AFH raises various challenges to the Army's decision to proceed with PAL (Group A) project implementation with Actus. The protester's primary assertion is that the Army improperly relaxed the performance requirements of its contract with Actus, thereby changing the scope of work anticipated by the RFQ and resulting in an improper sole-source contract of the modified work. As detailed below, we find that the planned implementation of the PAL (Group A) project is consistent with the RFQ's statement of work.

Jurisdiction

As a preliminary matter, the Army contends that the protest should be dismissed as beyond the bid protest jurisdiction of our Office. The Army argues that while the phase 1 LDMP [lodging development and management plan] development effort was a procurement, as evidenced by the $350,000 contract awarded to Actus, the phase 2 LDMP implementation is not a procurement. According to the Army, the implementation phase is separate from the contract awarded for development of the LDMP, and that it is a no-cost real estate transaction in which the Army is merely conveying existing lodging facilities and leasing real property to a private concern.

Under the Competition in Contracting Act of 1984 (CICA) and our Office's Bid Protest Regulations, we review protests concerning alleged violations of procurement statutes or regulations by federal agencies in the award or proposed award of contracts for procurement of goods and services, and solicitations leading to such awards. 31 U.S.C. sections 3551, 3552; 4 C.F.R. sect. 21.1(a) (2009). As a general matter, our jurisdiction does not extend to challenges concerning the sale or lease of government property since these activities, by their nature, are not procurements. Meyers Cos., Inc., B-275963 et al., Apr. 23, 1997, 97-1 CPD para. 148 at 4 (lease of federal land is not a procurement of property or services encompassed by GAO's bid protest jurisdiction, notwithstanding the lease requirement to erect and maintain fencing); Fifeco, B-246925, Dec. 11, 1991, 91-2 CPD para. 534.

In discerning the nature of a contractual transaction, we have found that the government need not commit to the payment of funds or incur any monetary liability in order for there to be a procurement. See Century 21--AAIM Realty, Inc., B-246760, Apr. 3, 1992, 92-1 CPD para. 345 at 3-4. Likewise, the agency need not receive money in order for a contractual transaction to constitute a sale. See Government of Harford County, Maryland, B-283259, B-283259.3, Oct. 28, 1999, 99-2 CPD para. 81 at 4. We also recognize that certain transactions, including concession contracts, can involve both a sale and a procurement. For example, in Government of Harford County, Maryland, supra, the Army's privatization of utility systems constituted such a mixed, or bundled, transaction and simultaneously involved both the sale of government property and the procurement of services. Id.

Here, the underlying RFQ was not an offer to sell or lease government-owned property for a monetary payment. Rather, the RFQ was essentially the solicitation of submissions under which the Army would obtain the much-needed revitalization of lodging facilities, with little to no appropriated fund outlay, by leveraging existing lodging and real property assets. While project implementation involves the Army conveying existing lodging facilities and leasing real property, the Army's decision to convey and lease property is predicated upon Actus' promise to renovate, manage, and maintain existing lodging facilities, as well as build, manage, and maintain new lodging facilities. Quite simply, the agreement between the Army and Actus for PAL project implementation involves the Army simultaneously selling property interests and obtaining the benefit of lodging facility services.

In reaching this conclusion, we find the reasoning set forth in our decisions regarding the award of concession contracts analogous to the issue presented in this case. With respect to concession contracts, we have held that our Office lacks jurisdiction to consider a protest challenging the award of a "pure" concession contract, that is, a no-cost contract that merely authorizes a concessionaire to provide goods or services to the public, as opposed to the government. Public Commc'ns Servs., Inc., B-400058, B-400058.3, July 18, 2008, 2009 CPD para. 154 at 7. We have long recognized, however, that where a concession or similar type contract also results in a benefit to the government, the contract is, at least in part, one for the procurement of property or services and therefore is encompassed by our bid protest jurisdiction. Id.; see also, Shields & Dean Concessions, Inc., B-292901.2, B‑292901.3, Feb. 23, 2004, 2004 CPD para. 42, recon. denied, B-292901.4, Mar. 19, 2004, 2004 CPD para. 71; Starfleet Marine Transp., Inc., B-290181, July 5, 2002, 2002 CPD para. 113; Century 21--AAIM Realty, Inc., supra. It has consistently been our Office's view that a mixed transaction, one that both provides a business opportunity to a private‑sector firm, and which also includes the delivery of goods or services of more than de minimis value/benefit to the government, is a procurement within the meaning of CICA. See Public Commc'ns Servs., Inc., supra.

In determining whether the government will receive a benefit from the goods or services provided in connection with a concession, our Office examines whether the transaction in question reduces the agency's workload, or whether the effort is somehow rendered, either directly or indirectly, in support of the agency's mission requirements. Id. For example, we have found that a benefit was conferred to the government through a concession for haircuts for new Air Force recruits, because "the concession agreement is a contract for services under which the [agency] will satisfy its need to obtain initial haircuts for its recruits--which the agency insists is an important aspect of the training experience." Gino Morena Enters., Feb. 5, 1987, B-224235, 87-1 CPD para. 121 at 4. Similarly, we have found that a benefit was conferred on the government through a concession for photocopy services at a U.S. District Court because the use of a concession-type contract aided the court's mission by reducing its workload and also providing a benefit to the public of more effective access to court records. West Coast Copy, Inc.; Pacific Photocopy & Research Servs., B-254044, B-254044.2, Nov. 16, 1993, 93-2 CPD para. 283 at 5-6; see also, New York Tel. Co.; New England Tel. & Tel. Co.; Bell Atlantic Network Servs., Inc., B-236023, B-236097, Nov. 7, 1989, 89-2 CPD para. 435 at 2-3 (concession to provide pay phone services to employees and visitors at a General Services Administration facility was subject to GAO protest jurisdiction where the services were intended to satisfy agency mission needs).

Here, we conclude that the lodging construction, renovation, management, and maintenance that the contractor is to perform as part of PAL project implementation, provides a benefit to the Army. Specifically, the RFQ states that "[t]he Army needs to improve the quality of life for soldiers and their families while in a transient status," and that the purpose of the project is "to provide quality, on-post hotel accommodations that meet the varying needs of a mobile military community through improvements to the on-post lodging inventory and/or new construction, and to appropriately maintain these facilities . . . ." RFQ at 4. On this record, we conclude that the requirements for the contractor to provide transient lodging construction, renovation, management, and maintenance services is designed to directly meet the needs of the Army by directly furthering its mission in support of its soldiers. By leveraging the private sector through the PAL program, the Army reduces its own workload since it will no longer have to perform services that it would otherwise would have needed to perform, or procured under a separate contract. The fact that the Army created separate contractual instruments for the project's development and implementation efforts does not alter the fact that the agency is receiving benefits at both plan development and implementation. Thus, we conclude that our Office has jurisdiction to hear this protest because it concerns a procurement conducted by the Army to obtain services for the benefit of government.  (Armed Forces Hospitality, LLC, B-298978.2; B-298978.3,October 1, 2009) (pdf)

As a threshold matter, ICE contends that our Office lacks jurisdiction to hear this protest because the RFP anticipated award of concession-type contract. As discussed in detail below, we conclude that our Office has jurisdiction because this protest concerns the award of a contract for the procurement of services by a federal agency for the benefit of the government.

Under the Competition in Contracting Act of 1984 (CICA) and our Office's Bid Protest Regulations, we review protests concerning alleged violations of procurement statutes or regulations by federal agencies in the award or proposed award of contracts for procurement of goods and services, and solicitations leading to such awards. 31 U.S.C. sections 3551, 3552 (2000); Bid Protest Regulations, 4 C.F.R. sect. 21.1(a) (2008). The parties do not dispute that this protest concerns a solicitation issued by ICE, a federal agency. Instead, ICE argues that the services being procured are for the benefit of detainees, not the government.

Our Office lacks jurisdiction to consider a protest challenging the award of a "pure" concession contract, that is, a no-cost contract that merely authorizes a concessionaire to provide goods or services to the public, as opposed to the government. See Great South Bay Marina, Inc., B-296335, July 13, 2005, 2005 CPD para. 135 at 2. We have long recognized, however, that some concession contracts are hybrids that require the delivery of goods and/or services to the government. Id.; see also, Shields & Dean Concessions, Inc., B-292901.2, B-292901.3, Feb. 23, 2004, 2004 CPD para. 42, recon. denied, B-292901.4, Mar. 19, 2004, 2004 CPD para. 71 (concessionaire required to provide maintenance, repair and other services for government facility as well as facility improvement valued at over $800,000); Starfleet Marine Transp., Inc., B-290181, July 5, 2002, 2002 CPD para. 113 (concessionaire for ferryboat services required to provide janitorial services for agency's docks and piers, equip ferries with public address systems for use by park rangers, and provide transportation for rangers). It has consistently been our Office's view that a mixed transaction that includes the delivery of goods or services of more than de minimis value to the government is a contract for the procurement of property or services within the meaning of CICA. Great South Bay, supra; Starfleet Marine, supra, at 6.

In determining whether the government will receive the requisite value from the goods or services provided in connection with a concession, our Office examines whether the transaction in question reduces the agency's workload, or whether the effort is somehow rendered, either directly or indirectly, in support of the agency's mission requirements. Meyers Cos., Inc., B-275963 et al., Apr. 23, 1997, 97-1 CPD para. 148 at 4. For example, we have found that a benefit was conferred to the government through a concession for haircuts for new Air Force recruits, because "the concession agreement is a contract for services under which the [agency] will satisfy its need to obtain initial haircuts for its recruits--which the agency insists is an important aspect of the training experience." Gino Morena Enters., Feb. 5, 1987, B-224235, 87-1 CPD para. 121 at 4. Similarly, we have found that a benefit was conferred on the government through a concession for photocopy services at a U.S. District Court because the use of a concession-type contract aided the court's mission by reducing its workload and also providing a benefit to the public of more effective access to court records. West Coast Copy, Inc.; Pacific Photocopy and Research Servs., B-254044, B-254044.2, Nov. 16, 1993, 93-2 CPD para. 283 at 5-6; see also, New York Tel. Co.; New England Tel. & Tel. Co.; Bell Atlantic Network Servs., Inc., B-236023, B-236097, Nov. 7, 1989, 89-2 CPD para. 435 at 2-3 (concession to provide pay phone services to employees and visitors at a General Services Administration facility was subject to GAO protest jurisdiction where the services were intended to satisfy agency mission needs).

Here, we conclude that the pro bono phone services component of the contract, which the contractor must perform in addition to the fee-based phone services, furthers the mission of ICE. The RFP states that the purpose of the contract is to "support DHS/ICE[] operations and compliance with . . . [National Detention Standards]-Telephone Access" requirements, and to "provide DHS/ICE with repeatable, defined, accurate, timely, and well managed detention telephone services and processes that will ensure quality service and products that will meet these standards." RFP at 6.

As discussed above, the RFP states that the National Detention Standards "guarantee[] all detainees free telephone access to ICE identified entities," including "foreign Embassies, Consulates, Immigration Courts and approved pro bono and community based free immigration legal services providers." RFP at 5. ICE's website further confirms that the National Detention Standards are intended to aid the agency's mission:

The ICE National Detention Standards, promulgated in November 2000, are the result of negotiations between the American Bar Association (ABA), the U.S. Department of Justice (DOJ), the legacy Immigration and Naturalization Service (INS), and other organizations involved in pro bono representation and advocacy for immigration detainees. The 38 standards are comprehensive, encompassing areas from legal access to religious and medical services and marriage requests. The legal access standards concern visitation, access to legal materials, telephone access and group presentations on legal rights. The standards further the goals of ICE to provide safe, secure and humane conditions for all detainees in ICE custody.

ICE Detention Management Program Website, available at:  http://www.ice.gov/partners/dro/dmp.htm  (emphasis added).

On this record, we conclude that the RFP's requirement for the contractor to provide the pro bono portion of these services furthers ICE's mission and reduces the agency's workload by performing services that the agency would either need to perform itself, or procure under a separate contract. Thus, we conclude that our Office has jurisdiction to hear this protest because it concerns a procurement conducted by ICE to obtain services for the government.  (Public Communications Services, Inc., B-400058; B-400058.3, July 18, 2008)  (pdf)

The Army initially argues that our Office does not have jurisdiction to decide this protest because the DPS is a technology computer system that accepts and processes government rate tenders from qualified TSPs, and the acquisitions are exempt from the Federal Acquisition Regulation (FAR).

The Competition in Contracting Act of 1984 (CICA), 31 U.S.C. sect. 3551 (2000), which established the bid protest jurisdiction of our Office, defines "protests" as including objections to solicitations for bids or proposals for proposed contracts as well as objections to proposed or actual awards of such contracts. We have found that this definition encompasses objections to agency actions that result in the "award" of instruments that are not in themselves contracts, such as basic order agreements, which become binding when an order is issued, or a rate tender, which becomes binding when a GBL issued. Humco, Inc., B-244633, Nov. 6, 1991, 91-2 CPD para. 431 at 3; recon. denied, Department of State--Recon., B‑244633.2, Apr. 2, 1992, 92-1 CPD para. 339 at 3. Moreover, we have recognized the term "procurement" as used in CICA can include the process of acquiring transportation services by the government, even though the acquisition of such services is generally exempt from the FAR. Federal Transport, Inc.--Recon., B‑233393.3, June 1, 1989, 89-1 CPD para. 542 at 3. Thus, transportation services procured by and provided to the government are subject to our bid protest jurisdiction, where the agency obtains these services by means of a procurement. Humco, Inc., supra, at 2-4; recon. denied, Department of State--Recon., supra, at 2; Federal Transport, Inc.--Recon., supra. Because the request for competitive rate tenders under protest here will form the basis for the placement of GBLs for transportation services, our Office will consider the protests of the terms of this request, except as explained below. Humco, Inc., supra, at 2-4; recon. denied, Department of State--Recon., supra, at 2.  (Abba International, Inc. et al., B-311225.4, February 2, 2009) (pdf)

The United Way of the National Capital Area protests the selection of Global Impact by the Combined Federal Campaign of the National Capital Area (CFCNCA) to serve as the principal combined fund organization (PCFO) for the Combined Federal Campaign (CFC) activities in the Washington, D.C. metropolitan area. The United Way argues that the CFCNCA did not conduct a fair and reasonable competition in selecting Global Impact as the PCFO for the 2008 CFC campaign year. The Office of Personnel Management (OPM) argues that the CFCNCA is not a federal agency, and that our Office therefore does not have jurisdiction to hear this protest. As discussed below, we agree with OPM that our Office does not have jurisdiction to hear the protest and dismiss it on that basis.

(sections deleted)

The CFC is comprised of more than 250 local campaigns across the country. Each local campaign is run by a local federal coordinating committee (LFCC), which is “the group of Federal officials designated by the Director to conduct the CFC in a particular community.” Id. LFCCs are comprised of volunteers who are federal government employees and representatives of employee unions and other employee groups. 5 C.F.R. sect. 950.103(a). Among the duties of the LFCC are ensuring compliance with OPM regulations, determining the eligibility of local charitable organizations to participate in the CFC, and selecting a PCFO to act as the LFCC’s “fiscal agent and campaign coordinator” to administer the campaign. 5 C.F.R. sect. 950.104(b), (c).

(sections deleted)

As discussed in detail below, we conclude that our Office does not have jurisdiction to hear the protest because it does not concern the award of a contract for the procurement of services by a federal agency. Under the Competition in Contracting Act of 1984 (CICA) and our Office’s Bid Protest Regulations, we review protests concerning alleged violations of procurement statutes or regulations by federal agencies in the award or proposed award of contracts for procurement of goods and services, and solicitations leading to such awards. 31 U.S.C. sections 3551, 3552 (2000); Bid Protest Regulations, 4 C.F.R. sect. 21.1(a) (2008). Our analysis of the issues in this protest concludes that, while what is at issue appears to be a procurement for services for the benefit of the government, the procurement was not conducted by a federal agency, and we therefore lack jurisdiction.


We first conclude that the MOU appears to concern a procurement for services. We reach this conclusion based on the fact that the LFCC issued a solicitation seeking competitive proposals for the performance of various services, in return for a reimbursement of the successful offeror’s costs of performing those requirements. In addition, the solicitation specifically identifies the “services to be provided” by the PCFO in a “statement of work” that details the “requirements, performance expectations and deliverables required to serve as the PCFO to the local CFC campaign as outlined in 5 CFR 950 and CFC Guidance Memoranda.” Solicitation at 2, 4. Further, the MOU awarded here states that Global Impact, the successful offeror, will “conduct CFC campaign support operations during the campaign year,” including supporting the CFCNCA’s oversight and audit responsibilities, and providing “annual, periodic, and monthly financial and programmatic reports of CFCNCA activities and events, budget, and financial matters.” MOU at 1-2.  Next, we think that these services are for the benefit of the government because the head of the executive branch, acting via the above-described executive orders, has decided that there is a benefit to having a streamlined system for the collection and distribution of charitable employee donations in the federal workplace. As discussed above, the relevant executive orders specifically charge the director of OPM with establishing the CFC in order to “provide a convenient channel through which Federal public servants may contribute” to charitable causes, and “to minimize or eliminate disruption of the Federal workplace and costs to Federal taxpayers that such fund-raising may entail.” E.O. No. 12404, 48 Fed. Reg. 6685 (Feb. 10, 1983). The services provided under the MOU here are thus procured for the purpose of assisting OPM in meeting its obligations under the relevant executive orders. In light of the purposes set forth in the executive orders, and the scope of the services identified in the solicitation and MOU, we conclude that the MOU would appear to be a contract for the procurement of services of more than de minimis value to the government, which would normally place the protest within the scope of our bid protest jurisdiction. See Great South Bay Marina, Inc., B-296335, July 13, 2005, 2005 CPD para. 135 at 3.

Finally, we address whether this procurement for services was conducted by a federal agency. OPM argues that this protest concerns a competition conducted by the LFCCs, which, it contends, are entities outside of, or other than, the government. While we view this matter as a considerably closer call than does OPM, we agree. The legal character of LFCCs and their relationship to OPM is sui generis. LFCCs are a creation of OPM, and OPM plays a central role in their function. The regulations promulgated by OPM state that the CFC shall be run at the local level by LFCCs, each of which is established by, and subject to the direct control and supervision of, the director of OPM. 5 C.F.R. sect. 950.101. The Director of OPM has authority to supervise, audit, investigate, and discipline the LFCCs. 5 C.F.R. sections 950.102(c), 950.603. LFCCs, in turn, must obtain PCFO services, and must solicit proposals to do so, in accordance with OPM regulations. 5 C.F.R. sect. 950.104(c). Specifically, the OPM regulations direct the LFCCs to conduct a competition to select a PCFO. 5 C.F.R. sect. 950.104(c).  While we recognize that LFCCs appear to act in a quasi-official capacity, we see no basis to find that the LFCCs are themselves federal agencies. Moreover, while LFCCs are regulated by OPM, it is not clear that OPM is actually involved in, or responsible for the MOUs. As OPM notes, the agency is not involved with the drafting or issuance of solicitations, evaluation of proposals, or selection of successful offerors. Further, OPM notes that the LFCC here, the CFCNCA, is not comprised of OPM employees, but rather representatives from other federal agencies and employee unions, all of whom are acting on a voluntary basis. Additionally, the MOU here between the CFCNCA and Global Impact is signed by the chair of the CFCNCA, and was not signed or otherwise approved by OPM. See MOU at 6. On this record, while we think this issue is a close one, and while we recognize that the LFCCs are being used by OPM to supplement its management of the government-wide CFC effort, we cannot conclude the procurement conducted here by the CFCNCA was actually conducted by OPM, or any other federal agency. 

In summary, we conclude that this protest does not concern a procurement for services by a federal agency, and that therefore we do not have jurisdiction to hear this protest.  (United Way of the National Capital Area, B-311235, May 16, 2008) (pdf)

In arguing that we lack jurisdiction, the agency relies on the House and Senate committee reports that accompanied the NPS Concessions Management Improvement Act of 1998, Pub. L. No. 105-391, Sections 401-419, 112 Stat. 3503-18 (1998), which expressed the view that concession contracts do not constitute "contracts for the procurement of goods and services for the benefit of the government or otherwise." S. Rep. No. 105-202, at 39 (1998); H. R. Rep. No. 105-767, at 43 (1998). As we noted in Starfleet Marine Transp., Inc., supra , at 7, however, committee report language is not binding legal authority. Further, it is not clear that in stating that concession contracts are not contracts for the procurement of goods or services for the government, the committees envisioned the sort of "concession-plus" contract at issue here, i.e., mixed transactions that include the delivery of goods or services to the government. The agency also points to the fact that NPS regulations provide that "concession contracts are not contracts within the meaning of 41 U.S.C. 601 et seq. (the Contract Disputes Act) and are not service or procurement contracts within the meaning of statutes, regulations or policies that apply only to federal service contracts or other types of federal procurement actions." 36 C.F.R. Section 51.3. Again, we have previously considered this argument, noting in Starfleet that NPS cannot by regulation limit the authority of our Office to decide protests and that it is our Office, not NPS, that has interpretive authority over the bid protest provisions of CICA. Starfleet Marine Transp., Inc., supra , at 7. Further, regarding the agency's argument that both the U.S. District Court and the Court of Appeals upheld this regulation against a facial challenge, see Amfac Resorts, LLC v. Dept. of the Interior , 142 F. Supp. 2d 54 (D.D.C. 2001) and Amfac Resorts, LLC v. Dept. of the Interior , 282 F. 3d 818 (D.C. Cir. 2002), we note that the decision of the Court of Appeals was subsequently vacated by the Supreme Court--and that the Supreme Court pointed out that NPS was not the agency empowered to administer the procurement statute at issue in the case (the Contract Disputes Act) and that the NPS regulation was therefore "nothing more than 'a general statemen[t] of policy' designed to inform the public of NPS' views on the proper application of the [Contract Disputes Act]." National Park Hospitality Ass'n v. Dept. of the Interior , 538 U.S. 803, 809 (2003). We continue to be of the view that where a contract authorizing the provision of concession services also requires the delivery of goods or services of more than de minimis value to the government, the contract is one for the procurement of property or services within the meaning of CICA, and, as such, is encompassed within our bid protest jurisdiction. Great South Bay Marina, Inc. , B-293649, May 3, 2004, 2004 CPD Paragraph 108 at 2. At the same time, it has always been--and remains--our view that concession contracts that do not require the delivery of goods or services to the government (or that require the delivery of goods or services of only de minimis value to the government) are not contracts for the procurement of property or services within the meaning of CICA and do not fall within our Office's bid protest jurisdiction. White Sands Concessions, Inc., B-295932, Mar. 18, 2005, 2005 CPD Paragraph 62, recon. denied , B-295932.2, Apr. 12, 2005; Crystal Cruises, Inc., B-238347, Feb. 1, 1990, 90-1 CPD Paragraph 141 at 2, aff'd, B-238347.2, June 14, 1990, 90-1 CPD Paragraph 560. In this case, in addition to authorizing the contractor to furnish concession services on Fire Island, the prospectus requires the contractor to invest not less than $1,259,000 in building rehabilitation and improvements over the first 5 years of the contract. The scope of the required rehabilitation and improvement work and the timetable on which it is to be performed are spelled out in great detail in the prospectus; the work includes, for example, the replacement of dock sections (4,096 square feet per year for the first 5 years of the contract) at the NPS marina and the replacement of roofs, siding, and doors on concession facilities (all work to be completed in first year of contract). Prospectus at Exhibit B, p. 16. Since the prospectus here clearly requires the concessionaire to furnish goods and services of more than de minimis value to the government in addition to authorizing it to provide concession services, we find that Great South Bay Marina's protest falls within our jurisdiction. (Great South Bay Marina, Inc., B-296335, July 13, 2005) (pdf)

Before resolving SHDE’s reconsideration request, we address a March 4 (post-decision) letter to our Office from the Department of the Interior advising that we had misinterpreted NPS’s position on our jurisdiction to hear SHDE’s bid protest in the first instance. In our decision, we pointed out, as a threshold matter, that NPS “does not dispute” our Office’s authority to review the protest pursuant CICA, which applies to contracts for the procurement of property or services. Decision at 5. We further noted that in addition to providing visitor recreational services for the 10‑year term of the concession contract, the concessioner in this case would be providing services to the government of a more than de minimis value;[5] citing our decision in Starfleet Marine Transp., Inc., B‑290181, July 5, 2002, 2002 CPD ¶ 113 at 6, we concluded that our review of this “mixed transaction” therefore was appropriate. Decision at 5. Interior now advises that “NPS’s consistent position has been and continues to be that GAO does not have CICA jurisdiction over NPS concessions matters, including SHDE’s protest.” Interior Letter at 1. Interior states:

To the extent that we acquiesced in GAO review of SHDE’s protest under GAO’s “general authority to review agency actions,” we made clear that this authority was not CICA. We understand that GAO has general authority under 31 U.S.C. 717 to evaluate agency programs and activities, and . . . to consider “non-statutory protests” in accordance with 4 C.F.R. § 21.13 [i.e., section 21.13 of GAO’s Bid Protest Regulations].
Id. at 2.

Our understanding from NPS’s protest submissions regarding our review authority was as we stated in our decision. To the extent that we misunderstood NPS’s position, and that the agency in fact does not believe we have jurisdiction under CICA to review concession contracts, the decision is modified accordingly. Irrespective of this point, however, and as noted above, the contract in issue here was more than a simple concession contract, but rather was a mixed transaction that included the delivery of services to the government (which the government might otherwise have had to purchase or perform itself), of significant value. As we stated in Starfleet Marine (at 8), “[w]here the government invites private offerors to compete for a business opportunity, the performance of which also involves the delivery of property or services to the government, all elements necessary to involve our [CICA] jurisdiction are present.” (Shields & Dean Concessions, Inc.--Reconsideration, B-292901.4, March 19, 2004) (pdf)

As a threshold matter, we point out that the NPS does not dispute the authority of our Office, pursuant to the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. §§ 3551-56 (2000), to review this protest. Agency Report (AR), Dec. 15, 2003, at 1; AR, Feb. 3, 2004, at 1, 3. In this regard, where the government invites private offerors to compete for a business opportunity, the performance of which also involves the delivery of goods or services to the government, the contract is one for the procurement of property or services within the meaning of CICA and, therefore, is encompassed within our Office’s bid protest jurisdiction. Starfleet Marine Transp., Inc., B-290181, July 5, 2002, 2002 CPD ¶ 113 at 6. Here, in addition to providing visitor recreational services for the 10-year term of the concession contract, the concessioner also is required to provide a variety of maintenance, repair, housekeeping, and groundskeeping services, as well as to undertake a construction and demolition program projected to cost more than $800,000. Clearly, the value of the services to be provided by the concessioner to the government is significant, not de minimis, and it is, therefore, adequate to justify our review of this mixed transaction. Id. at 8. While the portions of CICA regarding our Office’s bid protest jurisdiction thus apply here, the CICA provisions governing the conduct of procurements do not. This is because CICA exempts “procurement procedures [that are] otherwise expressly authorized by statute.” 41 U.S.C. § 253(a)(1) (2000). The NPS statute, as referenced earlier, provides for such a procedure since it establishes the processes that are to be followed when the NPS awards a concession contract. Where, as here, CICA and the implementing Federal Acquisition Regulation (FAR) (see FAR §§ 1.104, 2.101) do not apply to procurements that are within our jurisdiction, we review the record to determine if the agency’s actions were reasonable and consistent with any statutes and regulations that do apply. Starfleet Marine Transp., Inc., supra, at 9-10. In this case, based on our review of the record, including the proposals submitted by SHDE and GLGO, the agency’s contemporaneous evaluation narratives, and the agency’s arguments in response to the protest, we conclude that the agency did not reasonably evaluate the SHDE and GLGO proposals in accordance with the terms of the prospectus. (Shields & Dean Concessions, Inc., B-292901.2; B-292901.3, February 23, 2004)  (pdf)

The authority of our Office to decide bid protests is established by the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. §§ 3551-3556 (2000), which provides that the Comptroller General shall decide protests challenging, among other things, solicitations and awards of contracts. This includes solicitations and awards of orders under the FSS. See Severn Cos., Inc., B-275717.2, Apr. 28, 1997, 97-1 CPD ¶ 181, at 2-3 n.1. Our jurisdiction to hear challenges of solicitations includes jurisdiction to consider a protester's challenge that it was unreasonably not solicited by an agency. See, e.g., GMA Cover Corp., B-288018, Aug. 17, 2001, 2001 CPD ¶ 144 at 3 (failure to solicit a vendor's quote under simplified acquisition procedures). Because Savantage is challenging DOJ's decision not to provide the firm a copy of the RFQ (and thus not to allow the firm to compete for the FSS order), we conclude that we have jurisdiction to hear the protest.  (Savantage Financial Services, Inc., B-292046; B-292046.2, June 11, 2003)

The authority for our Office to decide bid protests is based on the Competition in Contracting Act of 1984 (CICA), 31 U.S.C. § § 3551-56 (2000), and provides for consideration of challenges to solicitations by federal agencies for offers for contracts for the procurement of property or services, as well as challenges to the award or proposed award of such contracts. 31 U.S.C. § 3551(1). Our Office has previously determined that where a contractual transaction includes the delivery of goods or services to the government, the contract is one for the procurement of property or services within the meaning of CICA, and therefore is encompassed by our bid protest jurisdiction. See Starfleet Marine Transp., Inc., B-290181, July 5, 2002, 2002 CPD ¶ 113 at 6; Government of Harford County, Md., B-283259, B-283259.3, Oct. 28, 1999, 99-2 CPD ¶ 81 at 4. As the SAMS project transaction involves the government's acquisition of a facility (in this instance, valued in excess of $100 million), we conclude that the contract to be awarded here is one for the procurement of property and is within our bid protest jurisdiction.  Separate from the question of our jurisdiction is the question of what competition requirements apply (and, in particular, whether CICA's standards for full and open competition apply). We need not resolve that question with regard to the Act here, because the protest issues raised by SES all challenge the propriety of the agency's actions in light of the terms of the solicitation. We note, however, that there is a legal presumption that CICA's competition requirements apply "except in the case of procurement procedures otherwise expressly authorized by statute." 10 U.S.C. S: 2304(a)(1) (2000); see Jacobs COGEMA, LLC, B-290125.2, B-290125.3, Dec. 18, 2002, 2002 CPD ¶ __ at 10. Here, the Act is silent as to the applicability of CICA and it does not establish any alternative procurement procedures (other than the general framework cited earlier in this decision).  (SAMS El Segundo, LLC, B-291620; B-291620.2, February 3, 2003)  (pdf)  (txt version)

Where a mixed transaction includes the delivery of goods or services to the government, the contract is one for the procurement of property or services within the meaning of CICA, and therefore is encompassed by our bid protest jurisdiction. Thus, for example, our Office has assumed jurisdiction over a protest against the award of a contract involving both a sale of government property and a procurement of services where the services to be received by the government were one of the transaction’s main objectives. Id. Similarly, where the award of a concession contract included the provision of numerous services to the government, which the agency might otherwise have had to purchase or perform itself, we found that the solicitation involved a procurement of services. See Alpine Camping Servs., B-238625.2, June 22, 1990, 90-1 CPD ¶ 580 at 4-5. On the other hand, where a concession or similar type contract does not include the delivery of goods or services to the government, the contract is not one for the procurement of property or services as envisioned by CICA. Thus, for example, where the agency’s issuance of concession permits merely allowed entry by visitors into a national park, and did not also include the provision of services to the government, we did not exercise jurisdiction. Crystal Cruises, Inc., B-238347, Feb. 1, 1990, 90-1 CPD ¶ 141, aff’d, B-238347.2, June 14, 1990, 90-1 CPD ¶ 560.  (Starfleet Marine Transportation, Inc., B-290181, July 5, 2002 (pdf))