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The protester states that seven federal
employees are currently performing the cemetery
maintenance services at the Chattanooga Cemetery. The
protester argues that the VA is violating the OMB Circular
by directly converting functions performed by federal
employees to contractor performance without conducting a
cost comparison. The protester also maintains that the
affected employees have been placed at a competitive
disadvantage by the agency’s action because they were not
allowed to compete to retain their own work. The VA
responds that it has not converted a function performed by
federal employees, because no agency job has been affected
or lost as a result of the RFP. The agency states that it
has been contracting for these services since 2001 and
that it has informed current employees that this contract
action would not have an impact on current cemetery
employees. The agency also states that current employees
perform interments, raising/realigning of headstones,
grounds maintenance, such as grave repair, over seeding,
headstone cleaning, shelter preparations, sod application,
herbicide applications, equipment/vehicle maintenance, and
program preparations. The agency states that as a result
of the award under this RFP, the current employees will
perform all of their current functions except headstone
alignments and mowing.
With respect to the OMB Circular,
the protester correctly notes that the current version of
the Circular prescribes two types of cost comparisons.
Where 65 or more full time equivalents (FTEs) are
involved, the Circular requires a “standard competition”;
where fewer than 65 FTEs are involved, the Circular
permits either a standard or a “streamlined competition.”
OMB Circular A-76 (May 29, 2003), attach. B, at B-1. In
the situation here, the protester argues that the Circular
requires, at a minimum, a streamlined competition for
these requirements. In reviewing the protester’s
allegations, we note that even though the Circular speaks
of requiring a streamlined competition when a commercial
activity is performed by an aggregate of 65 or fewer FTEs,
as this one is, the Circular permits an agency to decide
to contract out work based solely on an internal analysis
without the issuance of a solicitation, and hence without
use of the procurement system. Where an agency is not
required to use the procurement system, and does not do
so, our bid protest function has no role in reviewing the
agency’s actions. See Vallie Bray, B‑293840, B‑293840.2,
Mar. 30, 2004, 2004 CPD para. 52 at 3. (Lisa
Hartman-Designated Employee Agent, B-311247, May 6,
2008) (pdf) |
