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
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[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.