GAO faces new kind of job competition protest

A bid protest filed earlier this week adds to the list of legal matters the General Accounting Office must resolve with little or no help from the Office of Management and Budget's revised competitive sourcing rule book.

The American Federation of Government Employees on Tuesday challenged before GAO the Agriculture Department's October 2003 decision to outsource security services work at a Maryland research center. The department decided to hire private security guards after conducting a public-private competition using streamlined procedures in OMB's May 2003 version of Circular A-76. Agencies can run streamlined competitions when fewer than 65 jobs are up for bids.

Under the 1984 Competition in Contracting Act, the watchdog agency will have 100 calendar days to decide AFGE's case. The protest would likely force GAO to set a precedent on whether it will hear union protests of streamlined competitions conducted under OMB's May 2003 rules.

The revised guidelines bar all parties from challenging the results of streamlined competitions at the agency level. But OMB's rules do not discuss appeal rights at GAO. This is only appropriate, as "OMB does not determine [GAO's] jurisdiction," said Daniel Gordon, GAO's associate general counsel.

From a legal standpoint, streamlined competitions are more problematic than regular competitions because agencies typically do not publish formal solicitations for work in the smaller-scale contests. When there is no solicitation involved, there is "some doubt about whether anybody can [file a protest]," Gordon explained. Parties can make a stronger case that they have a direct interest in the outcome of a contest when they have submitted a bid in response to a solicitation.

The case filed by AFGE adds to the list of questions GAO must settle regarding federal employee and union rights to appeal job competitions. GAO lawyers are weighing whether federal employees or unions have legal standing for challenging regular, full-scale competitions using the new guidelines.

Under past OMB rules on public-private job competitions, only contractors that lost bids on federal work could appeal to GAO. But OMB's May 2003 revisions to Circular A-76 give in-house teams, called "most efficient organizations," some additional rights at the agency level.

For example, the guidelines designate two key officials, the formal representative of in-house employees known as the "agency tender official" and an official elected by a majority of employees on an in-house team, as "directly interested parties" for appealing A-76 decisions within an agency. But the revised circular is silent on whether these rights translate to protests before GAO.

OMB is "always looking at ways to make the Circular better, more transparent, fair to all parties and efficient," an administration official said Wednesday. To date, OMB has no concrete plans to issue a clarification on federal employees' A-76 appeals rights.