Dan Duefrene; Kelley Dull; Brenda Neuerburg; Gabrielle Martin

B-293590.2,B-293590.3,B-293883,B-293887,B-293908: Apr 19, 2004

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Ralph O. White
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This decision addresses the standing of individuals and organizations representing inhouse competitors in public/private competitions conducted under Office of Management and Budget (OMB) Circular A-76 to protest agency decisions under the Circular to contract work out to the private sector, rather than to perform the work in-house.

In sum, we have reached the following conclusions. First, MEOs do not meet the current CICA definition of "interested parties," so that GAO must dismiss protests filed by MEOs. Second, in light of the public policy concerns weighing in favor of allowing MEOs to file bid protests, Congress may wish to amend CICA. Finally, any amendment to CICA to allow MEO protest standing should specify whether standing extends to ATOs, individual federal employees (either as individuals or with one or more individuals acting on behalf of all affected employees), and/or federal employees' union representatives.

B-293590.2; B-293590.3; B-293883; B-293887; B-293908, Dan Duefrene; Kelley Dull; Brenda Neuerburg; Gabrielle Martin, April 19, 2004



Decision


Matter of: Dan Duefrene; Kelley Dull; Brenda Neuerburg; Gabrielle Martin

File: B-293590.2; B-293590.3; B-293883; B-293887; B-293908

Date: April 19, 2004

Susan Tsui Grundman, Esq., National Federation of Federal Employees, for Dan Duefrene, and Martin R. Cohen, Esq., American Federal of Government Employees, for Kelley Dull, Brenda Neuerburg, and Gabrielle Martin, for the protesters.
Stephen M. Sorett, Esq., ReedSmith, for SERCO Management Services, Inc., an intervenor.
Daniel N. Hylton, Esq., Forest Service, John F. Ruoff, Esq., Defense Finance and Accounting Service, and Kathleen Oram, Esq., Equal Employment Opportunity Commission, for the agencies.
Michael R. Golden, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision.


DIGEST

Notwithstanding May 29, 2003 revisions to Office of Management and Budget Circular A-76, the in-house competitors in public/private competitions conducted under the Circular are not offerors and, therefore, under the current language of the Competition in Contracting Act of 1984, 31 U.S.C. 3551-56 (2000), no representative of an in-house competitor is an –interested party— eligible to maintain a protest before the General Accounting Office.


DECISION

This decision addresses the standing of individuals and organizations representing in'house competitors in public/private competitions conducted under Office of Management and Budget (OMB) Circular A-76 to protest agency decisions under the Circular to contract work out to the private sector, rather than to perform the work in-house.

DUEFRENE PROTEST

Dan Duefrene, Regional Vice President for Region 5, Forest Service Council, National Federation of Federal Employees (NFFE), protests the United States Department of Agriculture's (USDA) decision, pursuant to OMB Circular A-76, that it would be more economical to perform the fleet maintenance services for the Forest Service in the Pacific Southwest region by a contract awarded to SERCO Management Services, Inc. (SERCO) under request for proposals (RFP) No. R5SCO603058, rather than to have the services performed in-house.

The USDA conducted a standard competition under OMB Circular A-76, as revised on May 29, 2003, for these fleet maintenance services. On January 7, 2004, the USDA announced the standard competition performance decision and the contract award to SERCO. On January 20, NFFE, acting through Mr. Duefrene, filed an agency-level protest. On February 10, the USDA advised Mr. Duefrene that NFFE did not have standing as a –directly interested party—[1] to contest the standard competition. USDA Letter to Mr. Duefrene (Feb. 10, 2004). On February 17, NFFE protested the USDA's decision to our Office and challenged the agency's decision to contract out the work. Subsequently, Mr. Duefrene, as the elected representative of a majority of the affected employees, filed a protest with the USDA. On March 24, the USDA dismissed and denied the agency-level protest filed by Mr. Duefrene as the elected representative of the majority of the affected employees. On April 2, Mr. Duefrene filed a protest with our Office essentially appealing the USDA's March 24 decision. Thus, Mr. Duefrene, acting both as NFFE's representative and as the –directly interested party— representing a majority of the directly affected employees, protests the USDA's standard competition performance decision.

Regarding Mr. Duefrene's protests, the USDA and SERCO argue that Mr. Duefrene and NFFE lack standing to protest the agency's contract award to SERCO because neither is an interested party under the bid protest provisions of the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. 3551-56 (2000). NFFE primarily argues that based on the changes to the revised Circular, the employees affected by the decision to contract out the work meet the CICA definition of an interested party and that NFFE is the statutory representative designated by the majority of these employees directly affected by the agency's decision. In addition, NFFE argues that Mr. Duefrene is the directly interested party as defined under the revised Circular because he specifically was appointed by the majority of the affected employees to be their representative. Protest, Apr. 1, 2004, at 3. As discussed below, we conclude that there is no statutory basis for an in-house entity to file a protest at the General Accounting Office (GAO).

Our Office's statutory authority to hear bid protests is found in CICA, which establishes the standard for standing to file a protest by allowing a protest to be filed only by an –interested party— with respect to a contract or a solicitation or other request for offers, and then defines an –interested party— as –an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.— 31 U.S.C. 3551(2). See also Bid Protest Regulations, 4 C.F.R. 21.0(a) (2004). Under this definition of –interested party,— we have heard bid protests filed by private-sector firms that participated in cost comparisons under the Circular that preceded the May 29, 2003 revision, since a private firm participating in an A-76 competition is –an actual . . . offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.—



American Fed'n of Gov't Employees et al.

See also American Fed'n of Gov't Employees American Fed'n of Gov't Employees--Recon. American Fed'n of Gov't Employees v. United States



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see also




American Fed'n of Gov't Employees et al. See also American Fed'n of Gov't Employees American Fed'n of Gov't Employees--Recon. American Fed'n of Gov't Employees v. United States




Federal Register Federal Register



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[1] The revised Circular (May 29, 2003) provides that –a directly interested party— may contest certain enumerated agency actions –taken in connection with the standard competition.— Revised Circular, attach. B, F.1. The revised Circular further provides that –the pursuit of a contest by a directly interested party and the resolution of such contest by the agency shall be governed by the procedures of FAR [Federal Acquisition Regulation] Subpart 33.103.— Id. FAR 33.103 provides the procedures for filing and resolving agency-level protests.

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