Matter of: Qwest Government Services, Inc. d / b / a CenturyLink QGS
To file: B-420095
Dated: October 6, 2021
Shelly L. Ewald, Esq., Emily C. Brown, Esq., And Andrew L. Balland, Esq., Watt Tieder Hoffar & Fitzgerald, LLP, for the protester.
Alexander O. Levine, Esq., And Jennifer D. Westfall-McGrail, Esq., Office of the General Counsel, GAO, were involved in preparing the decision.
The challenge of the challenge actions by AgFirst-Farm Credit Bank is dismissed because the procuring entity is not a federal agency within the meaning of the Federal Property and Administrative Services Act 1949 and, therefore, the contested actions are not do not fall under GAO’s bid challenge jurisdiction.
Qwest Government Services, Inc. d / b / a CenturyLink QGS (CenturyLink) protests against the issuance of a task order to Granite Telecommunications, LLC as part of an unnumbered solicitation issued by AgFirst-Farm Credit Bank. The solicitation is for Network / Data and Software Defined Wide Area Network (SD-WAN) services and contemplates the issuance of a task order under the contract of indefinite delivery and indefinite quantity enterprise infrastructure solutions from the General Services Administration (GSA). CenturyLink argues that AgFirst unreasonably assessed the proposals based on technical and price factors, impermissibly allowed individual credit unions to influence the award decision, conducted inadequate and unequal discussions, and failed to allow individual credit unions to influence the award decision. has not assessed the proposals for compliance with the Federal Information Security Management Act.
We reject the protest.
AgFirst released the instant solicitation on January 13, 2021, seeking a contractor to transform AgFirst’s network architecture into a vendor-managed SD-WAN and to support the operation of the SD-WAN environment. . 13. AgFirst Task Order Request is a borrower-owned financial institution that provides credit to farmers, ranchers, residents of rural communities, agricultural and rural utility cooperatives, and other eligible borrowers. Letter from the Farm Credit Administration (FCA), September 16, 2021, p. 1.
The protester submitted a proposal on February 5. On August 2, AgFirst notified the protester of the Granite award. This protest followed.
The jurisdiction of our office is established by the bid challenge provisions of the Procurement Competition Act (CICA), 31 USC §§ 3551-3557. Our role in resolving bid challenges is to ensure that the statutory requirements of full and open competition are met. Pacific photocopy and research services., B-278698, B-278698.3, March 4, 1998, 98-1 CPD ¶ 69-4. As relevant here, the CICA defines a protest as a written objection by an interested party to a solicitation or other request for ‘an agency for tenders or proposals for a contract for the acquisition of goods or services, or the award or proposal for the award of such a contract. 31 USC §§ 3551 (1), 3553. Our primary jurisdictional concern is whether the procurement in question is performed by a federal agency. Americable International, Inc., B-251614, B-251615, April 20, 1993, 93-1 CPD ¶ 336 to 2.
The CICA adopted the definition of a federal agency set out in Section 3 of the Federal Property and Administrative Services Act of 1949 (FPASA), 40 USC § 102. See 31 USC § 3551 (3). The FPASA defines a federal agency as “an executive agency or an establishment of the legislative or judicial branch of government (with the exception of the Senate, the House of Representatives and the Architect of the Capitol, and any activity under the direction of Architect of the Capitol). “40 USC § 102 (5). An executive agency is” an executive department or institution independent of the executive branch of government “or” a wholly owned Crown corporation. ” Identifier. § 102 (4).
AgFirst is a borrower-owned bank that was established over 100 years ago as a government sponsored enterprise and therefore is not a fully owned Crown corporation. Further, the protester has neither alleged nor demonstrated that AgFirst is an executive department or an establishment of the executive, judicial or legislative branches of the federal government. While the protester claims that AgFirst is a sub-entity of FCA and that FCA is an independent executive agency, FCA – whose advice we have sought regarding this matter – explains that AgFirst is not a sub-entity of FCA; instead, FCA is an “independent regulator of AgFirst”. Letter from FCA at point 1. In addition, FCA declares that it is not a party to the contractual action and that it is not the purchasing organization. We find this explanation compelling and see no reason to consider AgFirst as a sub-entity of FCA.
The protester nevertheless maintains that our Office has jurisdiction under a provision of the invitation which states:
Protests, as defined in Section 33.101 of the Federal Acquisition Regulation, that are filed directly with an agency, and copies of all protests that are filed with the [GAO], must be served on the contracting officer. . . .
Solicitation at 58. Nothing in this provision, however, establishes that AgFirst meets the CICA definition of a federal agency subject to our bid challenge jurisdiction. We are also not persuaded that a procuring entity such as AgFirst could choose to submit to our jurisdiction to challenge bids under the ICCA, through solicitation or otherwise, where Congress does not. did not.
In short, CenturyLink has failed to demonstrate that our office has jurisdiction over the challenge to the offer. Consequently, the protest is rejected.
Edda Emmanuelli Perez