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Washington, D.C.—Asserting that the integrity of the Department of Energy’s (DOE) procurement process is at stake, the leader of the National Treasury Employees Union (NTEU) submitted a strongly-worded protest to challenge a revised solicitation requesting new offers in a public-private job competition for DOE’s headquarters logistics work.

NTEU President Colleen M. Kelley, who was designated by the affected employees as their legal agent, described the amended solicitation as “a thinly-veiled effort to put hard-working, experienced federal employees at an unfair disadvantage in the competition.” The work is for facility and building maintenance and management, transportation management, motor vehicle maintenance and logistics operations in Washington, D.C., and Maryland.

The solicitation that Kelley is challenging resulted from a successful bid protest Kelley had filed earlier this year challenging DOE’s decision to award a contract for this work to a private sector company, even though the employees’ bid for the work was lower by $2.6 million. This was the first victory of its kind in the federal sector. The new protest contends that DOE should cancel the flawed amended solicitation and issue an award to the employees who submitted the lowest cost bid under the previous study for the work.

“DOE is wasting taxpayer dollars by reopening the competition when it is clear that the federal employee bid offered the best value and should have been selected,” Kelley said.

The protest also asserts that the new solicitation fails in a number of key ways to meet the dictates of Office of Management and Budget (OMB) Circular A-76, which sets out federal contracting rules.

Especially problematic is the use of an uncapped ‘time and materials’ contract; Circular A-76 “does not contemplate the award” of such a contract in a public-private job competition, she said.

Such a contract would allow a private bidder “to submit a low-end bid with full knowledge that it will cost more to complete the required tasks,” Kelley said. “When the contractor reaches its artificially low cost estimate, it could either abandon the contract without performing all of its obligations or continue to charge DOE for additional time and materials incurred. No penalty is associated with either approach.” This makes it impossible for DOE to accurately evaluate the total cost of the private contractor’s bid.

The contracting officer “is without power” to award a time and materials contract “in this or any other A-76 competition,” she added.

President Kelley’s protest also argued that “various burdensome obligations” apply only to the employee bid, including a requirement that the Agency Tender Official (ATO) describe the need to hire new federal workers—an impossible task since it is not clear, at this stage, there will be a need to hire any new federal employees; and establishment of an “unrealistic” four-month phase-in period which will allow private contractors to present an “artificially low” bid for the work, with additional phase-in costs passed on to the taxpayer later on.

Contractor phase-in costs, for a realistic phase-in period extending well beyond four months, would necessarily be higher, the NTEU leader said, because the contractor would have to recruit employees, obtain security clearances, provide training and develop standard operating procedures. DOE employees have already undergone all that.

NTEU is the largest independent federal union, representing some 150,000 employees in 30 agencies and departments.