GAO off the hook on job competition appeals precedent

The General Accounting Office on Friday dismissed a bid protest that had the potential to force a precedent on the appeal rights of federal employee teams losing work to contractors.

GAO let go of the protest, filed on Jan. 20 by Forest Service mechanic William Van Auken, for procedural reasons. Forest Service lawyers asked GAO to hold off on the case because Van Auken initiated an identical challenge at the agency level, said Daniel Gordon, GAO's associate general counsel.

Job competition appeals should first be tackled at the agency level, GAO said. If Van Auken is not satisfied with the Forest Service's ruling, then he can file another protest at GAO. "In dismissing this protest, we are not addressing the issue of whether Van Auken has standing to file a bid protest with our office," the GAO decision stated.

The bid protest, filed to challenge the agency's early January decision to contract out fleet maintenance work in California, could have forced GAO to settle a debate about federal employee appeal rights by April 29. Van Auken filed the protest on behalf of government workers directly affected by the outcome of the job competition, which the Forest Service conducted using the Office of Management and Budget's latest A-76 rules.

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 new rights.

For example, the new 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 the issue of whether in-house team representatives should be viewed as interested parties for protests before GAO, Gordon said. In addition, the reworked circular leaves open the question of whether unions could represent teams of federal employees at GAO, should the bid protest office decide to hear in-house team appeals.

GAO in June 2003 solicited public input on how, or if, revisions to OMB's new rules on public-private job competitions should change federal employees' legal standing. But the watchdog agency has held off on issuing any decision.

Van Auken's case might have forced a ruling, at least on whether representatives of the majority of federal employees defending their jobs have the right to protest competitive sourcing decisions to GAO. The 1984 Competition in Contracting Act gives GAO's bid protest office 100 calendar days to decide cases. Until Van Auken, no in-house team representative had tried to challenge before GAO the outcome of a job competition conducted under the new circular.

Because he can file another protest at GAO should he lose his agency appeal, Van Auken is not bothered by the dismissal. He said that he understands why the Forest Service might have wanted to address the appeal at the agency level first and avoid the confusion of two simultaneous cases.

In an interview with Government Executive, Van Auken explained that he had initiated both protests at once to cover all the bases. "I wanted to make sure that someone hears us, and we get a fair shake," he said.

The National Federation of Federal Employees, which represents the fleet maintenance workers, has also filed an appeal at the agency level. If NFFE loses that appeal, the union plans on protesting at GAO. "If we get a letter saying we have no standing, I assure you we're going straight to the federal court," said Dan Duefrene, a union representative.

The Forest Service has 35 days to rule on appeals, according to Doug Lee, director of acquisition in the agency's Pacific Southwest region.

Van Auken and NFFE would like the Forest Service to reconsider an early January decision to award a $27 million fleet maintenance contract to Serco Management Services Inc., a New Jersey affiliate of the United Kingdom-based Serco Group PLC. That job competition decision affected 59 full-time Forest Service mechanics. Some may be able to work for Serco, while the Forest Service will retain others to help administer the contract, Lee has said.

But Serco jobs would not be very appealing to many of the fleet maintenance workers, Van Auken said. The contractor would not necessarily pay as well as the government or offer the same benefits and job stability, he explained.

More important, the work atmosphere would likely change with a contractor in charge, Van Auken said. "We take a real personal stake in the equipment," he said. "A contractor is going to look at the work order."