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