Lawmakers continue to pound public-private job competitions

By Robert Brodsky

June 17, 2009

A key House committee began the process Tuesday of driving the final nail into the coffin of Defense Department efforts to allow private sector companies to bid on work performed by federal employees.

The House Armed Services Committee approved by voice vote an amendment to the fiscal 2010 Defense authorization bill that would prohibit new public-private competitions for Defense jobs for the next three years, or until the Obama administration reviews the entire process.

Competitions under the rules in the Office of Management and Budget's Circular A-76 "have not been proven to save the taxpayer enough money to justify the enormous strain they put on government offices and personnel," said Rep. Jim Langevin, D-R.I., the amendment's sponsor. "We cannot continue to distract individual commands at a time when the services are focused on two wars, trying to implement the 2005 [base realignment and closure] round, and undergoing transformational initiatives."

The amendment also halts any ongoing contests until the Defense secretary reviews them, and clarifies the protest rights of federal employees.

If a competition were to move forward, the agency would be required to provide pre- and post-award debriefings to federal employee representatives and to finish the process within the 18 months required in the statute.

In an e-mail to Government Executive, Langevin said he is aware of several A-76 studies that have dragged on longer than 18 months. "This creates an unfair strain on the federal employees whose jobs are being competed, as well as the contractors who have submitted bids for the work," he said. "In addition, estimated savings will less likely be achieved the longer a competition takes to reach a final performance decision."

The battle over A-76 competitions -- coined competitive sourcing during the Bush administration -- has raged for the past eight-plus years.

President Bush was a big proponent of the system, in which federal teams compete with the private sector to see which can perform certain categories of work for less money and more efficiently, arguing that it saved taxpayers millions of dollars. Federal labor unions, meanwhile, fought the competitions, arguing that the Bush administration attempted to obscure their true costs and intentions.

Since 2006, when Democrats took control of both chambers of Congress, competitive sourcing has run up against a series of legislative setbacks. Lawmakers passed measures to limit which agencies could hold job competitions, give federal employee teams rights to protest the outcomes of contests, and exclude health care and retirement benefits from the process of comparing the costs of bids.

The pendulum has moved even further away from competitive sourcing since President Obama took office. In March, Obama ordered the Office of Management and Budget to undertake an in-depth review of the government's contracting efforts, including the outsourcing of work historically performed by federal employees. In April, Defense Secretary Robert Gates released plans to return at least 10,000 positions filled by contractors to government employees.

Lawmakers also upped the ante in recent months. The fiscal 2009 omnibus appropriations bill included a provision prohibiting the use of government funds to study or hold public-private competitions for the rest of fiscal 2009, which ends on Sept. 30.

In March, Reps. Ike Skelton, D-Mo., chairman of the House Armed Services Committee, and Solomon Ortiz, D-Texas, chairman of the panel's Readiness Subcommittee, sent a letter to Gates urging him to immediately halt any ongoing competitions, refrain from initiating contests and rescind a 2008 policy memorandum on competitive sourcing.

Gates said in an April 15 response that Defense had "ceased to initiate any new public-private competitions" and was looking at the status of ongoing programs. But Langevin does not appear convinced.

"While DoD has indicated it will conduct a review, it had been apparent that DoD was continuing to move forward on current studies and the Army specifically planned to continue pending studies while the review was ongoing," Langevin wrote in the e-mail. "Because of this, it is possible that some studies may be awarded before the review is finalized."

Adding to the attacks, in April Sen. Barbara Mikulski, D-Md., introduced legislation that would suspend job competitions indefinitely. Under Mikulski's bill, agencies could not resume contests until the OMB director and inspectors general of the five largest agencies determined that reforms to level the playing field for federal employees had been implemented.

Mikulski's Correction of Long-standing Errors in Agencies Unsustainable Procurements Act (S. 924), which has been referred to the Homeland Security and Governmental Affairs Committee, has received stiff pushback from industry associations. Those groups and some GOP lawmakers are fighting back. Earlier this month, a pair of Republicans -- Rep. John Duncan Jr. of Tennessee and Sen. John Thune of South Dakota -- introduced legislation that would tilt the lever back toward job competitions.

The Freedom From Government Competition Act (S. 1167) would allow for a Yellow Pages-type test to review every commercial activity in the federal government. If the Yellow Pages list several firms that provide services similar to those offered by federal employees, then the work should be subject to competition, the legislation states. The measure is in committee.


By Robert Brodsky

June 17, 2009

http://www.govexec.com/oversight/2009/06/lawmakers-continue-to-pound-public-private-job-competitions/29384/