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
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[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.