Bruce Bancroft--Agency Tender Official; Sam Rodriguez--Designated Employee Agent
B-400404.2,B-400404.3,B-400404.5: Oct 31, 2008
- Full Report:
Bruce Bancroft, the agency tender official (ATO) for the U.S. Marine Corps Installation West's tender in a public-private competition under Office of Management and Budget (OMB) Circular A-76, and Sam Rodriquez--Designated Employee Agent, President of the American Federation of Government Employees Local 1881, protest various aspects of the pending competition being conducted by the Naval Facilities Engineering Command, Department of the Navy, for bulk fuel storage and distribution services at the Marine Corps Air Station, Miramar, California. The ATO and Rodriquez primarily argue that the Navy failed to complete the A-76 competition within the required statutory timeframe and thereby violated the associated limitation on expenditure of appropriated funds; the ATO also separately contends that the Navy cannot undertake the planned corrective action regarding its original selection decision of offeror Phoenix Management, Inc. (PMI) because, by the agency's own count, it is now beyond the statutory time period for completion of the A-76 competition study.
We dismiss the protests on the basis that the protesters do not qualify as "interested parties," as defined by applicable statute.
B-400404.2; B-400404.3; B-400404.5, Bruce Bancroft--Agency Tender Official; Sam Rodriquez--Designated Employee Agent, October 31, 2008
Agency tender official and designated employee agent are not interested parties to protest agency actions other than final selection of the source of performance with regard to a pending public-private competition being conducted pursuant to Office of Management and Budget Circular A-76 that was initiated prior to
Bruce Bancroft, the agency tender official (
The protests filed by the
On September 12, the Navy announced its intent to take certain corrective action with regard to the protests. Specifically, the Navy plans to amend the RFP, permit the submission of revised proposals and agency tender, evaluate the revised submissions, and make a new source selection determination. Agency Letter to GAO,
Under the bid protest provisions of the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. sections 3551-56 (2000 and Supp. IV 2004), only an interested party may protest a federal procurement to our Office. This issue of whether the ATO and federal employees qualify as interested parties for the purpose of protesting public-private competitions conducted pursuant to OMB Circular A-76 has a lengthy history. In 2004, we concluded that an in-house competitor in an A-76 competition did not meet the statutory definition of interested party, Dan Duefrene et al., B-293590.2 et al., Apr. 19, 2004, 2004 CPD para. 82 at 4-5, and subsequently expressed our view that it is for Congress to determine the circumstances under which an in-house entity has standing to protest the conduct of an A-76 competition. See 70 Fed. Reg. 19,679 (
Following our decision in Dan Duefrene, Congress expanded the definition of interested party. Specifically, under the Ronald Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, sect. 326(a)(2), 118 Stat. 1811, 1848 (2004), the
Section 326(d) of the NDAA, entitled Applicability, also specifically identified the type of protests to which the new definition of interested party was applicable, stating that the definition shall apply to:
(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 . . . on or after the date of the enactment of this Act [January 28, 2008].
Pub. L. No. 110-181, 122 Stat. 63.
For the reasons set forth below, we conclude that neither the
Further, neither the
In sum, as the remaining protest issues do not involve challenges to the Navy's final selection of the source of performance, and the study here was initiated before
The protests are dismissed.
Gary L. Kepplinger
 As discussed in detail below, recently enacted changes to our bid protest statute grant interested party status to any one individual who has been designated as the agent of federal employees for purposes of representing them in a public-private competition, or for purposes of arguing that a public-private competition is required under the circumstances presented. Hence, we have adopted the term designated employee agent to refer to both the protester and the person selected to represent federal employees in these challenges. See Mark Whetstone--Designated Employee Agent, B-311284,
 OMB Circular A-76 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 award to a private-sector offeror or enters into a letter of obligation with the agency official responsible for performance of the MEO.
 The RFP, like the earlier February 7 notice, also described the A-76 competition as involving a multi-function study. See RFP sect. C.1.3.
 Under the A-76 process, the agency tender was not in direct competition with
 During all periods relevant to this protest, the annual Defense Appropriations Acts contained language as follows:
None of the funds appropriated by this Act shall be available to perform any cost study pursuant to the provisions of OMB Circular
A-76 if the study being performed exceeds a period of 24 months after initiation of such study with respect to a single function activity or 30 months after initiation of such study for a multi-function activity.
Department of Defense Appropriations Act, 2005, Pub. L. No. 108-287, sect. 8022, 118 Stat. 951, 975 (2004); Department of Defense Appropriations Act, 2006, Pub. L. No. 109-148, sect. 8021, 119 Stat. 2680, 2703 (2005); Department of Defense Appropriations Act, 2007, Pub. L. No. 109-289, sect. 8019, 120 Stat. 1257, 1277 (2006); Department of Defense Appropriations Act, 2008, Pub. L. No. 110-116, sect. 8021, 121 Stat. 1295, 1319 (2007).
 The A-76 Circular states, in relevant part:
A standard competition shall not exceed 12 months from public announcement (start date) to performance decision (end date) unless the [agency competitive sourcing official (CSO)] (without delegation) grants a time limit waiver. Before the public announcement of each standard competition, the CSO may grant a time limit waiver, in writing, allowing a specific standard competition to exceed the 12 month time limit by no more than 6 months, for a maximum of 18 months from public announcement (start date) to performance decision (end date) . . . . If an agency exceeds these time limits, including any extension that is the subject of the CSO's waiver, the CSO (without delegation) shall notify the Deputy Director for Management, OMB, in writing.
OMB Circular A-76, attach. B-6.
 In its report to our Office (submitted before the decision to take corrective action), the Navy disputes the alleged failure to complete the study within applicable timeframes. Specifically, the Navy argues that it completed the multi-function study here within the applicable 30-month statutory timeframe as measured from the
 In fact, both the