April 27, 2004


Mr. Donald King, ASU-350
Federal Aviation Administration
800 Independence Avenue, SW
Washington, DC 20591


Dear Mr. King:

It has come to NAATS� attention that the Right of First Refusal requirements of OMB Circular A-76 (which cross references FAR pt.7.3)¹ are being misinterpreted by some potential commercial offerors. Some offerors may be operating on the mistaken assumption that if they have hired someone who may be qualified to do the SIR work before award, then it is not a new position created by the outsourcing of the services, and they do not have to offer the position to the Federal employee. This is incorrect.

Unless there is a current employee actually performing before award substantively the same services that will be needed under the contract work, the job must first be offered to the Federal employee. For example, a contractor may have existing overhead or management employees who would do the same services they are doing now for the contract. However, there are no contractor employees currently performing the subject air traffic controller services. Therefore, for example, a commercial contractor which gets a letter of commitment from, or adds on to its employee rolls, a retired or former controller, must still offer the position to the Federal employee whose position is being outsourced. The job is a new employment opening because no one is performing substantively similar services pre-award; the controller services would be an entirely new job under the contract. Otherwise, the Right of First Refusal obligation could be circumvented entirely by the simple expediency of getting someone�s name on an employee or hiree list days before the actual award.²

The FAA should include a statement about this in the SIR so that there is no confusion about how contractors are to implement and comply with the rights of First Refusal requirements. Please let us know if this will be done, as this obviously is an extremely important issue to NAATS members.

Sincerely,


Walter Pike
President

cc: Joann Kansier, ACA-1, Program Director

¹See, e.g., OMB Circ. A-76, Att. B, � A.8.d(1). FAR � 52.207-3 states, "The contractor shall give the 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."

²There is no reason why contractors can not make their commitments to individuals contingent upon the Federal employee either turning down the offer (or not being qualified).