GAO rules out feds' A-76 appeals

GAO decision in recent protests

Federal employees, under current laws, are not entitled to appeal agency decisions to contract their work to private-sector businesses, the General Accounting Office has ruled.

In their decision issued this week, GAO officials said that federal employees are not considered offerors according to the Competition in Contract Act of 1984, and therefore they are not entitled to appeal the outcome of a competition to GAO. The Office of Management and Budget's Circular A-76, revised last year, governs such competitions.

However, GAO called on Congress to consider revising the law so that employees would have appeal rights.

The GAO ruling followed a protest filed by federal employees and unions regarding decisions by the Agriculture Department and the Equal Employment Opportunity Commission to outsource work. In both cases, GAO general counsel Anthony Gamboa determined that despite changes to A-76, federal employees are still not considered interested parties according to CICA. Although they may protest decisions to the agencies they work for, they have no legal standing to file an appeal with GAO.

GAO officials had published a notice in the Federal Register last summer seeking comments on whether the revised A-76 should be construed to open appeal rights to most efficient organizations (MEOs), the teams of federal employees that may have to compete to keep their jobs. Currently, private-sector contractors can appeal, while employee organizations cannot.

After reviewing the comments, officials determined that CICA still does not permit MEOs to appeal decisions to GAO, officials said.

Comptroller General David Walker, in a letter sent this week to several Congressional leaders, suggested Congress should consider changing the law. "In light of the public policy concerns weighing in favor of allowing MEOs to file bid protests, Congress may wish to amend CICA," he wrote.

National Treasury Employees Union president Colleen Kelley supported Walker's call for a change in the law, but she said in a statement that she is disappointed in the agency's determination that employees currently don't have appeal rights.

"Clearly, GAO is both aware of and troubled by the unfairness of allowing only one side in a contracting decision to have the key right of appeal," she said.

However, a statement from Stan Soloway, president of the Professional Services Council, argued against extending appeal rights to individual employees or unions. Only the Agency Tender Official, a designated representative of the MEO, should have legal standing to protest, Soloway said.

CICA "clearly limits standing to protest to '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,'" Soloway said. "GAO correctly determined that an agency's 'most efficient organization' does not and cannot have a 'contractual' relationship with the agency. Unlike contractors, an MEO commits to very little binding legal or financial liability when it wins an A-76 competition."