National Defense Authorization Act for Fiscal Year 2006

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2006 -- (Senate - November 15, 2005)

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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 Circular A-76. To ensure that we maximize the benefit and minimize the cost of competitive sourcing, A-76 competitions 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 Accountability Office. 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.

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 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 legislation became necessary in our view.

The Collins-Akaka amendment addresses a very important inequity in our current procurement system. The amendment would ensure that Federal employees have standing to protest to GAO similar to what the private sector enjoys. The amendment 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. 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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