A-76 revision offers little, critics say

Federal Register A-76 correction notice

The Office of Management and Budget made two changes to its controversial revised Circular A-76 recently that some opponents of the competitve sourcing rules hope could signal a more conciliatory stance on the part of the Bush Administration. However, OMB officials say they have not changed their position at all.

OMB dropped governmentwide goals for the percentage of jobs that agencies must allow the private sector to compete for. Furthermore, the administration published a correction to the challenge process this month stating that the new circular was intended to expand, not restrict, the circumstances for challenging A-76 decisions.

Federal employees unions have opposed A-76 from its inception, characterizing it as part of a systematic process of eliminating jobs for federal employees and giving them to the private sector. Some union leaders are unimpressed by the recent steps.

"As far as we are concerned, the current administration's goals have not changed since day one," said Richard Brown, president of the National Federation of Federal Employees. "We don't believe the current anti-union, anti-worker administration is going to change their minds.

"They can cloak it in anything they want, but what we've been saying is that the federal government is systematically being handed over to profit- driven contractors," he said. "Come hell or high water, that's what the administration wants."

The circular governs the definitions of jobs that are inherently governmental and those that are commercial in nature. The Bush administration, led by Office of Federal Procurement Policy Administrator Angela Styles, has aggressively advocated opening jobs to competition and potentially outsourcing some of them. About 850,000 federal jobs, almost half of the workforce, fall into the commercial category. Critics have warned that number could grow when agencies reassess their job functions using the new guidelines published in May.

But in late July, OMB dropped a governmentwide goal for agencies to open at least 15 percent of their commercial functions to competition. Instead, agencies will set their own goals.

Critics say the change to the challenge process is more important.

The old circular and the Federal Activities Inventory Reform Act allow challenges to the inclusion or exclusion of particular functions from competition. The new circular appeared to limit challenges to cases in which the status of a job function had changed. It also allows challenges to reason codes, which are provisions under which agencies can choose not to compete certain jobs even though they are commercial.

An OMB official said that despite the wording of the new circular, the office had intended to broaden the conditions under which challenges could be made. The old conditions also still apply, he said.

The challenge process is one of several points covered in pending lawsuits that the National Treasury Employees Union and the American Federation of Government Employees have filed seeking to force changes in A-76, said Colleen Kelley, NTEU president.

Kelley said the change in numerical goals means little. "The good news for about 30 seconds was that they were rolling back the 15 percent quotas. But in the next breath they say they're replacing it with agency-specific goals," she said. "I am not convinced that they're not just replacing one quota with another."

The official said the agency wanted to allow individual agencies more flexibility to come up with internal plans and targets that are suitable to that agency's specific circumstances.

OMB had been under pressure to drop the governmentwide numbers goal for months before A-76 became final, said Alan Chvotkin, senior vice president and counsel of the Professional Services Council, which generally supports A-76.

"There was clearly a legislative interest in them. Many of the members [of Congress] called them 'quotas' when they weren't. Angela [Styles] made a valiant effort to explain that they were goals," he said. "As early as last year she was moving away from even talking about goals. I don't think that has any overall impact on the program."

The correction to the challenge policy also is one that the council wanted, Chvotkin said.

The A-76 process was contentious from the beginning, with advocates on both sides arguing for provisions that would favor their side, said consultant Robert Guerra, of Guerra, Kiviat, Flyzik and Associates Inc. The wrangling has continued since the final version of the circular was published.

"People are making some valid points," Guerra said. "Clearly, the congressional pressure has had an effect. Life is a series of trade-offs. You've got to make trade-offs to get things done."