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The head of the Senate Governmental Affairs Committee will introduce legislation next week expanding federal employees' rights to challenge the results of public-private job competitions.

Sen. Susan Collins, R-Maine, is drafting a measure that would allow in-house workers who lose in job competitions additional appeals options, said Andrea Hofelich, a committee spokeswoman. The details of the legislation, including the controversial question of whether unions could file protests at the General Accounting Office on behalf of federal employees, are still up in the air.

Collins' efforts come in response to an April 19 letter from Comptroller General David Walker asking Congress to consider amending the 1984 Competition in Contracting Act to give employees with jobs at stake in public-private contests broader legal rights. The law currently allows only potential recipients of contracts to protest at GAO, a flaw that raises "public policy concerns," Walker wrote.

Under the Office of Management and Budget's May 2003 version of Circular A-76, the competitive sourcing rule book, federal employee teams can appeal most job competition decisions at the agency level. The guidelines designate two key officials, the formal representative of in-house employees known as the "agency tender official," and an official elected by a majority of employees on an in-house team, as "directly interested parties" for appealing A-76 decisions at agencies.

But if in-house workers lose at the agency level, they cannot file protests at GAO.

Several competitive sourcing challenges filed by, or on behalf of, federal employees forced GAO to reconsider this decision in light of revised language in OMB's May 2003 Circular. In a ruling issued early this week, GAO General Counsel Anthony Gamboa rejected five cases, reasoning that none of the changes in the revised circular trumped the Competition in Contracting Act.

"There is widespread agreement that employees should be able to protest adverse A-76 awards as the private sector currently enjoys," Collins said. "At the same time, there is disagreement about how best to implement protest rights in a manner that will not impair the A-76 process."

The disagreement centers around who should have legal standing to file an in-house team challenge at GAO. Federal labor unions would like the ability to challenge job competition results at GAO on behalf of their members. But industry groups favor narrowing these rights to agency tender officials.

"We will strongly oppose any effort to invest standing exclusively in an agency tender official, a senior manager charged with implementing the Bush administration's privatization agenda, and someone who manifestly lacks the autonomy, resources and incentive to represent federal employees," said John Gage, president of the American Federation of Government Employees.

National Treasury Employees Union leader Colleen Kelley also called for lawmakers to let unions represent in-house team members. "This is the only way to ensure that federal employees are competing with private contractors on a level playing field," she said.

Collins has not indicated how she will resolve this controversial issue when she introduces her protest rights legislation next week. She will work out details of her bill after consulting with GAO and "other interested parties," Hofelich said.

House Government Reform Committee Chairman Tom Davis, R-Va., supports the "responsible" extension of GAO protest rights, but has no immediate plans to introduce a Competition in Contracting Act amendment, said spokesman David Marin. The Virginia congressman wants agency tender officials to be able to file GAO protests, but does not favor the broadening of appeal rights to individual federal employees or union representatives.

Before introducing legislation, Davis would like to reach a compromise with unions and other stakeholders, Marin said. "The underlying problem here is that we see no hint at all that the unions want to work with us on this," he explained. "They seem to want everything or nothing, to the detriment of their members."

But union officials say a compromise would be difficult.

"Chairman Davis has done nothing to ensure that federal employees have equitable appeal rights," said John Threlkeld, a lobbyist for AFGE. "Blaming [unions] is merely a sad attempt to conceal his consistent failure to act."

Matt Biggs, legislative director for the International Federation of Professional and Technical Engineers, said he appreciates Davis' efforts to extend appeal rights. But he added that "there's not much area to budge here." Federal employees often lack the resources to defend themselves and rely on unions. Agency tender officials cannot be trusted to necessarily represent employees' best interests, he said.

IFPTE, an AFL-CIO affiliate representing roughly 80,000 technical and administrative workers, would like to see legislative language similar to that attached to preliminary versions of the fiscal 2004 omnibus appropriations bills, Biggs said. The White House successfully eliminated the protest rights provisions from the final bill by threatening a veto.

An OMB official, who asked to remain anonymous, said Friday that the administration would support legislation granting appeal rights at GAO for agency tender officials, as well as for employees "directly affected" by competitions. But the White House will not support the extension of GAO appeal rights to union representatives, the official said.

"Just as trade associations representing contractors should not have standing to appeal to GAO if the private sector loses a competition, we would have serious concerns about unions being named as actual parties in appeals to GAO," the official said.

The topic of job competition protests could come up at confirmation hearings for David Safavian, nominated to lead the Bush administration's competitive sourcing efforts as head of the Office of Federal Procurement Policy. The hearings are scheduled to begin Thursday, April 29.

COMMENTS

• As a veteran of these battles, I think your readers are getting too technical. Yes, something could obviously be worked out where the affected federal employee(s) would be the named parties in a bid protest, with the unions providing supporting legal representation. Despite the alleged technical discussions on this issue, it is really all political. The House Republicans, led by Tom Davis, are not going to allow meaningful bid protest rights for Federal employees, because they are completely beholden to the contractors. Concerned Civil Servant Posted April 27, 2004 3:53 PM
• Technically "Associations" are not Unions. I think our Congressman would now the difference! Some "Associations" enjoy "consultation rights" and have enough members to employ lobbyists. The one thing that an Association doesn't have that a Union has is Legal standing for employees before their boss and a legally binding Contract between the Employees and their boss. In practice an Association acts like a Union. A Citizens Block Club could be considered a Union. Any association such as AAA, Sierra Club, AARP, SES, etc act like Unions but do not have the legal standing that Unions do. People pay association dues, and elect members to lead. You do not get a voice at that Association if you are not a member. Union Locals and its higher headquarters are authorized by election and the Law to represent its members on all matters except for Outsourcing. Why is that? What is this Administration concerned about? Allowing Unions to protest a competition forces the Agency to be accountable and do the job right the first time. AFGE Member! Posted April 27, 2004 6:32 AM
• Perhaps I'm missing information here, but why not allow "directly affected" federal workers appeal rights, with support from the unions on the cases? That way, although "federal employees often lack the resources to defend themselves and rely on unions," and "agency tender officials cannot be trusted to necessarily represent employees' best interests," the employees would have access to the support/assistance and resources they need to ensure they have the best, strong justification in their appeal case. I can understand why "we would have serious concerns about unions being named as actual parties in appeals to GAO." But you could have the federal employees as the named parties and the union would only be providing them support and possibly representation for them; but the union would not be a party to the appeal. Perhaps I just don’t understand the distinction between the unions being named as a “party” in an appeals or the directly affected employees being named as the “party(ies)” in an appeals case with assistance/support and representation by the union. But it seems to be splitting hairs to make such a distinction, and I believe that something along these lines would be a reasonable compromise. Unless there are specific legal issues preventing such a compromise? That would surprise me since from what I understand unions act as representatives for specific employees in many cases and appeals between the individual employee, supervisors, managers and agencies all the time. If not, isn’t that the way unions are supposed to be set up? GovExec.com reader Posted April 26, 2004 12:45 PM