The compromise, reached late last week during House-Senate negotiations over the fiscal 2005 Defense authorization bill, grants "agency tender officials," the formal representatives of in-house teams, legal standing to challenge public-private job competition results at the Government Accountability Office. Under the conference agreement, the agency officials could initiate GAO protests on their own, or at the request of a majority of employees involved in the competition.
Proponents said Tuesday that the compromise language grants federal employees equitable appeal rights and at the same time safeguards against frivolous protests. The Office of Management and Budget's May 2003 revision to Circular A-76, the competitive sourcing rule book, allows in-house team officials to challenge job competitions at the agency level, but remains silent on outside appeals.
"We can't overstate that this protest right on behalf of federal employees is a huge step forward," said David Marin, a spokesman for Rep. Tom Davis, R-Va. "No such right has ever been recognized by the courts or GAO."
But critics decried the measure as a watered-down and ineffective version of appeals rights language sponsored by Sen. Susan Collins, R-Maine, and passed in June as an amendment to the Senate version of the Defense authorization bill. Collins' provision would have amended the 1984 Competition in Contracting Act to allow either the agency tender official or a separate official elected by in-house team members to file appeals at GAO.
The option for elected in-house representatives to file protests is critical because agency tender officials can't necessarily be trusted to act in the federal employee team's best interest, union officials said. Dan Duefrene, a National Federation of Federal Employees representative in California, said he is "extremely disappointed" with the compromise language because decisions to file protests remain primarily under management's control.
"Senior managers are charged with carrying out the agenda of the sitting president," said John Gage, president of the American Federation of Government Employees. "When it comes to [the] Bush administration's privatization agenda, senior managers do not have the incentive, do not have the autonomy and do not have the resources to adequately represent the interests of federal employees."
But Stan Soloway, president of the Professional Services Council, an Arlington, Va.-based contractors association, noted that the compromise requires agency tender officials to appeal A-76 decisions to GAO at the request of in-house team employees unless there's no "reasonable basis" for such an appeal. When tender officials decide to act against the request of the majority of in-house employees, the officials must explain themselves to congressional oversight committees.
Agency tender officials have an "ethical and legal responsibility" to file protests when they believe in-house team members have a valid complaint, Soloway said. He added that he supports the right of the tender official to file an appeal at GAO, as long as the challenge involves allegations of procedural errors substantial enough to potentially alter the outcome of the competition.
"There's more oversight in Congress on A-76 competitions than any other procurement I've ever seen," Soloway said.
"The congressional notification requirement will raise the visibility of every case that is not pursued," Marin said. "Given the intense interest in competitive sourcing in Congress, I don't see how there will be anything other than persistent scrutiny."
But John Threlkeld, a lobbyist for AFGE, said that the union has "brought numerous instances of contracting injustices" to the attention of the House Government Reform and Armed Services committees, to no avail. He cited an EEOC decision to contract out a national customer service center without first offering the work to federal employees as one example.
"Based on their own records, asking the chairs of those two committees to act as impartial checks on agency tender officials is futile," Threlkeld said. "We'd have more luck petitioning the contractors."
Angela Styles, former head of OMB's Office of Federal Procurement Policy, called the appeals rights compromise a "step in the right direction," but said that agency tender officials may lack incentives to file protests at GAO. "Maybe there will be some out there who feel an obligation," she said.
But to file an appeal, tender officials would need financial backing and legal support from the agency's general counsel, Styles noted. General counsels may be reluctant to provide that support because they would in effect be suing their own agency, she said.
The conference committee compromise also leaves in-house teams without any legal means of challenging tender officials' decisions to reject requests for GAO protests, Styles said. If Congress is the only body overseeing tender officials, complaints from in-house team members might get "lost in the mix," she said.
Collins, the author of the original protest rights language, said she believes the compromise "is good for federal employees because it now gives them the power to force a protest about outsourcing decisions, and it allows employee representatives to argue their case before GAO." She pledged to "monitor closely the effectiveness of this provision and continue with efforts to ensure that federal employees are able to compete for projects with confidence that they will have a chance to have a neutral third party review of adverse agency decisions."