Federal employees denied job competition appeal rights

The General Accounting Office on Monday decided that under current law, it cannot accept appeals from federal employees who lose work to contractors in public-private job competitions.

But Comptroller General David Walker asked Congress to consider amending the law to grant in-house teams the right to challenge job competitions before the GAO.

In an April 19 ruling, GAO rejected five protests filed by representatives of in-house workers. The protests challenged agencies' adherence to the Office of Management and Budget's May 2003 revision of Circular A-76, the rule book on competitive sourcing. GAO General Counsel Anthony Gamboa issued the ruling.

Federal employees affected by public-private competitions, or the officials elected to represent them, do not qualify as "interested parties" as defined by the 1984 Competition in Contracting Act, the GAO decided. In-house teams winning job competitions do not enter into a contract, or a "mutually binding legal relationship to perform the services," the ruling explained. The 1984 act only allows potential contract recipients to protest.

Historically, GAO has only heard protests filed by contractors losing bids on federal work. GAO reconsidered this policy after OMB issued revisions to Circular A-76.

But ultimately, none of the changes in the May 2003 circular trumped CICA, Gamboa noted in Monday's decision. "The distinctions between the two versions of the circular cannot properly make a difference in our position that, under the current statutory language in CICA -- which is the language we must look to in determining whether a party has standing to protest to our office -- the in-house entity lacks standing to protest," he wrote.

The law does raise serious policy concerns, Walker wrote in a letter accompanying the decision. Walker sent the letter to leaders of the House Government Reform Committee and the Senate Governmental Affairs Committee. The House and Senate committees on Armed Services received copies as well.

"In light of the public policy concerns weighing in favor of allowing [in-house teams] to file bid protests, Congress may wish to amend CICA," Walker wrote. GAO is willing to advise lawmakers on the amendment, he added.

Lawmakers attempted to attach language to the fiscal 2004 omnibus spending package extending job competition appeals rights to federal employees. But the White House successfully blocked the efforts by issuing a veto threat.