Competitive sourcing

While the Supreme Court decision closes the door on unions' and federal employees' attempts to challenge cost-comparison studies in court, other events of the past year indicate that legislation may result in same changes these parties sought in court. One congressman's attempt to sue personally on behalf of federal employees adversely affected by a cost-comparison study may be admirable (as well as the ultimate example of constituent services), but it did not prove successful. In Kucinich v. Defense Finance & Accounting Service, (44) Rep. Dennis J. Kucinich (D--Ohio) sued to challenge a Defense Finance & Accounting Service (DFAS) cost-comparison decision under OMB Circular A-76. Kucinich alleged that DFAS's cost comparison violated OMB Circular A-76 and the Federal Activities Inventory Reform (FAIR) Act, (45) as well as the constitutional rights of due process, equal protection, and free speech of the affected federal employees, who unlike private sector offerors, were prohibited from seeking judicial review of the cost-comparison decision. (46)

Applying the Supreme Court precedent in Raines v. Byrd, (47) the district court determined that Kucinich was bringing the suit not to remedy the deprivation of a personal entitlement, but as a representative of his constituents (i.e., to vindicate an institutional injury). (48) As such, the court determined that Kucinich had "no more standing to sue than does any other taxpayer in the affected region," and his only remedy was "the one he possesses by virtue of his position as an elected official, that is, to convince his colleagues to amend the statutes regulating government contracts and forbidding federal court challenges by affected employees and unions" (49) Having concluded that Kucinich lacked standing, the court dismissed the case sua sponte for lack of jurisdiction. (50)

Sometimes You Can't Please Anyone

In a number of cost-comparison studies, in response to the myriad of issues raised, the agencies decided that the best thing to do was to cancel the solicitations. While "throwing in the towel" and starting over may have been prudent, such actions did not necessarily make everyone happy, and often resulted in protests.

In IT Corp., (51) the GAO faced a protest objecting to the cancellation of a solicitation after the agency announced that it intended to award to the protester. The Navy had issued the solicitation as part of a cost-comparison study, under OMB Circular A-76, for base operation support services at the Marine Corps Base, Camp Pendleton, California. After selecting IT as the best value private-sector offeror, and determining that its proposal represented a significant cost savings in comparison to the government's in-house management plan for an MEO, the Navy awarded to IT. This decision resulted in the protest by another private-sector offeror, Del-Jen, Inc., which objected to the agency evaluation of proposals. In response to Del-Jen's protest, the Navy took corrective action and cancelled the solicitation. IT then protested the solicitation cancellation to GAO. (52)