THE AFGE ACTIVIST’S
FAIR ACT CHALLENGES AND APPEALS
A Self-Paced Guide to FAIR Act Policy and Procedures
How this lesson applies to you:
The FAIR Act impacts every federal employee, as well as all of our Locals, Councils, Regional Districts, and the National Office.
Under the FAIR Act every federal agency is required to publish an annual “Commercial Activities Inventory.” This inventory identifies all the work within an agency -- now being performed by federal employees -- that could be done by contractors. More specifically, the inventory identifies all work that could be subject to contracting out under the requirements of OMB Circular A-76, or that may be exempted from competition under OMB Circular A-76. (The inventory’s so-called “C” Codes. But more of that later.)
The FAIR Act also allows us (as AFGE Locals, Councils, Regional Districts, and National Office) the standing to challenge activities listed on the inventory under a special process and under specific criteria.
Needless to say, it’s in our best interest to challenge or appeal activities listed on the inventory. The fewer activities subject to an A-76 competition or contracting out the better. Likewise, the more things we can move through our challenges and appeals from the endangered commercial category to the protected inherently government classification the better.
Or to use an analogy: If you’ve ever been shopping you know that the best sales happen after a store does its inventory. Keep in mind that what’s going on sale after the inventory is your job. It’s in your self-interest to keep your work off the auction block (or, sales rack, if you please).
This lesson will cover the FAIR Act Commercial Activities Inventories. It will teach you:
n about the FAIR Act,
n the Fair Act’s annual requirement for a commercial activities inventory, and
n the process for challenging or appealing this inventory.
At the conclusion of this lesson, you will be able to state correctly on a multiple-choice quiz with 100% accuracy that:
n The purpose of your challenge is to contest the decision designating certain activities as “commercial” and have them re-designated as ”inherently governmental.”
n Where on AFGE’s website (www.afge.org) you can find the resources and background materials you need to research, prepare, and submit a challenge.
n Identify the timeline for publication of the agency inventories, submitting a challenge, receiving a response from the agency, and filing an appeal.
The secret to understanding the process and executing a successful challenge is familiarizing yourself with the references that govern the challenge and appeal process. This lesson will give you background and will help you focus on what you need to know. There is no substitute for reading the actual references. With this in mind, we suggest you read the following materials:
n Circular No. A-76 (REVISED 1999) of August 4, 1983, Performance of Commercial Activities
n Circular No. A-76, Revised Supplemental Handbook, March 1996 (with August 1999 Revisions: Appendix 2: “Commercial Activities Inventory”
n Circular No. A-76, Revised Supplemental Handbook, March 1996 (with August 1999 Revisions: Appendix 5: “Office of Federal Procurement Policy Letter 92-1 – Inherently Governmental Functions, September 23, 1992”
Some words of caution:
“The more you bleed in peace, the less you bleed in war.” -- Anonymous.
Some people (notice, we didn't say you) will want to take a shortcut, only just read this lesson, and skip reading the references. Don’t do it! If you cheat, you're only cheating yourself. Read the material and work to understand it. Understanding the references is the key to successfully participating in the FAIR Act challenge and appeal process, and contributes to your ability to keep work in-house.
There may be some of you who believe they’ve mastered A-76 policy and procedure, and will want to skip the reading. Don’t do it. The fact that you know A-76 will help you in preparing your challenge, but FAIR and A-76 are two separate processes. Do yourself a favor, read the material. It could save you later on.
WHAT IS THE FAIR ACT?