TITLE: B-311327, Mark Whetstone-Designated Employee Agent, May 20, 2008
BNUMBER: B-311327
DATE: May 20, 2008
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B-311327, Mark Whetstone-Designated Employee Agent, May 20, 2008

   Decision

   Matter of: Mark Whetstone-Designated Employee Agent

   File: B-311327

   Date: May 20, 2008

   Mark Whetstone, Designated Employee Agent, for the protester.
   Barbara Walthers, Esq., Department of Homeland Security, U.S. Citizenship
   and Immigration Services, for the agency.
   Scott H. Riback, Esq., and John M. Melody, Esq., Office of General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest that agency is improperly converting a publicly performed function
   to a privately performed function without first conducting a
   public/private competition is dismissed where agency is acquiring the
   services in question through the exercise of an optional line item under a
   preexisting contract; the statute requiring agencies to conduct
   public/private competitions and providing designated employee agents
   standing to protest such competitions is, by its terms, inapplicable to
   acquisitions publicly announced prior to enactment of the statute.

   DECISION

   Mark Whetstone, Designated Employee Agent, protests the actions of the
   Department of Homeland Security, U.S. Citizenship and Immigration
   Services, Nebraska Service Center, under contract No. HSSCCG-07-D-0006.
   The protester maintains that the agency is improperly converting a
   function currently performed by agency adjudicators to a privately
   performed function without conducting a public/private competition.

   We dismiss the protest.

   The agency has four service centers, located in California, Nebraska,
   Texas and Vermont, where it performs immigration benefit application
   services. At each of the four service centers, the agency has a number of
   government employees that act as adjudicators whose function is to make
   determinations regarding the eligibility of applicants to receive
   immigration benefits. These determinations are made based on information
   included in each prospective beneficiary's application form.

   In December, 2006, the agency issued a solicitation that contemplated the
   award of an indefinite-delivery, indefinite-quantity contract for a base
   year, with two 1-year options. The solicitation, as amended, called for
   the submission of proposals by February 28, 2007.

   On September 21, the agency awarded a contract to SI International, Inc.
   after conducting a full and open competition among private concerns. The
   contract is for application processing support services at the Texas and
   Nebraska service centers, and contemplates the performance of mail
   processing, data collection, fee processing and file operation support
   services. Among other things, the contractor's employees currently perform
   data entry services by entering information, including the applicant's
   name, from the application forms into the agency's "CLAIMS 3" data base.
   Agency employees then take the names that have recently been entered into
   the CLAIMS 3 data base and run them through the Interagency Border
   Inspection System (IBIS) to determine whether the names from the CLAIMS 3
   data base match names in criminal data bases included in the IBIS.
   Contractor employees then print out the results of the IBIS check and
   include the printout in the application files, which then are forwarded to
   government employees, who resolve any matches between CLAIMS 3 data base
   names and information in the IBIS criminal data bases.

   The government adjudicators' responsibilities include entering data into
   the IBIS data base relating to any aliases that might be in the
   application file (IBIS alias checks). SI International's contract includes
   an optional line item to perform these IBIS alias checks, and this work is
   the subject of the instant protest.

   On February 25, 2008, an agency employee forwarded to the protester an
   e-mail that included a draft of a message soliciting volunteers among the
   adjudicators at the agency's Nebraska processing center to engage in a
   test program that would involve SI International personnel performing the
   IBIS alias checks. Letter of Protest, Mar. 5, 2008, exh. 1. Based on the
   contents of this e-mail, Mr. Whetstone filed the instant protest,
   asserting that having SI International perform the IBIS alias checks would
   amount to the improper conversion of a function from government to
   contractor performance without the conduct of a public/private
   competition. According to the protester, such a competition is required
   for government/contractor conversions under the terms of section 739 of
   the Financial Services and General Government Appropriations Act, 2008
   (enacted as Division D of the Consolidated Appropriations Act, 2008, Pub.
   L. No. 110-161,121 Stat. 1844, 2029-30 (2008).

   The statute that Mr. Whetstone alleges applies here, which requires
   agencies to conduct public/private competitions, was not enacted until
   approximately 3 months after the award of the contract that the protester
   challenges. The statute, by its terms, does not apply to contract actions
   publicly announced prior to its enactment, and only affords interested
   party status to designated employee agents to protest the conversion of a
   function performed by federal employees to private sector performance
   without a competition under Office of Management and Budget Circular A-76
   that was initiated after the date the statute was enacted. Sections 739
   (a)(2)(E) and (c)(3) of the Financial Services and General Government
   Appropriations Act, 2008 (enacted as Division D of the Consolidated
   Appropriations Act, 2008, Pub. L. No. 110-161,121 Stat. 1844, 2029-31
   (2008); see also section 326 (d) of the National Defense Authorization Act
   for Fiscal Year 2008, Pub. L. No 110-181, Division A, subtitle C, 122
   Stat. 3, 63 (2008). Specifically, the statute only provides standing to
   designated employee agents to challenge:

     . . . a decision to convert a function performed by Federal employees to
     private sector performance without a competition under Office of
     Management and Budget Circular A-76, [made] on or after the date of
     enactment of this Act."

   Section 739 (c)(3) of the Financial Services and General Government
   Appropriations Act, 2008, supra. Given that the acquisition in question
   was conducted prior to the enactment of the statute, Mr. Whetstone does
   not have standing to maintain the subject protest.[1] We therefore decline
   to consider the merits of Mr. Whetstone's protest.[2]

   Even if we were to analyze Mr. Whetstone's protest independently of the
   the effective date of the Financial Services and General Government
   Appropriations Act, 2008, supra, the protest would still be untimely.
   Under our Bid Protest Regulations, 4 C.F.R. sect. 21.2 (a)(1) (2008),
   protests based on alleged improprieties that are apparent on the face of a
   solicitation must be filed no later than the deadline for submitting bids
   or proposals. Here, the RFP as originally issued clearly included the IBIS
   alias check optional line item. Thus, in order for Mr. Whetstone's protest
   to be timely, he would have had to file no later than February 28, 2007.
   Since the protest was filed after that date, it is untimely. See
   Navigation Servs. Corp., supra.

   The protest is dismissed.

   Gary L. Kepplinger
   General Counsel

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

   [1] Mr. Whetstone argues generally (in the context of maintaining that his
   protest is timely) that the agency made its decision to convert the IBIS
   alias check activity to private sector performance at the point in time
   that it considered exercising the option under SI International's
   contract. We disagree. It was at the point in time that the agency
   included the optional line item for the IBIS alias checks in the
   solicitation, rather than at the point in time that the agency gave
   consideration to exercising the option, that the agency converted the
   activity to private sector performance, since the agency could acquire the
   services any time after awarding the contract, merely by exercising the
   option. See Navigation Servs. Corp., B-255241, Feb. 10, 1994, 94-1 CPD
   para. 99 at 2-3.

   [2] The agency also asserts that Mr. Whetstone is not a legitimately
   designated employee agent because he was not selected by a majority of the
   agency's adjudicators. In this connection, section 739 (c) of the
   Financial Services and General Government Appropriations Act, 2008, supra,
   changed the definition of "interested party" (under our statutory
   authority to hear bid protests) to include:

     any one person who, for purposes of representing them in a protest under
     this subchapter that relates to such competition, has been designated as
     their agent by a majority of the employees of such Federal agency who
     are engaged in the performance of such function or activity.

   See also section 326 (a) of the National Defense Authorization Act for
   Fiscal Year 2008, supra. The agency maintains that, while Mr. Whetstone
   has been designated as the employees' agent by a majority of the
   adjudicators at its Nebraska service center, a majority of the
   adjudicators agency-wide have not designated Mr. Whetstone as their
   employee agent. We need not resolve the question at this point, since we
   find Mr. Whetstone's protest otherwise not for consideration.