B-298143, Lawrence C. Drake, April 7, 2006

B-298143 Apr 07, 2006 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Lawrence C. Drake protests in letters dated March 27 and April 4, 2006 the determination by the Department of Labor that certain accounting services functions currently performed by agency employees "should be classified as a 'Commercial Activity' and competed pursuant to Office of Management and Budget Circular Number A-76." Protests at 1. We dismiss the protest. View Decision B-298143, Lawrence C. Drake, April 7, 2006 Decision Matter of: Lawrence C. Drake File: B-298143 Date: April 7, 2006 Lawrence C. Drake for the protester. Rae Ellen James, Esq., Dennis Adelson, Esq., and Herman Narcho, Esq., Department of Labor, for the agency. John L. Formica, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST President of the affected local chapter of the American Federation of Government Employees is not an –interested party— for the purposes of filing and pursuing a protest regarding certain actions taken by the Department of Labor with regard to a cost comparison study to be conducted pursuant to Office of Management Budget Circular A-76. DECISION Lawrence C. Drake protests in letters dated March 27 and April 4, 2006 the determination by the Department of Labor that certain accounting services functions currently performed by agency employees –should be classified as a 'Commercial Activity' and competed pursuant to Office of Management and Budget Circular Number A-76.— Protests at 1. We dismiss the protest. According to Mr. Drake, he was informed on March 17, 2006, by an agency representative that –the public private competition for the 150 accounting functions would proceed— under Office of Management and Budget (OMB) Circular A-76. Mr. Drake states that the agency –has not yet assigned or published a formal solicitation number for the proposed public/private competition.— Additionally, Mr. Drake notes that he is the president of the local chapter of the American Federation of Government Employees (AFGE), whose members would be affected by an agency determination to have the accounting functions performed by contract with a private firm, and that he –intends to notify the affected employees, and allow them to object to his acting as their agent,— Protest (Mar. 27, 2006) and that the AFGE has requested that he file this protest. Protest (Apr. 4, 2006). Mr. Drake contends that our Office should consider him an interested party for the purposes of filing and pursuing this protest, given his status as the president of the affected local union chapter. In support of this, Mr. Drake points to a decision of the U.S. District Court for the District of Columbia and a decision of the Federal Aviation Administration's Office of Dispute Resolution for Acquisition, which according to Mr. Drake provide that a union representative has standing to challenge certain agency actions performed under Circular A-76. Prior to the 2003 revisions to the Circular, we held that the then-current language of CICA did not permit representatives of in-house government competitors to pursue a protest before our forum. American Fed'n of Gov't Employees et al., B-282904.2, June 7, 2000, 2000 CPD para. 87 at 3-4. As a result of the significant changes that were made in the 2003 Circular, we again considered whether an in-house entity might have standing to file a protest here regarding the conduct or outcome of a public/private competition under the 2003 Circular. Again we concluded that without a change to the language of our bid protest statute (the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. sect. 3551-3556 (2000)), representatives of in'house government competitors could not pursue a protest before our forum. Dan Duefrene et al., B-293590.2 et al., Apr. 19, 2004, 2004 CPD para. 82 at 4-5. On the same day that the Dan Duefrene decision was issued, the Comptroller General sent a letter to the cognizant congressional committees, explaining that, because an in-house competitor did not meet the CICA definition of an interested party, GAO was required to dismiss any protest that an in-house competitor filed. In the letter, the Comptroller General recognized that policy considerations, including the principles unanimously agreed to by the congressionally-chartered Commercial Activities Panel, weighed in favor of allowing certain protests by in-house competitors with respect to A-76 competitions and, as a result, Congress might want to consider amending CICA to allow our Office to decide such protests. Consistent with that letter, Congress expanded the definition of an –interested party— that could file a bid protest.