American Federation of Government Employees, AFL-CIO; American, B-282904.2, June 7, 2000

B-282904.2 Jun 07, 2000 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Who assert that they will be adversely affected by an agency's decision made pursuant to Office of Management and Budget Circular No. Are not actual or prospective bidders or offerors. Thus are not interested parties eligible to maintain a protest at the General Accounting Office. We dismiss the protest because the protesters are not "interested parties" who may protest under the statute governing our process. A-76 establishes the executive branch's policy regarding performance of commercial activities that are incidental to the performance of governmental functions. A performance work statement (PWS) is drafted. The PWS is to reflect the government's needs. The PWS serves as the basis for the solicitation that is issued to private-sector offerors. View Decision Matter of: American Federation of Government Employees, AFL-CIO; American Federation of Government Employees, AFL-CIO, Local 987; Laverne J. Rucker; Gary Fowler; Donald E. Thompson; Larry Baines File: B-282904.2 Date: June 7, 2000 DIGEST Attorneys DECISION The American Federation of Government Employees, AFL-CIO; American Federation of Government Employees, AFL-CIO, Local 987; Laverne J. Rucker; Gary Fowler; Donald E. Thompson; and Larry Baines protest the award of a contract to EG&G Logistics, under request for proposals (RFP) No. SPO700-99-R-7003, issued by the Defense Logistics Agency, for material distribution services at the Defense Distribution Depot, Warner Robins, Georgia. The award results from a decision made in accordance with Office of Management and Budget (OMB) Circular No. A-76 to contract for the services rather than perform them in-house. We dismiss the protest because the protesters are not "interested parties" who may protest under the statute governing our process. OMB Circular No. A-76 establishes the executive branch's policy regarding performance of commercial activities that are incidental to the performance of governmental functions. It outlines procedures for determining whether commercial activities should be performed under contract by private enterprise or in-house using government facilities and personnel. OMB Circular No. A-76 and the Revised Supplemental Handbook (Mar. 1996) (Supplemental Handbook) set out the steps of the cost comparison process. First, a performance work statement (PWS) is drafted. The PWS is to reflect the government's needs, and establish performance standards and measures that provide for a common basis of evaluation and ensure comparable levels of performance for the government's in-house plan and the private-sector offers. Federal Acquisition Regulation (FAR) Sec. 7.304(a); Supplemental Handbook at 10. The PWS serves as the basis for the solicitation that is issued to private-sector offerors, as well as the basis for the agency's proposed in-house management plan. FAR Sec. 7.304(c); Supplemental Handbook at 12. Once the PWS has been drafted, the competition among private-sector offerors can be held and a private-sector proposal selected for the public/private cost comparison. The agency's in-house management plan is to reflect the scope of the PWS, and describe the government's Most Efficient Organization (MEO). The management plan is also to include, among other things, the in-house cost estimate, which describes all costs associated with performance by the MEO of the requisite activities. FAR Sec. 7.304(b); Supplemental Handbook at 11. After certain steps have been taken to ensure that the selected private-sector offer and the management plan are comparable in terms of performance standards and that the costs associated with the management plan are justified, the contracting officer opens the government's in-house cost estimate for comparison with the private-sector offeror's proposed price. Id. at 13. Should the cost comparison result in the determination that the activities should be performed in-house using government facilities and personnel, the solicitation that was issued to the private-sector offerors is canceled, FAR Secs. 7.302(b), 14.404-1(c)(9), 52.207-1, 52.207-2, and the agency implements the MEO. Should the cost-comparison result in the determination that the activities should be performed by the private-sector offeror, a contract is awarded under the solicitation in response to which the private-sector offeror's proposal was submitted. The completion of the cost comparison invokes the OMB Circular No. A-76 administrative appeals process. Supplemental Handbook at 13; see FAR Sec. 7.307. An appeal can be filed by an "eligible appellant," which is defined as, among other things, "[f]ederal employees (or their representatives) and contractors that have submitted formal bids or offers who would be affected by a tentative decision to convert to or from in-house, contract or [interservice support agreement] performance as a result of a cost comparison." Supplemental Handbook at 13.