In October 1998, President Bill Clinton signed into law the "Federal Activities Inventory Act of 1998." The FAIR Act directs federal agencies to submit a yearly inventory to the Office of Management and Budget. The inventory must contain the names of all installation activities that are performed by federal employees but not considered "inherently governmental." OMB then reviews the list and consults with the agency about its content. After the review the agency must transmit a copy of the inventory to Congress and make it available to the public.

At first glance it seems this act is only fair to the private sector. Companies can get a list of installation agencies considered commercial in nature and start planning on the competition long before the actual announcement of a CA study.

But there is something written into this act that makes it equally fair to federal employees. Once the list is made public, federal employees have the right to challenge it. Can you imagine that, the right to challenge it? Okay, here’s how it works.

Under Section 3 of the FAIR Act, an agency’s decision to include or exclude a particular activity from the Commercial Activities Inventory is subject to administrative challenge and, then, possible appeal by what the act terms an "interested party." Well, if we’re not interested in this, who is?

The lists, including the one submitted for the U.S. Military Academy, will be available in the Federal Register within the next month and a half. Once that list becomes available, any challenges must be submitted to an executive agency within 30 calendar days. The challenge must include the name of the activity being challenged and the reasons, in as much detail as possible, why the activity should be reclassified.

The agency head can delegate the responsibility of receiving and deciding initial challenges. But they must answer within 28 calendar days of receiving the challenge. The answer must include a discussion of the reasons for the decision and, in the case of adverse decisions, an explanation of the right to file an appeal.

That’s right, folks. Not only can you challenge the decision, you can also appeal it. What a world.

The appeal must be submitted within 10 days of receiving the decision notification. The agency then has 10 days to decide the appeal and provide written notification of the decision to the interested party. If the decision causes any changes to the original inventory list, the agency must send those changes to OMB and congress. They must also make the changes available to the public and publish a notice of public availability in the Federal Register. Wow.

I know what you’re going to ask. If the same agency that shot down the initial challenge is ruling on the appeal, how can this work? Well, no one really knows the answer to that question yet. The first commercial activity inventory lists were submitted to OMB on June 30 of this year and won’t be made public until at least September. But, hey, it’s a start.

All interested people should watch for the list. If you don’t think your agency should be on the list, issue a challenge. But be sure of your facts and be thorough. If you don’t think you have a challenge, don’t issue one. Let’s face it, everyone wants to be excluded from this list. But you must have a valid reason such as bad DRID codes or errant job descriptions and you must be able to explain it in a way it will be understood. Remember, these decisions could set possible precedents for challenges down the road, so don’t take a bite of this apple if you’re not immune to the poison.

Mirror, mirror on the wall, perhaps we have an option after all.