TITLE: B-311266, Gloria Kortum--Designated Employee Agent, April 15, 2008
BNUMBER: B-311266
DATE: April 15, 2008
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B-311266, Gloria Kortum--Designated Employee Agent, April 15, 2008

   Decision

   Matter of: Gloria Kortum--Designated Employee Agent

   File: B-311266

   Date: April 15, 2008

   Gloria Kortum, Designated Employee Agent, for the protester.

   C. Charles Caruso, Esq., Department of Veterans Affairs, for the agency.

   Paul N. Wengert, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest objecting that agency intended to convert performance of home
   oxygen services to contractor performance in violation of law is dismissed
   as academic where agency currently has no plan to convert to contractor
   performance, and will consider whether to include the services at issue in
   a forthcoming solicitation.

   DECISION

   Gloria Kortum, an employee of the Department of Veterans Affairs (VA), and
   the designated employee agent[1] for certain allegedly affected employees,
   protests that the VA is converting the performance of home oxygen services
   at the Nebraska/Western Iowa Health Care System in Grand Island,
   Nebraskato contractor performance without a competition. The protester
   objects that the VA intends to transition to contractor performance even
   though a cost comparison showed that performance by the affected employees
   would be more cost-effective.

   We dismiss the protest.

   According to the protest, on February 8, 2008, the protester learned that
   the VA intended to convert the performance of home oxygen services from
   federal employees to a contractor.[2] The protester raises several
   objections to what she alleges is an imminent effort to convert these
   services to contractor performance. First, the protester objects that such
   a conversion violates restrictions on the use of VA appropriations because
   the expected savings would fall short of the differential required by
   statute. Protest at 2 (citing Military Construction & Veterans Affairs &
   Related Agencies Appropriations Act, 2008, Pub. L. 110-161, sect. 228, 121
   Stat. 1844, 2273). Second, the protester argues that the VA used medical
   appropriations for an unauthorized purpose by comparing the cost of
   performance by federal employees with those of a contractor. Protest at 3
   (citing 31 U.S.C. sect. 8110(a)(5)). And finally, the protester argues
   that the VA has violated Office of Management and Budget (OMB) Circular
   No. A-76 by making the decision to convert to contractor performance
   without following the requirements of the OMB Circular, which among other
   things, would have required the VA to notify affected employees of the
   initiation of a cost comparison. Protest at 3.

   By letter dated March 17, 2008, the VA requested that our Office dismiss
   this protest because it has agreed to take no action to contract for home
   oxygen services now being provided by federal employees at the Grand
   Island, Nebraska VA Medical Center through June 30, 2008, which is the
   expiration date for the current home oxygen services contract used in the
   Veterans Integrated Service Network (VISN).[3] Between now and June 30,
   the VA advises that it will consider whether to include the Grand Island,
   Nebraska area in a forthcoming solicitation for a successor VISN-wide
   contract, and will ensure that the protester is made aware of the issuance
   of the solicitation. Since a decision about obtaining the home oxygen
   services at issue by contract is no longer imminent,[4] the VA contends
   that the pending protest is academic at this time.

   By letter dated March 18, the protester alleges that any resumption of
   consideration of contracting for the home oxygen services at issue would
   be based on planning allegedly conducted in violation of law and
   regulation.

   The Government Accountability Office has held that we will not consider a
   protest where the issue presented has no practical consequences with
   regard to an existing federal government procurement, and thus is of
   purely academic interest. We do not consider academic protests because to
   do so would serve no useful public policy purpose. Dyna-Air Eng'g Corp.,
   B-278037, Nov. 7, 1997, 97-2 CPD para. 132. While our Office's
   jurisdiction over protests now extends to decisions to convert the
   performance of an activity or function to a contractor without a
   competition under OMB Circular No. A-76, see National Defense
   Authorization Act for Fiscal Year 2008, Pub. L. 110-181, sect. 326, 122
   Stat. 3, ___ (to be codified at 31 U.S.C. sect. 3551), where the agency
   has not made such a decision (or where the agency is reconsidering such a
   decision), a protest of that decision is likewise rendered academic.

   The protest is dismissed.

   Gary L. Kepplinger
   General Counsel

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

   [1] Recently enacted changes to our bid protest statute grant interested
   party status to any one individual who has been designated as the agent of
   federal employees for purposes of representing them in a public-private
   competition, or for purposes of arguing that a public-private competition
   is required under the circumstances presented. Hence, we will adopt the
   term, "designated employee agent" to refer to both the protester and the
   person selected to represent federal employees in these challenges. See
   National Defense Authorization Act for Fiscal Year 2008, Pub. L.
   No. 110-181, sect. 326, 122 Stat. 3 (2008).

   [2] According to the protest, more than 10 employees perform the home
   oxygen services at issue here. Protest at 3.

   [3] A VISN is an administrative region and can include multiple states and
   parts of neighboring states. As relevant here, VISN 23 includes Nebraska.

   [4] In a conference call with the parties held by our Office on March 17,
   the VA appeared to dispute whether the information obtained by the
   protester on February 8 represented an official VA decision. Nevertheless,
   in light of the VA's representation that the incumbent contract will not
   be modified, we consider this question to be academic.