TITLE: B-400101, Jim Swistowicz--Designated Employee Agent, July 7, 2008
BNUMBER: B-400101
DATE: July 7, 2008
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B-400101, Jim Swistowicz--Designated Employee Agent, July 7, 2008

   Decision

   Matter of: Jim Swistowicz--Designated Employee Agent

   File: B-400101

   Date: July 7, 2008

   Jim Swistowicz, Designated Employee Agent, for the protester.
   Vera Meza, Esq., U.S. Army Materiel Command, for the agency.
   Paul E. Jordan, Esq., and John M. Melody, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Protester, Designated Employee Agent for federal labor union, is not an
   interested party with standing to challenge agency's decision to conduct
   public-private competition under Office of Management and Budget Circular
   A-76, where the competition was initiated prior to January 28, 2008.

   DECISION

   Jim Swistowicz--Designated Employee Agent, President of the American
   Federation of Government Employees (AFGE) Local 1808, protests the
   Department of the Army's issuance of request for proposals (RFP) No.
   W56HZV-08-R-A0005, for base support, supply, and maintenance operations at
   Sierra Army Depot, Herlong, California. Mr. Swistowicz asserts that this
   procurement--a public-private competition under Office of Management and
   Budget (OMB) Circular A-76--is improper because OMB is statutorily
   prohibited from requiring an agency to prepare for, undertake, continue,
   or complete a public-private competition.

   We dismiss the protest on the basis that the protester is not an
   interested party.

   This is a recompetition of an A-76 procurement conducted in 2000,
   resulting in award to a "most efficient organization" composed of some
   91 federal and 41 contractor employees. On September 14, 2007, the Army
   published an announcement on the Federal Business Opportunities
   (FedBizOpps) Internet website, stating its intent to conduct a standard
   competition for this requirement in accordance with the revised Circular
   A-76. Among other things, the September 14 notice stated that "the date of
   this public announcement is the official start date for this
   public-private competition." Thereafter, on April 14, 2008, the Army
   issued an RFP with a closing date of May 29. On April 24, Mr. Swistowicz
   filed this protest challenging the agency's decision to conduct the
   competition. He argues that, under the National Defense Authorization Act
   for Fiscal Year 2008, Pub. L. No. 110-181, section 323, 122 Stat. 3, 60
   (2008), codified at 10 U.S.C. sect. 2461(a)(4), this procurement is
   improper because OMB is prohibited from requiring a military department or
   defense agency to conduct a public-private competition under Circular A-76
   at the end of the performance period specified in a letter of obligation
   or other agreement entered into with Department of Defense civilian
   employees pursuant to a public-private competition. Mr. Swistowicz also
   asserts that the solicitation is flawed because it fails to list health
   and retirement benefits as a source selection factor, as required by the
   act, Pub. L. No. 110-181, section 322, 122 Stat. at 58, codified at 10
   U.S.C. sect. 2461(a)(1)(G).

   In addition to the referenced provisions (and other provisions not
   relevant here), section 326 of the National Defense Authorization Act for
   Fiscal Year 2008, codified at 31 U.S.C. sect. 3551(2), amended the
   definition of an interested party eligible to file a protest with our
   Office to include:

     (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)(B)(ii).

   Mr. Swistowicz states that he has been designated as agent by a majority
   of the federal employees affected by the agency's actions. Protest at 1.
   However, while this fact would be sufficient for Mr. Swistowicz to meet
   the above definition, under a provision entitled APPLICABILITY, the act
   identifies the actions to which the amended provision extends as follows:

     (1) a protest or civil action that challenges final selection of the
     source of performance of an activity or function of a Federal agency
     that is made pursuant to a study initiated under Office of Management
     and Budget Circular A-76 on or after January 1, 2004; and

     (2) any other protest or civil action that relates to a public-private
     competition initiated under Office of Management and Budget Circular
     A-76, or to 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, on or after the date of
     the enactment of this Act.

   Pub. L. No. 110-181, sect. 326(d), 122 Stat. at 63.

   As indicated above, the public announcement date or "start date" for the
   current competition was September 14, 2007, prior to the January 28, 2008
   date of enactment of the act. We have held, under similar circumstances,
   that the date on which a public-private competition is initiated is the
   date identified as the "start date" in the agency's public announcement.
   James C. Trump, B-299370, Feb. 20, 2007, 2007 CPD para. 40. That decision
   concerned an agency tender official (ATO) who protested a Circular A-76
   public-private competition shortly after ATOs were defined as interested
   parties by the Ronald W. Reagan National Defense Authorization Act for
   Fiscal Year 2005, Pub. L. No. 108-375, section 326(a)(2), 118 Stat. 1811,
   1848. As with the act here, that act's "applicability" section provided
   that the amendments in question applied to protests "initiated" after the
   date of enactment of the act. Id. at 2-3. As also is the case here, the
   indicated "start date" of the protested competition was prior to the
   effective date set for applicability of the provision defining ATOs as
   interested parties. We concluded that the procurement had been initiated
   prior to the effective date of the act, and that Mr. Trump therefore was
   not an interested party for purposes of protesting the agency's actions.
   Id. at 3-4. Similarly, here, since the "start date" of the procurement was
   prior to the effective date of the act, Mr. Swistowicz does not qualify as
   an interested party to challenge the agency's decision to conduct the
   public-private competition in issue or the terms of the solicitation. [1]

   Mr. Swistowicz acknowledges that section 326(a) of the act, as amended,
   limits his ability to protest competitions initiated before January 28,
   2008, and agrees that this competition was initiated prior to that date.
   He asserts, however, that his protest should not be dismissed because he
   is challenging a source selection and, under the act, he is an interested
   party to challenge the source selection of any competition initiated after
   January 1, 2004. While the protester is correct regarding his standing to
   challenge a source selection, no selection has yet been made here. Thus,
   the protest in this regard is premature, and not for our consideration at
   this time. Sun Chem. Corp., B-288466 et al., Oct. 17, 2001, 2001 CPD
   para. 185 at 13. [2]

   The protest is dismissed.

   Gary L. Kepplinger
   General Counsel

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

   [1] For the record, although the protester does not rely on the
   earlier-enacted 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 protester
   is not an interested party under an analysis of this statute either. The
   "start date" of this procurement preceded enactment of the Consolidated
   Appropriations Act as well.

   [2] Mr. Swistowicz requests that we declare that all of his protest issues
   will be considered timely filed if brought following the source selection.
   Comments at 2. We will address the timeliness of any issues raised in a
   subsequent protest at the time of that protest.