Industry representatives, union weigh in on job competition protest

Attorneys representing a government contractor and the Forest Service are pushing the General Accounting Office to dismiss a job competition protest filed last week by a federal employee union.

The protest, submitted by the National Federation of Federal Employees on Feb. 17, is the second GAO-level challenge of the Forest Service's early January decision to outsource roughly 60 full-time fleet maintenance jobs in California. Under the 1984 Competition in Contracting Act, GAO has 100 days to decide the case.

NFFE claims that the Forest Service made procedural mistakes during the competition, which the agency ran using a revised May 2003 version of the Office of Management and Budget's competitive sourcing rules. The Forest Service also lacks a comprehensive picture of the actual work at stake as a result of the competition, NFFE has said.

Forest Service officials last week declined to hear NFFE's agency-level appeal, prompting the union to file the GAO protest. The agency is hearing a separate challenge of the fleet maintenance competition, filed by a mechanic elected to represent his co-workers in the appeal.

Regardless of whether NFFE's case has merit, the union does not have the right, even under OMB's May revisions to Circular A-76, to file a GAO protest, said Stephen Sorett, an attorney representing Serco Management Services Inc., the contractor that prevailed in the fleet maintenance competition, on Thursday. Sorett specializes in contract law and is a partner at Reed Smith LLP, an international law firm with offices in Washington.

By the end of the week, Sorett plans to file a motion asking GAO to dismiss NFFE's case. Historically, unions have lacked standing to challenge job competition decisions at GAO, he said. Under CICA, only parties "directly in line to receive a contract award" can file protests, he explained. Unions do not fit into this category.

This has not changed with the May 2003 release of OMB's revised Circular A-76, Sorett noted. The reworked circular leaves open the possibility that the formal representative of federal employee teams, known as the "agency tender official," has protest rights at GAO, he said.

But this circular is silent on union appeal rights. Even if OMB's May 2003 rules granted unions the right to file GAO protests, the Competition in Contracting Act trumps any rules published by the White House, Sorett said. Circular A-76 "is not a legally operative document," he said.

Forest Service attorneys have asked GAO to dismiss the case on the grounds that NFFE lacks legal standing, according to Daniel Gordon, GAO's associate general counsel. Daniel Hylton, the Agriculture Department attorney handling the case for the Forest Service, declined to comment on the protest, saying he cannot discuss ongoing litigation.

The Professional Services Council, an Arlington, Va.-based contractors association, will file a friend of the court document on behalf of Serco asking GAO to dismiss NFFE's case. Serco is a PSC member. Stan Soloway, the association's president, is an outspoken opponent of allowing federal employee unions to file job competition protests at GAO.

Meanwhile, American Federation of Government Employees General Counsel Mark Roth has asked GAO to hear the case. "It is of course AFGE's position…that NFFE...is legally entitled to have its bid protest on this matter heard on the merits," Roth wrote in a Feb. 19 letter to Michael Golden, GAO's assistant general counsel.

AFGE has long argued that federal employees do not stand a fair chance of defending their jobs against contractors unless they have an equal opportunity to challenge competition outcomes. Agency tender officials do not necessarily act in the best interest of federal employees with jobs on the line in A-76 studies, AFGE maintains.

The union attempted to add language to fiscal 2004 spending bills granting federal employees and union representatives protest rights. Administration officials eventually convinced lawmakers to strike this language from the legislation.

GAO may now resolve the issue on a case-by-case basis. The watchdog agency in summer 2003 asked agencies and the public for input on the issue, but refrained from publishing any overarching policy, partly because of the spending bill debates on Capitol Hill. Around the time those debates ended, William Van Auken, a Forest Service mechanic selected to represent his co-workers, filed the first GAO-level challenge of the fleet maintenance competition.

Van Auken's case could have forced GAO to set a precedent on appeal rights by April 29, 2004, but GAO dismissed the protest on procedural grounds, without any decision on the standing issue. Forest Service lawyers asked the agency to hold off on the case because Van Auken initiated an identical challenge at the agency level. GAO granted that request, noting that job competition appeals should first be tackled at the agency level.

The Forest Service is considering that case, and plans to issue a ruling within a few weeks.