For now, GSBCA still has jurisdiction over ADP bid protests

Agency attempts to challenge the jurisdiction of the General Services Administration's
Board of Contract Appeals are premature. Agencies must abide the board's authority under
the Brooks Act a bit longer.


The Defense Commissary Agency and the National Library of Medicine both disputed the
board's authority and asked it to set aside recent protests. The agencies made their cases
on other grounds, but neither justified their arguments that the board lacked
jurisdiction.


The library suggested that the true definition of ADP is more specific than the one
that has evolved under Brooks. To what did the agency object? Tasks required under the
contract included, among other things, data coding, data conversion, data entry and
on-line data correction to support a literature retrieval system. The government provided
the hardware.


The agency argued that the contract requirements were for library services, not ADP,
and so the protest was outside the board's jurisdiction. Come now. That would mean that
IRS might make the same argument about its handling of automated income tax returns. They
are both ADP, according to governmentwide policy. The board dismissed the library's motion
for lack of jurisdiction.


The Defense Commissary Agency also brought up the definition of ADP but further hid
behind a $10 million delegation of procurement authority. The agency solicited for
services to process sales data collected using bar code scanner technology. The commissary
system would collect, distribute and manipulate the data, which the government then
intended to sell. If it sounds like data processing and looks like data processing, it
probably is ADP.


The commissary's DPA defense was even weaker. With more than 350 commissaries
worldwide, each with multiple data entry points, the value of these services would vary
from well above the $10 million delegated limit, in the view of the agency's marketing
business unit chief, to three times the delegation limit, in the view of the protester's
expert witness. The board granted the protest, concluding that the agency needed a larger
DPA.


Similar issues brought before the General Accounting Office a few months from now
probably will be resolved in a like manner. A new venue won't mean the end of reasonable
interpretations of government policy. The Brooks Act, of course, will no longer apply. But
who knows--maybe that will make it easier for GAO to get to the merit of a case.


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