DISMISSED FOR LACK OF JURISDICTION: December 1, 1992 GSBCA 12170-P ADVANCED MANAGEMENT, INC., Protester, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Respondent, and I-NET, INC., Intervenor. James K. Davis of Advanced Management, Inc., McLean, VA, counsel for Protester. Saul Y. Schwartz and Jerry L. Langley, Federal Deposit Insurance Corporation, Washington, DC, counsel for Respondent. Richard J. Webber and John J. O'Brien of Arent Fox Kintner Plotkin & Kahn, Washington, DC, counsel for Intervenor. Before Board Judges DANIELS, HYATT, and VERGILIO. DANIELS, Board Judge. In this protest, filed on November 12, 1992, Advanced Management, Inc., alleges that the Federal Deposit Insurance Corporation (FDIC or the Corporation) awarded a contract to I-Net, Inc., following improper evaluations of the proposals submitted by the two firms. The contract is for automatic data processing (ADP) support services, most of which relate to a local area network. The FDIC and I-Net, an intervenor of right, have each filed a motion to dismiss the protest. The motions are premised on the thesis that we do not have jurisdiction to hear the case because our protest authority is limited to procurements by Federal agencies and the FDIC is not such an agency. Protester's opposition is not persuasive. We grant the motions and dismiss the case for lack of jurisdiction. Discussion This Board is authorized to hear protests in connection with "any procurement . . . which is subject to" the Brooks Act, 40 U.S.C. 759. 40 U.S.C. 759(f)(1) (1988). This statute is concerned with the acquisition of ADP equipment -- a term which includes ADP support services -- by Federal agencies. Id., 759(a)(1), (2)(B)(iv). The Brooks Act is a part of the Federal Property and Administrative Services Act (Property Act), which defines the term "Federal agency" to mean "any executive agency or any 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 his direction)." 40 U.S.C. 472(b) (1988). It is undisputed that the FDIC is not a part of the legislative or judicial branch of the Government. Thus, the Corporation can qualify as a "Federal agency" -- and have its procurements of ADP equipment subject to Board review -- only if it is an "executive agency." An "executive agency," for purposes of the Brooks Act and other parts of the Property Act, is "any executive department or independent establishment in the executive branch of the Government, including any wholly owned Government corporation." 40 U.S.C. 472(a) (1988). It is again undisputed that the FDIC is not an "executive department." The question becomes whether the Corporation is an "independent establishment in the executive branch of the Government, including any wholly owned Government corporation." The FDIC is not a "wholly owned Government corporation." That term is not defined in the Property Act, but it is defined in a statute whose definitions the Property Act acknowledges, the Government Corporation Control Act, 31 U.S.C. ch. 91. See 40 U.S.C. 481(b) (1988). The latter law divides "Government corporations" into two groups, "wholly owned" and "mixed- ownership." 31 U.S.C. 9101(1) (1988). The FDIC is placed within the latter category. 31 U.S.C.A. 9101 (2)(C) (West Supp. 1992). This is the first case in which we have considered whether a procurement by a mixed-ownership Government corporation is subject to the Brooks Act, and consequently, whether we have jurisdiction to hear a protest involving such a procurement. Earlier cases presented the question of our jurisdiction over protests involving a wholly owned Government corporation (we may hear such a case: Wildhack & Associates, Inc., GSBCA 9108-P, 87-2 BCA 20,092, 1987 BPD 151) and a privately-owned corporation that is closely connected with the Government (we may not hear such a case: US Sprint Communications Co., GSBCA 11490-P, et al., 92-1 BCA 24,622, 1991 BPD 330). We are persuaded that a mixed-ownership Government corporation is outside the purview of the Brooks Act. The structure of the sentence defining "executive agency" suggests that this is so. Wholly owned Government corporations appear to be specifically included within the class of "independent establishments in the executive branch of the Government" because they are on the outer boundary of such establishments; any corporations which are owned by the Government to a lesser extent presumably are beyond the boundary. We do not have to rely on such postulating to be confident that our conclusion is correct, however, for another provision of the Property Act expressly recognizes that a mixed-ownership Government corporation is an entity separate from an executive agency. This provision authorizes the Administrator of General Services to provide to such a corporation "as far as practicable . . . upon its request" various services that the Administrator may provide to executive agencies. 40 U.S.C. 481(a), (b) (1988). Our conclusion that a mixed-ownership Government corporation, such as the FDIC, is not an "executive agency" for purposes of the Property Act is consistent with holdings of the General Accounting Office (GAO) and federal courts. GAO, in interpreting a definition of "Federal agency" which is virtually identical to the one in the Property Act, has held that a mixed- ownership Government corporation is not an executive agency. Realwise, Inc., B-242961, 91-1 CPD 201 (Feb. 21, 1991); Miller- Windsor, Inc., B-242342, 90-2 CPD 489 (Dec. 13, 1990); Chas. G. Stott & Co., B-220302, 85-2 CPD 333 (Sept. 24, 1985) (last case involves FDIC). Federal courts have uniformly held that the FDIC's contracting powers are broad and permit the Corporation considerable discretion in their exercise. Gosnell v. Federal Deposit Insurance Corp., 938 F.2d 372, 376 (2d Cir. 1991); Santoni v. Federal Deposit Insurance Corp., 677 F.2d 174, 179 (1st Cir. 1982); Diercks v. Federal Savings & Loan Insurance Corp., 528 F.2d 916 (7th Cir. 1976) (per curiam), all interpreting 12 U.S.C. 1819 ("[T]he Corporation shall become a body corporate and as such shall have power -- . . . To make contracts."). We find unconvincing both of the principal contentions advanced by protester in opposition to the motions to dismiss. First, protester points to our statement in Rocky Mountain Trading Co., GSBCA 8958-P et al., 87-2 BCA 19,840, at 100,410, 1987 BPD 85, at 8, that "when Congress intended an exemption from the Brooks Act, it clearly said so in the Act." This statement was made in a very different context -- whether an entity that is clearly a Federal agency (a bureau of the Treasury Department) may through other indicia of independence extricate itself from our protest jurisdiction. The comment is also overbroad; an exemption may be made by Congress through other statutory enactments, too. United States v. Electronic Data Systems Federal Corp., 857 F.2d 1444 (Fed. Cir. 1988) (regarding United States Postal Service). Second, protester observes that officials of the FDIC have been held to be protected from libel suits to the same extent as other federal employees, Molever v. Lindsey, 289 F. Supp. 832 (E.D. Mich. 1968), aff'd, 411 F.2d 597 (6th Cir. 1969); James v. Federal Deposit Insurance Corp., 231 F. Supp. 475 (W.D. La. 1964), and that the Corporation is a "federal agency" for purposes of the Federal Tort Claims Act, Freeling v. Federal Deposit Insurance Corp., 221 F. Supp. 955 (W.D. Okla. 1962), aff'd, 326 F.2d 971 (10th Cir. 1963). These holdings are of no particular relevance to whether the FDIC is subject to the Brooks Act, whose own very different definition of "Federal agency" is the one that concerns us here. Decision The motions filed by the FDIC and I-Net are GRANTED. The protest is DISMISSED FOR LACK OF JURISDICTION. _________________________ STEPHEN M. DANIELS Board Judge We concur: _________________________ _________________________ CATHERINE B. HYATT JOSEPH A. VERGILIO Board Judge Board Judge