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GAO-15-256SP 1 (2014-11-18)

handle is hein.gao/gaobadqsv0001 and id is 1 raw text is: GAOU.S. GOVERNMENT ACCOUNTABILITY OFFICE 441 G St. N.W. Washington, DC 20548 B- 158766 November 18, 2014 Re: GAO Bid Protest Annual Report to Congress for Fiscal Year 2014 Congressional Committees: This letter responds to the requirements of the Competition in Contracting Act of 1984, 31 U.S.C. § 3554(e)(2) (CICA), that the Comptroller General report to Congress each instance in which a federal agency did not fully implement a recommendation made by our Office in connection with a bid protest decided the prior fiscal year, and to describe each instance in which a final decision of a protest was not issued within 100 days of when the protest was filed with our Office. We also provide data concerning our overall protest filings for the fiscal year. Finally, this letter addresses the requirement that our report include a summary of the most prevalent grounds for sustaining protests during the preceding year. Id. Agency Failure to Fully Implement Recommendations For fiscal year 2014, one federal agency declined to implement the recommendations made by our Office in connection with a bid protest. By letter dated December 18, 2013, we reported an occurrence involving the Department of the Air Force: Asiel Enterprises, Inc., B-408315.2, Sept. 5, 2013, 2013 CPD 205. As explained in our December 18, 2013, letter, we sustained the protest regarding the Air Force's efforts to implement its Food Transformation Initiative without following applicable competitive procurement procedures. Under this initiative, the Air Force transferred mission essential feeding functions, an appropriated fund activity, at two of its installations to a non-appropriated fund instrumentality using a memorandum of agreement (MOA). In this regard, the protester argued that the head of the agency, citing the public interest exception to competition, 10 U.S.C. § 2304(c)(7) (2012), unreasonably justified use of the MOA to implement the Food Transformation Initiative. In sustaining the protest, our Office found that the Air Force's use of the public interest exception under 10 U.S.C. § 2304(c)(7) was improper for two reasons. First, the Air Force improperly relied on 10 U.S.C. § 2492 as its authority for entering into the MOA. Section 2492 provides authority for agencies and instrumentalities that support the operation of the morale, welfare, and recreation (MWR) system to enter into contracts or other agreements to provide or obtain goods and services beneficial to the efficient management and operation of that MWR system. We concluded that the agreement is not for the benefit of the MWR system, as the statute contemplates. Instead, the MOA provides for transferring appropriated funds to the Air Force Mission Essential Feeding Fund to implement the Air Force's mission essential feeding requirement, a non-MWR activity. Second, we concluded that the Secretary of the Air Force's determination and finding supporting the use of the public interest exception under 10 U.S.C. § 2304(c)(7) to avoid the applicable competitive procurement procedures was improper because the public interest exception to competition can only be used to justify procurement actions, and the MOA is not a procurement. GAO-1 5-256SP

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