GAO mulls A-76 protest rights

By the end of summer, federal employees could have the option of appealing competitive-sourcing decisions made under new Office of Management and Budget Circular A-76 reviews.

The General Accounting Office, which would hear the appeals, this month asked for comments on whether federal-employee teams should be considered as interested parties under the revised rules for opening government work to competition from the private sector.

'There are enough changes in the new circular that our legal answer could be different,' said Daniel I. Gordon, managing associate general counsel for GAO. 'We recognize this is a fairness issue, but since we are constrained by law, our focus is on the law.'

The revised circular, issued last month by OMB, gives employees who represent federal bidders or their unions the right to appeal to agency chiefs.

In a request for comments published in the Federal Register, GAO asked for information about extending appeal rights and about who should represent employees.

Party interests

GAO noted that the Competition in Contracting Act of 1984 set the rules for what constitutes an interested party, defined as a bidder whose direct interest would be affected. Currently, GAO considers only private-sector protests on the grounds that federal employees and their unions do not meet the CICA definition.

Comments are due July 16, and Gordon said he hopes to make a decision soon after the comment period closes.

GAO is reconsidering whether federal employees meet the CICA definition because the new circular defines the agency tender official, or a person appointed by the affected employees, as an interested party, he said. Gordon added that the circular requires employees to submit a bid to be evaluated under the same rules as a proposal from the private sector. And if they win, they sign a letter of obligation, comparable to a contract, Gordon said. 'The normal way we would decide this is to wait for a bid protest,' he said. 'We have chosen this method for the sake of transparency.'

Gordon said he would review every comment, after which his office would pass a recommendation to the general counsel and David Walker, GAO's comptroller general, who would make the final decision.

GAO will accept comments via e-mail sent to a76comments@gao.gov.

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