GAO finalizes rule giving feds A-76 protest rights

The Government Accountability Office yesterday chose not to deviate from congressional intent in deciding who can file a protest on behalf of federal employees in public-private competitions under Office of Management and Budget Circular A-76

The audit agency issued its final rule with no changes from the proposed one released in December.

'We didn't go beyond what Congress did, because where the law is absolutely clear, agencies cannot use their discretion to interpret it,' said Dan Gordon, GAO's associate general counsel. 'There were things that people didn't like about the rule, but all we could do was take note, because our regulations had to track Congress's legislation.'

The final rule allows the official in charge of the agency's bid to file a protest before GAO if the A-76 competition was for more than 65 positions. But if the official in charge decides not to file a complaint, no other employee representative can do so.

Feds do not have standing before GAO for competitions of 65 or fewer full-time positions, lawmakers decided when they passed the provision in the Defense Department Fiscal 2005 Authorization Act.

Employee representatives other than the official in charge of the offer can intervene if a protest is filed by a third party or losing bidder.

GAO received 17 comments from agencies, employee unions and others. Gordon said many fell into one of two categories: things that did not belong in the regulations and comments about the decisions Congress made.

'We don't have the authority to go beyond what Congress said,' Gordon said.

GAO received its first protest by an agency official after the Federal Aviation Administration awarded a $1.9 billion, 10-year contract to Lockheed Martin Corp. for automated flight services.

Not surprisingly, the largest federal employee union, the American Federation for Government Employees, was unhappy with the final rule.

Martin R. Cohen, AFGE's assistant general counsel for litigation, said the union was disappointed that GAO strictly interpreted Congress' intent.

'We wanted GAO to recognize that it would make sense to designate incumbent unions and their officers as appropriate representatives of the majority of employees in situations where intervention is permitted,' he said. 'They left problems to be worked out in the future. This is a serious problem because there is no issuance or clarification of who that representative of the majority employees is.'

Cohen added that for competitions of 65 or fewer employees, GAO should have written a letter to Congress explaining the inequity of allowing the private sector to protest, but not the public sector.

Gordon said Congress might reconsider this issue later if GAO receives a lot of protests from the private sector for smaller competitions.

'If the private sector doesn't choose to protest because the competitions are too small, then there is no inequity,' Gordon said.

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