Rule allows agency officials, not employees, to protest A-76 decisions

The Government Accountability Office, the agency in charge of resolving disputes over public-private job competitions, proposed a rule Monday that would allow an official acting on behalf of federal workers to protest decisions in such competitions.

The proposed rule implements changes outlined in the fiscal 2005 Defense authorization act, signed by President Bush in late October.

The rule specifies that for competitions conducted under Office of Management and Budget Circular A-76 that involve more than 65 employees, an "agency tender official" can file a protest challenging the results of the competition at GAO.

Under the proposed rule, only the agency tender official, who is the official representative of the agency team competing against a private contractor in an A-76 competition, can file such protests. A majority of employees can join forces to ask the official to protest if they feel a wrong has been committed, but the official can turn down their request.

The proposed rule addresses longstanding confusion over federal employees' rights to contest job competition results. In June 2003, GAO sought comments on whether or not, under OMB's revisions to Circular A-76, federal workers were allowed to file protests. In April 2004, GAO ruled that neither federal employees nor anyone representing them could contest contracts awarded after A-76 competitions. That led Congress to take action in the Defense bill to allow agency tender officials to file protests.

Federal labor union representatives argued Tuesday that agency tender officials represent the interests of management, not necessarily employees.

"Federal employees still have no appeal rights because the [agency tender official] … is a management official whose first loyalty must be to the administration's privatization agenda," said Jacque Simon, director of the American Federation of Government Employee's public policy department.

Simon said the protest process would be fairer if unions were able to represent federal employees in the protest process, and if they were able to file protests in the Court of Federal Claims as well as with GAO.

Cathy Garman, senior vice president of public policy at the Contract Services Association, which represents government contractors, said that putting the agency tender official in charge of protesting awards puts federal employees on equal grounds with contractors.

"Company employees are not allowed to protest; the company employee union is not allowed to protest. Basically, it's just the head of the company," she said.

"There are good reasons for not filing a protest that the unions and employees might not be aware of," Garman added. While poorly written solicitations or pricing mistakes are legitimate reasons for challenging competitions, filing a protest "just because you lost" is a waste of resources, she said.

Susan Collins, R-Maine, chairwoman of the Senate Governmental Affairs Committee, who pushed to give employees more power to protest award decisions, called the proposed rule a step in the right direction.

"This amendment will provide federal employees the power to force a protest in A-76 competitions for the first time. I will monitor closely the effectiveness of this provision, however, especially in cases where the agency tender official declines to protest," she said in an e-mail statement to Government Executive.

Michael R. Golden, assistant general counsel in GAO's procurement law division, said he was expecting a large response to the proposed rules, but declined to speculate on how the final rules may differ from Monday's version.

GAO will accept comments on the proposal until Feb. 18.