TITLE: B-400405, Carahsoft Technologies Corporation and Avue Technologies Corporation, August 4, 2008
BNUMBER: B-400405
DATE: August 4, 2008
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B-400405, Carahsoft Technologies Corporation and Avue Technologies Corporation, August 4, 2008

   Decision

   Matter of: Carahsoft Technologies Corporation and Avue Technologies
   Corporation

   File: B-400405

   Date: August 4, 2008

   Mark Fox Evens, Esq., Byron L. Pickard, Esq., and Justin T. Sher, Esq.,
   Sterne, Kessler, Goldstein & Fox PLLC, for the protester.
   Virginia Farrier, Esq., Adeel Ahmed, Esq., and David R. Cutler, 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

   Carahsoft Technologies Corporation and Avue Technologies Corporation
   (Carahsoft/Avue) protest the Transportation Security Administration's
   (TSA) award of a contract to Lockheed Martin Integrated Systems, Inc.
   pursuant to solicitation No. HSTS01-08-HRM010. The solicitation was issued
   by TSA on October 18, 2007, seeking a contractor to provide various human
   resource services. Carahsoft/Avue protest various aspects of the agency's
   source selection decision.

   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, Carahsoft/Avue'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. Among other
   things, Carahsoft/Avue's protest complains that, according to a July 3,
   2008 press release, 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[2] 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 Carhsoft/Avue's protest which
   challenges TSA's contract award pursuant to a solicitation issued prior to
   June 23.

   The protest is dismissed.[3]

   Gary L. Kepplinger
   General Counsel

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

   [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.

   [2] Carahsoft/Avue's protest specifically states that it is "protest[ing]
   the Transportation Security Administration's (`TSA') July 7, 2008 award of
   the contract to Lockheed Martin Integrated Systems, Inc. (`Lockheed')
   based on Solicitation No. HSTS01-08-HRM010 (`Solicitation') for the
   Integrated Hiring Operations & Personnel (`IHOP') issued by TSA on October
   18, 2007." Protest at 1-2.

   [3] We note that the protester states that:

     Insofar as the GAO lacks jurisdiction and such jurisdiction instead is
     possessed by the Office of Dispute Resolution for Acquisition at the
     Federal Aviation Administration ("FAA"), Carahsoft/Avue has, out of an
     abundance of caution and to preserve its rights, filed a substantially
     identical protest with the FAA.

   Protest at 7-8.