The Office of Management and Budget December 30 released the third and final round of lists of federal agency commercial type activities that can potentially be contracted out to the private sector.  The list covers 1.3 million federal employees in addition to the 438,000 covered under the first two sets of agency lists.  About 58% of the employees covered by these lists do work the agencies consider potentially commercial.  The content of the lists are available online from each agency and the OMB announcement lists individual agency web sites and contacts.

The lists were issued to comply with the Federal Activities Inventory Reform (FAIR) Act of 1998 which required each agency to publish by June 30 of each year a list of activities that are not “inherently governmental” and can therefore be performed by contractors.  The rationale of FAIR is that the federal government ought not compete with the private sector for work the private sector can do.  FAIR was intended to put teeth into this policy but it was weakened by not requiring any activity be contracted out but only mandates listing of candidates.  Business groups have been critical of the first year FAIR lists citing indecipherable lists, short period to challenge them and to date, no challenges have been sustained.

In a separate action, the Department of Defense, which contains over 250,000 positions, recently issued guidance intended to instruct interested parties on how to challenge the inclusion or exclusion of an activity in DOD’s FAIR Act inventory.  The guidance allows a challenge to the FAIR inventory within 30 days of its publications, requires a decision by DOD within 28 days of receipt of a challenge and offers the opportunity to appeal the decision to a designated appeals office within ten days of receipt of the decision.  “Interested parties” are (a) private companies or associations of companies who are prospective offerors for contracts of outsourced work and (b) officers or employees or labor representatives within an executive agency who are prospective offerors of the work.  DOD employees are included in the definition while members of uniformed armed services are not.

Challenges must (1) be in writing (2) hand delivered, mailed or faxed and (3) describe the activity involved so a decision maker can reasonably identify the activity.  All decisions must be in writing and must provide the challenger information on the appeals process.  More information can be obtained at http:///gravity.Imi.org/dodfair.

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