94506
June, 2000
THE AFGE ACTIVIST’S
GUIDE
TO
FAIR ACT CHALLENGES AND APPEALS
A Self-Paced Guide to FAIR Act Policy and Procedures
AFGE Public Policy Department
LESSON: The Federal Activities Inventory Reform (FAIR) Act Challenges and
Appeals Process
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.
Learning
Objectives
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.
Read
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.
Let’s Get Started!!!!
WHAT IS THE FAIR ACT?
The
"Federal Activities Inventory Reform Act of 1998" (Public Law
105-270) ("FAIR Act") has several
provisions:
n It directs Federal agencies to submit an annual inventory on all
commercial activities performed by Federal employees by June 30th of
each year.
n It requires OMB to review these inventories, and to consult with
the agencies on their content.
n After review, it directs that the inventories will be made public
and will be submitted to Congress.
n The Act also allows interested parties such as AFGE or contractors
to appeal the omission or inclusion of a particular activity in the list of
inventoried items.
n Finally, FAIR requires that each time an agency head contemplates
contracting with a private sector source, the agency must use a competitive
process that considers all costs.
SO, YOU MAY ASK ---WHAT DOES THIS HAVE TO DO WITH ME?
As I just said, under the FAIR Act you -- in terms
of your Local, Council, District, and National -- have the right to challenge
and appeal an agency's decision regarding the designation of a particular
activity as "commercial."
In other words you have the right to contest -- and possibly reverse -- decisions
regarding what federal jobs may go on the auction block.
And that’s the point of everything that
follows. It’s also why this should be
such a big deal to you and our Union.
The FAIR Act gives you standing to challenge agency decisions regarding
what work it will, or will not, contract out.
On a grander scale it also allows us to participate in management
decisions regarding privatization, contracting out, and the policy issues
surrounding designating work as inherently governmental or commercial
activities.
To
sum it all up:
The FAIR Act is important to you on a practical
level because it impacts whether or not work will be considered for contracting
out.
It is also important to you on a philosophical
level because it allows you to express your (and AFGE’s) opposition to contracting
out.
Enough said!!!!
HOW ARE WE GOING TO PROCEED?
I’ll take you through the process one step at a
time. I’m not only going to talk
process but I’ll be giving you tips on how to put together a winning challenge
or appeal.
TIP: If you haven’t read the
material, stop. Even if you
think you’re A-76 savvy, go back to the “READ” section and do it. There is no substitute for being familiar
with the references governing the process.
TIP: If after reading this
material, or later on if you choose to file a challenge or appeal, a team from
the National Office will be available at (202) 639-6408 to advise and assist
you with the process. We also have set
up a FAIR ACT Challenge Resources site
in the member’s section on AFGE’s website – www.afge.org. This section will provide you with all the
references, materials, and information (including this most excellent text)
that you’ll need to file a challenge or appeal.
TIP: In Appendix 2 of this lesson we’ve compiled
a listing of all “TIPS” for your convenience.
Use this summary as a quick reference when you prepare your challenges
or appeals.
Let’s take the first step.
STEP # 1: OMB ISSUES A
DATA CALL
Sometime around February or March of each year,
the Office of Management and Budget (OMB) will notify all federal agencies to
submit their FAIR ACT Commercial Activities Inventories to OMB for review by
June 30th of that year. This
data call will include instructions regarding due dates, inventory format, and
general guidance regarding what they may or may not include in the report.
STEP # 2: AGENCIES
COMPILE THEIR INITIAL INVENTORIES
Upon receipt, each agency begins a review of all
the work it performs and decides what work is inherently governmental and what
is commercial. That work which is
deemed commercial will be listed and described in its initial inventory. This initial inventory will be submitted no
later than June 30th for OMB review.
Understand that the mechanics of exactly how an
agency compiles its inventory is pretty much up to each agency. Some agencies may include involvement by
their field activities at the lowest level.
Other agencies may take a “top down” approach with all review and
decisions held at its headquarters.
Then again you may have a “bottom up” approach which excludes the Union,
and is subject to a lot of horse trading and bargaining as it works its way us
the inventory review chain.
TIP: Whatever methodology
(top-down, bottom-up, Union participating, Union excluded) is used, remember
that every inventory is surrounded by intense controversy and internal debate
within the submitting agency. There may
be strong disagreement between supervisory levels regarding the designation of
a particular item as inherently governmental.
You should exploit this managerial dissent in crafting your arguments to
rebut making a particular function commercial.
Use their words, ideas, and thoughts to rekindle an internal debate that
may have not been satisfactorily resolved, and which you can use to your
advantage.
TIP: Inquire about how the
agency is compiling its inventory. Will
your local activity be involved? What
is their schedule between now and June 30th for compiling,
reviewing, and submitting the report?
Who is the individual responsible for the inventory? Can you or your Local be involved in
developing the inventory?
This leads us to the question of whether or not
the Executive Order 12871 (“Labor-Management Partnerships”) applies to Union
involvement in the compiling of the initial inventory. OMB’s position is contained on page 20 of 23
of its OMB Circular A-76 Transmittal
Memorandum #20 of June 1999, which states:
“Executive Order 12871 does apply. Agencies
should seek employee input in the development of the Commercial Activities
Inventory, as appropriate, and the guidance has been revised to say so. It remains up to the agency head to make the
determination whether a function is commercial or inherently governmental in
nature. The FAIR Act also provides that
federal employees and their representatives are “interested parties” who may
challenge the contents of the inventory.”
Not exactly a guarantee of participation, but at
least it’s not a barrier.
TIP: You can partner without
losing your right to challenge or appeal.
TIP: Meet with your management to determine what
is “appropriate” involvement in the development of the inventory. If they will allow you to participate, do
so. Your participation allows you an
opportunity to make a case for keeping as much work in-house as possible. It also gives you insights regarding why
management considers certain work commercial.
These insights would be helpful in the future should you choose to
submit a challenge.
STEP #3:
OMB REVIEWS THE AGENCY’S INITIAL COMMERCIAL ACTIVITIES INVENTORY
On or about June 30th, your agency
sends the initial Commercial Activities Inventory to OMB for its review on the
inventory’s content. They will also
“consult” with the agencies concerning their submission.
This review and consultation allows OMB to
discharge its responsibilities as the overall manager of the FAIR Act
process. This period can be quite
lengthy and generate a lot of discussions and controversy between the agencies
and OMB.
It may also end up delaying the process
extensively, depending on how quickly OMB and its agencies are able to settle
their differences. For example, the
Department of Defense submitted its 1999 inventory in August of 1999, and it
wasn’t released until December 30, 1999.
TIP: Remember, the old
African proverb: When elephants fight,
only the grass is trampled.
As a Union we won’t be direct participants in
OMB’s review and consultation. However, all of us -- Locals, Councils,
Districts, and National Office -- need to keep our ear to the ground regarding
when OMB and the agencies will approve the inventories for public release in a
notification of public availability.
Know when notification of public availability is
announced in the Federal Register
happens. It’s an important date to
you. Because it means --
IT’S SHOW TIME!!!!
STEP #4: NOTICE OF
AVAILABILITY – CHALLENGE PERIOD STARTS
Once OMB announces the public availability of the
inventories, a challenge may be issued for
a period of 30 WORKING days.
You can get the notice of availability two ways:
go to the Members Only section, “FAIR
Act Challenge Resources” link on the AFGE Web pages (www.afge.org), or you can get it directly from
your agencies web page.
The
notice of availability isn’t the inventory! However, it will tell you where to get it,
and the name of the person within that agency who’s responsible for answering
questions concerning the agency’s inventory.
What you will see in the Federal Register notice is a listing of each agency whose inventory
is ready for public review, a point of contact for questions regarding the
inventory, a means of contacting him or her, and instructions on how to get a
copy of the inventory.
TIP: All agencies are
providing their inventories over the Internet.
My advice to you is – if your local is not on the net now, they better
get on it!
TIP: Remember that once the
notice of availability is made the 30 working day clock starts. Don’t waste time. There are no extensions or allowable excuses for missing this
deadline.
TIP: If you didn’t challenge last year’s
inventory, there is nothing preventing you from challenging this year’s.
STEP #5:
PREPARING YOUR CHALLENGE – GET AND REVIEW THE INVENTORY
You should request a
copy of your agency's FAIR Act Inventory and its instructions for filing an
administrative challenge or appeal. You
can get this inventory one of several ways:
1. If
your agency published its inventory on the Internet, you can go there directly
using the Web address provided on the notification of availability, or
- Go to the Members Only Section of the
AFGE website (www.afge.org) to the “Are You Included in the Current
Announcement of Public Availability?” section of the FAIR Act Challenge
Resources site. From there you can
hotlink yourself directly to your agency’s inventory, or
- The inventory can be obtained from the
agency's point of contact. This
individual's name, phone number, and in some cases e-mail address are
listed in the Federal Register
notification of the availability of inventories.
TIP: Use
last year’s inventory as a reference point when you begin your analysis. But
remember, last year’s inventory is old news.
You should only use it for reference.
You’re challenging the most current inventory – not the last!!
TIP: Don’t
forget the human dimension when you start gathering data on which to base your
challenge. For example, consider
“chatting up” the Point of Contact listed on the OMB announcement of public
availability. He or she may provide you
with some tips or insights on how the inventory was compiled that you can find
no where else.
STEP
#6: PREPARING YOUR CHALLENGE – THE PROCESS
Upon receipt of the
agency inventory, you should review it with the following in mind:
1. The
FAIR Act Inventory is a two step process.
a. The
first step involves submitting a challenge to why an activity was included on
the list. This challenge will result in
a decision by the agency whether or not your challenge has merit.
b. If
the decision regarding the challenge is adverse (i.e., rules against you) then
you have the option of entering into the second step -- an appeal. If submitted, this appeal would be sent to a
senior official within the agency for a decision whether or not to support your
appeal.
c. If
you decide to challenge the decision to include an activity as commercial, you
must submit a challenge to the individual designated in the agency's
instructions as the official responsible for receiving and deciding the
challenge.
TIP: To
help you out, we've assembled all the necessary references here on the
"FAIR Act Challenge Resources" site.
This site also contains a boilerplate, fill in the blanks letter with
arguments that will make expressing your case all that much easier.
d. Your
challenge must reach this individual, preferably by registered mail, within 30
working days after the publication of the availability of the inventory in the
Federal Register.
e. To
be successful, a challenge must be specific.
It must state the reasons a Local or Council believes a particular
activity should be kept inherently governmental. Arguments should be couched in terms similar to those expressed
in the policy guidelines contained in OFPP Letter 92-1. (See why I wanted you to read the references
first!) This letter is provided in
Appendix 5 of OMB Circular A-76's Revised Supplemental Handbook, or is
available on AFGE’s Website in the Fair Act Challenges Resources sections.
f. Councils
and Locals may also challenge the decision based on a precedent such as when
other agencies have deemed similar functions as inherently governmental.
TIP: ABOVE ALL KEEP THE FOLLOWING IN MIND:
The whole basis
for challenging is to get a particular function or activity currently
designated as “commercial” on the inventory redesignated as “inherently
governmental.”
Secondly, you
won’t challenge everything on the list for a variety of reasons – most of them
outlined in the next step.
STEP
#7: PREPARING YOUR CHALLENGE – ANALYZE THE LIST: REASON CODES
What
do I mean by not everything on the inventory will be challenged?
The
biggest reason is that not every item listed as a commercial activity is
endangered.
Let
me explain. Go to your agency’s
inventory. The inventory has a column
“Reason Code”. It contains a variety of
letters ranging from “A” to “I”. The
Reason Code indicates how the agency views these commercial activities in terms
of subjecting them to A-76.
Want
more detail? Your wish is my
command. Let’s analyze each Reason Code
using the language right out of OMB’s data call:
Code Explanations
Code A. Indicates that the function is performed by
Federal employees and is specifically exempt by the agency from the cost
comparison requirements of the Circular and this Supplement.
This
Reason Code is designed to permit the Agency Head to identify specific
commercial activities as those that he/she does not believe should be subjected
to privatization, outsourcing, reinvention, or competition. Certainly, these are core mission activities
that are commercial in nature. Many
core activities may, however, be achieved through contract support and may also
be found in either Reason Code “B” or “C”.
Functions assigned Reason Code “A” are commercial functions that the
Agency Head has determined must remain in-house. A justification of each use of Reason Code “A”, by function code
will accompany the 2000 Inventory as a part of the Annual Management Report.
TIP: You
don’t challenge an “A”. The Agency has
declared it off-limits for competition – for this year, at least!
Code B.
Indicates that the activity is performed by
Federal employees and is subject to the cost comparison or direct
conversion requirements of the Circular and this Supplement.
This
Reason Code should be applied to any Function or Activity where the decision as
to who should perform the work is a quality and cost based decision and the
agency would expect that this decision would be based upon the results of a
direct conversion competition (when authorized), or a cost comparison,
conducted in accordance with OMB Circular A-76 and its Supplemental Handbook.
TIP: You’ll
consider challenging a code “B”. It
could be subject to a cost comparison.
Code C.
Indicates that the activity is performed by
Federal employees, but it has been specifically made exempt from the provisions
of the Circular and this Supplement by Congress, Executive Order, or OMB.
This
Reason Code should be applied to any Function/Activity where the decision as to
who should perform the work is generally not a cost-based decision and a cost
comparison would be inappropriate. This
code applies to the Supplemental Handbook’s exemption from the cost comparison
requirements of the Circular for national defense related activities, direct
patient care, core, and research and developmental activities. Here the decision to convert to or from
in-house or contract performance is not a cost-based decision. The problem is to get the right people, the
right skills, the right knowledge at the right place and at the right time. These activities are currently performed by
Federal employees, but, they do not enjoy the cost comparison protections
afforded by the Circular; cost is a secondary consideration.
TIP: You’ll
consider challenging a code “C” because, while it may be exempt for A-76, it is
still vulnerable to contracting out, e.g. a 10 or fewer FTE direct conversion.
Code D.
Indicates that the function is currently performed
by in-house Federal employees and is in the process of being cost compared or
converted directly to contract or interservice support agreement performance.
Employees
in Functions/Activities listed under this code have been advised that the work
performed is undergoing formal A-76 cost comparison or the agency is preparing
for the direct conversion of work to contract performance, in accordance with
the Supplement. In the Department of
Defense, congressional notification is required.
TIP: You
don’t challenge a “D” because it’s already under study.
Code E.
Indicates that the function is retained in-house
as a result of a cost comparison.
TIP: You
don’t challenge an “E”. You won the
competition. End of story.
Code F.
Indicates the function is currently being
performed by Federal employees, but a review is pending force restructuring
decisions (i.e., base closure, realignment, consolidation, etc.).
TIP: Keep
your eye on this one. An “F” means that
they are holding off on a designation until the restructuring is
completed. You may, as a matter of
principle, want to challenge this.
Code G.
Indicates that the function is prohibited from
conversion to contract because of legislation.
For
the 2000 Inventory, each use of this code requires an attachment to the
Inventory identifying the statute (US Code) that applies with explanation.
TIP: You
won’t challenge a “G” because it’s protected by a legislative safeguard such as
DoD firefighters or security guards.
Code H. Waiver issued.
TIP: An
“H” means they submitted a competition waiver under A-76 policy guidelines, and
will contract out without public-private competition. You may still, as a matter of principle -- if the waiver has
not been granted -- consider a challenge.
Code I.
Indicates the function is being performed in-house
as a result of a cost comparison resulting from a decision to convert from
contract to in-house performance.
TIP: An
“I” won’t be challenged. You beat a
contractor and returned the work back in-house.
IN SUMMARY:
Seriously
consider challenging Reason Codes “B” and “C”.
Contemplate
challenging Reason Codes “F” or “H”.
Don’t
worry about Reason Codes “A”, “D”, “E”,
“G”, or “I”. They’re safe –-
at least until next year’s inventory!
STEP
#8: PREPARING YOUR CHALLENGE –MAKING YOUR ARGUMENT
You’ve analyzed the list. You’ve determined which Reason Codes you
consider endangered, and now you’re ready to start framing your argument.
Let’s
Take a Moment to Review the Basis for a Challenge:
a. To
be successful, a challenge must be specific.
It must state the reasons a Local or Council believes a particular
activity should be kept inherently governmental.
b. Arguments should be couched in terms similar
to those expressed in the policy guidelines contained in Office of Federal
Procurement Policy (OFPP) Letter 92-1.
This letter is provided in Appendix 5 of OMB Circular A-76's Revised
Supplemental Handbook, or is available on AFGE’s Website in the Fair Act
Challenges Resources sections.
d. Councils
and Locals may also challenge the decision based on a precedent such as when
other agencies have deemed similar functions as inherently governmental.
Granted this may seem confining, however, in this case,
treat them as guidelines. Any way you
can make your case do it!
TIP: Don’t be afraid to interpret the guidelines
in the broadest sense. Make an argument
that makes sense to you. What have you
got to lose? They can only say no. In
any event, you’re no worse off than when you started.
TIP:
When you challenge,
don’t be afraid to ask your Congressman or Senator to write a letter in support
of your challenge. Granted your
representatives don’t have standing in the process. But, when they write on your behalf, your agency will have to
give additional consideration in both the depth and quality of its response to
you.
TIP: However: While it’s important to play the legislative
card -- Remember, submit your challenge first, then get the support of your
representatives. The letter from your
representative or senator augments your appeal -- it doesn’t replace it.
TIP: Don’t be afraid to use
their own words against them. If
they’ve written letters, articles, speeches, or testimony that describe what
you do in “inherently governmental,” “can’t afford to contract it out” terms --
incorporate them in your challenge.
What Does a Challenge Look Like?
You’ll be happy to know that we have a boilerplate letter with arguments already prepared. We’ve included the text in this lesson, but if you lose this material, the dog eats it, or you (gasp! shudder!) throw it away, you can also find it on AFGE’s Website in the “FAIR Act Resources” Section.
TIP: The following letter
includes all the information elements required. However, pay
attention!!! Some agencies may have
their own special format. When you do
your challenge letter, use your
agency’s format, and fill it in with the boilerplate we’re providing you. You will find your agency’s format either on
the Internet (their or AFGE’s site), or you can obtain instructions from your
agency.
Bottomline: Use your agency’s format.
Make your case using our boilerplate.
LADIES AND GENTLEMEN, BROTHERS AND SISTERS, DRUM ROLL
PLEASE-----
THE
CHALLENGE LETTER!
DATE
Individual Authorized to Receive the
Challenge (See agency’s FAIR Act
Challenge Instructions)
Name of Agency
Address of Agency
Dear (Individual identified by agency to receive
challenge):
As the President of (Local or Council) of the
American Federation of Government Employees, AFL-CIO which represents the ( # )
employees working at the (name of agency) as well as my capacity as an
"interested party" as established under the provisions of section
3(b) of the Federal Activities and Inventory Reform Act (FAIR Act) of 1998,
Public Law 105-270, and as the head of a labor organization as described in
section 7103(a)(4) of title 5, United States Code I submit the following
challenge to select items contained in the (the agency's) Commercial Activities
Inventory of ( date).
Specifically, I am challenging the decision to
include the items listed below on the (agency) inventory list as commercial
activities:
Item:
At a minimum you should provide the functional
code description contained on the inventory.
(See AFGE Website, or Appendix 2 of the Supplement to A-76.
Describe where you can find it. For example, page of the inventory,
organization within the agency, Unit, State Code, number of FTE's.
Basis
of Challenge: See the
following arguments. Use them, but
don’t be limited by them. There’s no
penalty for creativity.
Standard Introduction
For Each Item Challenged
The Office of Federal Procurement Policy (OFPP)
Policy Letter 92-1, "Inherently Governmental Functions" of September
23, 1992 defines inherently governmental functions as follows:
"As a matter of policy, an "inherently
governmental function" is a function that is so intimately related to the
public interest as to mandate performance by Government employees. These functions include those activities
that require either the exercise of discretion in applying government authority
or the making of value judgements in making decisions for the Government."
It is my contention that in accordance with the
above definition, all of the work categorized under each of these commercial
activity codes should be rightfully defined as inherently governmental and
reclassified as inherently governmental. Specifically:
Functional Code xxxxx as an inherently
governmental function, involves among other things, the interpretation and
execution of the laws of the United States so as to: (pick and insert an
argument)
Typical Arguments:
·
If
it involves management, procurement, or contracting functions.
... bind the United
States to take or not to take some action by contract, policy, regulation,
authorization, order or otherwise.
(Make your argument supporting this contention. Describe the work.) Maintaining this function as inherently
governmental ensures that in using the products of these contracts, any final
agency action complies with the laws and policies of the United States. Maintaining it as inherently governmental
ensures that decisions reflect the independent conclusions of agency official
and not those of contractors who may have interests that are not in concert
with the public interest, and may be beyond the reach of management controls
otherwise applicable to public employees.
·
An
Example of a Variant of the “Exercise of Discretion” Argument:
OMB Policy Letter 92-1 (September 23,1992) establishing
executive branch policy relating to inherently governmental functions provides
guidelines for determining whether a function is inherently governmental. Paragraph 7(a) discusses the “exercise of
discretion.” The policy letter states:
“ . . . the use of discretion must have the effect of committing the
Federal Government to a course of action when two or more alternative courses
of action exist (e.g. purchasing a minicomputer than a mainframe computer,
hiring a statistician rather than an economist, supporting proposed legislation
rather than opposing it, devoting more resources to prosecuting one type of
criminal case than another, awarding a contract to one firm rather than
another, adopting one policy rather than another, and so forth).”
At the Department
of Veterans Affairs RNs have the authority to exercise their discretion to
withhold prescribed medication and to place patients in restraints. When physicians or PAs prescribe medication,
respiratory therapy, IVs, physical therapy, and other treatments as “PRN” it is
the RNs who exercise complete discretion and make value judgements as to the
frequency and duration of this medical care.
Note: While this is a VA example, the same
challenge rationale could be used in other agencies.
·
If
it involves access to procurement or competition sensitive documentation use
the following:
... the work performed
under this category involves access to competition and procurement sensitive
information. (Describe the work and in
so doing make your argument.) Access by
other than an employee of the federal government would compromise the integrity
of future competitions, contracts and procurement actions and thereby impede
the government's authority or value judgements relative to making decisions in
the best interests of the public.
Further, disclosure and unauthorized access to this information would
deny the government the ability to take action as the result of informed
independent judgments made by government officials who are ultimately
accountable to the President. Maintaining this function as inherently
governmental ensures that in using the products of these contracts, any final
agency action complies with the laws and policies of the United States. Maintaining this function as inherently
governmental ensures that decisions reflects the independent conclusions of
agency official and not those of contractors who may have interests that are
not in concert with the public interest, and may be beyond the reach of
management controls otherwise applicable to public employees.
·
If
it involves access to personal information (health, privacy or confidential
matters) insert the following:
... the work performed
under this category entails access to privacy, personnel sensitive, or confidential
information. The protection of this
information falls within the government's authority to protect the interests of
its citizens in so far as it significantly affects the life, liberty, or
property of private persons, and therefore must remain inherently
governmental. Maintaining this function
as inherently governmental ensures that any final agency action complies with
the laws and policies of the United States.
Maintaining this function as inherently governmental ensures that
decisions reflect the independent conclusions of agency official and not those
of contractors who may have interests that are not in concert with the public
interest, and may be beyond the reach of management controls otherwise
applicable to public employees.
·
A
Real World Example of a Privacy Challenge:
The positions under
function codes H402B—Information Resources Management and H414—Medical
Information and Records maintain the integrity, confidentiality and security of
the computer systems, which contain vital information and private patient
health and financial records. Employees are directly responsible for protecting
that data from unauthorized release or from loss, alteration or unauthorized
deletion. Moreover, the accuracy and
security of these systems is of utmost importance to properly treat patients
and is intimately tied to the safe medical care. For example, innovations in patient safety to reduce medication
errors rely on computer devices and bar coding. It is critical the function be performed by federal employees and
not contractors who may have conflicting interests in profit. These positions require a high degree of
fluency with VHA coding systems to ensure accuracy in data related to medical
care and MCCR.
·
If
it involves disbursing or bill collecting insert the following:
... exert ultimate
control over the acquisition use, or disposition of the property, real or
personal, tangible or intangible, of the United States, including the
collection, control, or disbursement of appropriated and other Federal
funds. (Make your argument supporting
this contention. Describe the work.)
Maintaining this function as inherently governmental ensures in using
the products of these contracts, that any final agency action complies with the
laws and policies of the United States.
Maintaining it as inherently governmental ensures that decision reflect
the independent conclusions of an agency official and not those of contractors
who may have interests that are not in concert with the public interest, and
may be beyond the reach of management controls otherwise applicable to public
employees.
Note: In
our challenge to the Office of Personnel Management’s Inventory, we cited that
employees of a certain function had a government credit card and therefore the
exerted control over the disbursement of appropriated and other Federal
funds. It worked, and the agency agreed
with us. Consequently the inventory was amended.
·
If
it violates established precedent, such as when other agencies have considered
this activity inherently governmental, or has been held exempt from
consideration from competition elsewhere in the inventory:
..."In accordance
with Appendix 2, paragraph (G)(3) of OMB Circular No. A-76 Revised Supplemental
Handbook the inclusion of this activity as a commercial activity violates
precedent as established within this inventory. For example, this same activity functional code, (describe where
it can be found) has been assigned a Reason Code of (A, C, or G). Therefore, as a matter of consistency and
for reason of established precedent, all activities with a functional code
should be designated as inherently governmental and assigned a Reason Code of
(A, C, or G)."
Example: By
letter to Bobby L. Harnage, Sr., National President, AFGE, dated March 13,
2000, the VA acceded to AFGE’s challenge with regard to Function Code D501 –
Customer Service. These employees are
Veterans Benefits Counselors or Veterans Service Representatives and they are
now designated as performing inherently governmental functions because they
make determinations as to whether a veteran is entitled to benefits. Employees in the __________ function make
similar determinations and therefore, should also be designated performing
inherently governmental functions.
·
If
Congress Has Bill or Report Language Requiring an Agency to Maintain a Core
Capacity
OMB
Policy Letter 92-1 (September 23,1992) paragraph 7(b) (1) states that a primary
factor to consider in the determination of whether a function is inherently
governmental is whether a contract might affect Congressional legislative
restrictions or authorizations. Under Public Law ______, Congress has mandated
that the agency maintains a core capacity in these functions. Contracting out such activities would mean
the impairment of the agency’s capacity to perform these functions. Accordingly, contracting out these functions
might affect the congressional restriction in Public Law _____ and therefore
these functions should be reclassified as inherently governmental.
Example: Public
Law 104-262, the Veterans Healthcare Eligibility Reform Act of 1996,
§1706(b)(1), requires that VA "…maintain its capacity to provide for the
specialized treatment and rehabilitation needs of disabled veterans (including
those with spinal cord dysfunction, blindness, amputations, and mental illness)
within distinct programs or facilities…that are dedicated to the specialized needs of those veterans in a manner
that (A) affords those veterans reasonable access to care and services…and (B)
ensures that overall capacity…is not reduced below the capacity nationwide as
of October, 1996." [Emphases added].
Contracting out the functions of H233---Spinal Cord Injury Services,
H203—Psychiatric Services, H221--- Social Work Services, H227—Psychological
Services, H242 --- Rehabilitation Medicine Services, H245—Blind Rehabilitation
Services, H270A—Facility Prosthetics Activities, H222—Diagnostic Radiology
Services, H201—Medical Services, H202—Surgical Services, H241—Nursing Services,
H204—Ambulatory Care Services, would adversely affect the VHA’s capacity to
maintain distinct programs or facilities to provide specialized treatment for
disabled veterans. Therefore, the VHA
should reclassify as inherently
governmental or in-house core all positions within the functions related to
providing for the specialized treatment and rehabilitation needs of disabled
veterans (including those with spinal cord dysfunction, blindness, amputations,
and mental illness).
Example: 38 U.S.C. 712,
states that the number of full-time equivalent positions in the Department of
Veterans Affairs may not be less than 224,377.
Although this provision is contingent upon appropriations, it is clear
that Congress wanted the VA to maintain a core staffing level, even in
positions that may be considered to be like commercial activities. Such staffing level was considered necessary
to maintain a unique health care system for veterans and to administer
veterans’ benefits. Therefore, the VA
should reclassify the functions in effect at the enactment of 38 U.S.C. 712 as in-house core.
Note: These examples were for
VA activities. However, the same
argument will work as long as there is legislative language to support your
contention.
Recommendation: (Agency) should uphold this challenge and
change its decision and exclude the activity(ies) from its list of commercial
activities. Thank you for your
consideration of the matter. I request
that the decision regarding this challenge be sent to me via fax: (give fax #)
with a follow-up mailing to my address:
(your name, title and address).
Sincerely,
Your Name
Title (Must be Local, Council, National Vice President or National President)
cc: AFGE
National Office (Public Policy Department)
STEP #9: PREPARING YOUR CHALLENGE – SUBMITTING IT
Once you’ve completed your challenge letter, send
it (by fax, e-mail, registered mail) to the individual designated by your
agency to receive the challenge.
Remember, it must arrive there before the 30 working day time limit
expires.
FAIR Act regulations require the individual who receives
and decides on the challenge to provide a ruling and notify the appellant
within 28 days of receiving the challenge.
The notification must include a discussion of the rationale for the
decision and, if the decision is adverse, an explanation of the party's right
to file an appeal.
TIP: When
the notification comes back to you, an agency may approve some or all of your
challenges. If this happens, sit back
and congratulate yourself, you’ve won!
You don’t appeal a decision you agree with. If your challenge is successful, the agency must transmit to OMB
and Congress a copy of any changes to the inventory that result from this
process, and make these changes available to the public through a Federal Register
notice of public availability.
On the other hand, if
your challenge, or parts of it are denied, you can still contest the matter,
you have the right to appeal each decision of denial. In other words, with an appeal you can ratchet our argument to
the next level.
STEP
#10: APPEALING IF YOUR CHALLENGE IS DENIED IN PART OR WHOLE
You may appeal an
adverse decision to your challenge within 10 working days after receiving
written notification of the decision that the challenge has failed. Depending on the appellate instructions
provided by the agency, the appeal will be submitted to either the agency head
or to another agency official with delegated responsibility to receive and
decide the appeal. This person should
be designated in the agency's guidelines on filing appeals and challenges.
What does an appeal letter look like? May I have the envelope, please?
Date
Individual Designated to Rule on Appeal
Title
Agency
Street Address
City
Dear (Individual’s Name):
This letter serves as an appeal by the American
Federation of Government Employees (AFGE) of the (agency) adverse decision of
this Union's FAIR Act challenge, dated XXXX 200_. That letter requested the removal of positions from the Agency's
commercial activities inventory.
Specifically, it offered numerous examples of the inherently
governmental activities performed by (#, Function Code, and Description)
positions in (location). Copies of the
AFGE challenge and (Agency) response are attached.
The (agency) reply to that letter clearly violates
the FAIR Act challenge process and policy guidance relating to inherently
governmental functions. (State the agency’s case as expressed in their response
to your challenge. Then reiterate why
they are wrong – i.e., rebut their arguments.)
It is very clear that these activities are inherently
governmental. The (Function Code)
performs duties defined as inherently governmental under sections 5(cite
subparagraphs) and Appendix A of the Office of Federal Procurement Policy
Letter 92-1, "Inherently Governmental Functions." On behalf of the members of the American
Federation of Government Employees whom I represent, I request that these
positions be removed from the commercial activities inventory and that a
revised commercial activities inventory be submitted to the Office of Management
and Budget and Congress.
Please fax a copy of the
decision to me at (fax #).
Additionally, please send a hard copy to: (Your name and address).
Thank you for your time
and attention to this matter.
Sincerely,
Name
Title (must be Local,
Council, Regional District or National President)
cc: National Office
Attachments
The appellate authority
has 10 working days from the date of receipt of your appeal to reach a decision
supporting or denying it. At the same
time, this authority must send you written notification of his or her decision
with a discussion for the rationale of the decision.
If your appeal is
successful, the agency must transmit to OMB and Congress a copy of any changes
to the inventory that result from this process, and make these changes
available to the public through a Federal Register notice of public
availability.
IN
CLOSING, REMEMBER . . .
As a Union, it important for us to engage --
whenever possible -- in the policy debate regarding the proper role of
government.
It is also important, as a matter of principle to
oppose any further erosion of work historically performed by federal employees.
The FAIR Act challenge and appeals process
provides a means to fight back. Use it!
Finally, remember you’re
not alone. Should you have questions
concerning the FAIR Act, the challenge/appeal process, lessons learned you want
to share, or suggestions on how to improve this training you should contact the
Public Policy Department at (202) 639-6408.
Quiz
"It's
a poor carpenter who doesn't hit his fingers every now and then."
General Al Gray, 27th
Commandant of the Marine Corps.
First and most important -- relax! The purpose of this section isn't to
evaluate, humiliate, or belittle you.
Scoring 100% on each quiz is much less important than understanding the
material. Second, all tests are open
book. You're free to go back and
research the references before answering a question. In fact, we encourage it.
That's what you'll do in real life when faced with a FAIR Act question,
and that's what we encourage you to do here in training.
Quiz
Answer the following questions:
1. The purpose of your challenge is to:
a) Antagonize
your management.
b) Find
a meaningful way to fill the emptiness of your life.
c) Engage
in a lofty policy debate regarding the proper role of government.
d) Contest
the decision designating certain activities as “commercial,” and have them
re-designated as ”inherently governmental.”
2. Where
on AFGE’s website (www.afge.org) you can
find all the resources and background materials you need to research, prepare
and submit a challenge.
a) Members
Only, A-76 Resources
b) Members
Only, Manuals
c) Stop
Wasting America’s Money on Privatization (SWAMP) Home Page
d) Members
Only, FAIR Act Challenge Resources
3. Identify the timeline for publication of the agency inventories, submitting a challenge, receiving a response from the agency, and filing an appeal.
a) 30
calendar days to submit an appeal from the time you get the inventory, 28 days
to respond to your challenge, 10 days for you to appeal a denial of a challenge
b) 30
working days to submit an appeal from the time the Federal Register notice of availability is published, 28 days for
the agency to respond to your challenge with a decision, 10 days from the
decision regarding your challenge for you to submit your appeal
c) 30
calendar days to submit an appeal from the time the Federal Register notice of availability is published, 28 days for the agency to respond to your
challenge with a decision, 10 days from the decision regarding your challenge
for you to submit your appeal
d) The
ever popular – None of the above!
See
page 31 for answers.
APPENDIX 1: DEFINITION
OF TERMS
The following is OMB’s guidance concerning the individual data elements that will be included in each agency’s commercial activities inventory:
Organization
Unit – Enter an alpha designation for the agency,
sub-agency, and/or bureau (alphanumeric codes will be accepted, if warranted)
and provide a full list of all codes attached to the agency’s inventory.
State,
Territory, or Foreign Country – Enter States within
the United States by its common two letter code.
Location
– For each function and for each location that a function resides, enter the
place where the activity is performed.
If the function is performed on an installation, enter the name of the
installation in this field (e.g. Air Force Academy, Ft. Hood, Patuxent River
Naval Annex). If the function is not
performed on an installation, enter the city, town, county, or well-known
location (e.g. the Kansas City Center, Crystal City, Arlington County).
Activity/Function
Code – Enter the Function Code from Appendix 2 of the OMB A-76 Circular
that best describes the type of activity performed. Note: These have been
expanded from last year’s list to reflect agency comments/requests.
Activity/Functional
Description – Enter the narrative description of each
function code from Enclosure 2 (or as defined by the agency) that best
describes the type of activity performed listed under that Function Code.
Commercial
FTE – Enter the number of commercial civilian
full-time equivalents (FTE)[1]
authorized for the function/activity for FY 2000. When aggregated, the total number of inherently governmental
civilian and commercial FTE should be consistent[2]
with what was reported in the latest President’s budget. Note:
Include all civilian U.S. citizens and direct hire Foreign Nationals[3]
on the agency’s payroll. Do not include
foreign nationals hired indirectly through contractual arrangements with
overseas host nations. Do not include
those civilians paid through Non-Appropriated Funds (NAF).
Reason
Code – Enter the Reason (Status) Code that best
describes the status of the commercial FTE.
The Supplement’s Appendix 2, Paragraph E “Reason Codes”
provides expanded definitions and usage.
Year
the Activity First Appeared on the Commercial Activities Inventory
– Enter all four digits of the fiscal year the activity first appeared on the
inventory. All entries that appeared in
the FY 99 Commercial Activities and Inherently Governmental Inventory should be
entered as 1999.
The following situations
constitute a new activity being added to the FAIR Act inventory and should be
coded as new and assigned a four digit fiscal year for the year they first
appeared on the inventory: New Mission
Requirements, Activities Converted to In-House, and Activities that were
considered Inherently Governmental on the last FAIR Act Inventory and have been
changed to Commercial, by the agency or as a result of a FAIR Act challenge or
appeal.
Responsible
Official – Enter the name, position title, and phone
number of the Federal employee responsible for the activity being on the list
or the agency contact person from whom additional information about the activity
may be obtained, including additional contacts from who additional information
about the activity and the inventory listing may be obtained.
Year
of Cost Comparison or Conversion – Enter all four digits
of the most recent fiscal year that an A-76 cost comparison or direct
conversion was completed.
CIV/FTE
Savings – Enter the FTE savings generated by a cost
comparison (including MEO savings), a direct conversion to contract, a
termination, or a privatization decision.
Estimated
Annualized Cost Comparison Dollar Savings – Enter the
estimated annual savings that reflect the difference between the in-house bid
MEO and the low contract offer.
Date
of Completed Post MEO Performance Review – Enter the date that
the most recent Post MEO performance review was completed.
APPENDIX 2: SUMMARY OF
TIPS
HOW ARE WE GOING TO PROCEED?
TIP: If you haven’t read the
material, stop. Even if you
think you’re A-76 savvy, go back to the “READ” section and do it. There is no substitute for being familiar
with the references governing the process.
TIP: If after reading this
material, or later on if you choose to file a challenge or appeal, a team from
the National Office's will be available at (202) 639-6408 to advise and assist
you with the process. We also have set
up a FAIR ACT Challenge Resources site
in the member’s section on AFGE’s website – www.afge.org. This section will provide you all the
references, materials, and information (including this most excellent text) that
you’ll need to file a challenge or appeal.
TIP: In Appendix 2 of this lesson, we’ve compiled
a listing of all “TIPS” for your convenience.
Use this summary as a quick reference when you prepare your challenges
or appeals.
STEP
#2: AGENCIES COMPILE THEIR INITIAL INVENTORIES
TIP: Whatever methodology
(top-down, bottom-up, Union participating, Union excluded) is used, remember
that every inventory is surrounded by intense controversy and internal debate
within the submitting agency. There may
be strong disagreement between supervisory levels regarding the designation of
a particular item as inherently governmental.
You should exploit this managerial dissent in crafting your arguments to
rebut making a particular function commercial.
Use their words, ideas, and thoughts to rekindle an internal debate that
may have not been satisfactorily resolved, and which you can use to your
advantage.
TIP: Make inquiries regarding
how the agency is compiling its inventory.
Will your local activity be involved? What is there schedule between now and June 30th for
compiling, reviewing and submitting the report? Who is the individual responsible for the inventory, and finally
whether or not your Local can be involved in developing the inventory?
TIP: You can partner without
losing your right to challenge or appeal.
TIP: Meet with your management to determine what
is “appropriate” involvement in the development of the inventory. If they will allow you to participate, do
so. Your participation allows you an opportunity to make a case for keeping as
much work in-house as possible. It also
gives you insights regarding why management considers certain work
commercial. These insights would be
helpful in the future should you choose to submit a challenge.
STEP
#3: OMB REVIEWS THE AGENCY’S INITIAL COMMERCIAL ACTIVITIES INVENTORY
TIP: Remember, the old
African proverb: When elephants fight, only the grass is trampled. As a Union we won’t be direct participants
in OMB’s review and consultation.
However, all of us -- Locals, Councils, Districts, and National Office
-- need to keep our ear to the ground, regarding when OMB and the agencies will
approve the inventories for public release in a notification of public
availability.
STEP
#4: NOTICE OF AVAILABILITY – CHALLENGE PERIOD STARTS
TIP: All agencies will
provide their inventories over the internet.
My advice to you is – if your Local is not on the net now, they better
get on it!
TIP: Remember that once the
notice of availability is made the 30 working day clock starts. Don’t waste time. There are no extensions or allowable excuses for missing this
deadline.
TIP: If you didn’t challenge last year’s
inventory, there is nothing preventing you from challenging this year’s.
STEP
#5: PREPARING YOUR CHALLENGE – GET AND
REVIEW THE INVENTORY
TIP: Use
last year’s inventory as a reference point when you begin your analysis. But remember, last year’s inventory is old
news. You should only use it for
reference. You’re challenging the most
current inventory – not the last!!
TIP: Don’t
sell the human dimension short when you start gathering data on which to base
your challenge. For example, consider
“chatting up” the Point of Contact listed on the OMB announcement of public
availability. He or she may provide you
some tips or insights on how the inventory was compiled that you can find no
where else.
STEP #6: PREPARING YOUR
CHALLENGE – THE PROCESS
TIP: To
help you out, we've assembled all the necessary references here on the
"FAIR Act Challenge Resources" site.
This site also contains a boilerplate, fill in the blanks letter with
arguments that will make expressing your case all that much easier.
TIP: ABOVE
ALL KEEP IN MIND THE FOLLOWING:
The
whole basis for challenging is to get a particular function or activity
currently designated as “commercial” on the inventory is to get it redesignated
as an inherently governmental.
Secondly,
you won’t challenge everything on the list for a variety of reasons – most of
them outlined in the next step.
STEP #7: PREPARING YOUR
CHALLENGE – ANALYZE THE LIST: REASON CODES
TIP:
You don’t challenge an
“A”. The Agency has declared it
off-limits for competition -- for this year, at least!
TIP: You’ll consider
challenging a code “B”. It could be
subject to a cost comparison.
TIP: You’ll
consider challenging a code “C” because, while it may be exempt for A-76, it is still vulnerable to contracting
out, e.g. a 10 or fewer FTE direct conversion.
.
TIP:
You don’t challenge a “D”
because it’s already under study.
TIP:
You don’t challenge an
“E”. You won the competition. End of story.
TIP: Keep
your eye on this one. An “F” means that
they are holding off on a designation until the restructuring is
completed. You may, as a matter of
principle, want to challenge this.
TIP: You won’t challenge a
“G” because it’s protected by a legislative safeguard such as DoD firefighters
or security guards.
TIP: An “H” means they
submitted a competition waiver under A-76 policy guidelines, and will contract
out without public-private competition.
You may still, as a matter of principle -- and the waiver has not
been granted -- consider a challenge.
TIP: An
“I” won’t be challenged. You beat a
contractor and returned the work back in-house.
IN SUMMARY:
Seriously
consider challenging Reason Codes “B” and “C”.
Contemplate
challenging Reason Codes “F” or “H”.
Don’t
worry about Reason Codes “A”, “D”, “E”,
“G”, or “I”. They’re safe –-
at least until next year’s inventory!
STEP
#8: PREPARING YOUR CHALLENGE –MAKING YOUR ARGUMENT
TIP: Don’t be afraid to interpret the guidelines
in the broadest sense. Make an argument
that makes sense to you. What have you
got to lose? They can only say no. In any event, you’re no worse off than when
you started.
TIP:
When you challenge,
don’t be afraid to ask your Congressman or Senator to write a letter in support
of your challenge. Granted your
representatives don’t have standing in the process. But, when they write on your behalf, your agency will have to
give additional consideration in both the depth and quality of its response to
you.
TIP: However: While it’s important to play the legislative
card -- Remember, submit your challenge first, then get the support of your
representatives. The letter from your
representative or senator augments your appeal – it doesn’t replace it.
TIP: Don’t be afraid to use
their own words against them. If
they’ve written letters, articles, speeches, or testimony that describe what
you do in “inherently governmental,” “can’t afford to contract it out” terms –
incorporate them in your challenge.
TIP: Some agencies may have
their own special format for a challenge letter. When you do your challenge letter, use your agency’s format and
fill it in with the boilerplate we’re providing you. You’ll find your agency’s format either on the Internet (theirs
or AFGE’s site), or you can obtain instructions from your agency.
STEP
#9 : PREPARING YOUR CHALLENGE – SUBMITTING IT
TIP: When the notification comes back to you, an
agency may approve some or all of your challenges. If this happens, sit back
and congratulate yourself, you’ve won!
You don’t appeal a decision you agree with. If your challenge is successful, the agency must transmit to OMB
and Congress a copy of any changes to the inventory that result from this
process, and make these changes available to the public through a Federal
Register notice of public availability.
On the other hand, if
your challenge, or parts of it are denied, you can still contest the matter,
you have the right to appeal each decision of denial. In other words, with an appeal you can ratchet our argument to
the next level.
Answers to Quiz
(see page 24):
1.
d)
2.
d)
3.
b)