B-311284, Mark Whetstone--Designated Employee Agent, May 9, 2008

B-311284 May 09, 2008 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights Mark Whetstone-Designated Employee Agent, President of the American Federation of Government Employees (AFGE) Local 3928, protests the issuance of solicitation No. HSSCCG-08-R-00001, a set-aside for service-disabled veteran-owned small business concerns, by the Department of Homeland Security, U.S. Citizenship and Immigration Service (USCIS), National Records Center at Lee's Summit Missouri, for services in support of processing the agency's backlog of Freedom of Information Act (FOIA) requests. Mr. Whetstone argues that the solicitation was issued in violation of law and Office of Management and Budget (OMB) Circular A-76. We dismiss the protest. View Decision B-311284, Mark Whetstone--Designated Employee Agent, May 9, 2008 Decision Matter of: Mark Whetstone--Designated Employee Agent File: B-311284 Date: May 9, 2008 Mark Whetstone, Designated Employee Agent, the protester. Barbara Walthers, Esq., Department of Homeland Security, for the agency. Edward T. Goldstein, Esq., and Christine S. Melody, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest filed by Designated Employee Agent challenging agency's decision to issue a solicitation for processing a backlog of Freedom of Information Act requests without conducting a public-private competition is dismissed where the protester represents a class of employees whose positions are not at risk as a consequence of a contract awarded under the solicitation. DECISION Mark Whetstone-Designated Employee Agent,[1] President of the American Federation of Government Employees (AFGE) Local 3928, protests the issuance of solicitation No. HSSCCG-08-R-00001, a set-aside for service-disabled veteran-owned small business concerns, by the Department of Homeland Security, U.S. Citizenship and Immigration Service (USCIS), National Records Center at Lee's Summit Missouri, for services in support of processing the agency's backlog of Freedom of Information Act (FOIA) requests.[2] Mr. Whetstone argues that the solicitation was issued in violation of law and Office of Management and Budget (OMB) Circular A-76. We dismiss the protest. USCIS maintains a staff of approximately 80 federal employees to process FOIA requests. According to the agency, processing FOIA requests is a labor-intensive requirement. Presently, there is a substantial backlog of requests which have not been processed. In an effort to address this backlog, on February 13, 2008, the agency issued the solicitation here seeking a contractor to process a maximum of 65,000 –Routine (Track 1) or Complex (Track 2) backlogged FOIA requests— over a period of time of up to 2 years.[3] Agency Report (AR) at 2. The protester filed this protest challenging the issuance of the solicitation on February 22. Specifically, Mr. Whetstone argues that the agency is violating the Financial Services and General Government Appropriations Act, 2008 (enacted as Division D of the Consolidated Appropriations Act, 2008, Pub. L. No. 110-161, sect. 739(a), 121 Stat. 1844, 2029-31 (2008)), section 327 of the National Defense Authorization Act for Fiscal Year 2008, and OMB Circular A-76 by converting a function performed by federal employees to private sector performance without first conducting a public-private competition to determine which is more cost-effective.[4] The agency argues that Mr. Whetstone's protest should be dismissed because he does not qualify as an –interested party— to challenge the agency's decision to proceed with selecting a private sector firm to perform the FOIA backlog work since no federal employee will be replaced as a result of the contemplated contract--–the government employees will continue to do the same jobs they are currently doing,— there will be –no changes to their duties, work hours, . . . benefits, or other working conditions,— and when the contract ends, –the government employees will continue processing FOIA requests and [the agency] will be able to maintain compliance with the FOIA law.— Protest, Attach. 7, E-mail from Director of USCISNationalRecordsCenter, Dec. 20, 2007. The issue of whether federal employees qualify as –interested parties— for the purpose of protesting public-private competitions conducted pursuant to A-76 has a lengthy history. Prior to the current version of the A-76 Circular, our Office held that the then-current language of the Competition in Contracting Act (CICA), 31 U.S.C. sections 3551-56 (2000) did not permit representatives of in-house government competitors to protest the conduct or outcome of a public-private competition conducted pursuant to the Circular before our forum. American Fed'n of Gov't Employees et al., B-282904.2, June 7, 2000, 2000 CPD para.