Union alleges new A-76 'trumped Congress'

The Office of Management and Budget's revised Circular A-76 ran into its first lawsuit yesterday, but it's not about what most observers expected. The National Treasury Employees Union charged that the administration's new definition of inherently governmental jobs flies in the face of the definition Congress enacted in the 1998 Federal Activities Inventory Reform Act.

NTEU yesterday filed suit in the U.S. District Court for the District of Columbia to stop use of the revised rules that govern how agency employees compete for federal jobs against the private sector. The union, which represents 150,000 employees at 29 agencies, wants the old version of the circular to stand.

NTEU president Colleen M. Kelley said OMB has "illegally trumped Congress."

The suit said the A-76 revisions require agencies to substantially narrow the definition of inherently governmental functions. The FAIR Act requires the exercise of discretion for a function to be deemed inherently governmental, NTEU said.

The revised rules say all functions that do not require the exercise of substantial discretion are considered commercial. NTEU said this is a significant language change and therefore illegal.

Many observers suggested private industry or federal employees would test the new rules by filing a bid protest with the General Accounting Office.

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