Statement 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 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.