Revisions to A-76 come under fire

'If we waited for [A-76 revisions] to be implemented, it would take five years to make changes, and it would be too late."

'AFGE National President Bobby Harnage

J. Adam Fenster

Union leaders and lawmakers have taken aim at the Bush administration's new procedures for opening federal jobs to competition with vendors.

Federal employee unions and lawmakers are leading efforts that could stall or prevent new OMB Circular A-76 competitions even as some agencies prepare to move forward in the next phase of the White House's competitive sourcing agenda.

Attacks on the month-old revision of the circular, which lays out the competition rules, began quickly. One employee union has filed a lawsuit and both houses of Congress have added provisions to appropriations bills that would prevent agencies from spending any fiscal 2004 funds on such competitions.

The administration has vowed to fight these efforts. 'We will fight every one of these and fight them hard,' Angela Styles, the administrator of the Office of Federal Procurement Policy, said in a speech last month.

At a hearing of the House Government Reform Committee late last month, union leaders detailed a lengthy list of complaints against the process, which they and industry leaders had a hand in creating.

Meanwhile, lawmakers added a provision to the Interior Department and Forest Service 2004 appropriations bill that would block funding for new competitions next year. Interior's National Park Service came under fire from Congress for the high cost of its competitive-sourcing program.

Another provision lawmakers added to the Agriculture Department's funding bill would halt spending on job competitions and completion of job inventories until USDA provides information on its 'contracting out policies, including agency budgets for contracting out.'

A Senate amendment to the Federal Aviation Administration Reauthorization Act of 2004 would prohibit conversion of any FAA facilities or functions from federal to private-sector workers, and a bill introduced by Sen. Harry Reid (D-Nev.) would block job competitions at the National Park Service.

Bobby Harnage, national president of the American Federation of Government Employees, said the union was responsible for the backlash against A-76.

'As soon as it came out, we were talking to Congress,' Harnage said. 'If we waited for it to be implemented, it would take five years to make changes, and it would be too late.'

Degree of discretion

The National Treasury Employees Union filed a lawsuit seeking to halt implementation of the circular. NTEU charged that OMB's rewrite of the circular is illegal because it requires agencies to use 'substantial discretion' rather than 'discretion' for classifying jobs as inherently governmental, and thus not subject to competition.

NTEU charges OMB's use of 'substantial discretion' flies in the face of the language Congress adopted in the Federal Activities Inventory Reform Act of 1998.

Union leaders argue that this narrower definition of inherently governmental would open more work that should be performed by government employees to competition.

'Jobs could end up being inappropriately competed' if agencies interpret 'substantial discretion' more narrowly than 'discretion,' said NTEU national president Colleen Kelley.

Harnage said the lawsuit 'has real potential,' and there is a 'strong possibility' AFGE will join it. The union has called the administration's initiative a thinly cloaked effort to eliminate jobs, which is how some GCN readers also perceive competitive sourcing according to a recent survey.

But Styles testified that because the term 'substantial discretion' has been contained in OMB policy since 1992, the administration does not believe it represents a major change. Rather, the choice of 'substantial discretion' instead of 'discretion' eliminates apparent conflicts in OMB guidance, she said.

Industry observers said legislative attempts to block job competitions are more onerous than the lawsuit.

'As a legal matter, this [suit] is likely to be considered premature by a court,' said Agnes Dover, a partner with Hogan & Hartson LLP in Washington. NTEU would have to show that the changed definition had caused real-life harm, and might not be able to do so because the circular is so new, said Dover, who advises the Information Technology Association of America of Arlington, Va.

Helen Bradwell-Lynch, Interior's director of competitive sourcing, said the proposed amendment to its funding bill would basically stop all competitive-sourcing work.

'There's no way it wouldn't' affect the department, if Congress decided it couldn't spend any more money on A-76 competitions, she said.


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