Rhonda Podojil--Agency Tender Official
B-311310, May 9, 2008
Rhonda Podojil, the agency tender official (ATO) for the U.S. Army Medical Command tender in a public-private competition under Office of Management and Budget (OMB) Circular A-76, protests the Army's decision to procure nutrition care services at 10 military treatment facilities in the United States through a contract awarded to Sodexho Management, Inc. under request for proposals (RFP) No. W81K04-07-R-0016, rather than continuing to have those services performed in-house by government employees.
We dismiss the protest as untimely.
B-311310, Rhonda Podojil--Agency Tender Official, May 9, 2008
Protest by agency tender official (
Rhonda Podojil, the agency tender official (
The Army performed an initial evaluation of the agency tender and found its proposed approach to be technically unacceptable. Through written discussions with the
On February 12, utilizing the OMB A-76 COMPARE software, the Army compared the cost of in-house performance (based on the technically acceptable agency tender) with the cost of private-sector performance (based on the price proposed by Sodexho, which had submitted the lowest-priced technically acceptable private- sector proposal). The software adjusts the cost of in-house performance and the private-sector price to include, for example, the addition of a conversion differential to the private-sector price, calculated as the lesser of 10 percent of the MEO's personnel-related costs or $10 million. OMB Cir. A'76, Attach. B para. D.5.a(4)(c). Sodexho's price as adjusted by the COMPARE software was determined to be $4,739,463 less than the protester's cost of $70,403,570. The
Our Bid Protest Regulations contain strict rules for the timely submission of protests. These timeliness rules reflect the dual requirements of giving parties a fair opportunity to present their cases and resolving protests expeditiously without disrupting or delaying the procurement process. Professional Rehab. Consultants, Inc., B-275871,
In addressing the timeliness of the
Since the allegedly higher standards were conveyed by the Army through discussions, the
As stated previously, this exception applies only where the debriefing provided is in connection with a procurement conducted on the basis of competitive proposals under which a debriefing is requested and, when requested, is required. 4 C.F.R. sect. 21.2(a)(2). In addressing this question, we note that the term competitive proposals is not defined by our Bid Protest Regulations, nor by statute or regulation. See Systems Plus, Inc. v.
Here, consistent with the A-76 competition process, the Army expressly incorporated and used FAR Part 15 procedures as the framework for the A-76 competition. In this regard, pursuant to the competition process established by the Circular, the Army issued a solicitation seeking proposals (the RFP), which provided for a lowest'priced, technically acceptable source selection in accordance with FAR sect. 15.101-2. The Army held discussions with the protester and private-sector offerors in accordance with FAR sect. 15.306, which resulted in revisions to the agency tender and private-sector proposals consistent with FAR sect. 15.307, and after announcing the results of the cost comparison, consistent with FAR Part 15, the Army provided the protester and Sodexho, at their request, with debriefings. As a consequence, we conclude that the A-76 competition here was conducted on the basis of competitive proposals.
The next question is whether the debriefing was a required debriefing for the purpose of applying our timeliness rules. In this regard, when a contract is awarded on the basis of competitive proposals, 10 U.S.C. sect. 2305(b)(5)(A), implemented through FAR sect. 15.506(a)(1), provides that an unsuccessful offeror, upon written request received by the agency within 3 days after the date on which the unsuccessful offeror receives the notification of the contract award, shall be debriefed and furnished the basis for the selection decision and contract award. The agency and intervenor argue that the debriefing which the contracting officer provided the
In addressing the specific question of whether the debriefing at issue was a required debriefing for the purpose of establishing timeliness, we first address the general assertion by the agency and the intervenor that debriefings are not required in the context of an A-76 competition. We reject this contention for the simple reason that the statutory debriefing requirements established by 10 U.S.C. sect. 2305(b) and FAR Part 15 hinge on whether an agency is making an award on the basis of competitive proposals. Where an agency makes its selection decision under an A-76 competition on the basis of competitive proposals, as in this case, we think that the statutory and regulatory debriefing scheme is invoked, notwithstanding the more limited debriefing guidance set forth in the Circular.
Turning to the question of whether the public-sector competitor in an A-76 competition can rely on the debriefing exception to our timeliness rules for the purpose of establishing the timeliness of its protest at our Office despite the fact that it is not technically an offeror, we note that the standing of the public-sector competitor to protest public-private competitions conducted pursuant to A-76 has a lengthy history. In addressing the various issues in this regard, GAO has consistently recognized the importance of establishing, in the conduct of A-76 competitions, a level playing field between public and private-sector competitors, a principle unanimously agreed to by the Congressionally-chartered Commercial Activities Panel. Commercial Activities Panel, Final Report: Improving the Sourcing Decisions of the Government (Apr. 2002) at 10 (stating [t]he Panel believes that in order to promote a more level playing field on which to conduct public-private competitions, the government needs to shift . . . to a FAR-type process under which all parties compete under the same set of rules).
Consistent with this principal, it is our intent to apply our timeliness rules to public' and private-sector protesters of A-76 competitions in an even-handed manner. As a consequence, where an agency conducts an A-76 competition on the basis of competitive proposals, as in this case, thereby triggering the debriefing requirements established by statute and the FAR, we will interpret those provisions as applying equally to public-sector competitors for the purpose of invoking the debriefing exception to our timeliness rules.
For the same reason, however, when protesting the results of an A-76 competition, in order to fall within the debriefing exception to our timeliness rules, a public-sector competitor, like its private-sector counterpart, will be held to compliance with the rules necessary to establish its debriefing as a required debriefing. As noted above, a debriefing is only required where it is timely requested--within 3 days of receiving notice of the award decision. In this case, the
The protest is dismissed.
Gary L. Kepplinger
 The 10 military treatment facilities are located at Forts Eustis, Gordon, Irwin,
 The Circular establishes the standard competition procedures at Attachment B, Section D. Under this process, the agency issues a solicitation, obtains offers from private-sector firms and an agency tender (which includes a staffing plan--referred to by the Circular as a most efficient organization (MEO)), performs a source selection, and then, based on the results of the competition, either makes an award to a private-sector offeror or enters into a letter of obligation with an agency official responsible for performance of the MEO.
 Under the A-76 process, the agency tender does not directly compete against Sodexho's proposal until the final cost comparison stage of the study process. Nevertheless, the agency tender was required to include a technical proposal identifying its approach to accomplishing the agency's requirements as established by the RFP, and the Army evaluated the agency tender concurrently with the private sector proposals.
 Throughout, the Circular directs agencies to follow the procedures established under FAR Part 15. See, e.g., OMB Cir. A-76, Attach. B, paras. A.8.e, D.2.c, D.3.a(2), D.4.a(3), D.5.b(1), D.5.b(2), D.5.b(3), D.5.c(2), D.5.c(4), D.6.c, D.6.d, and Attach. D, at D-7.
 We question whether the Circular's reference to the award notice requirements of FAR sect. 15.503 in connection with debriefings under the Circular may in fact have been a drafting error. Preceding its discussion of debriefings, the Circular expressly requires agencies to announce the results of a competition conducted using competitive proposals through FedBizOpps, providing the limited information required under FAR sect. 15.503(b). It would seem redundant to then have agencies offer debriefings to A-76 competitors which provide them only with the same information the agency had previously posted on FedBizOpps.