GAO seeks public input on job competition appeals process

The General Accounting Office is looking for public input on whether federal employee teams who lose public-private job competitions should be allowed to file appeals with GAO's bid protest office.

In a Federal Register notice to be published Friday, GAO will ask the public for comments on how new job competition rules, contained in Office of Management and Budget Circular A-76, affect GAO's appeal process.

Until now, only contractors who lose out in job competitions have been able to file appeals with GAO. The watchdog agency has long held that the 1984 Competition in Contracting Act (CICA) does not give federal employee teams the legal standing to file protests with GAO. And in a June 2000 decision, GAO ruled that federal employee unions lack standing to file protests because they are not "interested parties" under the 1984 law.

But GAO will reconsider this position in light of OMB's new rules, which make two key officials "directly interested parties" for the purpose of appealing A-76 decisions within an agency: the official representative of in-house employees-known as the Agency Tender Official (ATO)-and an official elected by a majority of employees on an in-house team.

"Our bid protest unit will not be making policy decisions; we'll be interpreting CICA," said Daniel Gordon, associate general counsel at GAO. "But we're inviting input from everyone who might have a stake on this."

Stakeholders wasted little time in making their views known. Jacque Simon, public policy director with the American Federation of Government Employees, the largest federal employee union, said federal employee teams must have the right to appeal to GAO.

"Barring federal employees from having their day in court when they are able to show how an agency or a contractor botched a public-private competition-to the detriment of . . . taxpayers, agencies and affected workers-is a fundamental injustice," she said.

Alan Chvotkin, senior vice president of the Professional Services Council, an Arlington, Va.-based contractors association, said an official elected by employees should not receive GAO protest rights. But he signaled that his organization would support giving standing to the ATO, the management official who is accountable for the in-house bid.

"GAO will have to decide if they have the legal authority, but we as a matter of policy would say that the ATO should be given that right," said Chvotkin.

Because the ATO is not an employee representative-the official is "inherently governmental," and not part of the in-house team-federal unions have questioned whether ATOs would be advocates on behalf of employees.

GAO's decision could have constitutional implications, according to Chvotkin. Granting GAO appeal rights to either the ATO or to an employee representative would allow employees inside the agency to challenge an official agency decision before GAO-or as Chvotkin put it, it would enable the government to sue itself.

Allowing such appeals could set a troubling precedent, said William Roberts, co-chair of the government contracting practice with the law firm Wiley Rein & Fielding. "I'm really troubled by the concept of the agency making a final decision and some working group being able to challenge that decision outside the agency," he said.

But fairness demands that employees be able to appeal to GAO and to federal court, according to AFGE's Simon. She cited an A-76 decision at a Defense Financial Accounting Service installation in Cleveland, where federal employees lost to a contractor because of an accounting mistake.

"Only after hundreds of federal employees lost their jobs and taxpayers were fleeced to the tune of $300 million did the Defense inspector finally examine the books, only to find that the federal employees' charges were right," she said. "But justice still has not been done because we're prevented from taking our claims to court."

If GAO does confer the standing, the agency must ensure that the ATO or the employee representative receives adequate legal support in any protests, said Roberts.

GAO will also request public input on whether to hear protests on "streamlined" competitions involving 65 or fewer employees. The revised circular eliminates agency appeals for streamlined competitions.

GAO will accept comments on the A-76 appeals process until July 16, according to Gordon. Comments may be submitted via email to A76comments@gao.gov, or by fax at 202-512-9749.

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