B-211975, JUN 22, 1983
Highlights
DELLUMS HOUSE OF REPRESENTATIVES: THIS IS IN REPLY TO YOUR LETTER OF MAY 25. AFGE ALLEGES THAT THE MANPOWER LEVELS PROPOSED BY LSI ARE INADEQUATE FOR THE WORK TO BE PERFORMED. AFGE ALSO QUESTIONS THE DECISION THAT IN-HOUSE PERFORMANCE IS MORE COSTLY THAN THE CONTRACT AND ALSO ALLEGES LSI MAY HAVE HAD ADVANCE KNOWLEDGE OF THE AWARD. AFGE'S PROTEST IS AGAINST A DECISION MADE IN ACCORDANCE WITH OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. IS NOT A REGULATION. THESE DETERMINATIONS ARE REGARDED AS BEYOND THE SCOPE OF OUR BID PROTEST DECISION FUNCTION BECAUSE THE PROVISIONS OF A-76 ARE MATTERS OF EXECUTIVE BRANCH POLICY WHICH DO NOT CREATE LEGAL RIGHTS OR RESPONSIBILITIES. OUR REVIEW IS INTENDED TO PROTECT PARTIES THAT COMPETED FROM THE ARBITRARY REJECTION OF THEIR BIDS AND DOES NOT EXTEND TO NONBIDDERS.
B-211975, JUN 22, 1983
PRECIS-UNAVAILABLE
THE HONORABLE RONALD V. DELLUMS HOUSE OF REPRESENTATIVES:
THIS IS IN REPLY TO YOUR LETTER OF MAY 25, 1983, REGARDING A PROTEST BY THE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1157 (AFGE) AGAINST A CONTRACT AWARD TO LEAR SIEGLER, INC. (LSI), BY THE OAKLAND ARMY BASE (ARMY). AFGE ALLEGES THAT THE MANPOWER LEVELS PROPOSED BY LSI ARE INADEQUATE FOR THE WORK TO BE PERFORMED. AFGE ALSO QUESTIONS THE DECISION THAT IN-HOUSE PERFORMANCE IS MORE COSTLY THAN THE CONTRACT AND ALSO ALLEGES LSI MAY HAVE HAD ADVANCE KNOWLEDGE OF THE AWARD.
AFGE'S PROTEST IS AGAINST A DECISION MADE IN ACCORDANCE WITH OFFICE OF MANAGEMENT AND BUDGET (OMB) CIRCULAR NO. A-76 WHICH, CONTRARY TO AFGE'S ASSERTION, IS NOT A REGULATION. OUR OFFICE HAS REPEATEDLY DECLINED TO RENDER DECISIONS CONCERNING THE PROPRIETY OF AN AGENCY'S DETERMINATION UNDER A-76 TO CONTRACT OUT INSTEAD OF PERFORMING WORK IN HOUSE. THESE DETERMINATIONS ARE REGARDED AS BEYOND THE SCOPE OF OUR BID PROTEST DECISION FUNCTION BECAUSE THE PROVISIONS OF A-76 ARE MATTERS OF EXECUTIVE BRANCH POLICY WHICH DO NOT CREATE LEGAL RIGHTS OR RESPONSIBILITIES. TAXPAYERS GENERALLY AND FEDERAL EMPLOYEES OF FORT EUSTIS, VIRGINIA, B-210188, JANUARY 17, 1983, 83-1 CPD 52; LOCAL 276, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, B-194084, MARCH 28, 1979, 79-1 CPD 209.
WE CONSIDER PROTESTS INVOLVING AN ALLEGED FAULTY OR MISLEADING COST COMPARISON OF THE IN-HOUSE ESTIMATE WITH THE BIDS RECEIVED. SEE SERV AIR, INC.; AVCO, 60 COMP.GEN. 44 (1980), 80-2 CPD 317. IN THOSE CASES, HOWEVER, OUR REVIEW IS INTENDED TO PROTECT PARTIES THAT COMPETED FROM THE ARBITRARY REJECTION OF THEIR BIDS AND DOES NOT EXTEND TO NONBIDDERS. JOSEPH FELIX, B-210803, MARCH 14, 1983, 83-1 CPD 252; LOCALS 1857 AND 987, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, B-195733, B-196117, FEBRUARY 4, 1980, 80-1 CPD 89.
ACCORDINGLY, OUR OFFICE DOES NOT REVIEW PROTESTS BY FEDERAL EMPLOYEES AGAINST AGENCY DETERMINATIONS UNDER OMB CIRCULAR NO. A-76 TO CONTRACT FOR SERVICES RATHER THAN HAVE THEM PERFORMED IN-HOUSE.