House agrees to provision limiting competitive sourcing

The House approved an amendment last week to block implementation of the Bush administration's competitive sourcing agenda in some agencies, using language that has been defeated in previous years but signals legislators' continued interest in shaping that effort.

Rep. Rob Andrews, D-N.J., sponsored the amendment to the fiscal 2007 Science-State-Justice-Commerce appropriations bill (H.R. 5672), which would prevent funds from being spent under a 2003 revision to the Office of Management and Budget's Circular A-76, the competitive sourcing rulebook. The House passed the language last Thursday by a vote of 393-23.

The bill subsequently was submitted to the Senate Appropriations Committee. A staffer for Commerce-Justice-Science Appropriations Subcommittee ranking member Barbara Mikulski, D-Md., said the senator has been a staunch supporter of federal employee interests in the A-76 process, but she could not comment on language currently under development.

The Senate committee does not automatically include the House version of the spending bill, and language can be added in conference after both sides have passed their own versions of the legislation, but inclusion in both bills could increase the chances that a provision would survive the conference process.

In a floor statement on the House amendment, Andrews made clear that his concern with the A-76 process was limitations on federal employees' avenues for challenging award decisions. In standard A-76 competitions, employees can appeal an award decision only with the blessing of the "agency tender official" responsible for the in-house bid. Union officials and other critics have argued that the interests of the ATO do not necessarily align with those of affected employees, and have sought broader appeal rights in which the unions could play a larger role.

"The purpose of our amendment is to suspend the A-76 process in the departments covered by this bill until there can be reform and improvement of that process," Andrews said.

In each of the past three years, Rep. Chris Van Hollen, D-Md., has introduced a similar amendment to the Transportation-Treasury appropriations bill, but that language has been stripped out before the bill is finally adopted into law.

In a letter to House colleagues this year, Van Hollen urged members to support the Andrews amendment. A staffer for the Maryland Democrat said two of the issues he had supported for competitive sourcing reform in past years through amendments -- the opportunity for federal employees in a competition involving more than 10 full-time jobs to develop a bid, and a standard that a contractor must show 10 percent or $10 million in cost savings over the in-house employees to be awarded work -- already had been established as a starting point in legislation this year, so he decided against sponsoring an amendment.

"This year the base Transportation-Treasury bill included fixes to the first two elements, but it didn't address the appeals rights … Congressman Van Hollen thought that was a good compromise," the staffer said.

The Andrews amendment might have different prospects this year in conference negotiations, the staffer suggested, because it will be handled by a different group of conferees, but he said he could not predict how the amendment would fare.

In a statement, Andrews said, "I offered my amendment to increase attention to this problem and will continue to work with Chairman [Frank] Wolf [R-Va.] during the House-Senate conference to correct it."

The American Federation of Government Employees welcomed House passage of the measure, which it has supported in the past. The amendment "would give conferees an opportunity to provide federal employees in agencies funded by this bill with the same right that contractors have long enjoyed to have flawed and biased contracting-out decisions reviewed by independent third parties such as the Government Accountability Office and the Court of Federal Claims," said AFGE President John Gage.

In support of his provision, Andrews wrote, "Fair competition in government contracting is a good thing. Unfortunately, that is not the case with the current, deeply flawed, A-76 process."

Stan Soloway, president of the Professional Services Council, an Arlington, Va.-based group representing government service providers, invoked similar language to condemn the measure.

"Since the unions have opposed every single decision to award a contract as a result of an A-76 competition, one can be sure that they would use this new authority as another tool to kill competition -- which is in their parochial interest, though not in the taxpayer's interest," Soloway said. "As such, it will be yet another nail in the slowly sealing coffin that is A-76."