Protesting Too Much
ust before Congress adjourned for Thanksgiving, legislators came perilously close to extending to federal employee unions the right to protest decisions to award contractors work formerly done by civil servants. Had the proposal moved forward, federal workers could have appealed such decisions to the General Accounting Office, just as companies do now. Ultimately, Congress appears to have pulled back, thus preserving the proper balance of rights and responsibilities in federal procurement. Nevertheless, debate over the issue generated anger and confusion.
Advocates of extending protest rights to federal employees claim it is a simple matter of equity: Since contractors can protest source selection decisions to GAO, federal employees should have the same right. Despite that argument's surface appeal, however, it doesn't hold water. Federal employees, unlike private sector employees, always have had the right to administratively appeal agencies' competitive sourcing decisions. But extending that right to the legal protest process is based on a faulty assumption that federal employees are the legal and practical equivalents of government contractors.
The real private-sector equivalents of federal employees are, of course, private sector employees. In both sectors, employees are essential to the success of their organizations, are affected by source selection decisions and management's actions, and often are represented by unions. They also have various rights and remedies to seek redress for perceived offenses. But in no case do those rights or remedies extend into the procurement process, nor should they. After all, in the procurement process, bidders' rights and responsibilities properly go hand in hand. And neither employees nor their unions can assume any of the legal or financial liabilities or responsibilities that bidders take on when certifying proposals or signing and performing under binding contracts. Employees are not the bidders; they are part of the bidding entity.
This distinction is crucial to understanding the protest debate. For decades, federal procurement law has held that protest rights appropriately are granted only to "bidders" with a direct financial and legal interest in and responsibility for a source selection outcome. That is why, in the context of public-private competitions conducted under the revised Office of Management and Budget Circular A-76, many people recommend that protest rights be extended to the "agency tender official." That official is the legal representative of the government "bidder" in a public-private competition and is the closest equivalent to the corporate representative empowered to certify a bid and sign a binding contract on behalf of a company. Legal complexities aside, such a solution would achieve equity in the protest process.
Not surprisingly, public employee unions are not satisfied with this proposed solution. They contend that the agency tender official will not always have employees' best interests at heart and thus the unions need an independent right to protest. This is a remarkable argument. It suggests that the federal procurement system be used to protect employees' interests and that what federal employees perceive to be in their best interest always is consonant with the best interests of the government and the taxpayer. That is a dangerous road to travel.
The procurement process is designed to identify the best outcome for the government as a whole; it must be neutral when it comes to the parochial interests of individual stakeholders. Protests are designed to ensure agency accountability and compliance with the rules governing the procurement process. As is true of private sector employees, the interests of federal employees are only relevant in protests when an error is made during source selection that, if remedied, would change the sourcing decision. In those cases, it is the agency tender official's clear responsibility to seek that remedy.
Some union leaders allege that the agency official would ignore those legal and ethical responsibilities by not seeking such a remedy. That charge is unwarranted and unfair. Indeed, agency tender officials are members of the dedicated civil service workforce that many of us, presumably including union members, long have believed deserve more responsibility and trust, not less.
The federal procurement process is founded on a tenet of equal rights and equal responsibilities for all participants. Extending selected rights to a third party that cannot assume any of the concurrent responsibilities would upset that balance. It would open the door to frivolous, expensive and time-consuming protests filed by parties who, unlike contractors, face no consequences for their actions. This would cause delays, increase costs, threaten agency missions and likely kill efforts to increase competition to perform commercial functions of government, which is clearly not in the taxpayers' best interest. Congress was wise to step back from the brink.
Stan Soloway is president of the Professional Services Council. He was a member of the congressionally mandated Commercial Activities Panel and previously served as deputy undersecretary of Defense.