FAIR Act and OMB Circular A-76

A-76 is in full tilt at FDA. On 4 Feb 02, Jeff Weber of FDA OM, sent a memo to FDA A-76 impacted employees. The memo states that FDA will "study" graphic arts/visual information services, CDRH's television broadcast studio, library services and web design and development this year 2002 and real property management, personnel management, and ORA administrative services next year 2003. The 2002 "study" has already begun and the completion date has been extended from 30 Sep 02 to 30 Aug 03.

The A-76 process takes its name from an OMB Circular A-76 which directs implementation of the FAIR Act (Federal Activities Inventory Reform Act of 1998). This Act directs Federal Agencies, including FDA, to annually inventory all their activities that are not inherently governmental, i.e. so intimately related to the public interest as to mandate performance ONLY by federal employees.

For those activities/products which are not inherently governmental, but are "commercial activities" persons and organizations outside the government may compete with the government employees to provide the "commercial" product. The A-76 process is the procedure by which the "commercial" governmental activity may be competed with outside providers for provision of the commercial product. In short, government employees are made to compete for their own jobs. Should they fail in the competition, their jobs are eliminated and provision of the product in issue goes to an outside contractor.

OMB in the A-76 circular identifies two categories of inherently governmental functions: money - collecting it and distributing it and the discretionary exercise of Government authority. In the latter category are judicial functions, national defense, the regulation of industry and commerce including food and drugs, etc. Commercial activities, however, may be part of an organization or a type of work that is separable from inherently governmental functions.

The President in his Management Agenda for Fiscal Year 2002 has stated that the government will study/compete no less than 5% of its commercial activities in 2002 and not less than 10% in 2003. FDA has agreed to meet these goals and has hired a contractor to do the job!

The conceptual foundation of all of the above are the well accepted theories that in general the Government should not compete with its citizens for the provision of goods and services, that this is a capitalistic society, and that competition enhances quality, economy, and productivity.

FDA has identified its major activities as: application review; compliance; product testing and test methods development; research related to product testing; regulatory policy; program administration; communications; and information technology. In the 2001 inventory, 1454 jobs were categorized as "commercial FTEs". The other 7693 jobs were classified as inherently governmental. See FDA FAIR Act Inventory posted at: http://www.hhs.gov/ogam/oam/fair.

NTEU National and FDA are presently negotiating how A-76 will proceed at FDA. FDA has promised that should a "position be contracted out or otherwise eliminated, the FDA will offer...another position with no loss in pay and provide...the necessary training to perform...new duties.".

Chapter Advisory:

If the FDA activity that you are involved in is opened up to A-76 competition, let the union know as soon as possible. The job you save may be your own.

For further information on the above, visit the following web pages:

  1. Fair Act of 1998 (PL 105-270):

  2. Presidential Management Agenda for FY 2002 - Go to page 17:

  3. OMB A-76 Circular:

  4. OMB A-76 Transmittal 20 Supplementary Information:

  5. DOD Introduction to the A-76 Process:

  6. FDA FAIR Act Inventory:

  7. Function Codes required to understand FDA FAIR Act Inventory:

  8. Memorandum of Understanding between the Food and Drug Administration and the National Treasury Employees Union:

  9. FDA A-76 Web Site: