BBS Company (KO-24-22801)

B-423675 Aug 01, 2025 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights BBS Company of Pyeongtaek-si, Gyeonggi-do, South Korea, protests the exclusion of its proposal from consideration for award under solicitation No. KO-24-22801, issued by the Army and Air Force Exchange Service (AAFES) for barber shop services. The protester contends that the AAFES improperly denied BBS the opportunity to submit a best and final offer and that the AAFES unreasonably justified this decision with a non-responsibility determination. We dismiss the protest. View Decision Decision Matter of: BBS Company File: B-423675 Date: August 1, 2025 Ik T. Kim, Esq., for the protester. John C. Degnan, Esq., and Major Brandon P. Mark, Department of the Army, for the agency. Hannah G. Barnes, Esq., and April Y. Shields, Esq., Office of the General Counsel, GAO, participated in the preparation of the decision. DIGEST Protest challenging the agency’s exclusion of the protester’s proposal is dismissed where GAO does not have jurisdiction to consider protests of procurements conducted by the Army and Air Force Exchange Service because it is not a federal agency. DECISION BBS Company of Pyeongtaek-si, Gyeonggi-do, South Korea, protests the exclusion of its proposal from consideration for award under solicitation No. KO-24-22801, issued by the Army and Air Force Exchange Service (AAFES) for barber shop services. The protester contends that the AAFES improperly denied BBS the opportunity to submit a best and final offer and that the AAFES unreasonably justified this decision with a non‑responsibility determination. We dismiss the protest. On December 31, 2024, the AAFES issued the solicitation for barber shop services at Osan Air Base and Camp Yongin in South Korea. Protest exh. 5, Solicitation amend. 1 at 78.[1],[2] The solicitation explained that the AAFES operates retail facilities on military installations and specifically advised that: the AAFES is “an instrumentality of the United States Government,” AAFES contracts “do not obligate appropriated funds of the United States,” AAFES procurement policy is “established by applicable directives and instructions promulgated by the U.S. Department of Defense,” and the Federal Acquisition Regulation does not apply to the AAFES. Solicitation amend. 1 at 78. On January 31, 2025, the protester submitted its proposal. Protest at 5. On March 6, the AAFES issued a best and final offer request to other offerors, but not to BBS. Id. at 6. On March 7, the protester received a non-responsibility determination from AAFES formally excluding BBS from further consideration for award. Id.; Protest exh. 1, Non-Responsibility Letter at 3-5. Over the next few months, BBS filed multiple complaints with the agency, and on June 18, the AAFES contracting officer formally affirmed the non-responsibility determination and BBS’s exclusion from consideration for award. Protest exh. 2, Resp. to BBS at 7-9. On June 26, this protest followed. On July 1, the Army requested that the protest be dismissed on the basis that our Office lacks jurisdiction to review a procurement conducted by the AAFES. Req. for Dismissal at 3. The Army first explains that it did not issue the solicitation at issue. Id. at 2. The Army then argues that the AAFES is a nonappropriated fund instrumentality (NAFI) and not a federal agency, and that our Office should consequently dismiss this protest. Id. at 4. The protester responds that our Office is not precluded from exercising jurisdiction over this protest, pointing to the “clear connection” between the AAFES and the Department of Defense, a federal agency. Resp. to Req. for Dismissal at 3. The jurisdiction of our Office is established by the bid protest provisions of the Competition in Contracting Act (CICA), 31 U.S.C. §§ 3551-3557. Our role in resolving bid protests is to ensure that the statutory requirements for full and open competition are met. Qwest Gov’t Servs., Inc. d/b/a CenturyLink QGS, B-420095, Oct. 6, 2021, 2021 CPD ¶ 337 at 2. As relevant here, CICA defines a protest to be a written objection by an interested party to a solicitation or other request by a federal agency for bids or proposals for a contract for the procurement of property or services, or an award or proposed award of such a contract. 31 U.S.C. §§ 3551(1), 3553. Our threshold jurisdictional concern is whether the procurement at issue is being conducted by a federal agency. 4 C.F.R. § 21.5(g); Americable Int’l, Inc., B-251614, B-251615, Apr. 20, 1993, 93-1 CPD ¶ 336 at 2. CICA adopted the definition of a federal agency set forth in 40 U.S.C. § 102, defining a federal agency as “an executive agency or an establishment in the legislative or judicial branch of the Government (except the Senate, the House of Representatives, and the Architect of the Capitol, and any activities under the direction of the Architect of the Capitol).” 40 U.S.C. § 102(5); see 31 U.S.C. § 3551(3).