Administrative Appeal Process
An Administrative Appeal is a challenge to a cost comparison decision based on asserted
errors in the cost comparison process. To be considered an eligible appeal subject
to review by the Administrative Appeal Authority, the issues must be raised by eligible
appellants, meet criteria established in the OMB Circular A-76 Revised Supplemental
Handbook, and be submitted in writing to the Contracting Officer prior to the end
of the Public Review Period.
What is the Public Review Period?
The Public Review Period is the amount of time available for public review of all
documentation associated with a cost comparison decision. The Public Review Period
begins on the date all supporting documentation is made publicly available and normally
ends within 20 calendar days. For particularly complex cost comparisons, the Contracting
Officer may extend the Public Review Period to a maximum of 30 calendar days. The
last day of the Public Review Period also coincides with the last day an Administrative
Appeal by an eligible appellant may be filed.
Who are eligible appellants during a cost comparison?
Eligible appellants include only those individuals or organizations that could be
affected by the tentative cost comparison decision to convert to or from in-house,
contract, or ISSA performance as a result of the cost comparison. Such individuals
include the following:
- The affected in-house employees (i.e., appropriated or non-appropriated fund civilian
employees being cost-compared whose work is being competed) or their representative(s),
- Contractors who have submitted formal offers,
- An agency that has submitted a formal offer via an Interservice Support Agreement
(ISSA),
- A non-selected contractor. A non-selected contractor is permitted to appeal in case
the contractor originally selected to compete against the in-house offer is reversed
via GAO protest.
What documentation is generally made available to affected parties during the
Public Review Period? The following documentation is generally made
available:
- The solicitation, including the Performance Work Statement (PWS),
- The completed Cost Comparison Form (CCF),
- Back-up documents for the In-House Cost Estimate (IHCE), such as the audit trail
and materials lists,
- The complete Government Management Plan,
- The name and price of the apparent successful offeror/bidder.
What should the appeal team do after the tentative decision?
After the tentative decision, the appeal team generally must concentrate its efforts
on two sets of documents: the Government Management Plan and associated documents,
including the Technical Performance Plan and the IHCE/CCF, and the selected contractor's
technical proposal, completed Section B, and other associated non-proprietary information
included in the selected contractor's proposal. In its review, the appeal team analyzes
the information in each set of documents separately to identify any costing, transposition
or other errors, and then analyzes the documents together to uncover any differences
in the level of support provided. Using this two-pronged approach enables the appeals
team to thoroughly scrub both proposals for compliance with the requirements of
the solicitation, the A-76 Circular and the Revised Supplemental Handbook. In-depth
familiarity with the solicitation and the rules associated with the cost comparison
process as contained in OMB Circular A-76, the Revised Supplemental Handbook and
any DoD or Component policies greatly expedites the ability of the appeal team to
quickly complete a thorough analysis.
What is a tentative cost comparison decision?
The tentative cost comparison decision is the initial decision of the Source Selection
Authority based on a comparison of the in-house offer against the Contract/ISSA
offer (i.e., cost comparison). This is before the Public Review Period and Administrative
Appeal Process, after which the final cost comparison decision is made.
What is the best way to get the MEO out to all affected parties?
The public review period cannot begin until after this is performed. The public
review period begins on the day the completed cost comparison form and all supporting
documentation is made available to directly affected parties. While the distribution
of hard copies is not mandated, electronic distribution should be used only where
all affected parties have convenient access to computers and e-mail. If the documentation
is not available when the tentative cost comparison decision is announced, the time
allotted for submitting appeals is extended by the number of days equal to the delay
in making the documentation available.
What happens if the final cost comparison favors an in-house (Government) decision?
In this case, the solicitation is cancelled and the Most Efficient Organization
(MEO) is implemented in accordance with the Government Management Plan.
What happens if the final cost comparison decision favors Contract/ISSA performance?
In this case, the contractor is awarded the contract. The Human Resources Office
begins to process appropriate personnel actions, such as voluntary early retirement
authority, voluntary separation incentive pay, priority placement programs, transition
assistance, reduction in force, etc.
Is the contractor required to hire Government civilian employees who may lose
their jobs?
Those employees have a right of first refusal. Federal Acquisition Regulation (FAR)
52.207-3 (Right of First Refusal of Employment) states:"The contractor shall give
Government employees who have been or will be adversely affected or separated as
a result of award of this contract the right of first refusal for employment openings
under the contract in positions for which they are qualified…" This FAR clause is
included in the contract solicitation. It requires contractors to give qualified
civilian employees, adversely affected as a result of the conversion, the right
of first refusal for job vacancies under the contract. It does not require the contractor
to hire any Government employee whom they believe are not qualified. Historically,
the contractor hires many of the displaced Government employees.
Resources:
Policy
Guides and Recommended Readings