Bush outsourcing plan may revitalize fizzling FAIR Act

Challenging the government's annual inventories of jobs that could be contracted out is a waste of time, according to a growing chorus of stakeholders. But the Bush administration may soon give more teeth to the legislation behind the inventories, experts say. The 1998 Federal Activities Inventory Reform (FAIR) Act requires agencies to review their workforces each year and come up with lists of federal jobs that could be performed by contractors. A month after the release of agencies' final 2000 FAIR Act lists, contractors plan to cut back on the challenges they make to the lists. Last year, only about 6 percent of challenges to the largest federal agencies' FAIR Act lists were successful. "Some [contractor] associations that filed challenges last year will not [do so] this year," said Chris Jahn, legislative director for Sen. Craig Thomas, R-Wyo., the sponsor of the FAIR Act. Contractors are reluctant to challenge the new FAIR Act lists because few challenges were successful in 1999 and also because agencies' justifications for competing positions may not be challenged, according to Jahn. Explanations by agencies about why jobs on the FAIR Act lists should be considered for outsourcing are contained in "reason codes" developed by the Office of Management and Budget. Although agencies have identified 849,389 federal positions in this year's lists as "commercial in nature," meaning the work could be performed in the private sector, agencies use the reason codes to exempt many of these jobs from commercial competition. While interested parties can appeal decisions about jobs left on or off the lists, they cannot challenge agencies' reason codes. "The agency is saying that what we are doing here is commercial, but [they are] using the reason code to say that they can't 'compete' it," said Jahn. "That needs to be fixed." The Professional Services Council, which represents federal contractors who provide professional and technical services, this year plans to forego specific challenges to the FAIR Act lists. "We are not going to challenge anything; it's virtually a waste of effort," said Stan Soloway, president of the council. "Those who have tried to file challenges in the past have been rebuffed, so why bother." In 1999, the council sent a blanket challenge to OMB complaining about its general oversight of the FAIR Act and agencies' use of reason codes. The Information Technology Association of America will also not file any challenges to the lists. The association raised 13 unsuccessful challenges in 1999. "It took a lot of effort and was not beneficial in the end," said Tinabeth Burton, vice president for communications at ITAA. But not all contractors view FAIR Act challenges as a lost cause. The Contract Services Association of America plans to file some challenges and also plans to meet with agency heads regarding certain positions, according to association spokesman and counsel George Sigalos. "We're seeing a little more progress on how agencies have identified positions," he said. The U.S. Chamber of Commerce has not yet decided whether to challenge any FAIR Act lists, said Stephanie Starkey, the chamber's manager of privatization policy. Jahn and other proponents of outsourcing expressed hope that the Bush administration may require agencies to use FAIR Act job inventories as a guide for outsourcing goals. The FAIR Act itself does not require agencies to outsource any commercial jobs. "This administration would be well-served in linking the FAIR Act process to outsourcing decisions … I definitely think they will do it," said Carl DeMaio, director of government redesign at the Reason Public Policy Institute. Until now, only the Defense Department has signaled any intent to use FAIR Act lists as a basis for outsourcing. But OMB is currently at work on a plan to open about half of the government's 850,000 commercial jobs to competition. While the administration may wait until it begins preparing the fiscal year 2003 budget to link the FAIR Act to specific outsourcing goals, OMB could move earlier, DeMaio said. "Our focus is on the executive branch fully implementing the FAIR Act," said Jahn. "The act can be improved through administrative action alone."