Agency Officials Can Protest Contracting Decisions

By on February 22, 2006 in Current Events with 0 Comments

A provision (Section 326(a)) of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (P.L. No. 108-375, 118 Stat. 1811) added an interesting twist to the world of contracting-out under OMB Circular A-76. It authorizes the person who submits the in-house bid for government performance under a contracting-out procedure to be an “interested party” who can file a bid protest with the General Accounting Office (GAO).

However, the contracting-out study must have been initiated on or after January 26, 2005 in order for the government official to have standing to protest under this provision.

This law change came about after the GAO consistently dismissed protests brought by entities or individuals representing the losing in-house bid for lack of legal standing under applicable law.

The GAO recently issued a decision addressing this new standing provision in B-295529.6, In the Matter of Alan D. King, February 21, 2006. In this case, the Deputy Garrison Commander of the Department of the Army’s Walter Reed Medical Center filed a protest to challenge to the Army’s decision to contract out its base operations support services at the Center.

He raised several arguments to support the challenge, but essentially could not get his foot in the door. Quite simply, the GAO concluded that the amendment to the law that would otherwise have granted Mr. King standing to file the protest was not applicable in this case since the contracting-out study had been initiated before January 26, 2005. Therefore, Mr. King did not have standing; protest dismissed.

The decision is interesting reading if nothing else for it’s recounting of the messy history of this particular contracting-out action that dates back about 6 years. First, it was decided that the in-house performance proposal had prevailed. Following protests by the contractor proposers, that decision was reversed by the agency. Then it was decided that a contractor proposal had prevailed. Now, the Agency’s official who submitted the in-house proposal tries to protest that decision….And keep in mind that the contracting-out process under A-76 is supposed to save the government money in the long haul.

One could ask the question whether it was a good idea for Congress to give standing to an agency official to protest his own agency’s A-76 decision. Maybe such “disagreements” should be resolved within the agency, or at least within the executive branch?

In any event, such future protests should make the A-76 scene even more interesting. Stay tuned.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.