Matter of: Vallie Bray
File: B-293840; B-293840.2
Date: March 30, 2004
 
Vallie Bray, the protester.
Daniel N. Hylton, Esq., United States Department of Agriculture, for
the agency.
Michael R. Golden, Esq., Office of the General Counsel, GAO,
participated in the preparation of the decision.

DIGEST
 
Protest filed by federal employee on behalf of other federal employees who
assert that they are directly affected by agency's decision made
pursuant to a streamlined competition conducted under Office of
Management and Budget Circular A-76, as revised on May 29, 2003, to
contract for the work, rather than to continue to perform the work
in-house, is dismissed because, as permitted under the Circular's
streamlined procedures, the decision to contract out the work was
based on the agency's internal analysis and was not made pursuant to a
solicitation; under the Competition in Contracting Act of 1984, 31
U.S.C.  3551-56 (2000), and the General Accounting Office's Bid
Protest Regulations, 4 C.F.R. Part 21 (2004), GAO's jurisdiction is
limited to considering protests involving solicitations and awards
made or proposed to be made under those solicitations.

DECISION
 
Vallie Bray, President of the American Federation of Government Employees
(AFGE) Local 3147, protests the United States Department of Agriculture's
(USDA) Beltsville Agricultural Research Center's (BARC) decision, pursuant to
a streamlined competition conducted under Office of Management and Budget
(OMB) Circular A-76, that it would be more economical to perform the security
guard function at BARC by contract, rather than to have the services performed
in-house.

We dismiss the protest.
 
The study for security services at BARC involves 24 positions. USDA conducted
this competitive sourcing action as a streamlined competition pursuant to the
May 29, 2003 revised Circular A-76. As relevant here, under the revised
Circular, the agency may use the streamlined competition "if, on the start
date, a commercial activity is performed by...an aggregate of 65 or fewer
[full-time equivalents (FTEs)]." Revised Circular, attach. B,  A.5.b(1). As
permitted by the streamlined competition procedures, USDA prepared a cost
estimate based on the incumbent activity, but did not develop an in-house plan
(a plan for a "most efficient organization" or MEO). USDA based its estimate
of the cost of private-sector performance on market research. USDA did not
solicit any private-sector proposals from vendors. On November 5, 2003, USDA
announced its decision to have the work performed commercially. The agency
then implemented that decision by issuing an order under the General Services
Administration's Federal Supply Schedule. On March 15 and March 26, 2004,
subsequent to the issuance of the order, Ms. Bray filed protests with our
Office challenging the agency's actions under the streamlined competition.[1]
 
USDA has requested dismissal of Ms. Bray's protest. USDA argues that under the
streamlined competition, USDA "did not solicit or otherwise request offers,
nor did any entity have offeror or bidder status during the streamlined
competition." USDA Dismissal Request at 2. Since under CICA, 31 U.S.C.  3551
(2000), and our Office's Bid Protest Regulations, 4 C.F.R.  21.1(a) (2004),
our Office's jurisdiction is limited to considering protests involving
solicitations issued by federal agencies and awards made or proposed to be
made under those solicitations, USDA argues that our Office lacks jurisdiction
to hear Ms. Bray's protest. USDA also points out that under the revised
Circular, "[n]o party may contest any aspect of a streamlined competition."
Revised Circular, attach. B,  F. 2. Ms. Bray responds that our Office has the
authority to review USDA's decision because the decision was based on a flawed
competition or comparison between the public and private sectors. Protester
Response to Dismissal Request at 2-4.
 
Initially, while it is true that the revised Circular states that no party may
contest any aspect of a streamlined competition, this language does not
preclude a protest to our Office because CICA, not the revised Circular,
provides the basis for our bid protest authority. Thus, an interested party,
as defined by CICA and our Bid Protest Regulations, may protest a streamlined
competition to our Office where the agency elects to use the procurement
system and conducts a competition by issuing a solicitation to determine
whether a private-sector entity can perform the work more cost effectively.
See Revised Circular, attach. B,  C.1.
 
However, here, as permitted under the revised Circular's streamlined
procedures, the record shows that the decision to contract out the work was
based solely on the agency's internal analysis and was not made pursuant to a
solicitation. As USDA correctly argues, under CICA, and our Bid Protest
Regulations, our Office's jurisdiction is limited to considering protests
involving solicitations issued by federal agencies and awards made or proposed
to be made under those solicitations. Holiday Inn; Baymont Inn & Suites,
B-288099.3, B-288099.4, Sept. 20, 2001, 2001 CPD  166 at 5. In these
circumstances, where USDA used streamlined procedures, but did not issue a
solicitation for purposes of conducting a procurement to determine whether to
contract out or to perform work in-house, we conclude that we lack
jurisdiction to consider Ms. Bray's protest.
 
Our conclusion is consistent with prior decisions of our Office in which we
have addressed the basis for our jurisdiction to hear specific A-76 protests.
See, e.g., Trajen, Inc., B-284310, B-284310.2, Mar. 28, 2000, 2000 CPD  61 at
3. If an agency issues a solicitation as part of an A-76 study, thereby using
the procurement system to determine whether to contract out or to perform work
in-house, our Office will consider a protest by an actual or prospective
offeror under that solicitation alleging that the agency has not complied with
the applicable procedures in its selection process, or has conducted an
evaluation that is inconsistent with the solicitation criteria or applicable
statutes and regulations. Id. Where, as here, however, the agency conducts a
streamlined competition without the aid of the procurement system to support
its decision to contract out or to perform the work in-house, we have no
statutory basis to hear a protest by any party, whether from the public or the
private sector.[2]
 
The protest is dismissed.
 
Anthony H. Gamboa
General Counsel
 
[1] According to Ms. Bray's protest, AFGE Local 3147 is the exclusive
representative for the bargaining unit that includes the employees who face
displacement based on the agency's decision to contract for this work. In her
protest to the agency and to our Office, Ms. Bray also asserts that she has
been selected by the majority vote of affected employees to represent them.
Protest at 1. In light of the dismissal of the protest for lack of
jurisdiction, as discussed below, we do not reach the question of federal
employees' standing to file protests with our Office under the Competition in
Contracting Act of 1984 (CICA), 31 U.S.C.  3551-56 (2000), and this
dismissal should not be read as an indication of how our Office will
ultimately resolve that question.

 [2] Where an agency conducts a streamlined competition without issuing a
solicitation and decides to contract the work out, it may subsequently issue a
solicitation to select a particular private-sector provider. See Revised
Circular, attach. B,  C.3(d)(1). We would have jurisdiction to consider a
protest filed by anyone who qualified as an actual or prospective offeror
under that solicitation.