Neither Snow Nor Rain Nor GAO Protest Stays the New Post Office Trucks

While watching the obligatory reporting on the substantial snow fall in the northeast, I caught a brief glimpse of a familiar American winter sight—a lone United States Postal Service truck trudging along an otherwise abandoned snow-packed street. The iconic white box with wheels appeared inconvenienced but otherwise undeterred as it made its daily rounds.

This quintessential winter scene may soon be getting a facelift. The Postal Service is in the process of selecting a replacement delivery vehicle for its aging fleet of letter carriers. The projected value of the anticipated contract is in the ballpark of $6 billion. With that type of money in play, my first thought was “that ought to attract some GAO protest action.” Right?

Wrong.

After my momentary lapse, I remembered that protesting the new Postal Service’s delivery vehicle procurement before the Government Accountability Office (“GAO”)—the typical forum for bid protests—is out of the question. GAO lacks legal authority to hear protests of Postal Service procurements.

GAO considers bid protests thanks to a Congressional grant of authority. Congress authorized to GAO to make recommendations in response to protests regarding procurement actions of federal agencies. The term “federal agencies” is defined as “an executive agency or an establishment in the legislative or judicial branch of the Government (except the Senate, the House of Representatives, and the Architect of the Capitol, and any activities under the direction of the Architect of the Capitol).” This definition casts a broad net, which by definition does capture the Postal Service.

But what Congress gives, it may also take away. In the case of the Postal Service, Congress has made some significant exceptions. Specifically, “no Federal law dealing with public or Federal contracts, property, works, officers, employees, budgets, or funds, . . . shall apply to the exercise of the powers of the Postal Service.” With a single sentence, GAO’s bid protest jurisdiction over Postal Service procurements was wiped out.

GAO’s bid protest regulations readily acknowledge its lack of authority regarding Postal Service procurements. Listed among those issues that are not for GAO consideration are “[p]rotests of procurements or proposed procurements by agencies such as the U.S. Postal Service[.]” Protesting a Postal Service procurement at GAO is a non-starter.

Accordingly, any business interested in protesting the Postal Service’s procurement of new delivery vehicles is going to need to look outside of GAO. (Perhaps I also need to be a little less cynical about the prevalence protests, as well.)

In honor of GAO’s jurisdictional limitation, I’ve proposed a slight revision to the famous Postal Service inscription: “Neither snow nor rain nor heat nor GAO nor gloom of night stays these couriers from the swift completion of their appointed rounds.”

To think my colleagues tell me I’m too literal sometimes . . .