TITLE: B-400379, John Gage--Designated Employee Agent, August 4, 2008
BNUMBER: B-400379
DATE: August 4, 2008
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B-400379, John Gage--Designated Employee Agent, August 4, 2008

   Decision

   Matter of: John Gage--Designated Employee Agent

   File: B-400379

   Date: August 4, 2008

   John Gage, Designated Employee Agent, for the protester.
   Tony Washington, Esq., and Adeel Ahmed, Esq., Transportation Security
   Administration, for the agency.

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

   DIGEST

   Pursuant to statutory and regulatory limitations on this Office's
   jurisdiction to hear protests challenging Transportation Security
   Administration (TSA) procurements, this Office will not consider a protest
   challenging a TSA procurement conducted in connection with a solicitation
   issued prior to June 23, 2008.

   DECISION

   John Gage-Designated Employee Agent, National President of the American
   Federation of Government Employees, protests the Transportation Security
   Administration's (TSA) award of a contract to Lockheed Martin Integrated
   Systems, Inc. The contract was awarded to Lockheed on July 3, 2008,
   pursuant to solicitation No. HSTS01-08-HRM010 which was issued by TSA on
   October 18, 2007; the solicitation sought proposals to provide various
   human resources services. Gage asserts that the contract constitutes a
   direct conversion of activities performed by federal employees under
   Office of Management and Budget Circular No. A-76.

   We dismiss the protest.

   In 2001 Congress enacted the Aviation Transportation Security Act,
   relevant portions of which are set forth at 49 U.S.C. sect. 114 (2004
   Supp.), establishing the TSA as a new agency within the Department of
   Transportation and tasking it with broad transportation security
   responsibilities. Pursuant to 49 U.S.C. sect. 40110(d) (2005 Supp.), TSA
   procurements were subject to the Federal Aviation Administration's (FAA)
   acquisition management system and, because the statute also stipulated
   that procurements under that system are exempt from our bid protest
   jurisdiction, TSA procurements were not subject to protests filed at our
   Office pursuant to TSA's organic legislation.[1]

   Recent legislation effectively revised this Office's jurisdiction over
   protests challenging TSA procurements. Specifically, the Consolidated
   Appropriations Act, 2008 (CAA), Pub. L. No. 110-161, 121 Stat. 1844, was
   enacted on December 26, 2007. That law repealed TSA's authority to use the
   FAA's acquisition management system, made TSA subject to the Federal
   Acquisition Regulation (FAR), and effectively provided jurisdiction for
   our Office to consider protests challenging TSA procurements. The CAA
   further provided that the changes flowing from that legislation "shall
   take effect 180 days after the date of enactment of this Act." 121 Stat.
   2092. There is no dispute that June 23, 2008 was the 180^th day following
   enactment of the CAA.

   In implementing the CAA's legislative changes, the DHS published a rule
   providing that TSA acquisitions initiated after June 22, 2008 would be
   subject to the FAR. 73 Fed. Reg. 30,317 (2008). Similarly, and consistent
   with the DHS rule, this Office published proposed changes to our Bid
   Protest Regulations in March 2008 and, on June 9, 2008, issued the final
   rule changes, stating: "In light of the revised DHS regulations pertaining
   to the applicability of the FAR to TSA procurements, and in the interest
   of an orderly transition by TSA to FAR-based procurements, GAO will hear
   protests of TSA procurements covered by TSA solicitations issued on or
   after June 23." 73 Fed. Reg. 32,429.

   Here, Gage's protest challenges the award of a contract to Lockheed
   pursuant to a solicitation that was issued by TSA on October 18,
   2007--that is, more than 2 months prior to enactment of the CAA and more
   than 8 months prior to the effective date of that legislation. In pursuing
   this matter, Gage complains that, in addition to engaging in a direct
   conversion of activities performed by federal employees, TSA intends to
   improperly increase the scope of services Lockheed will perform beyond the
   services contemplated by the solicitation, specifically to include
   performance of human resource services at DHS headquarters.

   We view the protest, including the argument regarding the scope of the
   services to be performed, as challenging TSA's actions pursuant to the
   October 18 solicitation and, as such, outside of our jurisdiction. In
   short, consistent with the legislative provisions of TSA's organic
   legislation, as subsequently amended by the CAA, along with this Office's
   announcement that we would begin hearing protests challenging TSA
   procurements covered by TSA solicitations issued on or after June 23, our
   protest jurisdiction does not extend to Gage's protest which challenges
   TSA's contract award pursuant to a solicitation issued prior to June 23.

   The protest is dismissed.

   Gary L. Kepplinger
   General Counsel

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   [1] In 2002, TSA was transferred to the Department of Homeland Security
   (DHS) pursuant to the Homeland Security Act of 2002, Pub. L. 107-296, 116
   Stat. 2135, 2173 (2002); however, that Act did not alter TSA's authority
   to conduct procurements pursuant to the FAA's acquisition management
   system or TSA's exemption from our bid protest jurisdiction.