Contested Competitions

illiam Van Auken has spent the past 15 years as a Forest Service mechanic because he loves helping stamp out wildfires. To him, the job isn't about money. It's about ensuring that his colleagues are well-equipped when they fight fires in California's national forests.

Though Van Auken maintains a variety of vehicles in the Forest Service's fleet, he spends most of his time working on fire trucks. When a truck breaks down, firefighters rely on his help. "They remember it," he says. "I've had guys come up to me 10 years later. That's a really satisfying aspect of the job."

So when Forest Service officials announced in January that they had selected a contractor to take over his and 58 other full-time fleet maintenance jobs, Van Auken promptly challenged the decision at both his agency and at the General Accounting Office. "I want to do everything possible to save jobs. Whatever that means, I want to pursue that," he says.

But Van Auken's is more than a personal quest. He is the first federal employee team representative to go to GAO to challenge the results of a job competition conducted under the Office of Management and Budget's May 2003 revisions to Circular A-76, which sets the rules for public-private job competitions.

Under previous OMB rules, only contractors that lost bids on federal work could appeal to GAO. The revised A-76 designates two people as "directly interested parties" in the A-76 process:

• A formal representative of the office involved in the competition, known as the "agency tender official."
• An official elected by an in-house team.

Van Auken's appeal held out the possibility of forcing GAO itself to resolve the question, which was one of several issues left unsettled following contentious debate on Capitol Hill over competitive sourcing provisions in fiscal 2004 spending legislation.

In drawing up appropriations bills, lawmakers struggled with the question of granting employee teams or their union representatives legal standing before GAO. Unions and sympathetic lawmakers at first succeeded in attaching appeal rights language to the fiscal 2004 omnibus appropriations bill, but White House officials later convinced congressional negotiators to remove the provision-and several others designed to slow President Bush's competitive sourcing initiative-from the final legislation enacted on Jan. 23.

With the Hill debates finished, GAO could either issue a blanket policy on legal standing or settle the matter on a case-by-case basis. Gordon declines to indicate which route the agency would prefer, but hints that GAO is leaning toward the latter course.

The 1984 Competition in Contracting Act gives GAO 100 calendar days to decide whether to hear protests. So Gordon initially thought Van Auken's case, filed on Jan. 20, 2004, would force GAO to set a precedent by April 29. But GAO dismissed the case, saying that the Forest Service should have first crack at hearing Van Auken's appeal. Should he lose at the agency, Van Auken says he will file a new protest at GAO.

Even if Van Auken's case is settled at the agency level, other protests will doubtless come along and force a precedent from GAO, Gordon says. In the meantime, lawmakers could resolve the matter by passing legislation specifically granting appeal rights, he notes. American Federation of Government Employees President John Gage vows to continue fighting for such a bill, but remains tight-lipped about specific legislative strategies.

If lawmakers attempt to alter the law, they should do so only after extensive hearings on appeal rights, says Stan Soloway, president of the Professional Services Council, which represents contractors. Rep. Tom Davis, R-Va., who favors appeal rights only for agency tender officials, also says appropriations bills are not the proper place to introduce such policy changes.

To Van Auken, it matters little who resolves the unfinished business. He just wants another shot at fighting to keep his job. "I want to make sure that someone hears us, and we get a fair shake," he says.