S.Amdt. 1442

1. Adds SEC. 807. PUBLIC-PRIVATE COMPETITION FOR WORK PERFORMED BY CIVILIAN EMPLOYEES OF THE DEPARTMENT OF DEFENSE on page 213, between lines 2 and 3

   Adds a sectionPrinted page

   Inserted: SEC. 807. PUBLIC-PRIVATE COMPETITION FOR WORK PERFORMED BY CIVILIAN EMPLOYEES OF THE DEPARTMENT OF DEFENSE.

   Inserted: (a) Limitation.--Section 2461(b) of title 10, United States Code, is amended by adding at the end the following new paragraph:

   Inserted: "(5)(A) Notwithstanding subsection (d), a function of the Department of Defense performed by 10 or more 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 process that--

   Inserted: "(i) formally compares the cost of civilian employee performance of that function with the costs of performance by a contractor;

   Inserted: "(ii) creates an agency tender, including a most efficient organization plan, in accordance with Office of Management and Budget Circular A-76, as implemented on May 29, 2003; and

   Inserted: "(iii) requires continued performance of the function by civilian employees unless the competitive sourcing official concerned determines that, over all performance periods stated in the solicitation of offers for performance of the activity or function, the cost of performance of the activity or function by a contractor would be less costly to the Department of Defense by an amount that equals or exceeds the lesser of $10,000,000 or 10 percent of the most efficient organization's personnel-related costs for performance of that activity or function by Federal employees.

   Inserted: "(B) Any function that is performed by civilian employees of the Department of Defense and is proposed to be reengineered, reorganized, modernized, upgraded, expanded, or changed in order to become more efficient shall not be considered a new requirement for the purpose of the competition requirements in subparagraph (A) or the requirements for public-private competition in Office of Management and Budget Circular A-76.

   Inserted: "(C) A function performed by more than 10 Federal Government employees may not be separated into separate functions for the purposes of avoiding the competition requirement in subparagraph (A) or the requirements for public-private competition in Office of Management and Budget Circular A-76.

   Inserted: "(D) The Secretary of Defense may waive the requirement for a public-private competition under subparagraph (A) in specific instances if--

   Inserted: "(i) the written waiver is prepared by the Secretary of Defense or the relevant Assistant Secretary of Defense, Secretary of a military department, or head of a Defense Agency;

   Inserted: "(ii) the written waiver is accompanied by a detailed determination that national security interests are so compelling as to preclude compliance with the requirement for a public-private competition; and

   Inserted: "(iii) a copy of the waiver is published in the Federal Register within 10 working days after the date on which the waiver is granted, although use of the waiver need not be delayed until its publication.".

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   Inserted: (b) Inapplicability to Best-Value Source Selection Pilot Program.--Paragraph (5) of section 2461(b) of title 10, United States Code, as added by subsection (a), shall not apply with respect to the pilot program for best-value source selection for performance of information technology services authorized by section 336 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136; 117 Stat. 1444; 10 U.S.C. 2461 note).

   Inserted: (c) Repeal of Superseded Law.--Section 327 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 (Public Law 108-375; 10 U.S.C. 2461 note) is repealed.

   Inserted: SEC. 808. PERFORMANCE OF CERTAIN WORK BY FEDERAL GOVERNMENT EMPLOYEES.

   Inserted: (a) Guidelines.--

   Inserted: (1) In general.--The Secretary of Defense shall prescribe guidelines and procedures for ensuring that consideration is given to using Federal Government employees on a regular basis for work that is performed under Department of Defense contracts and could be performed by Federal Government employees.

   Inserted: (2) Criteria.--The guidelines and procedures prescribed under paragraph (1) shall provide for special consideration to be given to contracts that--

   Inserted: (A) have been performed by Federal Government employees at any time on or after October 1, 1980;

   Inserted: (B) are associated with the performance of inherently governmental functions;

   Inserted: (C) were not awarded on a competitive basis; or

   Inserted: (D) have been determined by a contracting officer to be poorly performed due to excessive costs or inferior quality.

   Inserted: (b) New Requirements.--

   Inserted: (1) Limitation on requiring public-private competition.--No public-private competition may be required under Office of Management and Budget Circular A-76 or any other provision of law or regulation before the performance of a new requirement by Federal Government employees commences, the performance by Federal Government employees of work pursuant to subsection (a) commences, or the scope of an existing activity performed by Federal Government employees is expanded. Office of Management and Budget Circular A-76 shall be revised to ensure that the heads of all Federal agencies give fair consideration to the performance of new requirements by Federal Government employees.

   Inserted: (2) Consideration of federal government employees.--The Secretary of Defense shall, to the maximum extent practicable, ensure that Federal Government employees are fairly considered for the performance of new requirements, with special consideration given to new requirements that include functions that--

   Inserted: (A) are similar to functions that have been performed by Federal Government employees at any time on or after October 1, 1980; or

   Inserted: (B) are associated with the performance of inherently governmental functions.

   Inserted: (c) Use of Flexible Hiring Authority.--The Secretary shall include the use of the flexible hiring authority available through the National Security Personnel System in order to facilitate performance by Federal Government employees of new requirements and work that is performed under Department of Defense contracts.

   Inserted: (d) Inspector General Report.--Not later than 180 days after the enactment of this Act, the Inspector General of the Department of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the compliance of the Secretary of Defense with the requirements of this section.

   Inserted: (e) Definitions.--In this section:

   Inserted: (1) The term "National Security Personnel System" means the human resources management system established under the authority of section 9902 of title 5, United States Code.

   Inserted: (2) The term "inherently governmental function" has the meaning given that term in section 5 of the Federal Activities Inventory Reform Act of 1998 (Public Law 105-270; 112 Stat. 2384; 31 U.S.C. 501 note).

   Original wording

   On page 213, between lines 2 and 3, insert the following:

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As printed