Soloway: When 'rights' make wrong

Feds have the ability to protest A-76 decisions -- using the proper channels

In his June 20 column, "New rights for feds," Dave Nadler argues that federal employees ought to have full participatory rights to protest decisions made in Office of Management and Budget Circular A-76 competitions. Although I usually agree with Nadler and respect his views, he got his facts and the issue wrong in this case.

Although Nadler cites the Federal Aviation Administration as

uniquely granting such rights, the existing administrative appeals process at every federal agency is virtually identical to the FAA's. Agency-level protests can be filed by an affected company or a government bidder — known officially as the most efficient organization — through its official representative, known as the agency tender official (ATO), or through agency workers.

Further, consistent with new statutes and the recommendations of the Commercial Activities Panel, new Government Accountability Office rules on A-76 protests grant rights to public-sector bidders that are identical to those of private-sector bidders. No private- or public- sector employee, union or other representative — that is, people not actually bidding on a project — has the standing to initiate a protest, although affected government employees have a unique right to intervene on protests that are filed.

Nadler nonetheless argues that we should turn federal procurement law on its head and extend the right to protest before GAO to federal employees because sourcing decisions directly affect their lives. This is a specious argument.

In a procurement system designed to create a level playing field for all bidders, how do we justify creating unique rights for the employees of only one bidder? Following Nadler's prescription, why not grant standing to everyone — private- sector employees, taxpayers and agency customers — whose lives are directly affected by a procurement decision?

This is not to say that the affected workers' concerns and interests are unimportant. But they are dealt with through pre- procurement planning and other policy prescriptions, and often during the source selection process itself. Protests are about procurement process fouls, and under our procurement laws, only actual bidders are parties to procurements. No individual or union assumes any of the responsibilities or liabilities associated with bidding or signing and performing under a contract. That is why they do not have standing to protest.

Nadler's fear is that ATOs will have no incentive to file a protest. My sense is just the opposite. First, it is an ATO's legal and ethical responsibility to protest when the facts warrant. Moreover, when an ATO opts not to protest and the affected workers feel a protest is warranted, the ATO must answer to Congress. I think those are pretty powerful incentives.

Equity is the underpinning of our procurement process. As Congress intended, equity has now been achieved when it comes to protests of A-76 competitions. I fear that if we follow Nadler's prescription, we will add yet another inequity to the competitive sourcing process. In this case, granting more unique rights will only create more wrongs. n

Soloway is president of the Professional Services Council. He served on the Commercial Activities Panel and is a former deputy undersecretary in the Defense Department.

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