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Bid protest may set precedent for job competition appeals

A bid protest filed recently by a Forest Service mechanic will likely force the General Accounting Office to set a precedent on whether it will hear appeals from employee teams losing work to contractors, an agency official said Friday.

GAO will have until April 29 to decide whether to hear a protest filed on Tuesday by William Van Auken, a Forest Service mechanic, said Daniel Gordon, GAO's associate general counsel. Van Auken says he represents the majority of federal employees "directly affected" when an in-house team lost a recent job competition involving fleet maintenance work, according to Gordon.

The 1984 Competition in Contracting Act gives GAO's bid protest office 100 calendar days to decide protests. But until Tuesday, no in-house teams or union representatives had tried to protest the results of job competitions conducted under the Office of Management and Budget's May 2003 revisions to Circular A-76, which sets the rules for such competitions.

This left GAO unlimited time to decide how, or if, the revisions should change federal employees' legal standing at GAO's bid protest office. In early January, Gordon said that GAO planned to hold off on issuing any protest rights decision until Congress finalized fiscal 2004 spending legislation.

The Senate approved the fiscal 2004 omnibus budget bill on Thursday and President Bush signed it into law Friday. But Van Auken's case would have forced GAO to begin tackling the protest rights issue even if lawmakers or Bush had stalled on the omnibus.

Unless Van Auken reaches an agreement with the Forest Service and withdraws his protest, GAO will need to determine by the end of April whether he has legal standing, Gordon said. The decision would set a precedent on whether GAO's bid protest office will hear appeals from other federal employees elected to represent the losing team in a public-private competition, he said.

Van Auken is protesting the Forest Service's early January decision to award a $27 million fleet maintenance contract to Serco Management Services Inc., a New Jersey affiliate of the United Kingdom-based Serco Group PLC. The competition affected 59 full-time Forest Service mechanics. Some may be able to work for Serco, while the Forest Service will retain others to help administer the contract, according to Doug Lee, director of acquisition in the agency's Pacific Southwest region.

In addition to the protest at GAO, Van Auken has filed an appeal with the Forest Service. The union representing the maintenance workers has filed an agency appeal as well, Lee said. The Forest Service will rule on both of the appeals within 35 days.

The outcome of these cases could affect Van Auken's protest before GAO.

If the protest in fact remains before GAO, the bid protest office's decision on whether to hear the case could mark the end of extended controversy over ambiguities in OMB's revised Circular A-76.

Under past OMB rules on public-private job competitions, only contractors losing bids on federal work could appeal to GAO. But OMB's revisions to Circular A-76 give in-house teams, called "most efficient organizations," some new rights.

For example, the new 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 within an agency.

But the revised circular is silent on the issue of whether in-house team representatives should be viewed as interested parties for protests before GAO, Gordon said. In addition, the changed circular leaves open the question of whether unions could represent teams of federal employees at GAO, should the bid protest office decide to hear in-house team appeals.