B-311275, B.R. Hardison--Designated Employee Agent, May 29, 2008

B-311275 May 29, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights B.R. Hardison--Designated Employee Agent, President of the American Federation of Government Employees (AFGE) Local 2400, protests the alleged "direct conversion" by the Department of Veterans Affairs (VA) of pharmacy services performed by VA pharmacy staff at the Tennessee Community-Based Outpatient Clinic (TCBOC) to the private sector without conducting a public-private competition under Office of Management and Budget (OMB) Circular A-76. We dismiss the protest. View Decision B-311275, B.R. Hardison--Designated Employee Agent, May 29, 2008 Decision Matter of: B.R. Hardison--Designated Employee Agent File: B-311275 Date: May 29, 2008 B.R. Hardison, Designated Employee Agent, the protester. Tammy L. Kennedy, Esq., Department of Veterans Affairs, for the agency. Sharon L. Larkin, Esq., and James A. Spangenberg, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST 1. Protest filed by Designated Employee Agent challenging agency's decision to contract for pharmacy services with the private sector without conducting a public'private competition under Office of Management and Budget (OMB) Circular A-76 is dismissed, where no federal employee jobs are affected and, thus, Designated Employee Agent is not an interested party to protest the agency's action. 2. Public-private competition under OMB Circular A-76 is not required where the activity or function at issue involves fewer than 10 federal employees. DECISION B.R. Hardison--Designated Employee Agent,[1] President of the American Federation of Government Employees (AFGE) Local 2400, protests the alleged –direct conversion— by the Department of Veterans Affairs (VA) of pharmacy services performed by VA pharmacy staff at the Tennessee Community-Based Outpatient Clinic (TCBOC)[2] to the private sector without conducting a public-private competition under Office of Management and Budget (OMB) Circular A-76. We dismiss the protest. The TCBOC is composed of four personnel (two pharmacists and two technicians) who provide outpatient pharmacy services for VA members by –window-filling— prescriptions. In mid-2006, the wait time for receiving prescriptions began to rise and, as of November 2007, the wait time was –over 45 minutes.— At the same time, patient satisfaction with the pharmacy services decreased.[3] Declaration of TennesseeValley Healthcare System Chief of Pharmacy para. 2. In order to reduce wait times and increase patient satisfaction, the VA decided to decrease the –window-fill— workload by using –mail-out— procedures to fill controlled substance prescriptions. Since TCBOC was solely a –window-fill— operation and had never performed –mail-out— services, the VA decided to use an existing –Veteran Integrated Service Network (VISN) 9— contract with Medical Matrix, LLP, to fill acute/urgent prescriptions by mail, and an existing VA –Consolidated Mail Out Program— to fill the remaining controlled substance prescriptions by mail. Id. para. 3. The four TCBOC employees would remain in their current positions with –no change in job descriptions, grade or performance standards,— and the TCBOC budget would remain unchanged. Id. para. 5; Agency Reply to Protester's Comments (Apr. 18, 2008) at 2. Mr. Hardison contends that the agency's decision to remove the above workload from the TCBOC requires the agency to conduct a public-private competition. We find that Mr. Hardison is not an interested party eligible to challenge this decision. With regard to A-76 contests, section 326 of the National Defense Authorization Act for Fiscal Year 2008, amended the definition of interested party applicable to our bid protest function as set forth in 31 U.S.C. sect. 3551(2), as follows: (2) The term –interested party—-- * * * * (B) with respect to a public-private competition conducted under Office of Management and Budget Circular A-76 with respect to the performance of an activity or function of a Federal agency, or a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A-76, includes-- * * * * (ii) any one individual who, for the purpose of representing the Federal employees engaged in the performance of the activity or function for which the public-private competition is conducted in a protest under this subchapter that relates to such public-private competition, has been designated as the agent of the Federal employees by a majority of such employees. 31 U.S.C. sect. 3551(2). Mr.