Qwest Government Services, Inc. d / b / a CenturyLink QGS
Matter of: Qwest Government Services, Inc. d / b / a CenturyLink QGS
Date: 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, helped prepare the decision.
AgFirst-Farm Credit Bank protests are dismissed because the Procurement Agency is not a federal agency under the Federal Property and Administrative Services Act of 1949 and therefore the disputed claims do not fall within the jurisdiction of GAO over bidder protests.
Qwest Government Services, Inc. d / b / a CenturyLink QGS (CenturyLink) protests an order disposition to Granite Telecommunications, LLC in response to an unnumbered solicitation from AgFirst-Farm Credit Bank. The tender is looking for network / data services and software-defined Wide Area Network (SD-WAN) services and is considering placing a task order under the Enterprise Infrastructure Solutions contract of the General Services Administration (GSA) with indefinite delivery and unlimited quantity. CenturyLink alleges that AgFirst has inappropriately assessed proposals from a technical and pricing point of view, inappropriately allowed individual credit unions to influence the award decision, had inadequate and uneven discussions, and failed to evaluate proposals regarding compliance with the Federal Law on Compliance with the Federal Information Security Law.
We reject the protest.
AgFirst published the Immediate Call on January 13, 2021 to seek a contractor to convert AgFirst’s network architecture into a provider-managed SD-WAN and support the operation of the SD-WAN environment. Task Order Solicitation at 13. AgFirst is a borrower owned credit institution that provides loans to farmers, ranchers, rural community residents, agricultural and rural utility unions, and other eligible borrowers. Farm Credit Administration (FCA) letter dated Sept. 16, 2021 at Jan.
The protester put forward a proposal on February 5. On August 2nd, AgFirst informed the demonstrators that the granite had been sold. This protest followed.
The jurisdiction of our office results from the offer protest provisions of the Competition in Contracting Act (CICA), 31 USC §§ 3551-3557. Our role in resolving bid protests is to ensure that legal requirements for full and open competition are met. Pacific Photocopy & Research Servs., B-278698, B-278.698.3, March 4, 1998, 98-1 CPD ¶ 69 am 4. As relevant here, CICA defines a protest as a written objection from an interested party to such a solicitation or other request from a federal government his intermediary for offers or proposals for a contract for the procurement of real estate or services or an award or a proposed award of such a contract. 31 USC §§ 3551 (1), 3553. Our legal threshold concerns the question of whether the disputed procurement is being carried out by a federal agency. Americable Int’l, Inc., B-251614, B-251615, April 20, 1993, 93-1 CPD ¶ 336 on 2.
CICA has adopted the definition of a federal agency under Section 3 of the Federal Property and Administrative Services Act of 1949 (FPASA), 40 USC Section 102. See 31 USC § 3551 (3). FPASA defines a federal agency as “an executive agency or an entity in the legislative or judicial branch of government (excluding the Senate, House of Representatives, and Capitol Architect, and all activities directed by the Capitol Architect).” 40 USC Section 102 (5 An executive agency is “an executive division or an independent body within the executive branch of government” or “a wholly-owned government company”. ID card. Section 102 (4).
AgFirst is a borrower-owned bank that was founded more than 100 years ago as a government sponsored company, so it is not a wholly owned state-owned company. In addition, the protester has not alleged or proven that AgFirst is an executive branch or an executive, judicial or legislative body of the federal government. While the protester claims that AgFirst is a subunit of FCA and that FCA is an independent executive agency, FCA – whose input we have sought on this issue – states that AgFirst is not a subunit of FCA; Instead, FCA is an “arms-length regulator of AgFirst”. FCA letter re 1. Furthermore, FCA declares that it is not a party to the contractual action and that it is not a procuring entity. We find this explanation convincing and see no reason to consider AgFirst as a subunit of the FCA.
The protester nevertheless argues that our office has jurisdiction based on a provision in the solicitation that states:
Protests, as defined in Section 33.101 of the Federal Acquisition Regulation, filed directly with an agency and copies of protests filed with the [GAO], will be sent to the contract agent. . . .
Prompt at 58. However, nothing in this provision states that AgFirst meets the CICA definition of a federal agency that is subject to our bid protest jurisdiction. Nor are we convinced that a procuring entity such as AgFirst could choose to submit to our jurisdiction for applications under CICA, by solicitation or otherwise, where Congress has not done so.
In short, CenturyLink has not established that our office is responsible for the bid protest. Accordingly, the protest is rejected.
Edda Emmanuelli Perez