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Just 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.

COMMENTS

• I had intended to write a strong objection to Mr. Soloway's opinion piece. Then, I noticed that, of the replies thus far, none of the other commentators saw anything worthwhile in "Protesting Too Much". So, I will ask what happened to conservatism in this country? Contracting out does not reduce the size of government, only the number of government employees. It does not save money. It does not promote justice or fairness. Contractor employees are not required to be citizens or to stay out of partisan politics. Of course, there was always that underlying Tory belief in monarchy... GovExec.com reader Posted January 5, 2004 10:24 AM
• Mr. Soloway obviously has too much time on his hands. I'd invite him to visit the real world of A-76. I've been involved in a CA study that next month will be entering its 5th year. Had federal employees been able to protest the initial decision to GAO, they would already have saved the federal government $20 million dollars. Before it's all said and done, another $10 million will have gone down the drain. Wake up! There is nothing fair or just for federal employees in A-76. The odds are stacked in the private sector’s favor at every twist and turn in the competitive process. I should know. I've run into every roadblock there is trying to bring our study to a successful conclusion sometime this century. No one cares about saving the government money. Washington's only concern is where the next private sector campaign contribution is coming from! GovExec.com reader Posted December 29, 2003 11:47 AM
• Arguing for a level of appeal not available to other directly interested parties and then calling it a proper balance - well, speaks for itself. Perhaps you have forgotten that the revised circular takes away the administrative appeal rights that employees and unions once enjoyed and bore financially, and replaced them with (1) an inherently governmental manager - who does not meet the GAO's definition of a directly interested party or (2) an employee selected by a special election - who also has no clear right to appeal to GAO. You do see the conflict of interest in the government making a selection and in controlling protest resources. Certainly, you also see the conflict of interest in trying to equate public employees and their representatives and private sector employees in a public-private competition? That ship of differences set sail a long time ago. Seeking to maintain such a clear advantage risks the credibility and use of the new process. The A-76 appeal process is - or should be - about an independent analysis of possible errors or mistakes made as a part of an imperfect attempt to level the playing field among public and private teams. It’s not about being a certified legal tender. This is an A-76 - by that definition the ATO is unqualified to protest. It’s about getting the right answer. Why would you want to limit any voice within the confines of a formal appeal process? And no, it is not a never-ending process that just goes on for ever. Likewise, let's not hide behind a bunch of legal niceties and, instead, do the taxpayers work - in their interest. Would you agree to limiting private sector access to GAO in the interest of equity? If not, I don't think your article contributed to a solution - though it does make the implications of your effort to maintain the greater advantage more stark. GovExec.com reader Posted December 29, 2003 11:39 AM