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4 CFR 21.13 (a):  Agreement in Writing from "Other Than" Federal Agencies

Comptroller General - Key Excerpts

At the outset, the Army asserts that we have no authority to resolve this protest because the RFP was for the sale or transfer of government property. [6] Therefore, the Army contends that this is a nonstatutory protest which we may not review absent the consent of the Secretary of the Army (see 4 C.F.R. sect. 21.13(a) (1999)), which has not been given. Agency Request for Dismissal at 1-2. We disagree. Under the Competition in Contracting Act, 31 U.S.C. sect. 3551(1) (1994), our Office has authority to review protests concerning the procurement and award of contracts for property or services by a federal agency. It is clear from the plain language of the RFP that the procurement had a dual purpose: (1) to transfer ownership of APG's water and wastewater facilities to a regulated utility and (2) to contract with the utility to which APG's water and wastewater facilities were transferred for the provision of water and wastewater treatment services to APG for a 10-year period. RFP sect.sect. B, C.1.1, C.1, C.19 (water), and C.1, C.23 (wastewater). Moreover, it is undisputed that APG will continue to need potable water and wastewater treatment services and will acquire such services under the contract awarded pursuant this RFP to the transferee. In this regard, the prices at issue in this protest (i.e., the offerors' prices set out above) are prices that the government will pay to acquire services (rather than prices that the government will receive, as in a sale of government property). We also note that the Army invoked the authority of 10 U.S.C. sect. 2304(c)(1), a procurement statute, as its authority for procuring the services from a limited number of responsible sources. Agency Report, Tab D, exh. 10, Justification Review Document for Other Than Full and Open Competition, at 6. Because one of the main objectives of the RFP was to obtain water and wastewater services, we conclude that we have jurisdiction to hear the protest. See Ship Analytics, Inc. Dist. 2; Marine Eng'rs Beneficial Ass'n--Recon., B-227084.3, B-227084.4, Dec. 15, 1987, 87-2 CPD para. 590 at 2.  (Government of Harford County, Maryland, B-283259; B-283259.3, October 28, 1999)

Comptroller General - Listing of Decisions

For the Government For the Protester
Government of Harford County, Maryland, B-283259; B-283259.3, October 28, 1999  (PDF Version)  


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