It’s been almost six years since Maryland Democrat Senator Barbara Mikulski left Congress, but her influence on preventing all public-private competitions in government has not waned.

Starting with the fiscal 2009 appropriations bill and through today, the firebrand 31-year Senate veteran’s disdain for competitions under Circular A-76 remains embedded in all agencies.

But don’t look now, there is a crack in the façade. House Oversight and Accountability Committee Republicans are starting to poke holes in the 14-year-old ban, first by asking simple questions about the Federal Activities Inventory Reform (FAIR) Act of 1998.

The FAIR Act requires agencies to publish inventories of all positions that the agency determined are not inherently governmental, and therefore, potentially, open for competition with the private sector.

“The on-time posting of clear and comprehensive FAIR Act inventories is a key element of open and transparent government. Use of the inventories in decisions about outsourcing is a needed component of sound federal financial stewardship. We would like to work with Office of Management and Budget (OMB) going forward to ensure full compliance with both the letter and the spirit of the FAIR Act,” wrote the three subcommittee chairmen, Reps. Nancy Mace (R-S.C.), Pete Sessions (R-Texas) and Lisa McClain (R-Mich.), in a April 4 letter to Shalanda Young, the Office of Management and Budget’s director.

The lawmakers called the current state of the FAIR Act inventories poor with many inventories posted online “in formats that are barely decipherable.”

And the committee’s conclusion isn’t exactly wrong.

A Federal News Network review of CFO Act agency FAIR Act inventories based on links provided by the Office of Federal Procurement Policy demonstrates a lack of attention to the FAIR Act.

CFO Act agency compliance with the Federal Activities Inventory Reform (FAIR) Act of 1998

House Oversight and Accountability Committee lawmakers wrote a letter on April 4 to the Office of Management and Budget seeking details on how agencies are complying with the FAIR Act.  Federal News Network reviewed the latest data using the Office of Federal Procurement Policy website and regular old internet searches to determine the status of agency compliance based on publicly available data.

The last time OMB issued any sort of notice around the FAIR Act was in 2019 when it sort of published the 2017 inventories. The links in OMB’s notice don’t go to any specific site, but the agency’s main web page so find the FAIR inventories is an exercise in search.

And OFPP, which has been without a Senate confirmed leader now since January 2021 and without a nominee since June, hasn’t issued any new policies or memos or really anything around A-76 or FAIR Act inventories since a 2011 update to the definition of inherently governmental.

An email to OMB seeking comment on the letter and A-76 was not returned.

Mikulski’s provision in the appropriations bill, which prohibits agencies from spending any money on A-76 competitions, has all but killed the idea of competing work with the private sector.

A legislative proposal that went nowhere

The Defense Department tried to resurrect A-76 by submitting a legislative proposal to Congress in 2018. The Pentagon’s goal was to give local commanders and human resources officials more authority to determine the right mix of uniformed members, civilian workers and contractors for the missions they oversee. DoD wanted those decisions to be made in a decentralized fashion, since each military command and Defense agency has different workforce requirements. It’s unclear what happened to that legislative proposal.

The last time known public-private competition came from a quasi-agency, the Tennessee Valley Authority in 2020, which reversed its plan to outsource technology workers to the private sector. TVA is not funded by Congress and receives its budget through the sale of electricity through the Tennessee valley, which includes parts of seven states — Tennessee, Alabama, Georgia, Kentucky, Mississippi, North Carolina and Virginia. So the prohibition in the appropriations law didn’t impact its ability to seek to outsource TVA employee jobs.

The lawmakers are asking OMB whether using the methodology under A-76 continues to make sense.

“At a time of surging annual deficits, the administration should be using all cost-saving tools at its disposal — including outsourcing functions that can be performed more efficiently by the private sector,” the letter stated.

Sources say this entire effort to revive the competitive sourcing is driven by Peter Warren, a former Trump administration appointee in the Office of Management and Budget. Warren, a senior advisor to Committee Chairman Rep. James Comer (R-Ky.), served for almost three years as associate director for federal management policy at OMB.

A-76 and public-private competitions, last in vogue during the administration of George W. Bush, are problematic, but it doesn’t mean fixing the approach and reviewing the inventories isn’t a good idea.

In fact, Mikulski and Rep. John Sarbanes (D-Md.) tried to do that in 2011 with the Correction of Longstanding Errors in Agencies Unsustainable Procurements (CLEAN UP) Act. The bill never advanced in either house of Congress.

The Congressional Research Service reported in June 2020 that A-76 dates back to 1966 with the last substantial revision in 2003.

CRS posted four questions focused on the Defense Department, but could really apply to any agency, about whether to repeal or retain or modify the long-time suspension of A-76:

• To what extent should existing law and policy guidance for public-private competitions be modified to reflect best practices and prior lessons learned?
• What benefits might be realized in requiring a phased rollback of the moratorium, or in allowing selected public-private competitions to proceed as pilots?
• Should certain government performed commercial-type functions beyond those already exempted by statute and policy be protected from public-private competitions? If so, which functions?
• Has DoD developed consistent methodologies and procedures for comparing public sector and private sector costs — as well as consistent methodologies for capturing and reporting cost savings or performance improvements from a public-private competition?
• Noting that it has been more than 10 years since DoD has carried out a public-private competition, does the current DoD workforce have sufficient knowledge of the public-private competition process to be able to fairly and effectively evaluate A-76 competitions?

Of course, any mention of A-76 and competing federal jobs gets the ire of the federal employees unions up. The American Federation of Government Employees (AFGE) was especially aggressive in trying to stop A-76 during the Bush administration. And it’s logical to expect AFGE and other federal unions to quickly shut any competitive sourcing door that the Biden administration even thinks about opening.

Union pushing for more feds

In fact, AFGE wrote a letter on March 27 to Defense Secretary Lloyd Austin about the Defense Industrial Base inadequacy in meeting the country’s defense needs. It said the organic facilities “can be mobilized on demand rather than having to coax, incentivize or nationalize the private sector.” AFGE said a preference for contracting has weakened the organic side of things. The union offered a list of legislative and regulatory changes to enhance use of the organic facilities, including pay raises for their wage-grade employees and converting term and temporary employees to permanent.

The question the lawmakers are asking is very much a political issue, but it isn’t necessarily a bad one.

With so much of the government outsourced to the private sector already and the federal workforce understaffed, overworked in so many areas, are there functions that could be moved to the private sector with the end result not being fewer, but better, more highly paid federal jobs?

The Trump administration pushed the idea of moving federal employees from low-value, manual work to high-value, analytical work. What if A-76 didn’t just focus on competing jobs with the private sector, but what are the jobs feds shouldn’t be doing any more, and whether technology, such as robotics process automation, or the private sector could take on those roles?

After 14 years of A-76 being dormant, don’t expect the Democrat-led Congress or White House to all of a sudden be fans of public-private competitions, but maybe it’s time to rethink what some sort of hybrid or modified approach really could do to improve federal services and not impact the workforce.

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