A-76 appeal for feds considered

Federal Register notice

Federal workers who lose a competition under the new Circular A-76 rules may be able to appeal the decision to the General Accounting Office, a right they have not previously had.

GAO published a notice in the June 13 Federal Register seeking public comments on the idea. Comments are due by July 16.

The new Office of Management and Budget Circular A-76 will force agencies to open many federal jobs to private-sector competition, putting federal workers at risk of being displaced. The agencies can consider the cost of services along with other factors, such as technological superiority, in making their decisions.

Under the Competition in Contracting Act of 1984, only an "actual or prospective bidder or offeror" is deemed to have an economic interest in the outcome of a contracting decision and a right to lodge a protest. GAO historically has heard protests only from private-sector firms disputing A-76 decisions, according to Anthony Gamboa, the GSA general counsel who authored the Federal Register article.

With the new A-76, however, in-house federal employees must submit an "agency tender" that is considered in bids. Under the new rules, this put federal employees on the same level as private firms.

Gamboa outlines several options. GAO could amend its own protest regulations so that it could consider such protests, or it could wait for a protest to be filed before making a decision. Congress could also amend the 1984 law that delineates who may protest.

The General Accounting Office had previously required unhappy bidders to exhaust an agency's administrative appeals process before filing a protest with GAO. The new A-76 does away with the administrative appeals process and provides that an "interested party" must file an agency-level protest, which GAO currently does not require as a prerequisite. In light of that change, GAO is seeking comment on whether it should continue to require protestors to take up their complaints with the agency in question before coming to it.

GAO also is considering whether it has the legal basis to hear protests regarding streamlined competitions, the short process intended to replace the practice of directly outsourcing positions, with no competition. The revised A-76 plainly states that "no party may contest any aspect of a streamlined competition."

Randy Erwin, assistant to the president of the National Federation of Federal Employees, said the proposal "sounds great." NFFE and other unions have protested the revised A-76, which could put more than 850,000 federal jobs at risk of being outsourced.

"An in-house entity should certainly be able to file a protest. The whole point of A-76 is to make competition for government work more like private-sector competition," he said. "That includes the opportunity for the in-house entity to appeal like a private firm. To rule that in-house agency not an interested party is asinine."

Larry Allen, executive vice president of the Coalition for Government Procurement, argued that the change would undermine the purpose of A-76, which is to make public-private competition easier and faster.

"From a legal standpoint, if there's redress available for one side it ought to be available for all," he said. "But it would have the net effect of obviating a lot of the changes. I think it would undo pretty much everything the administration just did."


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