National Defense Authorization Act for Fiscal Year 2008
(a) Comparison of Retirement System Costs- Section 2461(a)(1) of title 10, United States Code, is amended--
(1) in subparagraph (F), by striking `and' at the end;
(2) by redesignating subparagraph (G) as subparagraph (H); and
(3) by inserting after subparagraph (F) the following new subparagraph (G):
`(G) requires that the contractor shall not receive an advantage for a proposal that would reduce costs for the Department of Defense by--
`(i) not making an employer-sponsored health insurance plan (or payment that could be used in lieu of such a plan), health savings account, or medical savings account available to the workers who are to be employed to perform the function under the contract;
`(ii) offering to such workers an employer-sponsored health benefits plan that requires the employer to contribute less towards the premium or subscription share than the amount that is paid by the Department of Defense for health benefits for civilian employees of the Department under chapter 89 of title 5; or
`(iii) offering to such workers a retirement benefit that, in any year, costs less than the annual retirement cost factor applicable to civilian employees of the Department of Defense under chapter 84 of title 5; and'.
(b) Conforming Amendments- Such title is further amended--
(1) by striking section 2467; and
(2) in section 2461--
(A) by redesignating subsections (b) through (d) as subsections (c) through (e), respectively; and
(B) by inserting after subsection (a) the following new subsection (b):
`(b) Requirement to Consult DOD Employees- (1) Each officer or employee of the Department of Defense responsible for determining under Office of Management and Budget Circular A-76 whether to convert to contractor performance any function of the Department of Defense--
`(A) shall, at least monthly during the development and preparation of the performance work statement and the management efficiency study used in making that determination, consult with civilian employees who will be affected by that determination and consider the views of such employees on the development and preparation of that statement and that study; and
`(B) may consult with such employees on other matters relating to that determination.
`(2)(A) In the case of employees represented by a labor organization accorded exclusive recognition under section 7111 of title 5, consultation with representatives of that labor organization shall satisfy the consultation requirement in paragraph (1).
`(B) In the case of employees other than employees referred to in subparagraph (A), consultation with appropriate representatives of those employees shall satisfy the consultation requirement in paragraph (1).
`(C) The Secretary of Defense shall prescribe regulations to carry out this subsection. The regulations shall include provisions for the selection or designation of appropriate representatives of employees referred to in subparagraph (B) for purposes of the consultation required by paragraph (1).'.
(c) Technical Amendments- Section 2461 of such title, as amended by this section, is further amended--
(1) in subsection (a)(1)--
(A) in subparagraph (B), by inserting after `2003' the following: `, or any successor circular'; and
(B) in subparagraph (D), by striking `and reliability' and inserting `, reliability, and timeliness'; and
(2) in subsection (c)(2), as redesignated by subsection (b)(2), by inserting `of' after `examination'.
(d) Clerical Amendment- The table of sections at the beginning of chapter 146 of such title is amended by striking the item relating to section 2467.
Section 2461(a) of title 10, United States Code, is amended by adding at the end the following new paragraph:
`(4) A military department or Defense Agency may not be required to conduct a public-private competition under Office of Management and Budget Circular A-76 or any other provision of law at the end of the performance period specified in a letter of obligation or other agreement entered into with Department of Defense civilian employees pursuant to a public-private competition for any function of the Department of Defense performed by Department of Defense civilian employees.'.
(a) Codification and Revision of Requirement for Guidelines-
(1) IN GENERAL- Chapter 146 of title 10, United States Code, is amended by inserting after section 2462 the following new section:
`(a) Guidelines Required- (1) The Under Secretary of Defense for Personnel and Readiness shall devise and implement guidelines and procedures to ensure that consideration is given to using, on a regular basis, Department of Defense civilian employees to perform new functions and functions that are performed by contractors and could be performed by Department of Defense civilian employees. The Secretary of a military department may prescribe supplemental regulations, if the Secretary determines such regulations are necessary for implementing such guidelines within that military department.
`(2) The guidelines and procedures required under paragraph (1) may not include any specific limitation or restriction on the number of functions or activities that may be converted to performance by Department of Defense civilian employees.
`(b) Special Consideration for Certain Functions- The guidelines and procedures required under subsection (a) shall provide for special consideration to be given to using Department of Defense civilian employees to perform any function that--
`(1) is performed by a contractor and--
`(A) has been performed by Department of Defense civilian employees at any time during the previous 10 years;
`(B) is a function closely associated with the performance of an inherently governmental function;
`(C) has been performed pursuant to a contract awarded on a non-competitive basis; or
`(D) has been performed poorly, as determined by a contracting officer during the 5-year period preceding the date of such determination, because of excessive costs or inferior quality; or
`(2) is a new requirement, with particular emphasis given to a new requirement that is similar to a function previously performed by Department of Defense civilian employees or is a function closely associated with the performance of an inherently governmental function.
`(c) Exclusion of Certain Functions From Competitions- The Secretary of Defense may not conduct a public-private competition under this chapter, Office of Management and Budget Circular A-76, or any other provision of law or regulation before--
`(1) in the case of a new Department of Defense function, assigning the performance of the function to Department of Defense civilian employees;
`(2) in the case of any Department of Defense function described in subsection (b), converting the function to performance by Department of Defense civilian employees; or
`(3) in the case of a Department of Defense function performed by Department of Defense civilian employees, expanding the scope of the function.
`(d) Use of Flexible Hiring Authority- (1) The Secretary of Defense may use the flexible hiring authority available to the Secretary under the National Security Personnel System, as established pursuant to section 9902 of title 5, to facilitate the performance by Department of Defense civilian employees of functions described in subsection (b).
`(2) The Secretary shall make use of the inventory required by section 2330a(c) of this title for the purpose of identifying functions that should be considered for performance by Department of Defense civilian employees pursuant to subsection (b).
`(e) Definitions- In this section the term `functions closely associated with inherently governmental functions' has the meaning given that term in section 2383(b)(3) of this title.'.
(2) CLERICAL AMENDMENT- The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 2462 the following new item:
`2463. Guidelines and procedures for use of civilian employees to perform Department of Defense functions.'.
(3) DEADLINE FOR ISSUANCE OF GUIDELINES AND PROCEDURES- The Secretary of Defense shall implement the guidelines and procedures required under section 2463 of title 10, United States Code, as added by paragraph (1), by not later than 60 days after the date of the enactment of this Act.
(b) Inspector General Report- Not later than 180 days after the date of the enactment of this Act, the Inspector General of the Department of Defense shall submit to the congressional defense committees a report on the implementation of this section and the amendments made by this section.
(c) Conforming Repeal- The National Defense Authorization Act for Fiscal Year 2006 (Public Law 109-163) is amended by striking section 343.
(a) Restriction on Office of Management and Budget- The Office of Management and Budget may not direct or require the Secretary of Defense or the Secretary of a military department to prepare for, undertake, continue, or complete a public-private competition or direct conversion of a Department of Defense function to performance by a contractor under Office of Management and Budget Circular A-76, or any other successor regulation, directive, or policy.
(b) Restriction on Secretary of Defense- The Secretary of Defense or the Secretary of a military department may not prepare for, undertake, continue, or complete a public-private competition or direct conversion of a Department of Defense function to performance by a contractor under Office of Management and Budget Circular A-76, or any other successor regulation, directive, or policy by reason of any direction or requirement provided by the Office of Management and Budget.
(c) Inspector General Review-
(1) COMPREHENSIVE REVIEW REQUIRED- The Inspector General of the Department of Defense shall conduct a comprehensive review of the compliance of the Secretary of Defense and the Secretaries of the military departments with the requirements of this section during calendar year 2008. The Inspector General shall submit to the congressional defense committees the following reports on the comprehensive review:
(A) An interim report, to be submitted by not later than 90 days after the date of the enactment of this Act.
(B) A final report, to be
submitted by not later than
(2) INSPECTOR GENERAL ACCESS- For the purpose of determining compliance with the requirements of this section, the Secretary of Defense shall ensure that the Inspector General has access to all Department records of relevant communications between Department officials and officials of other departments and agencies of the Federal Government, whether such communications occurred inside or outside of the Department.
(a) Eligibility to Protest Public-Private Competitions- Section 3551(2) of title 31, United States Code, is amended to read as follows:
`(2) The term `interested party'--
`(A) with respect to a contract or a solicitation or other request for offers described in paragraph (1), means an actual or prospective bidder or offeror whose direct economic interest would be affected by the award of the contract or by failure to award the contract; and
`(B) with respect to a public-private competition conducted under Office of Management and Budget Circular A-76 with respect to the performance of an activity or function of a Federal agency, or a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A-76, includes--
`(i) any official who submitted the agency tender in such competition; and
`(ii) any one individual who, for the purpose of representing the Federal employees engaged in the performance of the activity or function for which the public-private competition is conducted in a protest under this subchapter that relates to such public-private competition, has been designated as the agent of the Federal employees by a majority of such employees.'.
(b) Expedited Action-
(1) IN GENERAL- Subchapter V of chapter 35 of such title is amended by adding at the end the following new section:
`For any protest of a public-private competition conducted under Office of Management and Budget Circular A-76 with respect to the performance of an activity or function of a Federal agency, the Comptroller General shall administer the provisions of this subchapter in the manner best suited for expediting the final resolution of the protest and the final action in the public-private competition.'.
(2) CLERICAL AMENDMENT- The chapter analysis at the beginning of such chapter is amended by inserting after the item relating to section 3556 the following new item:
`3557. Expedited action in protests of public-private competitions.'.
(c) Right to Intervene in Civil Action- Section 1491(b) of title 28, United States Code, is amended by adding at the end the following new paragraph:
`(5) If an interested party who is a member of the private sector commences an action described in paragraph (1) with respect to a public-private competition conducted under Office of Management and Budget Circular A-76 regarding the performance of an activity or function of a Federal agency, or a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A-76, then an interested party described in section 3551(2)(B) of title 31 shall be entitled to intervene in that action.'.
(d) Applicability- Subparagraph (B)
of section 3551(2) of title 31, United States Code (as added by subsection
(a)), and paragraph (5) of section 1491(b) of title 28,
(1) a protest or civil action that challenges final selection of the source of performance of an activity or function of a Federal agency that is made pursuant to a study initiated under Office of Management and Budget Circular A-76 on or after January 1, 2004; and
(2) any other protest or civil action that relates to a public-private competition initiated under Office of Management and Budget Circular A-76, or to a decision to convert a function performed by Federal employees to private sector performance without a competition under Office of Management and Budget Circular A-76, on or after the date of the enactment of this Act.
(a) In General- The Office of Federal Procurement Policy Act (41 U.S.C. 403 et seq.) is amended by adding at the end the following new section:
`(a) Public-Private Competition- (1) A function of an executive agency performed by 10 or more agency civilian employees may not be converted, in whole or in part, to performance by a contractor unless the conversion is based on the results of a public-private competition that--
`(A) formally compares the cost of performance of the function by agency civilian employees with the cost of performance by a contractor;
`(B)
creates an agency tender, including a most efficient organization plan, in
accordance with Office of Management and Budget Circular A-76, as implemented
on
`(C) includes the issuance of a solicitation;
`(D) determines whether the submitted offers meet the needs of the executive agency with respect to factors other than cost, including quality, reliability, and timeliness;
`(E) examines the cost of performance of the function by agency civilian employees and the cost of performance of the function by one or more contractors to demonstrate whether converting to performance by a contractor will result in savings to the Government over the life of the contract, including--
`(i) the estimated cost to the Government (based on offers received) for performance of the function by a contractor;
`(ii) the estimated cost to the Government for performance of the function by agency civilian employees; and
`(iii) an estimate of all other costs and expenditures that the Government would incur because of the award of such a contract;
`(F) requires continued performance of the function by agency civilian employees unless the difference in the cost of performance of the function by a contractor compared to the cost of performance of the function by agency civilian employees would, over all performance periods required by the solicitation, be equal to or exceed the lesser of--
`(i) 10 percent of the personnel-related costs for performance of that function in the agency tender; or
`(ii) $10,000,000; and
`(G) examines the effect of performance of the function by a contractor on the agency mission associated with the performance of the function.
`(2) A function that is performed by the executive agency and is reengineered, reorganized, modernized, upgraded, expanded, or changed to become more efficient, but still essentially provides the same service, shall not be considered a new requirement.
`(3) In no case may a function being performed by executive agency personnel be--
`(A) modified, reorganized, divided, or in any way changed for the purpose of exempting the conversion of the function from the requirements of this section; or
`(B) converted to performance by a contractor to circumvent a civilian personnel ceiling.
`(b) Requirement to Consult Employees- (1) Each civilian employee of an executive agency responsible for determining under Office of Management and Budget Circular A-76 whether to convert to contractor performance any function of the executive agency--
`(A) shall, at least monthly during the development and preparation of the performance work statement and the management efficiency study used in making that determination, consult with civilian employees who will be affected by that determination and consider the views of such employees on the development and preparation of that statement and that study; and
`(B) may consult with such employees on other matters relating to that determination.
`(2)(A) In the case of employees represented by a labor organization accorded exclusive recognition under section 7111 of title 5, United States Code, consultation with representatives of that labor organization shall satisfy the consultation requirement in paragraph (1).
`(B) In the case of employees other than employees referred to in subparagraph (A), consultation with appropriate representatives of those employees shall satisfy the consultation requirement in paragraph (1).
`(C) The head of each executive agency shall prescribe regulations to carry out this subsection. The regulations shall include provisions for the selection or designation of appropriate representatives of employees referred to in paragraph (2)(B) for purposes of consultation required by paragraph (1).
`(c) Congressional Notification- (1) Before commencing a public-private competition under subsection (a), the head of an executive agency shall submit to Congress a report containing the following:
`(A) The function for which such public-private competition is to be conducted.
`(B) The location at which the function is performed by agency civilian employees.
`(C) The number of agency civilian employee positions potentially affected.
`(D) The anticipated length and cost of the public-private competition, and a specific identification of the budgetary line item from which funds will be used to cover the cost of the public-private competition.
`(E) A certification that a proposed performance of the function by a contractor is not a result of a decision by an official of an executive agency to impose predetermined constraints or limitations on such employees in terms of man years, end strengths, full-time equivalent positions, or maximum number of employees.
`(2) The report required under paragraph (1) shall include an examination of the potential economic effect of performance of the function by a contractor on--
`(A) agency civilian employees who would be affected by such a conversion in performance; and
`(B) the local community and the Government, if more than 50 agency civilian employees perform the function.
`(3)(A) A representative individual or entity at a facility where a public-private competition is conducted may submit to the head of the executive agency an objection to the public-private competition on the grounds that the report required by paragraph (1) has not been submitted or that the certification required by paragraph (1)(E) is not included in the report submitted as a condition for the public-private competition. The objection shall be in writing and shall be submitted within 90 days after the following date:
`(i) In the case of a failure to submit the report when required, the date on which the representative individual or an official of the representative entity authorized to pose the objection first knew or should have known of that failure.
`(ii) In the case of a failure to include the certification in a submitted report, the date on which the report was submitted to Congress.
`(B) If the head of the executive agency determines that the report required by paragraph (1) was not submitted or that the required certification was not included in the submitted report, the function for which the public-private competition was conducted for which the objection was submitted may not be the subject of a solicitation of offers for, or award of, a contract until, respectively, the report is submitted or a report containing the certification in full compliance with the certification requirement is submitted.
`(d) Exemption for the Purchase of Products and Services of the Blind and Other Severely Handicapped Persons- This section shall not apply to a commercial or industrial type function of an executive agency that--
`(1) is included on the procurement list established pursuant to section 2 of the Javits-Wagner-O'Day Act (41 U.S.C. 47); or
`(2) is planned to be changed to performance by a qualified nonprofit agency for the blind or by a qualified nonprofit agency for other severely handicapped persons in accordance with that Act.
`(e) Inapplicability During War or Emergency- The provisions of this section shall not apply during war or during a period of national emergency declared by the President or Congress.'.
(b) Clerical Amendment- The table of sections in section 1(b) of such Act is amended by adding at the end the following new item:
`Sec. 43. Public-private competition required before conversion to contractor performance.'.