• GAO Amends Bid Protest Regulations to Cover Certain A-76 Competitions Within Its Bid Protest Jurisdiction
  • April 29, 2005 | Authors: Michael R. Charness; Kathleen C. Little; David R. Johnson; Suzanne D. Reifman
  • Law Firm: Vinson & Elkins LLP - Washington Office
  • The General Accountability Office ("GAO")1 issued a final rule, effective April 14, 2005, to amend its bid protest regulations in order to expand its bid protest jurisdiction to cover certain public-private competitions conducted under the Office of Management and Budget ("OMB") Circular A-76. See 69 Fed. Reg. 19679 (Apr. 14, 2005).

    In May 2003, OMB revised Circular A-76, which governs how Federal agencies determine whether to transfer the performance of commercial activities from the public to the private sector, or vice versa. 68 Fed. Reg. 32134 (May 29, 2003). These revisions were designed to make competitions involving in-house competitions more similar to private sector competitions conducted under the Federal Acquisition Regulation ("FAR"). On April 19, 2004, GAO concluded in the decision of Dan Duefrene; Kelley Dull; Brenda Neuerburg; Gabrielle Martin, B-293590.2 et. al., April 19, 2004, CPD ΒΆ 82, that a representative of an in-house competitor was not an offeror and, therefore, not an interested party eligible to maintain a protest before GAO under the current language of the Competition in Contracting Act ("CICA"). On the same day that the decision of Dan Duefrene et. al was issued, the Comptroller General sent a letter to cognizant congressional committees requesting that Congress amend CICA to allow GAO to decide protests filed by in-house competitors. In response, as part of the FY 2005 Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Congress amended CICA to expand GAO's bid protest jurisdiction where a public-private competition has been conducted under OMB Circular A-76 regarding an activity or function of a Federal agency performed by more than 65 full-time equivalent ("FTE") employees. The final rule, summarized below, amends GAO's bid protest regulations to implement the new provisions of CICA.

    • GAO included the Agency Tender Official ("ATO") in its definitions of "interested party" and "intervenor."
    • GAO included "a person representing a majority of the employees of the Federal agency who are engaged in the performance of the activity or function subject to the public-private competition" in its definition of "intervenor."
    • GAO will not review a decision by an ATO to file or not file a protest in connection with a public-private competition.
    • The ATO cannot file a protest at GAO where an agency conducts a competition involving a function performed by 65 or fewer FTEs. GAO acknowledged in the April 14, 2005 federal register notice that this may create a "lack of parity," in that a private sector competitor could have standing to file a protest of a standard A-76 competition involving fewer than 65 FTEs and of a streamlined A-76 competition where a solicitation was issued, while the ATO would not have standing. GAO concluded, however, that its final rule is consistent with the amended CICA, which grants interested party and intervenor status to the ATO only in the case of an A-76 competition regarding an activity or function of a Federal agency performed by more than 65 FTEs.
    • GAO did not issue final guidance regarding how access to protected information by the ATO, the employee representative, and their attorneys would be handled. However, GAO envisions that where counsel for the ATO or the employee representative is not a government employee, the attorney will be required to apply for protective order admission under existing standards. The ATO and the employee representative would presumably not be provided with access to protected information under a protective order, just as non-attorneys in other protests cannot obtain such access. In cases where counsel for the ATO or the employee representative is a government employee, admission under the protective order will be made by GAO on a case-by-case basis.
    • Protests filed after April 14, 2005 that relate to studies initiated under OMB Circular A-76 on or after January 26, 2005 will be considered under this final rule.

    1 Effective July 7, 2004, GAO's legal name changed from the General Accounting Office to the "Government accountability Office" pursuant to Pub. L. 108-271, 118 Stat. 811.