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Federal employees’ increased rights to bid on jobs their agencies try to outsource — and to challenge outsourcing bids they lose — are part of the brave new world of government contracting law. A federal administrative decision earlier this month gave standing for the first time to a union official or federal employee to contest a Federal Aviation Administration outsourcing decision — in this case, a $1.9 billion award to Lockheed Martin Services Inc. to outsource more than 2,000 air traffic specialist jobs. The FAA’s office of dispute resolution for acquisition has held that National Association of Air Traffic Specialists president and FAA employee Kate Breen can challenge what her lawyer called “one of the largest procurement contracts on the record.” Consolidated contests, Nos. 05-ODRA-00342C and -00343C. The workers bid on the contract, and lost. David M. Nadler of Dickstein Shapiro Morin & Oshinsky of Washington, the lead lawyer for Breen, said the decision — binding only on the FAA, which has an independent acquisition system — could be a sign of things to come for other federal agencies. “The hope is that the [office of dispute resolution for acquisition] decision can inspire Congress to give full participatory rights to federal employees” in public-private competition outsource bidding. A rule change in the Competition in Contracting Act of 1984 that Congress amended last fall, and that the Government Accountability Office posted in the Federal Register last week, allows groups of 65 federal employees or more to protest bids they lose for jobs their agencies try to outsource. The main difference between FAA and GAO procedures is that while both allow agency management representatives of the public bidding group to protest unsuccessful bids, the FAA now also lets an employee or designated union official independently represent the workers, Nadler said. The key is that the FAA gives its workers a separate voice in the process, recognizing the “complementary and distinct interests” of a group of workers represented by management and the workers themselves “whose jobs may be on the chopping block,” Nadler said. Lockheed Martin spokesman Joseph M. Wagovich said the company thinks Breen should not have been granted standing as a directly interested party because she was not affirmatively appointed by a majority of directly affected FAA employees. “Lockheed Martin are proceeding with our contract with the FAA to assume operation of the stations beginning the first of October,” Wagovich said. About 2,500 FAA employees working at 58 automated flight service stations across the United States will be affected if the outsource plan — the largest the government has ever conducted — goes ahead, according to the union’s Web site. The union also filed an age discrimination action against the FAA in federal court in Washington last month on behalf of 1,796 plaintiffs. Breen v. Mineta, No. 05-654 (D.D.C.). Janine S. Benton, chairwoman of the government contracts practice group of Arlington, Va.-based Albo & Oblon, said the changes in the statute are creating a new area of law that merges government contracting and employment law. “The landscape is changing because government employees routinely don’t get the chance to bid on their own jobs,” Benton said. “It’s esoteric only to the point where there are major decisions, then it becomes a lot less esoteric.” Daniel I. Gordon, GAO managing associate general counsel, said he did not expect the rule change to have any “impact on outsourcing per se.” Gordon said “it should increase transparency and accountability, by giving the public sector the same ability to protest to GAO that the private sector already has.”

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