Union sues to stop A-76

The American Federation of Government Employees (AFGE) today filed a lawsuit seeking to block the implementation of competitive sourcing rules.

The lawsuit, the second that federal unions have filed, also asks a federal court to prevent Office of Federal Procurement Policy Administrator Angela Styles from "attempting to convince/coerce/force executive agencies to use the illegally delimited definition of 'inherently governmental' in preparation of their [Federal Activity Inventory Reform] Act lists."

The AFGE suit, similar to a suit the National Treasury Employees Union filed in mid-June, claims that the new Office of Management and Budget Circular A-76 violates the FAIR Act and is therefore illegal.

The two suits share the same set of core claims:

* The revised A-76 defines an inherently governmental job as one in which employees exercise "substantial discretion" in decisions affecting government activities. The FAIR Act requires only "discretion," a less exacting standard.

* The FAIR Act mandates that if the job activity involves "the collection, control or disbursement" of federal funds, it is inherently governmental. The new A-76 adds the further requirement that the job involve making policy or setting procedure for those tasks.

* The FAIR Act allowed interested parties, including employee unions, to challenge the designations of job activities as commercial. The new A-76 allows challenges only when a job function is reclassified from governmental to commercial or vice-versa, or when an agency uses a "reason code" to exempt a commercial job from competition.

The revised A-76, which became final in late May, has caused a stir among federal employees concerned about their jobs. About 850,000 of the government's 1.9 million jobs are considered commercial, and potentially open to outsourcing. Agencies have deemed about 500,000 of those jobs exempt from competition anyway, using exemptions allowed under A-76. "Reason Code A" allows agency officials to declare that an activity that could be performed by private-sector companies is nevertheless inappropriate for outsourcing.

However, the unions fear that the number of jobs at risk will grow under the new A-76 rules. And many federal employees themselves are concerned about their jobs.

Clay Johnson, the newly appointed deputy director of management at OMB, said this week that federal employees who lose competitions often will either be hired by winning contractors or moved to other government jobs. Some employees don't find such promises, which other officials have also made, reassuring.

"It sounds like a fancy way of saying 'If you want your job, give up any benefits you have accumulated over the years and you can keep it,'" said one civilian agency employee who asked not to be identified.

The lawsuits are not the only legal efforts being made to derail A-76. Lawmakers, aided by the National Federation of Federal Employees, have introduced legislation that would withhold funding for new job competitions at the Forest Service and many Interior Department agencies next year.

Speaking recently at a conference sponsored by the IBM Endowment for the Business of Government, Styles vowed to fight such tactics. "We're going to fight every one of them. We're going to fight them hard because this is a matter of principle," she said.

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