In what appears to be the first litigation concerning “intergovernmental support agreements” (IGSA), the Government Accountability Office (GAO) in Red River Waste Solutions, Inc., B-414367 (March 21, 2017) declared that it has jurisdiction to review the award of IGSAs (in this particular case an IGSA for garbage collection services).
Section 331 of National Defense Authorization Act for FY 2013 (FY2013 NDAA) authorized a public-public partnership mechanism called “intergovernmental support agreements” (IGSA). Specifically, the Department of Defense (DoD) agencies “may enter into an [IGSA], on a sole source basis, with a State or local government to provide, receive, or share installation-support services if the Secretary determines that the agreement will serve the best interests of the department by enhancing mission effectiveness or creating efficiencies or economies of scale, including by reducing costs.” However, IGSA’s may only be used when the “State or local government … providing the installation-support services already provides such services for its own use.” Furthermore, the FY2013 NDAA also requires that any underlying contract used by the State or local government to provide the installation-support services must be awarded on a competitive basis.
In the Red River Waste Solutions case, Red River protested the Army’s award of an IGSA to Vernon Parish, Louisiana, to provide garbage collection services at Fort Polk, Louisiana. The Army awarded Vernon Parish an IGSA to perform garbage collection at the Fort Polk, and in turn Vernon Parish extended its existing contract for garbage collection in Vernon Parish (with Progressive Waste Solutions of Louisiana) to also cover garbage collection at Fort Polk.
Red River argued that the Army’s award of the IGSA to Vernon Parish was “contrary to the ‘enabling statute’ that authorizes the award of IGSAs” because (1) Vernon Parish did not already provide the services being procured, and (2) because Vernon Parish had not conducted a competition under which Red River could compete for the required services. While GAO ultimately dismissed the protest as untimely, GAO’s decision provided several important take-aways for future procurements involving IGSAs:
- IGSAs are “procurement contracts” and therefore the award of an IGSA falls within GAO’s bid protest jurisdiction.
- The statutory prerequisite that the “State or local government … providing the installation-support services already provides such services for its own use” does not require that such services be “identical” to the installation support services for which an IGSA is awarded.
- The State or local government’s compliance with the statutory requirement that the underlying contract it uses to perform the IGSA services “must be awarded on a competitive basis” is a “matter of contract administration over which GAO will not exercise [its] bid protest authority.” In other words, even if Red River’s protest had been timely, GAO would not have reviewed Red River’s second protest argument. However, GAO did suggest that there might be other means for Red River to obtain relief if in fact Vernon Parish did not award the underlying garbage collection contract on a competitive basis. GAO suggested that Red River could “pursue the matter directly with the Army, the Department of Justice, or the appropriate Office of Inspector General.” Another potential option, which was not suggested by GAO, would be for a company in Red River’s position to pursue an action against the state/local government entity in state (or possibly federal) court.
Just as state and local governments increasingly utilize inter-governmental cooperative procurement agreements, we are likely to see a steady increase in DoD agencies using IGSAs in the coming years. As a result, these take-aways are likely to come up again in future procurements.