TITLE: B-400060, Bill Henson--Designated Employee Agent, June 2, 2008
BNUMBER: B-400060
DATE: June 2, 2008
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B-400060, Bill Henson--Designated Employee Agent, June 2, 2008

   Decision

   Matter of: Bill Henson--Designated Employee Agent

   File: B-400060

   Date: June 2, 2008

   Bill Henson, Designated Employee Agent, the protester.
   Charles K. Bucknor, Jr., Esq., and Dennis A. Adelson, Esq., Department of
   Labor, for the agency.
   Peter D. Verchinski, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protest filed by Designated Employee Agent alleging that Department of
   Labor's (DOL) planned reorganization of certain services constitutes an
   improper implementation of the "most efficient organization" following
   public-private competition is dismissed; protester has standing only to
   challenge agency actions related to conduct of a public-private
   competition, or agency decision to convert a function to private sector
   performance without such a competition, and not to challenge agency
   actions regarding implementation of results of a public-private
   competition.

   DECISION

   Bill Henson--Designated Employee Agent protests the Department of Labor's
   (DOL) alleged plans to reorganize the finance and accounting services in
   DOL's Office of the Assistant Secretary for Administration and Management.
   Mr. Henson asserts that the reorganization is an improper attempt to
   implement the government's "most efficient organization" (MEO), the
   successful competitor under the Office of Management and Budget (OMB) A-76
   competition conducted under reference number
   DOL-Multi-Agency-Finance-Accounting-Svcs1 for these services.

   We dismiss the protest on the basis that the protester is not an
   interested party eligible to challenge the agency's actions.

   On May 24, 2007, DOL announced the results of the OMB A-76 public-private
   competition for DOL's Finance and Accounting Services functional area,
   involving approximately 108 full-time equivalent positions assigned to the
   Mine Safety and Health Administration, Office of the Chief Financial
   Officer, Bureau of Labor Statistics, Office of the Assistant Secretary for
   Administration and Management, and Occupational Safety and Health
   Administration, in Washington, D.C. and nine states. As a result of the
   A-76 competition, DOL determined that the work associated with the
   functional area will remain within DOL, performed by the MEO.

   Approximately 7 months later, on December 26, 2007, Public Law 110-161
   took effect. That statute contains a provision suspending DOL's A-76
   competitions until certain requirements are met. Specifically, section 111
   states

     [n]one of the funds available in this Act may be used to carry out a
     public-private competition or direct conversion under Office of
     Management and Budget Circular A-76...until 60 days after the Government
     Accountability Office provides a report to the Committees on
     Appropriations of the House...and the Senate on the use of competitive
     sourcing at the Department of Labor.

   Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, sect. 6, div.
   G, title 1, sect. 111, 121 Stat. 1844, 2168 (effective Dec. 26, 2007). Two
   days later, DOL issued a memorandum that temporarily suspended all A-76
   competitive sourcing activities at the agency. Motion to Dismiss at 4.

   On March 31, 2008, according to Mr. Henson, he learned that the agency
   intends to reorganize the finance and accounting services at DOL. In this
   regard, Mr. Henson's protest includes an email in which a DOL employee
   states that "since this is a reorganization instead of an implementation
   of an MEO, our MEO Implementation Plan needs to be over-hauled and any
   reference to MEO/Competitive sourcing needs to be removed." Protest, exh.
   4, at 1-2. Mr. Henson, as the designated employee agent of the federal
   employees performing the function in question,[1] then filed this protest
   with our Office, asserting that the reorganization is an attempt to
   implement the MEO, and thus is prohibited under section 111.[2]

   Recently enacted changes to our bid protest statute have granted
   interested party status to any one individual who has been designated as
   the agent of the federal employees for the purposes of representing them
   in a public-private competition, or for purposes of arguing that a
   public-private competition is required.[3] In this regard, the statute
   states

     [t]he term "interested party"--...(B) with respect to a public-private
     competition conducted under Office of Management and Budget Circular
     A-76 with respect to the performance of an activity or function of a
     Federal agency, or 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, includes--...(ii) any one
     individual who, for the purpose of representing the Federal employees
     engaged in the performance of the activity or function for which the
     public-private competition is conducted in a protest under this
     subchapter that relates to such public-private competition, has been
     designated as the agent of the Federal employees by a majority of such
     employees.

   31 U.S.C. sect. 3551(2).

   Here, however, an A-76 competition was already conducted and Mr. Henson is
   not challenging the results of that competition. Rather, he asserts that
   the agency is improperly implementing the results of that competition.
   Since the statute does not extend interested party status to a designated
   employee agent for purposes of challenging the implementation of an MEO
   following an A-76 competition, Mr. Henson lacks standing to pursue this
   protest.

   The protest is dismissed.

   Gary L. Kepplinger
   General Counsel

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

   [1] "Designated agents" must be designated as such by a majority of the
   agency's affected employees. 31 U.S.C. sect. 3551(2)(B)(ii). In this
   protest, DOL challenges the protester's designated agent status, asserting
   that the protest only contains evidence that 13 individuals have declared
   Mr. Henson to be their agent, while approximately 108 agency employees are
   affected by the A-76 competition. Since we dismiss the protest on other
   grounds, we need not address this issue.

   [2] Mr. Henson's protest was also based on a challenge to a specific DOL
   employee's reduction in force (RIF) letter. Mr. Henson asserted that the
   RIF was part of the agency's improper implementation of the finance and
   accounting MEO. The agency responded that the individual who received the
   letter was not, in fact, part of the MEO at issue here, and that his job
   was not affected by this A-76 competition. The protester now concedes that
   the individual was not part of the MEO or the A-76 study at issue here.

   [3] Under this latter category, our Office has found that designated
   employee agents have standing to challenge an agency's decision to convert
   services to contractor performance without a competition. Gloria
   Kortum--Designated Employee Agent, B-311266, Apr. 15, 2008, 2008 CPD para.
   __.