TITLE: B-299370, James C. Trump, February 20, 2007
BNUMBER: B-299370
DATE: February 20, 2007
*******************************************
B-299370, James C. Trump, February 20, 2007

   Decision

   Matter of: James C. Trump

   File: B-299370

   Date: February 20, 2007

   Andre Long, Esq., Naval Air Warfare Center Weapons Division, for the
   protester.

   Robert E. Little, Esq., Naval Facilities Engineering Command, for the
   agency.

   Daniel B. Abrahams, Esq., Michael D. Maloney, Esq., and Howard A.
   Wolf-Rodda, Esq., Epstein Becker & Green, P.C., for Rome Research
   Corporation, an intervenor.

   Paul N. Wengert, Esq., and Glenn G. Wolcott, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protester serving as agency tender official, who filed protest on behalf
   of federal employees challenging the outcome of a public-private
   competition under Office of Management and Budget Circular A-76, is not an
   interested party with standing to pursue a protest at the Government
   Accountability Office where the public-private competition at issue was
   initiated prior to January 26, 2005.

   DECISION

   James C. Trump, the agency tender official (ATO) for the Naval Satellite
   Operations Center (NAVSOC) tender in a public-private competition under
   Office of Management and Budget (OMB) Circular A-76, protests the Navy's
   decision to procure operations and maintenance services for communications
   satellite systems at Point Mugu, California and various NAVSOC
   detachments, through a contract awarded to Rome Research Corporation,
   rather than continuing to have those services performed in-house by
   government employees. On behalf of the employees,[1] the ATO argues that
   the A-76 competition contained various flaws.

   We dismiss the protest on the basis that the protester is not an
   interested party.

   On January 11, 2005, the Navy published an announcement on the federal
   business opportunities (FedBizOpps) Internet website, publicizing the
   Navy's intent to conduct a standard competition to compare the cost of
   continued in-house performance of the requirements at issue with obtaining
   those services by contract. Among other things, the January 11 notice
   stated, "this notice represents the formal public announcement and
   official start date of a public-private competition of the [NAVSOC]."
   Thereafter, the Navy issued an RFP and the ATO submitted the agency tender
   on behalf of the government's most efficient organization (MEO), followed
   by discussions and the Navy's evaluation of the competing submissions. On
   January 4, 2007, the Navy announced its decision to obtain the services
   from Rome Research, and provided a debriefing to the ATO on that date.

   Under the Ronald W. Reagan National Defense Authorization Act for Fiscal
   Year 2005, Pub. L. No. 108-375, sect. 326(a)(2), 118 Stat. 1811, 1848
   (2004), codified at 31 U.S.C. sect. 3551 (Supp. IV 2004), the definition
   of an interested party eligible to file a protest was amended to include
   "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." However, the amended statute also provided:

     (d) APPLICABILITY.--The amendments made by this section shall apply to
     protests . . . that relate to studies initiated under Office of
     Management and Budget Circular A--76 on or after the end of the 90-day
     period beginning on the date of the enactment of this Act.

   Pub. L. No. 108-375, sect. 326(d).

   The "date of the enactment of this Act" was October 28, 2004, when the Act
   was signed by the President. On April 14, 2005, following public notice
   and an opportunity to comment, our Office amended our Bid Protest
   Regulations to conform to the Act, adding an ATO to the definition of an
   interested party. In so doing, we noted that the amendments were
   applicable to protests regarding A-76 competitions that are initiated more
   than 90 days after enactment of the Act--that is, on or after January 26,
   2005. Specifically, we stated:

     Protests filed at GAO . . . that relate to studies initiated under OMB
     Circular A-76 before January 26, 2005, will be considered under GAO's
     regulations as they were prior to the issuance of this final rule.

   70 Fed Reg. 19679 (daily ed. Apr. 14, 2005).

   As indicated above, the public announcement date, or "start date" under
   Circular A-76 for the competition at issue here was January 11, 2005.
   Accordingly, the public-private competition was initiated prior to the
   effective date of the statutory amendment authorizing protests by ATOs.

   The ATO argues that we should construe the date the competition was
   "initiated" to be nearly 6 months later, based on the Navy's subsequent
   issuance of another public notice on June 30. The ATO asserts that the
   June 30 notice constituted a "recommencement" of the public-private
   competition.

   Our review of the record shows that the Navy's June 30 notice was
   expressly designated as a "Modification to a Previous Notice" and, under
   the heading "Description," the June 30 notice stated: "Update 6-30-05 >
   This is to inform interested parties that the solicitation number has been
   changed to N62467-05-R-0139." The June 30 notice further stated that an
   industry forum would be conducted on July 15, and then included the words
   "Original notice," followed by a verbatim repetition of the January 11
   notice, including the statement, "this notice represents the formal public
   announcement and official start date of a public-private competition."
   Based on the repetition of this language, the ATO argues that the Navy
   reinitiated the competition on June 30.

   We have considered both notices, along with the parties' arguments, and
   conclude that the second notice did not cancel and restart the A-76
   competition. Rather, as the specific language of the second notice
   indicates, it was a "modification" and an "update" of the prior notice
   initiating the standard competition.[2] In several decisions, our Office
   has addressed the standing of federal employees to protest the result of
   an A-76 competition prior to the statutory amendment authorizing ATO
   protests, discussed above; we have concluded that, prior to the statutory
   amendment, federal employees did not meet the definition of an interested
   party, and thus were ineligible to protest a decision to contract out for
   the services. E.g., Alan D. King, B-295529.6, Feb. 21, 2006, 2006 CPD
   para. 44; Dan Duefrene, et al., B-293590.2 et al., Apr. 19, 2004, 2004
   CPD para. 82.

   Under the bid protest provisions of the Competition in Contracting Act of
   1984, 31 U.S.C. sections 3551-56 (2000) (prior to amendment by the Ronald
   W. Reagan National Defense Authorization Act for Fiscal Year 2005), only
   an "interested party" may protest a federal procurement. Although there is
   no dispute that Mr. Trump is the ATO for the public-private competition
   being challenged, he does not have the status of an interested party since
   the competition at issue here was initiated before January 26, 2005.

   The protest is dismissed.

   Gary L. Kepplinger
   General Counsel

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

   [1] The ATO states that this standard competition relates to a function
   performed by 83 full-time equivalent employees of NAVSOC. Protest at 1.

   [2] At our request, the Navy provided our Office and the parties a copy of
   the decision by the Competitive Source Official, extending the time limit
   under Circular A-76 to 18 months, and copies of internal Navy e-mails sent
   in mid-2006, in which the Navy acknowledged that it had become infeasible
   to meet the time limit. These provide a contemporaneous record confirming
   that the Navy uniformly treated January 11 as the start date for the
   competition at issue here.