New laws filled with anti-outsourcing measures

The measure also bars agencies from awarding more than 10 federal jobs to a contractor unless the contractor’s bid is cheaper by $10 million or 10 percent — whichever is lower. The Defense Department and the Transportation Security Administration’s airport screener program are exempted from the measure. Defense has been under similar rules since fiscal 2004 and will face its own restrictions in the Defense spending bill. TSA can privatize its screener jobs.
Unions and several Democratic lawmakers tried twice before to pass the measure but failed.
Competitions over federal jobs are conducted under rules called Office of Management and Budget Circular A-76.
The bill “is a big first step toward eliminating waste in the OMB Circular A-76 privatization process,” said John Gage, American Federation of Government Employees national president. AFGE said the reform was long overdue as OMB forced the measure out of the fiscal 2004 and 2005 conference reports.
“Our federal employees are on the front lines every day, working hard for America. I will keep fighting to fix the competition process that is shamefully slanted in favor of private contractors,” said Sen. Barbara Mikulski, D-Md., a member of the Senate Appropriations subcommittee on Transportation, Treasury and Housing and Urban Development who sponsored the provision along with the subcommittee chairman, Sen. Christopher Bond, R-Mo.
But contractors and the Bush administration warn these restrictions will drive companies away.
“The subsequent lack of competition will cost taxpayers billions of dollars in lost savings since competition on average saves 15 to 20 percent. The proven benefits of competitive sourcing are too high to place arbitrary restrictions on the program,” said a group of contractor associations known as the Acquisition Reform Working Group in comments sent to Congress Nov. 30 on the Defense authorization bill, which contains a similar measure and is still pending in Congress.
A-76 experts say the anti-outsourcing provisions in different bills this year are all aimed at hobbling the competitive sourcing initiative. Outsourcing opponents were more successful this year because the administration doesn’t have a strong voice on this issue. The administration’s most ardent and vocal advocate for competitive sourcing — Federal Procurement Policy Administrator David Safavian — abruptly resigned his position Sept. 16 and was indicted Oct. 5 on obstruction charges relating to a federal investigation into his ties to lobbyist Jack Abramoff.
“The impact on agencies will be to sow confusion on their competitive sourcing program,” said William Lucyshyn, director of research and senior research scholar at the University of Maryland’s Center for Public Policy and Private Enterprise. “How can one structure a program that takes well over a year to plan and conduct a competition when the rules change yearly?”
Lucyshyn said the rationale for these provisions is to make the competitions fairer, but federal employees are already winning over 90 percent of competitions that involved 12,500 employees last year. Adding restrictions and increasing complexity will only make it more difficult for agencies to open up small functions to competition and drive away companies.
“It is ironic that in a period of record budget deficits, Congress is trying to neuter an initiative that has been shown to improve the performance of government and save significant amounts of money at the same time,” he said. “One has to wonder, who are they trying to serve?”
Other anti-outsourcing measures that became law:
• The Homeland Security bill, which became law Oct. 18, bars the agency from holding job competitions for immigration information officers.
• The Agriculture bill, which became law Nov. 10, prohibits job competitions for rural development work or farm loan programs without budget approval from Congress.
• The Interior bill, which became law Aug. 2, limits spending for job competitions to $3.45 million and requires Interior to seek Congress’ approval if it wants to spend more. The same bill also restricts spending on job competitions at the Agriculture Department’s Forest Service to $3 million.
Defense legislation
The Defense authorization bill contains numerous outsourcing-related measures and was still pending in conference as of Dec. 1. The House passed its version in May requiring creation of an MEO for every competition involving more than 10 employees. The measure would bar agencies from awarding more than 10 federal jobs to a contractor unless the contractor’s bid is cheaper by $10 million or 10 percent, whichever is lower. It urges, but does not require, that federal employees or their union representatives be allowed to protest a competition decision before the Government Accountability Office and the U.S. Court of Federal Claims. Currently, only the in-house team’s formal representative, known as an Agency Tender Official, can protest decisions before GAO in a competition involving more than 65 employees.
Also, the measure would suspend the department’s utility privatization program “for a period of time” to allow Congress to review the program. It puts a five-year moratorium on job competitions at the Defense Commissary Agency so the agency can reorganize internally to be more efficient. The measure also sets up a pilot program requiring the department to hold four job competitions on work that has been contracted out.
The Senate passed its version in November with the MEO and the $10 million-10 percent cost differential provision. It would allow federal employees and their union representatives to protest a bid decision with GAO. It would also require the department to set guidelines and procedures on how agencies can give new work or work that has been contracted out to federal employees without a job competition with the private sector.
The House passed its version in June with the MEO and $10 million-10 percent rules. It wouldn’t allow contractors who provide employees less favorable health care coverage than federal employees receive to gain any price advantage in a competition for federal work.
The Senate passed its version in October with the same provisions.
Outsourcing proponents, however, were able to add a contractor-friendly measure to the Defense authorization bill that would repeal the health care provision in effect at Defense since last fiscal year.

FEMA housing deadline extended
Hurricane Katrina and Rita evacuees can stay in Texas motels and hotels at FEMA’s expense through January 7, the Federal Emergency Management Agency announced December 9.
The original deadline was December 15.
The extension was approved to accommodate efforts to move all evacuees out of hotels and into apartments and longer-term housing.
“Timing is very important, which is why we are urging a transition sooner than later,” Coachman said in a prepared statement. “And the reasons are multifold: greater availability of apartments, better selection to fit immediate needs, along with a choice of school system and access to mass transit. Other reasons are to avoid the frustrations of a deadline and moving in furniture. Ideally, we want families to be in their home for Christmas and to have a homelike environment for children.”
FEMA says it plans to relocate all Texas evacuees to longer-term housing by the deadline.
Michelle McClelen works for the San Antonio chapter of ACORN, a national organization that works on behalf of low- and moderate-income families; she said of the two-dozen storm survivors who participated in an ACORN rally last month [“Don’t forget about us,” December 1-7, 2005], many continue to live in local hotels and motels. McClelen said that FEMA officials told ACORN that the federal government is paying for 850 motel/hotel rooms in San Antonio.
One success story is New Orleanian Glenn Oalmann, who was staying at the Alamo Inn and spoke at the November 23 rally. He has found an apartment and is scheduled to meet with Salvation Army officials December 22 about getting furniture.
City officials have negotiated with local landlords to put leases and utilities in the City’s name through March 1. At that time, FEMA will directly compensate evacuees, who will then negotiate with landlords. McClelen said evacuees, while glad to have cash, are also concerned that they will then be required to pay deposits and undergo credit checks in order to rent a house or apartment.
FEMA will require that the money, which will be the equivalent of three months’ rent, be spent on housing. FEMA will renew for another three months provided evacuees have rent receipts. McClelen said evacuees fear they will be penalized by FEMA if they spend the money on other items such as food, medicine, or clothing.
Gay Cowboys 1, Cary Mcnair, 0
As reported in Publisher’s Weekly, St. Andrew’s Episcopal School, a prestigious private school of 750 students in Austin, Texas decided to forgo a $3 million donation to its building fund rather than pull Annie Proulx’s short story Brokeback Mountain from its reading list.
According to PW, last year Cary McNair, son of Bill McNair, who owns the NFL team the Houston Texans, pledged the money to the school’s capital campaign, but in May, told the head of the school he wanted the book, which tells the story of a homosexual love affair between two cowboys (not the Dallas kind), removed from the 12th-grade optional reading list.
Two of McNair’s children attend St. Andrew’s, which teaches grades 1-12.
Although St. Andrew’s refused to drop the book, other donors contributed money to the building fund, and the school surpassed its $3 million goal.
Authors of young adult books, who heard about the dustup online, sent the school autographed copies of their works and formed a group called AS IF!—Authors Supporting Intellectual Freedom. The group monitors book censorship in schools nationwide, including a recent controversy in Baltimore where the superintendent of a middle school overruled a committee and ordered Carolyn Mackler’s The Earth, My Butt, and Other Round Things, which touches on issues of date rape, body image, and eating disorders, removed from school libraries.
EPA union opposes proposed rule
The national American Federation of Government Employees sent a letter on December 7 to the Environmental Protection Agency condemning a proposed rule on pesticide testing on humans [See “Pandora’s box,” December 8-14, 2005].
The AFGE, which represents 6,500 EPA staff and scientists, also formally submitted their comments to the public docket.
The proposed rule governs the protocol followed by third-party testers, such as pesticide manufacturers, when intentionally testing pesticides on humans, including children and pregnant women, if the data would be submitted to EPA for consideration.
“The proposed rule has so many loopholes and exceptions that, if adopted, it could force EPA’s Bargaining Unit to accept data from third-party human studies that were conducted in an unethical manner,” reads the letter, signed by national president John Gage.
EPA has emphatically denied the proposed rule would allow intentional pesticide testing on humans. Critics including Physicians for Social Responsibility, Public Employees for Environmental Responsibility, and the Organic Consumers Union have been vocal in their opposition to the proposed rule.
The letter says that the burden of proof for reviewing and arguing against the exemptions “will fall to EPA scientists,” many of them AFGE members. To read the letter, go to this AFGE page.
By Lisa Sorg

Vets' preference rules at issue in Defense personnel reform
By Karen Rutzick
[email protected]
Despite assurances from the Defense Department, unions are concerned that the National Security Personnel System will fail to protect veterans preference.
Union leaders are worried that the system's flexibilities for reductions in force allow supervisors to circumvent veterans preference when downsizing.
Under NSPS, supervisors can base groups of jobs targeted in RIFs on geographical location, line of business, product line, organizational unit or funding line. Within those areas, supervisors can designate RIF competition groups based on career group, pay schedule, occupation, pay band or trainee status.
Those considerations are too all-encompassing, said Ron Ault, president of the Metal Trades Department of the AFL-CIO.
"They've got it so broad they can do it any way they want to do it," said Ault. "The area of competition can be a four-foot square on the floor."
Ault and others worry that increased flexibility to designate who competes to keep jobs allows supervisors to safeguard favored employees, undermining veterans preference rules.
But department officials, who have not shied away from endorsing changes to the pay, classification and labor relations portion of Defense's personnel system, insist that veterans' preference is untouched in the NSPS.
"Through workforce shaping flexibilities, the department will create a reduction-in-force system that places more emphasis on performance while continuing to protect veterans' preference rights," NSPS regulations stated.
The Pentagon, in conjunction with the Office of Personnel Management, met with several veterans organizations in the fall of 2004 about the new system.
In a statement put out after that meeting, OPM said the system's "flexibilities are being married with pillars of the civil service, such as veterans preference, in order to create a new, agile personnel system."
The American Legion, a veterans organization with about 3 million members, was one of the groups that met with the Pentagon and OPM. The organization's deputy director of economics, Joseph Sharpe, said he is concerned about the potential loophole for veterans preference, but thinks rigorous oversight and training would remedy the problem.
"It's such a new program and there are possible loopholes and we are, of course, concerned about those loopholes," Sharpe said. "We believe that training is essential for those things not to happen, and we've been promised that managers and supervisors will be going through a training session so those types of things will be prevented."
"Being able to properly monitor [and] to decrease any loopholes where agencies can get around veterans preference" is crucial, Sharpe said.
Sharpe also said he's hopeful that the new system will speed the hiring process so that veterans don't have to wait six months or a year to get hired. That prospect balances his worries about NSPS, he said.
But Mark Roth, American Federation of Government Employees general counsel, said he thinks veterans groups such as the American Legion will see that training and oversight will not be enough to stop the decline of veterans' preference once the system is in place.
"They've pulled such a hoax over the veterans groups who, I think if they knew this was going to happen, would be up in arms," Roth said.
He gave an example of how NSPS could damage veterans' preference.
"If you're in a group that's competing for a job, and you've been targeted for a reduction, it is true that veterans stay ahead of all nonveterans," Roth said. "However, ... they could actually RIF a work project on the seventh floor of a building or a DoD facility which is all veterans. In that case [the veterans] have no one they can compete with anymore, and they're all gone."
NSPS spokesperson Joyce Frank said these concerns are not valid. She said the only change to retention rules is that more weight is given to performance.
"Under NSPS, reduction-in-force rules are designed to increase the impact of performance, minimize disruption and simplify the process," Frank said. "The retention order gives more weight to performance than to service time. However, NSPS gives veterans the same level of preference over nonveterans as they have in today's system."
Roth said that after the curtailment of collective bargaining rights under NSPS, diminished veterans' preference is AFGE's second priority, ranking above pay issues. AFGE and nine other unions filed a lawsuit against the Pentagon on NSPS labor relations. The lawsuit will delay implementation of the system until at least February.

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