Comments to the GAO on Proposed Changes in A-76 Bid Protest Regulations
On: Proposed Changes in Bid Protest Regulations Pursuant to Section 326 of the Reagan National Defense Authorization Act of 2005
To: Government Accountability Office
By: U.S. Chamber of Commerce
Date: February 18th, 2005
Executive Summary
Section 326 of the Reagan Defense Authorization Act included a provision that allows employees who would be displaced by an outsourcing/privatization decision of the head of the department or agency to file or participate in a "protest" administrative proceeding that would be conducted by the Government Accountability Office ("GAO"). GAO has published for comment revisions to its "protest" regulations that carry into operation the provisions of Section 326.
The practical and operational affect of Section 326 and the proposed regulations is to grant employees of a department or agency, who would be affected by a privatization/outsourcing decision of their superiors, the power to challenge that decision. It is the position of the Chamber that such employees (and their representatives) have no Constitutional authority or standing to lodge such challenges. Congress has no constitutional authority to enable such employees to interfere with policy decisions of Executive Branch Officers to privatize/outsource functions previously performed by those employees. The provision dilutes impermissibly the authority of the President and other Appointed Officers of the Executive Branch to execute fully and faithfully the laws. It compromises the intended authority contained in the Appointments Clause of the Constitution and violates principles of Separation of Powers by placing Congress in the position of having anointed non-appointed persons employed within the Executive Branch to challenge execution decisions.
If Congress can, by legislation, enable employees of the Executive Branch to challenge (in an adjudicative forum, outside the department or agency) the decisions of their superiors, no policy or execution of law decision by the President and duly appointed lesser officers will be secure from challenge by these employees. This would make policy decisions, exclusively reserved to the President and his appointed officers, utterly impossible. In this particular case, it is understandable that employees who may be displaced by privatization and outsourcing decisions would object, but they simply cannot be allowed avenues of redress that are outside their departments or agencies. The very fabric of the President's execution powers and responsibilities is compromised in such activity. Congress lacks the Constitutional authority to interfere in this manner in the execution of the laws.
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