Nadler: New rights for feds

FAA decision gives employees the ability to challenge outsourcing decisions

The Federal Aviation Administration's Office of Dispute Resolution for Acquisition (ODRA) recently issued an important opinion — one worth extending governmentwide — that ensures that federal employees can challenge outsourcing decisions in public/private competitions under the Office of Management and Budget's Circular A-76.

ODRA officials held that the president of the National Association of Air Traffic Specialists (NAATS) has the right to challenge the FAA's award of a $2 billion contract to a private company, which would outsource 2,500 jobs.

Because the FAA is exempt from the Competition in Contracting Act, the Government Accountability Office does not have jurisdiction to hear protests and contract disputes related to FAA procurements. The FAA established ODRA, an independent office within the agency, as the adjudicative forum for protests and disputes of contracts awarded through the FAA's Acquisition Management System. ODRA is the FAA's corollary to GAO for arbitrating protests of A-76 procurements. Complaints about ODRA's decisions can be appealed to the U.S. Court of Appeals for the District of Columbia Circuit.

In addition to a private-sector offeror, ODRA's Procedural Rules for Contests of A-76 Competitions allows a contest to be filed by the agency tender official (ATO), who submits an offer on behalf of the government bidding unit, as well as a single individual appointed by a majority of directly affected FAA employees.

ODRA's decision encompasses more than the recent GAO rule that implements a provision of the fiscal 2005 Defense Authorization Act. According to the rule, GAO officials hear protests from federal workers when an A-76 procurement involves more than 65 full-time equivalent employees.

It also allows a person representing the majority of agency employees to intervene in an ATO protest at GAO.

But ODRA allows employees to protest a competition regardless of how many employees the competition affects. Unlike the GAO rule, in which individual employees can only intervene in an ATO contest, ODRA permits workers to file a separate contest on behalf of affected employees.

This is a significant distinction. Under the GAO rule, employees can ask an ATO to file a contest, but ATOs are not required to do so. ATOs are often managers who are not at risk of losing their jobs through the competition, so they have little incentive to file a contest.

Even if an ATO files a contest, it might not include the issues that unions or employees adamantly dispute.

The importance of ODRA's rule is that it recognizes the complementary and distinct interests of employees and ATOs, and it gives a separate voice to the employees whose lives are directly affected by the outsourcing decision. Congress should follow ODRA's example and give full participatory rights to federal employees in public/private competitions.

Nadler is a partner in the law firm of Dickstein Shapiro Morin and Oshinsky, where he specializes in government contract matters. He can be reached at (202) 828-2281 or NadlerD@dsmo.com.

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