Federal agencies are rejecting challenges to lists of federal jobs that potentially could be outsourced, according to contractors who have filed complaints and copies of the rejections obtained by GovExec.com.
Under the 1998 Federal Activities Inventory Reform (FAIR) Act, agencies are releasing lists of jobs that theoretically could be contracted out. The act also allows contractors to submit challenges to agencies questioning why certain jobs are not included on the outsourcing lists. (For an updated database of agency job lists, see GovExec.com's FAIR Act Report.)
According to Stephen Ruscus, an attorney representing the U.S. Chamber of Commerce in the FAIR Act complaint process, the complaints he filed with more than 15 individual agencies all addressed the same problem-the incomprehensible format of many FAIR Act lists.
"In the complaints we said, 'Look, we can't tell what you mean by this,' " Ruscus said.
For example, an agency's FAIR Act inventory might list a total of 600 payroll jobs and say that 300 of them could be outsourced. This leads contractors to ask why, if 600 people are doing the same thing, some of their jobs can be privatized and others are inherently governmental, Ruscus said.
Several agencies responded to such complaints by telling the Chamber that it could not file a complaint if it did not understand the FAIR Act list to begin with. In addition, the agencies said the FAIR Act only allows challenges to omissions on the inventories.
In effect, some agencies are saying, "if you couldn't understand our list, you don't have the right to challenge it," Ruscus said.
The Department of Health and Human Services received 11 challenges, and denied all but one, including the Chamber's challenge, said Michael Colvin, an HHS procurement analyst.
Challengers would have been able to make more specific complaints had they studied the inventories of inherently governmental jobs, rather than just those that listed jobs that could be outsourced, Colvin said.
Agencies were not required to publish their lists of inherently governmental jobs, but some agencies, including the General Services Administration and the Department of Housing and Urban Development, did.
"We weren't really expecting vague [challenges] like that. Since we got general type challenges we gave general type responses," Colvin said.
According to Colvin, the Office of Management and Budget has been clear about only allowing challenges of omissions from FAIR Act inventories. "OMB has shepherded this bill all the way through," Colvin said. "We didn't make this up. We were told this by people we presume to be experts."
John Palatiello, executive director for the Management Association for Private Photogrammetric Surveyors, said at least one of its FAIR Act challenges was also rejected on a procedural technicality.
The association challenged NASA's omission of any mapping positions from its FAIR Act list.
NASA "claimed that ours was not a valid challenge, but they were a bit nebulous about that point," said Palatiello. "They said that we did not include the prescribed information in the challenge, when in fact there is no prescribed information required under the law or the guidance."
NASA received seven challenges total and rejected all of them, said Craig Conlin, a spokesman from NASA's Office of Human Resources and Education.
At NASA, "fundamentally we understood that the FAIR Act limited challenges to issues of whether a particular activity was included or not included on our lists," Conlin said, adding that many of the challenges NASA received strayed from that point.
Part of the problem, Conlin said, was that many of the jobs not included on NASA's inventory are already being outsourced, and contractors don't realize that. "The format was maybe inadequate for the purposes of letting an outsider analyze a government agency," he said.
Still, Palatiello said NASA may have been confused about the requirements of the law. His association has submitted another appeal to NASA, urging the agency to include mapping jobs on its FAIR Act list.
Meanwhile, the Chamber of Commerce will continue to pursue its complaints, despite a statement from the Housing and Urban Development Department that it could not appeal FAIR Act challenges to a higher authority, Ruscus said.
"What it looks like is that the whole process is geared so that nothing ever comes of the legislative pronouncements," he said.
The Chamber will seek judicial review if agencies reject the appeals, Ruscus said, because, "this doesn't go away. ... Somebody without a vested interest is going to decide this issue."