1] 
    
The protest is dismissed.
    
Anthony H. Gamboa
General Counsel
    

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   [1]Our Office*s June 2003 Federal Register notice also solicited comments
on other procedural issues potentially affected by the revisions to the
Circular, in particular, the continued validity of GAO*s longstanding
rule, based on comity and efficiency, that our Office would generally not
hear a protest of a cost comparison until the A‑76 agency
administrative appeals procedure had been exhausted.  See Intelcom Support
Servs., Inc., B‑234488, Feb. 17, 1989, 89-1 CPD P: 174; Direct
Delivery Sys., B‑198361, May 16, 1980, 80-1 CPD P: 343.  Our
decision today to close this file is based on the unopposed request for
dismissal and does not constitute a decision on the exhaustion
requirement.