May 19, 2004


Long-awaited job competition appeals rights measure introduced

By Amelia Gruber

Bipartisan legislation introduced Wednesday would expand federal employees' opportunities for challenging agency decisions to outsource work, and would open the door for union involvement in job competition appeals.

The bill would amend the 1984 Competition in Contracting Act to grant "agency tender officials," the formal representatives of in-house teams, and other officials elected to represent team members, legal standing to protest job competition decisions at the General Accounting Office after losing agency-level appeals. Drafted by Sens. Susan Collins, R-Maine, and co-sponsored by Sens. Carl Levin, D-Mich., and Lincoln Chafee, R-R.I., it would apply to challenges of contests started after Jan. 1, 2004.

As such, the bill would do little to help the California Forest Service mechanics who drew attention to the appeal-rights issue by filing the first GAO protest of a job contest conducted under the Office of Management and Budget's May 2003 version of Circular A-76, the rule book on competitive sourcing. The mechanics' protest challenged a competition that started in early 2003, roughly a year before the date Collins' legislation would kick in.

GAO General Counsel Anthony Gamboa last month dismissed their case, saying the Competition in Contracting Act only allows GAO to hear A-76 challenges filed by potential contract recipients. But in a letter accompanying the decision, Comptroller General David Walker urged Congress to consider amending the law to give federal employees equitable options for job competition appeals.

Collins, chairwoman of the Senate Governmental Affairs Committee, took heed, and "is to be commended for her leadership on this very important issue," said John Threlkeld, a lobbyist for the American Federation of Government Employees. "AFGE regards this legislation as a constructive start towards the establishment of a truly balanced and equitable appellate process."

"Providing [federal employees] with protest rights that are similar to those enjoyed by the private sector is, I think, vital to assuring [them] that the rules of the game are fair," Collins said in a statement prepared for her colleagues.

Dan Duefrene, head of the National Federation of Federal Employees local representing the California Forest Service mechanics, spent last week on Capitol Hill asking lawmakers to make the bill reach far enough back to let GAO hear the fleet maintenance protest that touched off the appeals debate. "To me, you owe it to them," he said.

But Duefrene said he is happy that Collins' bill will at least allow unions officials to help out in federal employee protests. Though the legislation makes no mention of unions, it also places no restrictions on the legal representatives that in-house teams could elect in lieu of the agency tender official.

The International Federation of Professional and Technical Engineers, an AFL-CIO affiliate representing 80,000 technical and administrative workers - about half of them federal employees--is also pleased with Collins' bill, said Matt Biggs, the union's legislative director. He praised Collins for "trying to create legislation that can actually be passed."

Despite bipartisan sponsorship, the bill is likely to meet opposition. House Government Reform Committee Chairman Tom Davis, R-Va., has said he supports the "responsible" extension of GAO protest rights, but does not favor the broadening of appeal rights to individual federal employees or union representatives. Several prominent industry groups, including the Contract Services Association and Professional Services Council, share this position.

Unions and federal employees would take advantage of extended appeals opportunities to challenge job competitions at every turn, bogging down contests and adding to expenses, opponents predict. "If your intent is to shut down the competitive sourcing initiative, then throw everybody into the mix," said Cathy Garman, vice president for public policy at the Contract Services Association.

David Safavian, nominated as OMB's next federal procurement administrator, signaled at his confirmation hearing late last month that he would go beyond extending GAO protest rights to agency tender officials. But administration officials have indicated they would not support Collins' language allowing unions to file protests on behalf of in-house teams.

In a position paper commissioned by AFGE and published Wednesday, Angela Styles, former head of OMB's Office of Federal Procurement Policy, made the opposite argument. Collins' efforts, while commendable, "may not be far-reaching enough," she said. Styles left OMB in September 2003 to become a partner at Miller & Chevalier, a Washington law firm that specializes in contract law.

Styles argued that to stand a fair chance of remedying potential errors in competitions, federal employees need full access to GAO and the Court of Federal Claims, a separate legal venue available to contractors but not federal employees. The Collins bill would allow tender officials and elected representatives of in-house teams to respond if a contractor initiates a protest at the Court of Federal Claims. But this doesn't equate to full access, Styles wrote.

The former procurement administrator also suggested that the legislation should reach back further, extending the broader legal rights to in-house workers affected by contests initiated before Jan. 1, 2004, but completed in 2004.

"Having stood at the forefront of the Bush administration's competitive sourcing initiative for over two years, I can say with both certainty and credibility that the initiative will fail if federal employees are not granted the legal right to challenge the conduct of public-private competitions," Styles wrote. "These competitions must engender the trust of those most affected: federal employees."

Collins introduced her appeals measure as stand-alone legislation, but will consider offering it as an amendment to the Defense authorization bill now under debate on the Senate floor, said Andrea Hofelich, a spokeswoman for the Senate Governmental Affairs Committee. The language will stand a much better chance of advancing as an attachment to the authorization bill, IFPTE lobbyist Biggs said.