B-400101, Jim Swistowicz--Designated Employee Agent, July 7, 2008
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
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,
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.
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
Mr. Swistowicz acknowledges
that section 326(a) of the act, as amended, limits his ability to protest
competitions initiated before
The protest is dismissed.
Gary L. Kepplinger
 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.
 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.