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TITLE III— Operation and Maintenance

Subtitle C — Workplace and Depot Issues

NDAA Section

House Conference Report 110-477

SEC. 326. BID PROTESTS BY FEDERAL EMPLOYEES IN ACTIONS UNDER OFFICE OF MANAGEMENT AND BUDGET CIRCULAR A-76.

(a) Eligibility To Protest Public-Private Competitions- Section 3551(2) of title 31, United States Code, is amended to read as follows:

`(2) The term `interested party'--

`(A) with respect to a contract or a solicitation or other request for offers described in paragraph (1), means 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; and

`(B) with respect to a public-private competition conducted under Office of Management and Budget Circular A-76 with respect to the performance of an activity or function of a Federal agency, or a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A-76, includes--

`(i) any official who submitted the agency tender in such competition; and

`(ii) any one individual who, for the purpose of representing the Federal employees engaged in the performance of the activity or function for which the public-private competition is conducted in a protest under this subchapter that relates to such public-private competition, has been designated as the agent of the Federal employees by a majority of such employees.'.

(b) Expedited Action-

(1) IN GENERAL- Subchapter V of chapter 35 of such title is amended by adding at the end the following new section:

`Sec. 3557. Expedited action in protests of Public-Private competitions

`For any protest of a public-private competition conducted under Office of Management and Budget Circular A-76 with respect to the performance of an activity or function of a Federal agency, the Comptroller General shall administer the provisions of this subchapter in the manner best suited for expediting the final resolution of the protest and the final action in the public-private competition.'.

(2) CLERICAL AMENDMENT- The chapter analysis at the beginning of such chapter is amended by inserting after the item relating to section 3556 the following new item:

(c) Right To Intervene in Civil Action- Section 1491(b) of title 28, United States Code, is amended by adding at the end the following new paragraph:

`(5) If an interested party who is a member of the private sector commences an action described in paragraph (1) with respect to a public-private competition conducted under Office of Management and Budget Circular A-76 regarding the performance of an activity or function of a Federal agency, or a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A-76, then an interested party described in section 3551(2)(B) of title 31 shall be entitled to intervene in that action.'.

(d) Applicability- Subparagraph (B) of section 3551(2) of title 31, United States Code (as added by subsection (a)), and paragraph (5) of section 1491(b) of title 28, United States Code (as added by subsection (c)), shall apply to--

(1) a protest or civil action that challenges final selection of the source of performance of an activity or function of a Federal agency that is made pursuant to a study initiated under Office of Management and Budget Circular A-76 on or after January 1, 2004; and

(2) any other protest or civil action that relates to a public-private competition initiated under Office of Management and Budget Circular A-76, or to a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A-76, on or after the date of the enactment of this Act.

The House bill contained a provision (sec. 329) that would give federal employees the same right to appeal the outcome of a public-private competition that contractors competing against those employees already have.

The Senate amendment contained an identical provision (sec. 366). The conference agreement includes this provision.

The conferees note that this provision applies to a protest of an agency decision that was made after the date of the enactment of this Act, even if the competition, study, or analysis which formed the basis for such decision was initiated prior to the date of enactment.

House Armed Services Committee Report 110-146

SECTION 329--PUBLIC-PRIVATE COMPETITION BID PROTESTS BY FEDERAL EMPLOYEES

This section would give federal employees appeal rights to have contracting out-related decisions, whether or not conducted using Office of Management and Budget (OMB) Circular A-76 procedures, reviewed by the Government Accountability Office (GAO). A majority of employees performing a function or activity would be allowed to choose a representative to appeal such decisions to the GAO, and to intervene in actions before the Court of Federal Claims.

Section 326 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Public Law 108-375) allows an appeal to be filed on behalf of federal employees by an Agency Tender Official (ATO), a senior procurement official acting on behalf of the employees, only in A-76 competitions. However, the committee is concerned that federal employees may not be adequately represented and questions whether an agency tender official would have sufficient resources to employ qualified counsel. Furthermore, the committee notes that there are many instances in which there is no ATO at all, such as in a streamlined OMB Circular A-76 competition, which can include up to 65 employees.