A-76 panel knows the steps, but it can't do the dance

Bob Little

Imagine a group of handpicked, bright people who have been convened to recommend improvements to the tango.

They have a year to study it and make their recommendations. They dutifully learn the steps of the dance and declare it complicated.

One oddity is that they don't actually learn to do the dance. They aren't dancers and, quite frankly, don't want to be. They study the dance intellectually without attempting to understand its nuances or passion. They merely learn how the steps go and can recite them with some degree of precision. It is sufficient that they know about the dance. They are, after all, a blue-ribbon panel.

The results would be predictably divorced from anything recognizable to the dancers themselves.

As ludicrous as the above scenario might seem, that's exactly what happened with the Commercial Activities Panel studying the OMB Circular A-76. The panel met and came up with predictable results: a recommendation bearing little practicality and evidencing an almost total misunderstanding of A-76 and the acquisition processes.

Accidents happen, so you can't discount the possibility that, despite everything, the panel might have made a good recommendation. But they were operating under a severe handicap: the A-76 process itself, which is designed to allow management to abrogate its responsibility to manage.

A-76 makes numbers games out of decisions on which group'government or industry'can best perform certain functions. It relies on arbitrary numerical differences to make unpopular choices.

Enter the panel's integrated competition process, which combines the best of the Federal Acqusition Regulation's source selection with one of the most arbitrary decision processes ever devised.

The theory is that government employees will compete for jobs as if they were private-sector competitors. But government employees do not actually compete. Managers appoint employee surrogates or hire contractors to prepare the government'that is, management'proposal.

Since the management proposal, disguised as an employee proposal, is treated as if it were from the private sector, the panel decided employees should be treated like offerors and can protest if they lose.

But which employees? Who represents the employees? A union perhaps, but not necessarily exclusively. Can the employees attack management's proposal? Nobody thought of that.

The most ridiculous feature is partnering, a concept that is as meaningless as it is ubiquitous. Employees can partner with companies to submit an offer. Employees can do that only with the permission of management'which was responsible for the employee proposal.

Does management divest the management prerogative? To whom does management give the right to partner? The union only?

What if nonunion employees want to partner with a different set of vendors? Could there be multiple employee-private partnerships? What if all potential private-sector companies partner with employee groups? Is there a public-private competition? Does lack of a private offeror default to the most efficient organization, and, if so, which one?

These are the seeds of internecine warfare. All because management won't manage.

Bob Little, an attorney who has worked for the General Accounting Office and a Washington law firm, teaches federal contract law. E-mail him at [email protected].

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