GAO denies federal employees standing in A-76 protests

The General Accounting Office has ruled that federal employees do not have the right to file protests to GAO over public-private competitions under revised OMB Circular A-76.

GAO concluded that Agriculture Department employees who tried to file a protest of an A-76 decision had no statutory basis for disputing USDA's choice of a vendor's bid over their bid.

The audit agency issued the ruling yesterday based on an attempt by USDA employees to protest the selection of Serco Management Services Inc. of Gibbsboro, N.J., for fleet maintenance services for Forest Service locations in California, Hawaii and Guam.

The Agriculture employees and their union, the National Federation of Federal Employees, first filed an agency protest. They took their complaint to GAO after USDA rejected the initial protest.

In its ruling, GAO said neither federal employees nor their unions qualify as interested parties. The Competition in Contracting Act of 1984 defines an interested party as an 'actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract.'

GAO comptroller general David Walker sent a letter to Sen. Susan Collins (R-Maine), chairwoman of the Senate Governmental Affairs Committee, suggesting Congress amend CICA to give federal employees standing in such protests.

'The law requires us to find that, even under the revised circular, the [federal employees submitting the bid are] not an actual or prospective offeror, and we, therefore, do not have legal authority to hear protests filed on [their] behalf,' Walker said. 'Accordingly if [the employees] are to be granted standing, that will be a decision for Congress to make ' by amending CICA.'

GAO consistently has found that federal employees and unions cannot protest any aspect of an A-76 competition. But last summer, GAO asked for input into whether federal employee teams could protest (Click for GCN story). The congressional audit agency received 71 comments and used this case to proclaim its opinion.

There is support in Congress and industry for such an amendment. Rep. Tom Davis (R-Va.), chairman of the House Government Reform Committee, has said he would support some protest rights for government employees. Stan Soloway, president of the Professional Services Council of Arlington, Va., said it would back an amendment giving the government officials who submit A-76 bids for employee teams standing in protests before GAO.

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