TITLE: B-400153, Gary M. Williamson--Agency Tender Official, August 1, 2008
BNUMBER: B-400153
DATE: August 1, 2008
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B-400153, Gary M. Williamson--Agency Tender Official, August 1, 2008

   Decision

   Matter of: Gary M. Williamson--Agency Tender Official

   File: B-400153

   Date: August 1, 2008

   Iris Miranda-Kirschner, Esq., Department of the Air Force, for the
   protester.

   Gary R. Allen, Esq., Department of Air Force, Headquarters Air Force Legal
   Operations Agency, for the agency.

   Brent Reynolds, Designated Employee Agent, an intervenor.

   Glenn G. Wolcott, Esq., and Ralph O. White, Esq., Office of the General
   Counsel, GAO, participated in the preparation of the decision.

   DIGEST

   Agency tender official is not an interested party to protest agency
   actions other than final selection of the source of performance with
   regard to a pending public-private competition, to be conducted pursuant
   to Office of Management and Budget Circular No. A-76, that was initiated
   prior to enactment of the National Defense Authorization Act of 2008.

   DECISION

   Gary M. Williamson, the designated agency tender official (ATO) for the
   U.S. Air Force Mobility Command's tender in a public-private competition
   to be conducted pursuant to Office of Management and Budget (OMB) Circular
   No. A-76, protests various actions taken by the agency in preparation for
   release of solicitation No. FA4452-08-R-0008 that was issued in connection
   with the pending competition.[1] The ATO asserts that, in preparing to
   conduct the A-76 competition, the agency improperly released to other
   potential offerors certain cost and staffing information about the
   in-house organization currently performing the activities to be competed.

   We dismiss the protest on the basis that the ATO does not qualify as an
   "interested party," as defined by applicable statute.

   BACKGROUND

   The record establishes that, on August 9, 2007, the Air Force publicly
   announced its initiation of the the A-76 study at issue here through
   publication on the federal business opportunities (FedBizOpps) Internet
   website. Agency Report (AR), Tab 8; see James C. Trump, B-299370, Feb. 20,
   2007, 2007 CPD para. 40 at 2-3 (public announcement on FedBizOpps
   constitutes initiation of an A-76 competition). Thereafter, on August 14,
   the Air Force posted a competitive source decision package (CSDP) on
   FedBizOpps that contained certain information regarding costs and staffing
   related to the current in-house performance of the PMEL requirements. AR,
   Tab 9, at 2.

   The ATO maintains that the information released in the CSDP was
   proprietary to the in-house organization currently performing the PMEL
   requirements. Accordingly, the ATO asserts that the pending A-76
   competition should be canceled and that in-house performance of the PMEL
   functions should continue without further competition.

   DISCUSSION

   Under the bid protest provisions of the Competition in Contract Act of
   1984 (CICA), 31 U.S.C. sections 3551-3556 (2000 and Supp. IV 2004), only
   an "interested party" may protest a federal procurement. The issue of
   whether federal employees qualify as "interested parties" for the purpose
   of protesting public-private competitions conducted pursuant to OMB
   Circular No. A-76 has a lengthy history. In 2004 this Office concluded
   that an in-house competitor in an A-76 competition did not meet the
   statutory definition of an "interested party," Dan Duefrene et al.,
   B-293590.2 et al., Apr. 19, 2004, 2004 CPD para. 82 at 4-5, and
   subsequently expressed our view that "it is for Congress to determine the
   circumstances under which an in-house entity has standing to protest the
   conduct of an A-76 competition." See 70 Fed. Reg. 19,679 (Apr. 14, 2005);
   Mark Whetstone--Designated Employee Agent, B- 311284, May 9, 2008, 2008
   CPD para. 93 at 4.

   Following our decision in Dan Duefrene, Congress expanded the definition
   of an "interested party" to include the official responsible for
   submitting the federal agency tender in an A-76 competition with regard to
   an activity or function performed by more than 65 full-time equivalent
   employees of the federal agency. Ronald W. Reagan National Defense
   Authorization Actor for Fiscal Year 2005, Pub. L. No. 108-375, 118 Stat.
   1811, 1848 (2004).

   On January 28, 2008, the President signed the National Defense
   Authorization Act of Fiscal Year 2008 (NDAA) into law. Pub. L. No.
   110-181, 122 Stat. 3 (2008). Among other things, the NDAA again amended
   the statutory definition of "interested party," this time, deleting the
   provision that limited an ATO's interested party status to protests
   regarding "an activity or function of a Federal agency performed by more
   than 65 full-time equivalent employees of the Federal Agency." Pub. L. No.
   110-181, 122 Stat. 62. However, section 326(d) of the NDAA, titled
   "Applicability," also specifically identified the type of protests to
   which the new definition of "interested party" was applicable, stating
   that the definition "shall apply" to:

     (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 . . . on or after the date of the enactment of this Act.

   Pub. L. No. 110-181, 122 Stat. 63.

   On June 20, 2008, the Air Force requested that we dismiss the ATO's
   protest here, noting that the protest does not challenge the final
   selection of the source of performance, but rather challenges the agency's
   disclosure of information in connection with an A-76 competition that was
   initiated in August 2007, prior to enactment of the NDAA. Accordingly, the
   agency maintains that neither of the "Applicability" provisions in section
   326(d) of the NDAA provide interested party status to the ATO for purposes
   of challenging the agency's actions in this matter. We agree.

   As the agency first points out, the ATO does not qualify as an "interested
   party" under section 326(d)(1) of the NDAA--that is, the protest does not
   challenge the "final selection of the source of performance" pursuant to
   an A-76 study initiated after January 1, 2004. Rather, the protest
   challenges agency actions taken in preparation for publication of the
   solicitation--that is, actions other than the final selection of the
   source of performance. Accordingly, section 326(d)(1) of the NDAA does not
   provide a basis to apply that Act's definition of "interested party" to
   the ATO in this matter.

   Similarly, the agency points out that the ATO does not qualify as an
   "interested party" under the criteria established in section 326(d)(2) of
   the NDAA--that is, the protest does not "relate to a public-private
   competition initiated . . . on or after the date of the enactment of this
   Act [January 28, 2008]." Rather, the protest relates to a competition that
   was initiated in August 2007--several months prior to the January 28, 2008
   enactment of the NDAA. Accordingly, section 326(d)(2) of the NDAA does not
   provide a basis to apply the Act's definition of "interested party" to the
   ATO in this matter.

   In short, the protest does not fit within either situation that triggers
   applicability of the NDAA's "interested party" definition. Accordingly, we
   must conclude that the ATO does not qualify as an "interested party" to
   protest the agency's actions taken in connection with the pending
   public-private competition.[2]

   The protest is dismissed.

   Gary L. Kepplinger
   General Counsel

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

   [1] The solicitation contemplates submission of proposals to provide
   precision measurement equipment laboratory (PMEL) services for various Air
   Force bases.

   [2] We note that, even if the prior statutory definition of "interested
   party" were applied to this protest, the ATO would not qualify because,
   under the prior definition, an ATO had standing as an "interested party"
   to file a protest only with regard to an A-76 competition involving a
   function performed by more than 65 full-time equivalent federal agency
   employees. Here, the agency's CSDP specifically stated that the function
   to be competed "encompasses 34 full time equivalents (FTEs)." Agency
   Report, Tab 9, at 2.