Carahsoft Technologies Corporation and Avue Technologies Corporation

B-400405, Carahsoft Technologies Corporation and Avue Technologies Corporation, August 4, 2008

Carahsoft Technologies Corporation and Avue Technologies Corporation (Carahsoft/Avue) protest the Transportation Security Administration's (TSA) award of a contract to Lockheed Martin Integrated Systems, Inc. pursuant to solicitation No. HSTS01-08-HRM010. The solicitation was issued by TSA on October 18, 2007, seeking a contractor to provide various human resource services. Carahsoft/Avue protest various aspects of the agency's source selection decision.

We dismiss the protest.

In 2001 Congress enacted the Aviation Transportation Security Act, relevant portions of which are set forth at 49 U.S.C. sect. 114 (2004 Supp.), establishing the TSA as a new agency within the Department of Transportation and tasking it with broad transportation security responsibilities. Pursuant to 49 U.S.C. sect. 40110(d) (2005 Supp.), TSA procurements were subject to the Federal Aviation Administration's (FAA) acquisition management system and, because the statute also stipulated that procurements under that system are exempt from our bid protest jurisdiction, TSA procurements were not subject to protests filed at our Office pursuant to TSA's organic legislation.[1]

Recent legislation effectively revised this Office's jurisdiction over protests challenging TSA procurements. Specifically, the Consolidated Appropriations Act, 2008 (CAA), Pub. L. No. 110-161, 121 Stat. 1844, was enacted on December 26, 2007. That law repealed TSA's authority to use the FAA's acquisition management system, made TSA subject to the Federal Acquisition Regulation (FAR), and effectively provided jurisdiction for our Office to consider protests challenging TSA procurements. The CAA further provided that the changes flowing from that legislation –shall take effect 180 days after the date of enactment of this Act.— 121 Stat. 2092. There is no dispute that June 23, 2008 was the 180^th day following enactment of the CAA.

In implementing the CAA's legislative changes, the DHS published a rule providing that TSA acquisitions initiated after June 22, 2008 would be subject to the FAR. 73 Fed. Reg. 30,317 (2008). Similarly, and consistent with the DHS rule, this Office published proposed changes to our Bid Protest Regulations in March 2008 and, on June 9, 2008, issued the final rule changes, stating: –In light of the revised DHS regulations pertaining to the applicability of the FAR to TSA procurements, and in the interest of an orderly transition by TSA to FAR-based procurements, GAO will hear protests of TSA procurements covered by TSA solicitations issued on or after June 23.— 73 Fed. Reg. 32,429.

Here, Carahsoft/Avue's protest challenges the award of a contract to Lockheed pursuant to a solicitation that was issued by TSA on October 18, 2007--that is, more than 2 months prior to enactment of the CAA and more than 8 months prior to the effective date of that legislation. Among other things, Carahsoft/Avue's protest complains that, according to a July 3, 2008 press release, TSA intends to improperly increase the scope of services Lockheed will perform beyond the services contemplated by the solicitation, specifically to include performance of human resource services at DHS headquarters.

We view the protest, including the argument regarding the scope of the services to be performed, as challenging TSA's actions pursuant to the October 18 solicitation[2] and, as such, outside of our jurisdiction. In short, consistent with the legislative provisions of TSA's organic legislation, as subsequently amended by the CAA, along with this Office's announcement that we would begin hearing protests challenging TSA procurements covered by TSA solicitations issued on or after June 23, our protest jurisdiction does not extend to Carhsoft/Avue's protest which challenges TSA's contract award pursuant to a solicitation issued prior to June 23.

The protest is dismissed.[3]

Gary L. Kepplinger
General Counsel