"IN-OR OUT-": THE JURISDICTIONAL CONFUSION OVER CHALLENGES TO AGENCY DECISIONS TO IN-SOURCE CONTRACTED WORK

"In-sourcing," or the practice of moving functions performed by contractors back to federal employees, is a controversial yet critical topic as the Federal Government looks to spend efficiently while achieving required outcomes. The entire in-sourcing process warrants review, as it involves not only complex legal issues, but complex businesslike decisions by the Government as federal agencies face many challenges in determining which efforts should be in-sourced. Amid this changing landscape, government contractors have searched for ways to challenge the decision to in-source, or at least to ensure the choice was made according to stated guidelines and regulations. This article explores the justiciability of in-sourcing determinations and highlights the tensions that exist in potential forums for resolving such disputes. It provides background information on recent statutory, regulatory, and policy guidelines that frame the discussion. Ultimately, this article suggests a possible strategy for challenging such decisions and recommends other changes that would establish a fair and regulated system for making these important determinations.