DISMISSED FOR LACK OF JURISDICTION: March 22, 1995 GSBCA 13194-P CONSULTING ASSOCIATES, INC., Protester, and COST MANAGEMENT SYSTEMS, INC., Intervenor, v. DEPARTMENT OF THE AIR FORCE, Respondent, and ADVANCED MANAGEMENT, INC., Intervenor. ARMY AND AIR FORCE EXCHANGE, Amicus Curiae. Terence Murphy and Patrick O'Donnell of Kaufman & Canoles, Norfolk, VA; and Richard S. Ewing and Joseph D. West of Arnold & Porter, Washington, DC, counsel for Protester. Thomas N. Anderson, Director of Contracts and Pricing, Cost Management Systems, Inc., Vienna, VA, appearing for Intervenor Cost Management Systems, Inc. Clarence D. Long, III, Office of General Counsel, Department of the Air Force, Washington, DC; and Roy H. Leonard, Randolph Air Force Base, TX, counsel for Respondent. James J. Regan of Crowell & Moring, Washington, DC, counsel for Intervenor Advanced Management, Inc. Colonel Morris A. Tanner, Jr., USAF, Mary L. Waldsmith, and Michael Immler, Office of General Counsel, Army and Air Force Exchange, Dallas, TX, counsel for Amicus Curiae. Before Board Judges DANIELS (Chairman), WILLIAMS, and VERGILIO. DANIELS, Board Judge. Consulting Associates, Inc., protests the award of a contract by the Air Force Nonappropriated Fund Purchasing Office (AFNAFPO) to Advanced Management, Inc. The contract is for the provision of worldwide automatic data processing support services for the Morale, Welfare and Recreation management information systems of the Department of the Army's Community and Family Support Center (CFSC). The Department of the Air Force filed a motion to dismiss the protest for lack of jurisdiction. Both AFNAFPO and CFSC are non-appropriated fund instrumentalities (NAFIs) of the Department of Defense (DoD). The motion asserts that such entities are not Federal agencies, and that the Board consequently does not have authority to hear protests involving procurements by them. Advanced Management, Inc., which has intervened in the protest, supports the motion. As authorized by the Board, the Army and Air Force Exchange, which like AFNAFPO and CFSC is a DoD NAFI, filed an amicus curiae brief in support of the motion. Consulting Associates, Inc., filed an opposition. The motion raises a question to which the answer is not readily apparent. In light of the ambiguous nature of DoD NAFIs, our perception that a reasonable case can be made for either conclusion, and the fact that for at least the past fourteen years, the agency charged with administering the relevant statute has never applied the law to DoD NAFIs, we decide that the statute should be construed as not conferring on us jurisdiction over the protest. Discussion The Board may consider protests involving procurements which are subject to the Brooks Automatic Data Processing Act (Brooks Act). 40 U.S.C. 759(f)(1) (1988). "Our protest jurisdiction is coextensive with the Brooks Act itself. If a procurement is exempt from the Brooks Act, it is exempt from our protest jurisdiction as well." Computer Sciences Corp., GSBCA 10388-P, 90-1 BCA 22,538, at 113,103, 1989 BPD 377, at 6 (citations omitted). This Act applies to the "purchase, lease, and maintenance of automatic data processing equipment by Federal agencies." Id. 759(a)(1). The question posed by the motion to dismiss is whether a DoD NAFI is a "Federal agency" for purposes of this statute. If it is, we have jurisdiction over the case, since there is no doubt that the subject matter of the procurement is automatic data processing equipment.1 If it is not, we must dismiss the protest. The Brooks Act is itself a portion of the Federal Property and Administrative Services Act (Property Act), which contains the controlling definition of the term "Federal agency." For our purposes, the term means "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). A DoD NAFI is clearly not an establishment in the legislative or judicial branch, so it is a "Federal agency" only if it is an "executive agency." The Property Act defines the latter term as well. An "executive agency" is "any executive department or independent establishment in the executive branch of the Government, including any wholly owned Government corporation." Id. 472(a). The Property Act provides no further help in our inquiry, however; it does not define the terms "executive department" or "independent establishment in the executive branch of the Government." In the remainder of this opinion, we discuss whether a DoD NAFI falls within either of these categories. NAFIs, as their name implies, take contract actions with funds which have not been appropriated by Congress. DoD defines a NAFI as "an integral DoD organizational entity that performs an essential government function. It acts in its own name . . . . It is established and maintained individually or jointly by the heads of DoD components. As a fiscal entity, it maintains custody and control over its [nonappropriated funds]." Respondent's Supplementary Brief at 2 (quoting DoD Directive 1015.1, Encl. 2, 2). The Court of Appeals for the Federal Circuit has cited this generic description of NAFIs: Their birth is funded by the Government. The seed money for their creation came from the Government. They are managed by Government people who are paid Government salaries. They usually occupy Government facilities, perhaps on some cost-reimbursable arrangement, but on Government real estate, using Government facilities. ____________________ 1 The Act defines the term "automatic data processing equipment" to include "services, including support services" related to certain "equipment or interconnected system or subsystems of equipment that is used in the automatic acquisition, storage, manipulation, management, movement, control, display, switching[,] interchange, transmission, or reception, of data or information." 40 U.S.C. 759(a)(2) (1988). "Automatic data processing resources" might be a more _________ descriptive term than "equipment" for the subject matter with which we are concerned. They perform essentially a morale- building function for the Government personnel, which the Government would otherwise have to appropriate funds for if it weren't having it done in this manner [by funding through direct sales to or service fees from the personnel benefitted]. There is a very close identity between them and the Government people with whom they are working every day. They are providing service to Government people engaged in a Government mission. McDonald's Corp. v. United States, 926 F.2d 1126, 1129-30 (Fed. Cir. 1991). Most discussions of the legal status of these entities begin with the Supreme Court's opinion in Standard Oil Co. of California v. Johnson, 316 U.S. 481 (1942). The Court was asked to determine whether a State motor vehicle fuel license tax, which was inapplicable to any fuel "sold to the government of the United States or any department thereof," could be levied on Army post exchanges, which are a species of DoD NAFIs. The Court made the following findings about post exchanges: They "operate under regulations of the Secretary of War." Id. at 483. "Congressional recognition that the activities of post exchanges are governmental has been frequent." Id. at 484. "The commanding officer of an Army Post, subject to the regulations and the commands of his own superior officers, has complete authority to establish and maintain an exchange." Id. "[G]overnment officers, under government regulations, handle and are responsible for all funds of the exchange which are obtained from the companies or detachments composing its membership." Id. at 485. From these facts, the Court concluded: [P]ost exchanges as now operated are arms of the government deemed by it essential for the performance of governmental functions. They are integral parts of the War Department, share in fulfilling the duties entrusted to it, and partake of whatever immunities it may have under the constitution and federal statutes. Id. The Supreme Court has reiterated this understanding whenever, in the years since Johnson, it has returned to the subject of DoD NAFIs. In United States v. State Tax Comm'n of Mississippi, 421 U.S. 599, 606 (1975), the Court echoed Johnson in saying that "post exchanges and similar facilities are instrumentalities of the United States . . . arms of the government deemed by it essential for the performance of governmental functions . . . and partake of whatever immunities it may have under the constitution and federal statutes."2 A sales tax on purchases by a post exchange fell on "instrumentalities of the United States" and was therefore unconstitutional. Id. at 610-13. In United States v. Hopkins, 427 U.S. 123, 128 (1976), the Court recognized that "employees of nonappropriated-fund activities, when performing their official duties, are employees of the United States."3 In Army & Air Force Exchange Service v. Sheehan, 456 U.S. 728 (1982), the Court held that the Exchange Service, a NAFI, "is under the control of the Secretaries of the Army and Air Force" and restated some of its Mississippi comments. Id. at 729 n.1, 733-34. Similarly, the Court of Appeals for the Federal Circuit has described NAFIs as being "under the supervision and control of the Defense Department." McDonald's, 926 F.2d at 1133. AFNAFPO, the NAFI which is conducting the protested procurement, is similar to the post exchanges involved in Johnson in the ways identified by the Supreme Court. AFNAFPO is a part of the Air Force Services Agency, which is a "field operating agency of the Air Force." Respondent's Responses to Interrogatories (Mar. 2, 1995) 2, 14. Both AFNAFPO and the Services Agency are headed by military officers. Id. 3, 15. The Department of the Air Force established the policies and procedures under which AFNAFPO operates; the Air Force Instruction which governs non-appropriated fund contracting was issued "by order of the Secretary of the Air Force." Id. 4; Protest File, Exhibit 4 at 1 (Air Force Instruction 64-301); see also 10 U.S.C.A. 2783(a) (West Supp. 1995). The officers who head AFNAFPO and the Services Agency are responsible for ensuring that the Office operates in accordance with Air Force and DoD policy. Respondent's Responses to Interrogatories 5. Further, the procurement is being conducted to support the mission of the Army CFSC, which is itself a mission entrusted by statute to a DoD official, the Secretary of the Army (providing for the morale and welfare of personnel). Id. 26, 36; 10 U.S.C. 3013(b)(9) (1988). The CFSC, like the AFNAFPO, is a field operating agency of its department, headed by a military officer. Respondent's Responses to Interrogatories 27, 28. As the Johnson Court noted, however, there is one important way in which NAFIs are different from other parts of DoD: "The government assumes none of the financial obligations of the exchange." 316 U.S. at 485. Because NAFIs' contractual obligations do not involve appropriated funds, those obligations do not create a debt of the United States, and lawsuits to enforce them will not lie against the United States unless ____________________ 2 Thus, the United States can sue to protect the interests of post exchanges and similar facilities. United ______ States v. Howell, 318 F.2d 162, 167 (9th Cir. 1963). ________________ 3 Thus, they are considered Federal agencies for purposes of the Federal Tort Claims Act. Howell, 318 F.2d at 167. ______ specifically provided in statute. Sheehan, 456 U.S. at 734; Jaeger v. United States, 394 F.2d 944, 946 (D.C. Cir. 1968); G. L. Christian & Associates v. United States, 312 F.2d 418, 425 (Ct. Cl. 1963), reargument denied, 320 F.2d 345, cert. denied, 375 U.S. 954 (1963), rehearing denied, 376 U.S. 929, 277 U.S. 1010 (1964); see 28 U.S.C. 1346(a)(2), 1491(a)(1) (1988); 41 U.S.C. 602(a) (1988). This rule may cause results which appear unreasonable. An exasperated Chief Judge Jones of the Court of Claims stated in one case: "For the Army to contend and to provide by regulation that it is not liable since it did not act in its official capacity would be like a man charged with extramarital activity pleading that whatever he may have done was done in his individual capacity and not in his capacity as a husband." Borden v. United States, 116 F. Supp. 873, 877 (Ct. Cl. 1953). Nevertheless, as recognized in that very case, the rule is firm.4 By statute, employees of DoD NAFIs are also distinguished from Government employees. They are deemed "not an employee" for the purpose of most laws administered by the Office of Personnel Management (though Congress stated that this "does not affect the status of these nonappropriated fund activities as Federal instrumentalities"). 5 U.S.C.A. 2105(c) (West Supp. 1995). Special whistleblower legislation applies to employees of DoD NAFIs. 10 U.S.C. 1587 (1988). Compensation for work injuries under the Longshore and Harbor Workers' Compensation Act is authorized for DoD NAFI employees by express provision of law. 5 U.S.C.A. 8171-8173 (West Supp. 1995). The NAFIs accept coverage of other laws only because those statutes, either explicitly or by a particular definition of "Federal agency," refer to an "instrumentality of the United States." Respondent's Reply Brief at 7; Amicus Brief at 2-3; see, e.g., 4 U.S.C. 107 (1988) (exception from state sales taxes); 26 U.S.C.A. 6402 (West Supp. 1994) (authority to make tax credits or refunds); 28 U.S.C.A. 2671-80 (West Supp. 1994) (Federal Tort Claims Act); 31 U.S.C.A. 3720A (West Supp. 1994) (reduction of tax refund by amount of debt); 37 U.S.C. 1007 (1988) (deductions from pay of military individuals). Additionally, NAFIs are considered distinct entities for the purposes of two separate Government procurement statutes. A law regarding the purchase of goods and services from nonprofit agencies for the handicapped provides that a "nonappropriated fund instrumentality under the jurisdiction of the Armed Forces" is an entity distinct from an "executive agency" or "military department." 41 U.S.C. 48b(7) (1988). Another statute provides that the Secretary of Defense may authorize "an element ____________________ 4 This is so even though the predicament described in Borden was cured by statutory change, and consequently the ______ precise holding in that case is no longer the law. See U.S. v. ___ _______ Hopkins, 427 U.S. at 126; 28 U.S.C. 1346(a)(2), 1491(a)(1) _______ (1988). of the Department of Defense" to enter into a contract with certain "exchange store[s] operated under the jurisdiction of the Secretary of a military department" to acquire supplies or services. 10 U.S.C.A. 2424 (West Supp. 1995). Thus, DoD NAFIs are surely Federal entities of some sort -- "instrumentalities," at least. But whether they are "executive agencies" -- that is to say, "executive departments" or "independent establishments in the executive branch of the Government" -- for the purposes of the Property Act and the Brooks Act is not clear. Two Federal district courts have examined the issue in the context of the Property Act and come to very different conclusions. In W. B. Fishburn Cleaners, Inc. v. Army & Air Force Exchange Service, 374 F. Supp. 162, 164-65 (N.D. Tex. 1974), the court held that the Army and Air Force Exchange Service (AAFES) -- a NAFI -- was an "independent establishment," as that term is defined at 5 U.S.C. 1045, and consequently a Property Act "executive agency." In Ellsworth Bottling Co. v. United States, 408 F. Supp. 280, 283-84 (W.D. Okla. 1975), the court determined that because AAFES was neither an executive department (because it is not among the cabinet departments listed at 5 U.S.C. 101) nor an independent establishment (because it is "a part of the Departments of Army and Air Force and, hence part of the Department of Defense"), it is not a Property Act "executive agency." The analysis in Ellsworth would have unusual consequences. If an entity can escape Property Act and Brooks Act coverage because it is neither independent nor part of an executive department named in 5 U.S.C. 101, these laws do not apply to some very large agencies. For example, the Internal Revenue Service (part of the Treasury Department), the Federal Bureau of Investigation (part of the Justice Department), and the National Park Service (part of the Interior Department) would not be covered by the Property Act and Brooks Act. Nor, indeed, would the Department of the Air Force, because it is part of the Department of Defense! No party in this case (or any other of which we have knowledge) has suggested that the IRS, FBI, NPS, and Air Force are exempt from the Brooks Act because they are not named departments in 5 U.S.C. 101. Under the rationale of either Fishburn (NAFIs are independent of DoD, and therefore independent establishments) or Ellsworth, as developed more fully (NAFIs are part of DoD, an ____________________ 5 "For the purpose of this title [5], 'independent establishment' means -- "(1) an establishment in the executive branch (other than the United States Postal Service or the Postal Rate Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment; and "(2) the General Accounting Office." executive department), DoD NAFIs would appear to be executive agencies for purposes of the Brooks Act. The NAFIs can escape Brooks Act coverage only if neither of these rationales is correct. There appear to be two ways out for the NAFIs. First, they might be deemed to be completely outside the executive branch, like a federal reserve bank. US Sprint Communications Co., GSBCA 11490-P, et al., 92-1 BCA 24,622, at 122,817, 1991 BPD 330, at 13. Second, NAFIs could be seen as walking a tightrope between two alternatives -- not independent of DoD, but not part of it either. Is this what the Court of Appeals for the Federal Circuit meant when it described NAFIs as being "under the supervision and control of the Defense Department"? McDonald's, 926 F.2d at 1133. The General Accounting Office (GAO) has a ready answer to the question of the status of these entities. GAO has refused for many years to consider bid protests involving procurements conducted by NAFIs, except where the complaint alleges that the NAFI is acting as a conduit for an appropriated fund agency for the purpose of circumventing the statutory requirement for full and open competition. Premiere Vending, B-256560, 94-2 CPD 8 (July 5, 1994); In the Matter of Obtaining Goods & Services from Nonappropriated Fund Activities through Intra-Departmental Procedures, 58 Comp. Gen. 94, 98 (1978), 78-2 CPD 353, at 6-7. Initially, GAO took this position because it heard only protests against procurements which involved appropriated funds, and NAFIs by definition use other money. US West Communications Services, Inc. v. United States, 940 F.2d 622, 631 (Fed. Cir. 1991); Monarch Water Systems, Inc., 64 Comp. Gen. 756, 759 (1985), 85-2 CPD 146, at 2; In the Matter of Obtaining Goods & Services, 58 Comp. Gen. at 98, 78-2 CPD 353, at 6. The Competition in Contracting Act of 1984 removed the limitation of funding source from GAO's bid protest authority; it made that authority applicable to procurements by "executive agencies," where "executive agency" apparently had the meaning given to it by the Property Act. Pub. L. No. 98-369, 98 Stat. 1199 (1984).6 Since then, GAO has repeatedly insisted that DoD NAFIs are not executive agencies, but has never explained why it reaches this conclusion. Thayer Gate Development Corp., B-242847.2 (Dec. 9, 1994); DSV GmbH, B-253724, 93-1 CPD 468 (June 16, 1993); Military Equipment Corp. of America, B-253708, 93-1 CPD 455 (June 11, 1993); Americable Int'l, Inc., B-251614, et al., 93-1 CPD 336 (Apr. 20, 1993); Liquipharm, Inc.-Recons., B-245069.2, 91-2 CPD 212 (Aug. 28, 1991); ATD-American Co., B-240048, 90-2 ____________________ 6 The statute initially vested in GAO the authority to hear protests in procurements by "executive agencies." It did not define that term, however; instead, it defined the term "Federal agency" -- by reference to the Property Act. In 1985, Congress extended GAO's bid protest authority to procurements by "Federal agencies." Pub. L. No. 99-145, 99 Stat. 742 (1985). Because the term "Federal agencies" includes all "executive agencies," the change is immaterial to this case. CPD 49 (July 18, 1990); Brunswick Bowling & Billiards Corp., B-224280, 86-2 CPD 295 (Sept. 12, 1986); Kold-Draft Hawaii, Inc., B-222669, 86-1 CPD 331 (Apr. 4, 1986). Outside the bid protest arena, however, GAO has rendered an opinion on the very point we must decide in this case. On July 16, 1981, in response to a question from AAFES as to whether that Service was exempt from the Brooks Act because it is not a "Federal agency," the acting general counsel of GAO stated: Our decision at 58 Comp. Gen. 94 (1978) held that obtaining supplies from AAFES was tantamount to obtaining them from a non- Government source. That decision stated that Government instrumentalities including AAFES differ significantly from other Government agencies with respect to budgetary and appropriations matters. They are generally self-supporting; they do not receive moneys appropriated by the Congress; generally, their contractual obligations are not regarded as obligations of the United States, with the exception of AAFES. Since they do not procure by using appropriated funds, the Armed Services Procurement Act and implementing regulations do not apply to AAFES procurements.[7] Consequently, most requirements applicable to Department of Defense procurements do not apply to AAFES procurements. For these reasons, we do not believe that the Brooks Act applies to AAFES procurements. Attachment to Amicus Brief. The Secretary of the Air Force agrees, per his Instruction which governs nonappropriated fund contracting, that "[t]he Brooks Act [does] not apply to [nonappropriated fund] contracting." Protest File, Exhibit 4 at Attachment I. We asked the General Services Administration (GSA), which is charged by statute with administering the Brooks Act, for its views as to whether the Act applies to DoD NAFIs. 40 U.S.C. 759(f)(5)(A) (1988). GSA's views are of interest to us, though we are not bound by them. Id.; Pindar Donnelley Partnership, GSBCA 12667-P, 94-2 BCA 26,673, at 132,688-89, 1994 BPD 4, at 25 (1993). GSA concludes that this procurement is not subject to the Act. Letter to the Board from Joe M. Thompson, Commissioner, Information Technology Service, GSA (Mar. 15, 1995). ____________________ 7 Under current law, procurements by NAFIs would be exempt from the statutory requirements which generally apply to procurements by the Department of Defense, even if the NAFIs were deemed part of that department. 10 U.S.C. 2303(a) (1988). In trying to make heads or tails of the foregoing, and deciding whether DoD NAFIs are "executive agencies" for purposes of the Brooks Act, our first effort is to give voice to the plain meaning of the statute's words. US West Communications Services, 940 F.2d at 627. Regrettably, such an analysis does not reveal a conclusive result here; the term "executive agency" is not parsed sufficiently for us to determine readily whether it includes NAFIs. Nothing about the matter is plain. We can be sure that the fact that NAFIs, such as AFNAFPO, acquire goods and services with nonappropriated funds is not, in itself, dispositive of the question. As the Court of Appeals has explained, "Congress did not consider the source of the funds relevant in determining the applicability of the Brooks Act . . . . A contrary conclusion would allow agencies to escape the Act by the expedient of using funds from an appropriate source." United States v. International Business Machines Corp., 892 F.2d 1006, 1009-10 (Fed. Cir. 1989); see also Rocky Mountain Trading Co., GSBCA 8958-P, 87-2 BCA 19,840, at 100,409, 1987 BPD 85, at 8; MCI Telecommunications Corp., 70 Comp. Gen. 20, 24-25 (1990), 90-2 CPD 280, at 7. It must be something other than the source of funds which determines whether an entity is a Brooks Act "executive agency." In other contexts, courts have strained to find some legal touchstone to answer the highly theoretical question of what constitutes "agencyness." To cite three examples: A well-known formulation used in relation to the Administrative Procedure Act's definition of "agency," first enunciated in Lassiter v. Guy F. Atkinson Co., 176 F.2d 984, 991 (9th Cir. 1949), is "The authority to act with the sanction of government behind it determines whether or not a governmental agency exists." See also Conservation Law Foundation v. Harper, 587 F. Supp. 357, 363-64 (D. Mass. 1984); Kam Koon Wan v. E. E. Black, Ltd., 188 F.2d 558, 561 (9th Cir.), cert. denied, 342 U.S. 826 (1951). In a Freedom of Information Act case, the Supreme Court used tests of degree of control and supervision by an agency over an entity to determine whether an entity was an agency. Forsham v. Harris, 445 U.S. 169, 179-82 (1980). The Ninth Circuit, in analyzing whether an entity was an agency for purposes of the Federal Rules of Appellate Procedure, considered six factors to be relevant: (1) the extent to which the entity at issue performed a governmental function; (2) the scope of the federal government's involvement in the management of that entity; (3) whether the entity's operations were financed by the federal government; (4) proprietary interests of persons other than the federal government; (5) whether the entity is treated as an arm of the federal government in federal statutes; and (6) whether the entity is treated as an arm of the federal government under the Federal Tort Claims Act. Blas v. Government of Guam, 941 F.2d 778, 779 (9th Cir. 1991), cert. denied, 112 S. Ct. 1295 (1992). We are reluctant to apply any of these tests, in light of the caution that what constitutes an agency for the purpose of one statute may not make an agency for the purpose of another. United States v. Hopkins, 427 U.S. at 126; Federal Trade Commission v. Bunte Brothers, Inc., 312 U.S. 349, 353 (1941). Furthermore, cases in other contexts make clear that a "federal instrumentality" -- which each DoD NAFI is -- is not necessarily a "federal agency." US Sprint, 92-1 BCA at 122,820, 1991 BPD 330, at 19 (citing Blas v. Guam; Hanna v. Federal Land Bank Ass'n of S. Illinois, 903 F.2d 1159, 1162 (7th Cir. 1990); San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 544 (1987)). Even if we were to apply any of the above tests, the outcome would be indeterminate; although in some ways -- perhaps even most of the ways mentioned -- DoD NAFIs have agency-like qualities, in other ways they do not. Considering the purpose of the Brooks Act, which the parties suggest we do, yields a similarly unhelpful result. The law was enacted to bring fiscal savings of taxpayer moneys, improved acquisition practices, and more effective and efficient management to the Government's automatic data processing equipment. H.R. Rept. No. 1005, 99th Cong., 2d Sess. 771-78 (1986); H.R. Rept. No. 802, 89th Cong., 1st Sess. (1965). Although the first purpose does not apply to NAFIs (NAFIs do not spend taxpayer moneys), the second arguably does (Congress may have an interest in better acquisitions by all Federal instrumentalities, even those which do not use appropriated funds), and the third purpose applies to NAFIs equally as to entities which are clearly Federal agencies. We conclude that whether a DoD NAFI is an executive agency (and hence, a Federal agency) for purposes of the Brooks Act is ambiguous, and that both positions are reasonable. Although the NAFIs are agency-like in being subject to supervision and control of the Defense Department, they have been treated as different from agencies in many statutes, and even as entirely distinct from DoD in some procurement laws. In these circumstances, the reasonable interpretation of the statute advanced by the agency which is responsible for administering the law -- GSA -- is entitled to considerable weight. Brennan v. Occupational Safety & Health Comm'n, 513 F.2d 553, 554 (10th Cir. 1975); Marine Transp. Services Sea-Barge Group, Inc. v. Busey, 786 F. Supp. 21, 27 (D.D.C. 1992); Sutherland Stat. Const. 49.05 (5th Ed. 1992 & 1994 Supp.). GSA clearly believes that a DoD NAFI is not a Brooks Act agency. Although GSA's letter does not tell us why the agency has reached this conclusion or when it first made the determination, we do know that at least one NAFI -- AAFES -- has had reason to believe that it is not subject to the Act for at least fourteen years. The fact that GSA has not enforced this application for this length of time is significant. Sutherland Stat. Const. 49.07 (5th Ed. 1992). As the Supreme Court has stated: Authority actually granted by Congress, of course, cannot evaporate through lack of administrative exercise. But just as established practice may shed light on the extent of power conveyed by general statutory language, so the want of assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred. FTC v. Bunte Brothers, 312 U.S. at 352; see also Mississippi Power & Light Co. v. Mississippi ex rel. Moore, 487 U.S. 354, 380-81 (1988) (Scalia, J., concurring); Bankamerica Corp. v. United States, 462 U.S. 122, 131 (1983); Federal Power Comm'n v. Panhandle Eastern Pipe Line Co., 337 U.S. 498, 513-14 (1949). If, after the affected entities have relied for so long on an understanding that they are not Brooks Act agencies, they are to be made subject to the Act, it is best that such action be taken directly by the Congress, rather than by this tribunal. We decide, taking all the above factors into account, that DoD NAFIs, including the buying entity in this procurement (AFNAFPO) and the entity which will be using the acquired services (the Army CFSC), are not executive or Federal agencies for the purposes of the Brooks Act. Because we may hear protests involving only procurements which are subject to that Act, we do not have jurisdiction to hear a case such as this one, which concerns a procurement which is not subject to the Act because it was conducted by an entity which is not a Federal agency. Decision The protest is DISMISSED FOR LACK OF JURISDICTION. _________________________ STEPHEN M. DANIELS Board Judge I concur: __________________________ MARY ELLEN COSTER WILLIAMS Board Judge VERGILIO, Board Judge, dissenting. Contrary to the conclusion of the majority, I do not view as ambiguous the applicability of the Brooks Act in this situation. The definition of "executive agency" is broadly encompassing. By its terms, the Brooks Act authorizes and directs the Administrator of General Services "to coordinate and provide for the economic and efficient purchase, lease, and maintenance of automatic data processing equipment by Federal agencies." 40 U.S.C. 759 (Supp. V 1965-1969). A "Federal agency" means any executive agency, 40 U.S.C. 472(b) (1964),8 which, in turn, means "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) (1964). These same definitions apply today. At the time of the enactment of the Brooks Act (October 30, 1965), title 5 of the United States Code was devoted to "Executive Departments and Government Officers and Employees." The Department of Defense (a phrase used in lieu of the Departments of the Army, Navy, and Air Force) is identified as an "Executive Department." 5 U.S.C. 1 (1964). Additionally, the "Department of the Army" "shall be construed to mean the Department of the Army at the seat of the government and all field headquarters, forces, reserve components, installations, activities, and functions under the control or supervision of the Department of the Army." 5 U.S.C. 171-2 (1964). Today, the definitions are similar. 10 U.S.C. 101. The Community and Family Support Center (CFSC) is the entity whose requirements are to be satisfied under the protested procurement. It is a non-appropriated fund instrumentality existing under the jurisdiction of the Army.9 ____________________ 8 The full definition states that "Federal agency" means "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)." 9 The National Defense Authorization Act for Fiscal Year 1993 defined a "nonappropriated fund instrumentality" to mean "an instrumentality of the United States under the jurisdiction of the Department of the Army or the Department of the Air Force (including the Army and Air Force Exchange Service) which is conducted for the comfort, pleasure, contentment, or physical or mental improvement of members of the Armed Forces." 10 U.S.C. 2482 note (1993 Supp. V). The respondent does not maintain (continued...) The record demonstrates that CFSC is under the control or supervision of the Department of the Army. Hence, the CFSC falls within the meaning of the Department of the Army, which falls within the meaning of the Department of Defense, which falls within the meaning of an Executive department, which falls within the meaning of executive agency, which is a Federal agency. Hence, the CFSC is subject to the Brooks Act. Because the procurement is subject to the Brooks Act, this Board has jurisdiction over this protest. 40 U.S.C. 759(f)(1) (1988). The Administrator of General Services is the individual charged with administering the Brooks Act. Over the years he has and continues to treat non-appropriated fund instrumentalities within the Department of Defense as not subject to the Brooks Act. The record does not demonstrate how such a conclusion is consistent with the language of the statute. Although I conclude that the CFSC is subject to the Brooks Act and that the Board has jurisdiction, I would not simply grant the protest and hold the awarded contract void as plainly illegal. CFSC proceeded with this procurement in apparent reliance on the general determination of the Administrator of General Services that non-appropriated fund instrumentalities within the Department of Defense are not subject to the Brooks Act. The existing record does not demonstrate that the Administrator is precluded from treating an entity as exempt from the Brooks Act for purposes of proceeding with a procurement, even if the Administrator's determination does not affect the jurisdiction of this Board. Accordingly, I would proceed to the merits of the protest to determine if the agency has violated a provision of statute or regulation which is applicable to this procurement. _________________________ JOSEPH A. VERGILIO Board Judge ____________________ 9(...continued) that a different definition is here applicable.