|
A. Challenges
To be considered valid, a challenge must meet all of the requirements
in paragraphs 1-10 below. Challenges that do not meet all of these
requirements will be rejected. Challengers are encouraged to read and
become familiar with the Federal Activities Inventory Reform Act of
1998 (FAIR) and the Office of Management and Budget (OMB) Circular
A-76 (Revised), "Performance of Commercial Activities."
1. The challenge must be in writing. Telephone
calls, verbal inquiries, voice mail, and electronic mail are not acceptable
and will be rejected.
2. The challenge must be sent by United States mail, express delivery or
similar service, or facsimile transmission to the office listed under Component
Address to Receive Challenges. (To assist in processing, challengers may
mark "FAIR Challenge" on the envelope.) The challenge may be
delivered in person, if the person making the delivery is authorized access
to the office listed under Component Address to Receive Challenges. Challenges
sent or delivered to other offices or locations will be rejected.
3. The challenge must be submitted to the office listed under Component
Address to Receive Challenges within 30 working days after the date that
the OMB notice, stating that the Department of Defense inventory is available
to the public, appears in the Federal Register. This date is the date that
the inventory actually becomes available to interested parties through
the Department of Defense FAIRNET site on the World Wide Web and in reading
rooms in the Washington, D.C. area.
4. The person or organization making the challenge must be an interested
party. Interested parties are defined in the FAIR Act of 1998 as:
(a) A private source that-
(i) is an actual or prospective
offeror for a contract, or other form of agreement, to perform
the activity; and
(ii) has a direct economic interest in performing the activity
that would be adversely affected by a determination not to procure
the performance of the activity from a private sector source.
(b) A representative of any business
or professional association that includes within its membership
private sector sources referred to in paragraph (a).
(c) An officer or employee of an organization within an executive
agency that is an actual or prospective offeror to perform that activity.
(d) The head of any labor organization referred to in section 7103(a)(4)
of title 5, United States Code, that includes within its membership
officers or employees of an organization referred to in paragraph
(c)."
5. The challenge must explain why the challenger
qualifies as an "interested party" in the challenge letter.
6. Members of the Uniformed Armed Forces and their Reserve and National
Guard Components, do not qualify as interested parties.
7. The challenge must identify the activity being challenged as specifically
as possible; that is, it must give a sufficient description of the activity
being challenged so DHRA can identify it. For example, the
challenger may reference the inventory entry for challenges to activities
included on the inventory, or provide activity, function, organization,
location, state, or other identifying information for challenges to activities
that were excluded from the inventory.
8. The challenge must state whether the challenger is challenging: (1)
the decision to include the activity on the Department of Defense FAIR
Act inventory as a commercial activity, (2) the decision to exclude the
activity from the Department of Defense FAIR Act inventory as an "inherently
governmental function" or, (3) a decision regarding an OMB reason
code designation. Only these three decisions are subject to challenge.
Attempts to challenge other items on the Department of Defense inventory
or other decisions related to the inventory will be rejected.
9. The challenge must state the reason or reasons for the challenge; that
is, it must explain the reasons why the challenger believes that DHRA
should change its decision: (1) to include the activity on the Department
of Defense inventory list as a commercial activity, (2) to exclude the
activity from it as an inherently governmental function, or (3) regarding
an OMB reason code designation.
10. The challenge must include the name of the challenger and the address to
which the decision on the challenge should be sent.
B.
Decisions
1. A decision on a challenge will be made within 28 working days
from the date that the office listed under Component Address to Receive Challenges
actually receives the challenge.
2. The decision will be in writing and will:
a. Identify the activity and the
omission/inclusion or reason code designation being challenged;
b. State whether the challenge is rejected on procedural grounds,
or upheld or denied;
c. Explain the rationale for the decision; and
d. Provide an explanation
of the challenger's appeal rights, if the challenge is rejected or
denied.
3. A decision to reject
a challenge will be made by a Responsible Official at DHRA. A decision
to uphold or deny a challenge
will be made by a Responsible Official at DHRA.
4. Decisions will be transmitted to challengers by United States mail or
facsimile transmission.C. Appeals
1. The specific procedures for submitting an appeal
to a decision on a challenge that is rejected or denied will be provided
to the challenger in the decision letter.
2. Appeals must be
in writing and transmitted by United States mail, express mail delivery
or other similar service, or facsimile transmission, or may be delivered
in person only if the person making the delivery is authorized access
to the Office Designated to Receive Appeals, to the address of the
office
identified in the challenge decision letter as the Office Designated
to Receive Appeals. (To assist in processing, appellants may mark "FAIR
Appeal" on the envelope.) Appeals must be submitted to the designated
office within 10 working days after the challenger received the decision
denying or rejecting the challenge. Decisions on appeals will be in writing
and will state the determination and the rationale for it.
D.
Definitions
1. The definition of the term "interested
party" is found in section 3(b) of the Federal Activities Inventory
Reform Act of 1998. It is also quoted in paragraph A.4. above.
2. The term "inherently governmental function" is defined
in section 5(2) of the Federal Activities Inventory Reform Act of 1998.
It is also defined in Attachment A, Section B.1. of the Office of Management and Budget Circular
A-76, "Performance of Commercial Activities."
3. The term "commercial activity" is defined in Attachment A, Section B.2. of the OMB Circular A-76, "Performance of Commercial Activities."
4. The term "reason codes for commercial activities" is defined in Attachment A, Section C, Figure A2 of the OMB Circular A-76, "Performance of Commercial Activities."
5. Before submitting a challenge, challengers are encouraged to read
the definitions listed above in the FAIR Act of 1998 and the OMB Circular
A-76, "Performance of Commercial Activities" to understand
the differences between a commercial activity and an inherently governmental
function.
|
