TITLE: B-298143, Lawrence C. Drake, April 7, 2006
BNUMBER: B-298143
DATE: April 7, 2006
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B-298143, Lawrence C. Drake, April 7, 2006

   Decision

   Matter of: Lawrence C. Drake

   File: B-298143

   Date: April 7, 2006

   Lawrence C. Drake for the protester.

   Rae Ellen James, Esq., Dennis Adelson, Esq., and Herman Narcho, Esq.,
   Department of Labor, for the agency.

   John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the
   General Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   President of the affected local chapter of the American Federation of
   Government Employees is not an "interested party" for the purposes of
   filing and pursuing a protest regarding certain actions taken by the
   Department of Labor with regard to a cost comparison study to be conducted
   pursuant to Office of Management Budget Circular A-76.

   DECISION

   Lawrence C. Drake protests in letters dated March 27 and April 4, 2006 the
   determination by the Department of Labor that certain accounting services
   functions currently performed by agency employees "should be classified as
   a `Commercial Activity' and competed pursuant to Office of Management and
   Budget Circular Number A-76." Protests at 1.

   We dismiss the protest.

   According to Mr. Drake, he was informed on March 17, 2006, by an agency
   representative that "the public private competition for the 150 accounting
   functions would proceed" under Office of Management and Budget (OMB)
   Circular A-76. Mr. Drake states that the agency "has not yet assigned or
   published a formal solicitation number for the proposed public/private
   competition." Additionally, Mr. Drake notes that he is the president of
   the local chapter of the American Federation of Government Employees
   (AFGE), whose members would be affected by an agency determination to have
   the accounting functions performed by contract with a private firm, and
   that he "intends to notify the affected employees, and allow them to
   object to his acting as their agent," Protest (Mar. 27, 2006) and that the
   AFGE has requested that he file this protest. Protest (Apr. 4, 2006).

   Mr. Drake contends that our Office should consider him an interested party
   for the purposes of filing and pursuing this protest, given his status as
   the president of the affected local union chapter. In support of this, Mr.
   Drake points to a decision of the U.S. District Court for the District of
   Columbia and a decision of the Federal Aviation Administration's Office of
   Dispute Resolution for Acquisition, which according to Mr. Drake provide
   that a union representative has standing to challenge certain agency
   actions performed under Circular A-76.

   Prior to the 2003 revisions to the Circular, we held that the then-current
   language of CICA did not permit representatives of in-house government
   competitors to pursue a protest before our forum. American Fed'n of Gov't
   Employees et al., B-282904.2, June 7, 2000, 2000 CPD para. 87 at 3-4. As a
   result of the significant changes that were made in the 2003 Circular, we
   again considered whether an in-house entity might have standing to file a
   protest here regarding the conduct or outcome of a public/private
   competition under the 2003 Circular. Again we concluded that without a
   change to the language of our bid protest statute (the Competition in
   Contracting Act of 1984 (CICA), 31 U.S.C. sect. 3551-3556 (2000)),
   representatives of in-house government competitors could not pursue a
   protest before our forum. Dan Duefrene et al., B-293590.2 et al., Apr. 19,
   2004, 2004 CPD para. 82 at 4-5.

   On the same day that the Dan Duefrene decision was issued, the Comptroller
   General sent a letter to the cognizant congressional committees,
   explaining that, because an in-house competitor did not meet the CICA
   definition of an interested party, GAO was required to dismiss any protest
   that an in-house competitor filed. In the letter, the Comptroller General
   recognized that policy considerations, including the principles
   unanimously agreed to by the congressionally-chartered Commercial
   Activities Panel, weighed in favor of allowing certain protests by
   in-house competitors with respect to A-76 competitions and, as a result,
   Congress might want to consider amending CICA to allow our Office to
   decide such protests.

   Consistent with that letter, Congress expanded the definition of an
   "interested party" that could file a bid protest. Specifically, CICA was
   amended to provide that the term "interested party"

   includes the official responsible for submitting the Federal agency tender
   in a public-private competition conducted under Office of Management and
   Budget Circular A-76 regarding an activity or function of a Federal agency
   performed by more than 65 full-time equivalent employees of the Federal
   agency.

   Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005,
   Pub. L. No. 108-375, sect. 326(a), 118 Stat. 1811, 1848 (2004). Given 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," 70 Fed. Reg. 19,679 (Apr. 14, 2005), we amended our Bid
   Protest Regulations to provide that

   [i]n a public-private competition conducted under Office of Management and
   Budget Circular A-76 regarding an activity or function of a Federal agency
   performed by more than 65 full-time equivalent employees of the Federal
   agency, the official responsible for submitting the Federal agency tender
   is also an interested party.

   4 C.F.R. 21.0(a)(2) (2005).

   As set forth above, CICA and our Bid Protest Regulations confer interested
   party status on the individual responsible for submitting the agency
   tender, and neither confers such status on a union representative or other
   individual purporting to represent the employees of the agency who are
   engaged in the performance of the activity or function subject to the
   public-private competition.[1] This amendment to our Bid Protest
   Regulations is consistent with both the express language of CICA as
   amended, and the intent of Congress as expressed in the conference report
   accompanying the Ronald W. Reagan National Defense Authorization Act for
   Fiscal Year 2005, which provided that "[a] person representing a majority
   of the employees would not have standing to file a protest, but would have
   the right to intervene in a protest filed by an interested party,
   including the [agency tender official]."[2] H.R. Conf. Rep. No. 108-767,
   at 648, reprinted in 2004 U.S.C.C.A.N. 1961, 2003.

   As the protester recognizes, our Office's authority to consider bid
   protests is provided by CICA. As such, whether a court or another federal
   agency such as the Federal Aviation Administration confers standing on a
   union representative, or considers such a representative an interested
   party for the purposes of pursuing a matter involving OMB Circular A-76,
   is irrelevant to our determination here, because those entities are not
   governed by CICA. In light of this, and the clear language of our Bid
   Protest Regulations which do not recognize union representatives as
   interested parties for the purposes of filing and pursuing protests, we
   cannot consider Mr. Drake to be an interested party eligible to file and
   pursue this protest.[3]

   The protest is dismissed.

   Anthony H. Gamboa

   General Counsel

   ------------------------

   [1] The "official responsible for submitting the Federal agency tender" is
   commonly known as the agency tender official, or ATO. Alan D. King,
   B-295529.6, Feb. 21, 2006, 2006 CPD para. 44 at 3, n.4.

   [2] The protester appears to confuse the terms "interested party" and
   "intervenor" under our Bid Protest Regulations. An interested party under
   our Regulations "means an actual or prospective bidder or offeror whose
   direct economic interest would be affected by the award of a contract or
   the failure to award a contract," and an interested party may generally
   file and pursue a protest with our Office. 4 C.F.R. sect. 21.0(a) and
   sect. 21.1(a). An intervenor "means an awardee if the award has been made
   or, if no award has been made, all bidders or offerors who appear to have
   a substantial prospect of receiving an award of the protest is denied." An
   intervenor may not necessarily be an interested party eligible to file a
   protest with our Office, but may participate in a protest filed by an
   interested party with our Office. As apparently recognized by the
   protester, and consistent with the Ronald W. Reagan National Defense
   Authorization Act for Fiscal Year 2005, under certain circumstances "a
   person representing a majority of the employees of the Federal agency who
   are engaged in the performance of the activity or function subject to the
   public-private competition" may be an intervenor, 4 C.F.R. sect.
   21.0(b)(2), even though he or she would not be an interested party
   eligible to file a protest.

   [3] We note that the protest appears to present other procedural issues,
   such as whether the protest is premature given that a solicitation has not
   yet been issued, and whether the challenge to the agency's determination
   that certain accounting services functions currently performed by agency
   employees "should be classified as a `Commercial Activity' and competed
   pursuant to Office of Management and Budget Circular Number A-76"
   constitutes a cognizable basis of protest. However, we need not address
   these issues given our determination that Mr. Drake is not an interested
   party for the purposes of filing and pursuing this protest.