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TITLE III — OPERATION AND MAINTENANCE

P. L. 108-375

House Conference Report 108-767

SEC. 326.  BID PROTESTS BY FEDERAL EMPLOYEES IN ACTIONS UNDER OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A–76.

(a) TREATMENT OF AGENCY TENDER OFFICIAL AS INTERESTED PARTY. — Section 3551(2) of title 31, United States Code, is amended —

(1) by inserting ‘‘(A)’’ after ‘‘(2)’’; and

(2) by adding at the end the following new subparagraph:

     ‘‘(B) The term includes the official responsible for submitting the Federal agency tender in a public-private competition conducted under Office of Management and Budget Circular A–76 regarding an activity or function of a Federal agency performed by more than 65 full-time equivalent employees of the Federal agency.’’.

(b) FILING OF PROTEST ON BEHALF OF FEDERAL EMPLOYEES. — Section 3552 of such title is amended —

(1) by inserting ‘‘(a)’’ before ‘‘A protest’’; and

(2) by adding at the end the following new sub- section:

     ‘‘(b)(1) In the case of an agency tender official who is an interested party under section 3551(2)(B) of this title, the official may file a protest in connection with the public-private competition for which the official is an interested party. At the request of a majority of the employees of the Federal agency who are engaged in the performance of the activity or function subject to such public-private competition, the official shall file a protest in connection with such public-private competition unless the official determines that there is no reasonable basis for the protest.

     ‘‘(2) The determination of an agency tender official under paragraph (1) whether or not to file a protest is not subject to administrative or judicial review. An agency tender official shall provide written notification to Congress whenever the official makes a determination under paragraph (1) that there is no reasonable basis for a protest.’’.

(c) INTERVENTION IN PROTEST. — Section 3553 of such title is amended by adding at the end the following new subsection:

     ‘(g) If an interested party files a protest in connection with a public-private competition described in section 3551(2)(B) of this title, 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 may intervene in protest.’’.

(d) APPLICABILITY. — The amendments made by this section shall apply to protests filed under subchapter V of chapter 35 of title 31, United States Code, that relate to studies initiated under Office of Management and Budget Circular A–76 on or after the end of the 90-day period beginning on the date of the enactment of this Act.

(e) RULE OF CONSTRUCTION. — The amendments made by this section shall not be construed to authorize the use of a protest under subchapter V of chapter 35 of title 31, United States Code, with regard to a decision made by an agency tender official.

The House bill contained a provision (sec. 325) that would express the sense of Congress that Department of Defense civilian employees (or their representatives) and contractors (or their representatives) should receive comparable treatment regarding legal standing to challenge the way in which a public-private competition has been conducted before the Government Accountability Office (GAO) or in the U. S. Court of Federal Claims.

The Senate amendment contained a provision (sec. 1107) that would provide such legal standing, in GAO bid protests only, to both:  (1) the official who submits an agency tender in a public-private competition (the Agency Tender Official (ATO)); and (2) a person representing a majority of the employees of the federal agency who are engaged in the performance of the activity or function that is subject to the competition.  The Senate amendment also authorized the ATO or a person representing a majority of the employees to intervene in protests filed in the U. S. Court of Federal Claims.

The House recedes with an amendment providing the ATO standing in GAO bid protests of public-private competitions for functions performed by more than 65 full-time federal employees.

Under the conference agreement, the ATO would be required to file a protest at the request of a majority of the employees of the federal agency who are engaged in the performance of the activity or function that is subject to the competition unless the ATO determines that there is no reasonable basis for the protest.  A determination by the ATO would not be subject to judicial or administrative appeal, but would be reported to the congressional defense committees.  A person representing a majority of the employees would not have standing to file a protest, but would have the right to intervene in a protest filed by an interested party, including the ATO.  The conference agreement would not address protests that are filed in the United States Court of Federal Claims.

House Report 108-491

Senate Report 108-260