B-216618, JUL 9, 1985, 64 COMP.GEN. 670
Highlights
TRANSPORTATION - TRAVEL AGENCIES - USE APPROVED AGENCY'S COMPETITIVE SELECTION OF A CONTRACTOR TO MAKE TRAVEL ARRANGEMENTS FOR FEDERAL EMPLOYEES IS EXEMPT FROM THE PROCUREMENT STATUTES SINCE THE CONTRACTUAL ARRANGEMENT IS ONLY A MANAGEMENT VEHICLE TO OBTAIN TRAVEL SERVICES WHICH THEMSELVES ARE EXEMPT FROM PROCUREMENT PROCEDURES. INSTEAD THE CONTRACTOR IS PAID COMMISSIONS FROM COMMON CARRIERS THAT USE THE CONTRACTOR AS ITS AGENT TO SELL TICKETS TO THE GOVERNMENT. THE ARMY ASSERTS THAT UNDER THIS ARRANGEMENT THERE IS NO EXPENDITURE OF APPROPRIATED FUNDS TO OBTAIN THE SERVICES OF A CONTRACTOR AND. IT CONCLUDES THAT GAO DOES NOT HAVE JURISDICTION TO CONSIDER THIS MATTER. TRAVEL SERVICES WERE NOT ACQUIRED THROUGH GOVERNMENT PROCUREMENT PROCEDURES.
B-216618, JUL 9, 1985, 64 COMP.GEN. 670
TRANSPORTATION - TRAVEL AGENCIES - USE APPROVED AGENCY'S COMPETITIVE SELECTION OF A CONTRACTOR TO MAKE TRAVEL ARRANGEMENTS FOR FEDERAL EMPLOYEES IS EXEMPT FROM THE PROCUREMENT STATUTES SINCE THE CONTRACTUAL ARRANGEMENT IS ONLY A MANAGEMENT VEHICLE TO OBTAIN TRAVEL SERVICES WHICH THEMSELVES ARE EXEMPT FROM PROCUREMENT PROCEDURES.
MATTER OF: MOORMAN'S TRAVEL SERVICE, INC., JULY 9, 1985:
MOORMAN'S TRAVEL SERVICE, INC. (MTS), PROTESTS THE AWARD OF A CONTRACT TO ANTHONY-BENNETT TRAVEL, INC. (ABT), UNDER REQUEST FOR PROPOSALS NO. DAABO7 -84-R-Q022, ISSUED BY THE UNITED STATES ARMY TANK AUTOMOTIVE COMMAND (TACOM), FOR TRAVEL MANAGEMENT SERVICES AT THE TACOM FACILITY IN WARREN, MICHIGAN. THIS NO-COST, NO-FEE CONTRACT COVERS ALL RESERVATIONS, TICKETS, CAR RENTALS AND RELATED SERVICES TO MEET THE OFFICIAL GOVERNMENT TRAVEL REQUIREMENTS OF TACOM PERSONNEL.
WE DISMISS THE PROTEST.
MTS CONTENDS THAT THE AGENCY IMPROPERLY EVALUATED THE MTS AND ABT PROPOSALS AND IMPROPERLY FAILED TO CONDUCT DISCUSSIONS. HOWEVER, AS AN INITIAL MATTER, THE AGENCY QUESTIONS OUR JURISDICTION TO CONSIDER THIS PROTEST. THE ARMY EXPLAINS THAT TACOM DOES NOT PAY THE CONTRACTOR FOR SUPPLYING TRAVEL MANAGEMENT SERVICES, BUT INSTEAD THE CONTRACTOR IS PAID COMMISSIONS FROM COMMON CARRIERS THAT USE THE CONTRACTOR AS ITS AGENT TO SELL TICKETS TO THE GOVERNMENT. THUS, THE ARMY ASSERTS THAT UNDER THIS ARRANGEMENT THERE IS NO EXPENDITURE OF APPROPRIATED FUNDS TO OBTAIN THE SERVICES OF A CONTRACTOR AND, THEREFORE, IT CONCLUDES THAT GAO DOES NOT HAVE JURISDICTION TO CONSIDER THIS MATTER.
PRIOR TO APRIL 1984, OUR OFFICE FOR MANY YEARS GENERALLY PROHIBITED THE USE OF COMMERCIAL TRAVEL AGENTS TO PROCURE OFFICIAL GOVERNMENT TRAVEL. C.F.R. SEC. 52.3 (1980). PRIOR TO THAT DATE, AGENCIES GENERALLY ACQUIRED TRAVEL MANAGEMENT SERVICES THROUGH THE ESTABLISHMENT OF SCHEDULED AIRLINE TRAFFIC OFFICES (A CARRIER-SPONSORED TICKET OFFICE), THE USE OF IN-HOUSE OFFICES OR BY DEALING DIRECTLY WITH INDIVIDUAL CARRIERS. IN APRIL 1984, OUR OFFICE LIFTED THE PROHIBITION ON THE USE OF COMMERCIAL TRAVEL AGENTS. 49 FED.REG. 17,721 (1984). SINCE, GENERALLY, TRAVEL SERVICES WERE NOT ACQUIRED THROUGH GOVERNMENT PROCUREMENT PROCEDURES, THE QUESTION OF THE APPLICATION OF PROCUREMENT PROCEDURES TO THE PURCHASE OF TRAVEL AND OF OUR JURISDICTION TO CONSIDER PROTESTS AGAINST ACQUISITION OF TRAVEL MANAGEMENT SERVICES NEVER AROSE PRIOR TO THE LIFTING OF THE PROHIBITION ON TRAVEL AGENT USE.
IN TWO RECENT DECISIONS, T. V. TRAVEL, INC.; WORLD TRAVEL ADVISOR, INC; DISCOVERY TOUR WHOLESALERS, INC., B-218198, ET AL., JUNE 25, 1985, 85-1 CPD PARA. ***, AND OMEGA WORLD TRAVEL, INC.; SOCIETY OF TRAVEL AGENTS IN GOVERNMENT, INC., B-218025, B-218025.2, MAY 23, 1985, 64 COMP.GEN. 551, 85-1 CPD PARA. 590, OUR OFFICE HAS DECIDED THE ISSUE OF JURISDICTION IN PROTESTS INVOLVING CONTRACTS FOR TRAVEL MANAGEMENT SERVICES. IN THESE DECISIONS, WE SPECIFICALLY HELD THAT AN AGENCY'S COMPETITIVE SELECTION OF A CONTRACTOR TO MAKE TRAVEL ARRANGEMENTS FOR FEDERAL EMPLOYEES IS EXEMPT FROM THE PROCUREMENT STATUTES, INCLUDING THE COMPETITION IN CONTRACTING ACT OF 1984 (CICA), 31 U.S.C.A. SEC. 3551, ET SEQ. (WEST SUPP. 1985), AND THAT THE AGENCY'S SELECTION OF A CONTRACTOR WAS NO MORE THAN A MANAGEMENT VEHICLE TO FACILITATE ITS TRAVEL PURCHASES.
THE COMPETITIVE SELECTION AND CONTRACTUAL ARRANGEMENT HERE ARE SIMILAR TO THOSE IN T. V. TRAVEL, ET AL., B-218918, ET AL., SUPRA. THE FACT THAT THIS PROTEST WAS FILED PRIOR TO CICA BECOMING EFFECTIVE DOES NOT DISTINGUISH THIS PROTEST FROM THESE DECISIONS. THE PURCHASE OF TRAVEL SERVICES PROVIDED BY THE AIR CARRIERS AND OTHER CONCERNS HAS BEEN EXEMPTED FROM THE PROCUREMENT LAWS BY STATUTE AND REGULATIONS WHICH HAVE BEEN IN EXISTENCE FOR YEARS PRIOR TO THE ENACTMENT OF CICA. SEE 40 U.S.C. SEC. 481 (1982); FEDERAL PROPERTY MANAGEMENT REGULATIONS SUBPART 101-41.2, 41 C.F.R. SUBPART 101-41.2 (1984); JOINT TRAVEL REGULATIONS, PARA. C2250; FEDERAL ACQUISITION REGULATION SEC. 47.000, 48 C.F.R. SEC. 47.000 (1984); OMEGA WORLD TRAVEL, INC.; SOCIETY OF TRAVEL AGENTS IN GOVERNMENT, INC., B-218025, B-218025.2, SUPRA. THUS, THERE IS NO BASIS FOR CONSIDERATION OF THIS PROTEST UNDER OUR BID PROTEST REGULATIONS, 4 C.F.R. PART 21 (1985), WHICH DEAL WITH THE FILING OF PROTESTS OF AWARD SUBJECT TO THE PROCUREMENT STATUTES AND REGULATIONS.
THE PROTEST IS DISMISSED.