TITLE: Vallie Bray, B-293840; B-293840.2, March 30, 2004
BNUMBER: B-293840; B-293840.2
DATE: March 30, 2004
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Vallie Bray, B-293840; B-293840.2, March 30, 2004
Decision
Matter of: Vallie Bray
File: B-293840; B-293840.2
Date: March 30, 2004
Vallie Bray, the protester.
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 other federal employees who
assert that they are directly affected by agency*s decision made pursuant
to a streamlined competition conducted under Office of Management and
Budget Circular A-76, as revised on May 29, 2003, to contract for the
work, rather than to continue to perform the work in‑house, is
dismissed because, as permitted under the Circular*s streamlined
procedures, the decision to contract out the work was based on the
agency*s internal analysis and was not made pursuant to a solicitation;
under the Competition in Contracting Act of 1984, 31 U.S.C. S:S: 3551-56
(2000), and the General Accounting Office*s Bid Protest Regulations, 4
C.F.R. Part 21 (2004), GAO*s jurisdiction is limited to considering
protests involving solicitations and awards made or proposed to be made
under those solicitations.
DECISION
Vallie Bray, President of the American Federation of Government Employees
(AFGE) Local 3147, protests the United States Department of Agriculture*s
(USDA) Beltsville Agricultural Research Center*s (BARC) decision, pursuant
to a streamlined competition conducted under Office of Management and
Budget (OMB) Circular A-76, that it would be more economical to perform
the security guard function at BARC by contract, rather than to have the
services performed in-house.
We dismiss the protest.
The study for security services at BARC involves 24 positions. USDA
conducted this competitive sourcing action as a streamlined competition
pursuant to the May 29, 2003 revised Circular A-76. As relevant here,
under the revised Circular, the agency may use the streamlined competition
*if, on the start date, a commercial activity is performed by . . . an
aggregate of 65 or fewer [full-time equivalents (FTEs)].* Revised
Circular, attach. B, P: A.5.b(1). As permitted by the streamlined
competition procedures, USDA prepared a cost estimate based on the
incumbent activity, but did not develop an in-house plan (a plan for a
*most efficient organization* or MEO). USDA based its estimate of the
cost of private-sector performance on market research. USDA did not
solicit any private-sector proposals from vendors. On November 5, 2003,
USDA announced its decision to have the work performed commercially. The
agency then implemented that decision by issuing an order under the
General Services Administration*s Federal Supply Schedule. On March 15
and March 26, 2004, subsequent to the issuance of the order, Ms. Bray
filed protests with our Office challenging the agency*s actions under the
streamlined competition.[1]
USDA has requested dismissal of Ms. Bray*s protest. USDA argues that
under the streamlined competition, USDA *did not solicit or otherwise
request offers, nor did any entity have offeror or bidder status during
the streamlined competition.* USDA Dismissal Request at 2. Since under
CICA, 31 U.S.C. S: 3551 (2000), and our Office*s Bid Protest Regulations,
4 C.F.R. S: 21.1(a) (2004), our Office*s jurisdiction is limited to
considering protests involving solicitations issued by federal agencies
and awards made or proposed to be made under those solicitations, USDA
argues that our Office lacks jurisdiction to hear Ms. Bray*s protest.
USDA also points out that under the revised Circular, *[n]o party may
contest any aspect of a streamlined competition.* Revised Circular,
attach. B, P: F. 2. Ms. Bray responds that our Office has the authority
to review USDA*s decision because the decision was based on a flawed
competition or comparison between the public and private sectors.
Protester Response to Dismissal Request at 2-4.
Initially, while it is true that the revised Circular states that no party
may contest any aspect of a streamlined competition, this language does
not preclude a protest to our Office because CICA, not the revised
Circular, provides the basis for our bid protest authority. Thus, an
interested party, as defined by CICA and our Bid Protest Regulations, may
protest a streamlined competition to our Office where the agency elects to
use the procurement system and conducts a competition by issuing a
solicitation to determine whether a private-sector entity can perform the
work more cost effectively. See Revised Circular, attach. B, P: C.1.
However, here, as permitted under the revised Circular*s streamlined
procedures, the record shows that the decision to contract out the work
was based solely on the agency*s internal analysis and was not made
pursuant to a solicitation. As USDA correctly argues, under CICA, and our
Bid Protest Regulations, our Office*s jurisdiction is limited to
considering protests involving solicitations issued by federal agencies
and awards made or proposed to be made under those solicitations. Holiday
Inn; Baymont Inn & Suites, B-288099.3, B-288099.4, Sept. 20, 2001, 2001
CPD P: 166 at 5. In these circumstances, where USDA used streamlined
procedures, but did not issue a solicitation for purposes of conducting a
procurement to determine whether to contract out or to perform work
in-house, we conclude that we lack jurisdiction to consider Ms. Bray*s
protest.
Our conclusion is consistent with prior decisions of our Office in which
we have addressed the basis for our jurisdiction to hear specific A-76
protests. See, e.g., Trajen, Inc., B-284310, B-284310.2, Mar. 28, 2000,
2000 CPD P: 61 at 3. If an agency issues a solicitation as part of an
A-76 study, thereby using the procurement system to determine whether to
contract out or to perform work in-house, our Office will consider a
protest by an actual or prospective offeror under that solicitation
alleging that the agency has not complied with the applicable procedures
in its selection process, or has conducted an evaluation that is
inconsistent with the solicitation criteria or applicable statutes and
regulations. Id. Where, as here, however, the agency conducts a
streamlined competition without the aid of the procurement system to
support its decision to contract out or to perform the work in-house, we
have no statutory basis to hear a protest by any party, whether from the
public or the private sector.[2]
The protest is dismissed.
Anthony H. Gamboa
General Counsel
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[1] According to Ms. Bray*s protest, AFGE Local 3147 is the exclusive
representative for the bargaining unit that includes the employees who
face displacement based on the agency*s decision to contract for this
work. In her protest to the agency and to our Office, Ms. Bray also
asserts that she has been selected by the majority vote of affected
employees to represent them. Protest at 1. In light of the dismissal of
the protest for lack of jurisdiction, as discussed below, we do not reach
the question of federal employees* standing to file protests with our
Office under the Competition in Contracting Act of 1984 (CICA), 31 U.S.C.
S:S: 3551-56 (2000), and this dismissal should not be read as an
indication of how our Office will ultimately resolve that question.
[2] Where an agency conducts a streamlined competition without issuing a
solicitation and decides to contract the work out, it may subsequently
issue a solicitation to select a particular private-sector provider. See
Revised Circular, attach. B, P: C.3(d)(1). We would have jurisdiction to
consider a protest filed by anyone who qualified as an actual or
prospective offeror under that solicitation.