GAO moves to expand employee protest rights in job competitions

The provision, Section 326 of the authorization act, would loosen restrictions on GAO-level bid protests for competitions under Circular A-76, the Office of Management and Budget's policy for opening federal jobs to private sector competition. Among the four entities that hear bid protests, GAO is the most common avenue. The others are the awarding agency, the U.S. Court of Federal Claims and U.S. district courts. According to the proposed rule, the legislation grants "any one individual [federal employee] who represents the majority of affected employees the status of an interested party to file a protest at GAO." This provision removes the restriction limiting protests to competitions affecting 65 or more full-time employees. It also allows employees to file a protest with GAO of decisions to convert a function performed by federal employees to the private sector. According to John Threlkeld, legislative representative for the American Federation of Government Employees, the union primarily uses its existing appeal rights to protest direct conversions, in which work is moved to the private sector without competition. "Most of our bid protests are made because agencies are attempting to directly convert our work to contractor performance without conducting a competition, in violation of the circular and usually of law," Threlkeld said. "It is with respect to direct conversions, often with no subsequent competition between contractors, that it is obvious that a GAO bid protest right for federal employees is a great way to safeguard taxpayer interests." President Bush's 2009 budget proposal included a provision that would repeal the protest measure. Administration officials said it would limit agencies' ability to use a process that can save money at a time when discretionary funds are tight. An OMB spokeswoman said expanding protest authority would create "uneven protest rights" that would "unnecessarily complicate public-private competitions" as a management tool. The spokeswoman added that the agency had not yet reviewed the specific GAO proposed rule.Thelkeld said the provision merely levels the playing field, giving federal employees a protest avenue that has long been available for contractors. While GAO is not required by law to seek comments before issuing a final rule, the agency said it is seeking comments from interested parties and will consider all comments received on or before April 21. It could change the proposed revisions based on those comments.