Latest Conference Report, 108-767

RONALD W. REAGAN NATIONAL DEFENSE

AUTHORIZATION ACT FOR

FISCAL YEAR 2005

Bid protests by federal employees in actions under Office of Management and Budget Circular A-76 (sec. 326)

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 legal 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.