[Congressional Record Volume 150, Number 71 (Wednesday, May 19, 2004)]
[Senate]
[Pages S5800-S5801]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Ms. COLLINS (for herself, Mr. Levin, Mr. Chafee, Mr. 
        Lieberman, Mr. Akaka, Mr. Sarbanes, and Ms. Mikulski):
  S. 2438. A bill to amend title 31, United States Code, to provide 
Federal Government employees with bid protest rights in actions under 
Office of Management and Budget Circular A-76, and for other purposes; 
to the Committee on Governmental Affairs.
  Ms. COLLINS. Mr. President, competitive sourcing is the process by 
which the Federal Government conducts a competition to compare the

[[Page S5801]]

cost of obtaining a needed commercial service from a private sector 
contractor rather than from Federal employees. Properly conducted, 
competitive sourcing can be an effective tool to achieve cost savings. 
Poorly utilized, however, it can increase costs and hurt the morale of 
the Federal workforce.
  The current guidelines under which agencies conduct these 
competitions are contained in the Office of Management and Budget's 
(OMB) Circular A-76 (A-76). To ensure that we maximize the benefit and 
minimize the cost of competitive sourcing, A-76 competition must be 
conducted in a carefully crafted manner. The rules under which they 
take place must be fair, objective, transparent, and efficient. In one 
particular regard, I believe the current rules fail to meet these 
criteria.
  Specifically, they do not allow Federal employees to protest the 
agency's decisions in an A-76 competition beyond the agency's own 
internal review processes to the General Accounting Office (GAO). 
Congress has vested in the GAO the jurisdiction to hear and render 
opinions in protests of agency acquisition decisions generally. Private 
sector contractors, in contrast to federal employees, have standing to 
protest agency procurement decisions, including those in A-76 
competitions, before GAO. Today, along with my distinguished colleague, 
Senator Levin, I am introducing legislation to correct this imbalance 
by providing Federal employees with standing to protest A-76 decisions 
to GAO.
  The current situation does not arise from any conscious policy 
decision of Congress, GAO or OMB. Rather, it occurs because the Federal 
statute that confers protest jurisdiction upon GAO, the Competition in 
Contracting Act of 1984 or ``CICA,'' was not drafted to address the 
unique nature of A-76 competitions, in particular, the role of Federal 
employees in the ``Most Efficient Organization'' or ``MEO,'' which is 
the in-house side of these competitions. This was not deliberate--this 
particular circumstance for protest was simply not contemplated by 
Congress when drafting CICA.
  Recent revisions to A-76 created the potential for GAO to review past 
decisions by Federal courts and revisit its own opinions to see whether 
the revisions would merit a determination that Federal employees had 
gained standing to protest adverse A-76 competition decisions. However, 
a recent GAO protest decision indicates that GAO has concluded it lacks 
the authority under CICA to hear protests from Federal employees in the 
MEO in these competitions. As a result, corrective legislative action 
has become necessary in our view.
  Our bill would extend GAO protest rights on behalf of the MEO in A-76 
competitions to two individuals. The first is the Agency Tender 
Official or ``ATO.'' The ATO is the agency official who is responsible 
for developing and representing the Federal employees' MEO. The second 
is a representative chosen directly by the Federal employees in the MEO 
for the purposes of filing a protest with GAO where the ATO does not, 
in the view of a majority of the MEO, fulfill his or her duties in 
regards to a GAO protest.
  As I mentioned, the rules under which these competitions are run must 
be fair. In addition to being objectively fair, however, I think they 
must also be perceived as fair by all parties. If the private sector 
perceives the rules to be unfair, they will decline to participate in 
competitive sourcing competitions, and the Federal Government will 
enjoy less competition in its acquisitions. If Federal employees 
perceive the rules to be unfair, there will be less interest in Federal 
employment at a time when we are all concerned about the Federal 
Government's human capital challenges. As the congressionally 
established Commercial Activities Panel noted in its report on 
competitive sourcing, the lack of GAO protest rights for Federal 
employees was one of the most often-heard complaints about the A-76 
rules. Providing them with protest rights that are similar to those 
enjoyed by the private sector is, I think, vital to assuring Federal 
employees that the rules of the game are fair to them.
  The rules must also be efficient. There are three interests that are 
served by A-76 rules that ensure a speedy process with finality. The 
Federal Government benefits by enjoying the benefits and efficiencies 
of competitive sourcing sooner rather than later. Federal workers 
benefit in that they spend less time having to worry about the outcome 
of these competitions, which can be stressful as they create 
uncertainty about employees' employment situations. Finally, because 
time is money in the private sector, private contractors will benefit 
by spending less time on competitions as well. In my view, having 
Federal employees vote to choose a representative to protest when they 
are dissatisfied with the ATO should achieve the maximum efficiency 
possible while respecting Federal employees' interests.
  In the end, our intent is to bolster the A-76 process by providing a 
mechanism for Federal employees to seek redress from GAO, an entity 
that is well known for its fair, effective and expert handling of 
acquisition protests.
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