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TITLE III--OPERATION AND MAINTENANCE

Subtitle C--Workplace and Depot Issues

P. L. 111-

House Conference Report 111-288

    (a) Time Limitation.--Section 2461(a) of title 10, United States Code, as amended by section 321, is further amended by adding at the end the following new paragraph:

    ``(5)(A) Except as provided in subparagraph (B), the duration of a public-private competition conducted pursuant to Office of Management and Budget Circular A-76 or any other provision of law for any function of the Department of Defense performed by Department of Defense civilian employees may not exceed a period of 24 months, commencing on the date on which the preliminary planning for the public-private competition begins and ending on the date on which a performance decision is rendered with respect to the function.

    ``(B)(i) The Secretary of Defense may specify an alternative period of time for a public-private competition, which may not exceed 33 months, if the Secretary--

    ``(I) determines that the competition is of such complexity that it cannot be completed within 24 months; and

    ``(II) submits to Congress, as part of the formal congressional notification of a public-private competition pursuant to subsection (c), written notification that explains the basis of such determination.

    ``(ii) The notification under clause (i)(II) shall also address each of the following:

    ``(I) Any efforts of the Secretary to break up the study geographically or functionally.

    ``(II) The Secretary's justification for undertaking a public-private competition instead of using internal reengineering alternatives.

    ``(III) The cost savings that the Secretary expects to achieve as a result of the public-private competition.

    ``(iii) If the Secretary specifies an alternative time period under this subparagraph, the alternative time period shall be binding on the Department in the same manner and to the same extent as the limitation provided in subparagraph (A).

    ``(C) The time period specified in subparagraph (A) for a public-private competition does not include any day during which the public-private competition is delayed by reason of the filing of a protest before the Government Accountability Office or a complaint in the United States Court of Federal Claims up until the day the decision or recommendation of either authority becomes final. In the case of a protest before the Government Accountability Office, the recommendation becomes final after the period of time for filing a request for reconsideration, or if a request for reconsideration is filed, on the day the Government Accountability Office issues a decision on the reconsideration.

    ``(D) If a protest with respect to a public-private competition before the Government Accountability Office or the United States Court of Federal Claims is sustained, and the recommendation is final as described in subparagraph (C), and if such protest and recommendation result in an unforeseen delay in implementing a final performance decision, the Secretary of Defense may terminate the public-private competition or extend the period of time specified for the public-private competition under subparagraph (A) or subparagraph (B). If the Secretary decides not to terminate a competition, the Secretary shall submit to Congress written notice of such decision. Any such notification shall include a justification for the Secretary's decision and a new time limitation for the competition, which shall not exceed 12 months from the final decision and shall be binding on the Department.

    ``(E) For the purposes of this paragraph, preliminary planning with respect to a public-private competition, begins on the date on which the Department of Defense obligates funds for the acquisition of contract support, or formally assigns Department of Defense personnel, to carry out any of the following activities:

    ``(i) Determining the scope of the competition.

    ``(ii) Conducting research to determine the appropriate grouping of functions for the competition.

    ``(iii) Assessing the availability of workload data, quantifiable outputs of functions, and agency or industry performance standards applicable to the competition.

    ``(iv) Determining the baseline cost of any function for which the competition is conducted.

    ``(F) To effectively establish the date that is the first day of preliminary planning for a public-private competition, the head of a military department shall submit to Congress written notice of such date and shall provide public notice by announcing such date on an appropriate Internet website. Such date is the first day of preliminary planning for a public-private competition for the purpose of computing the duration of the public private competition for purposes of this section.

    ``(G) The Secretary of Defense shall submit to the congressional defense committees an annual report on the use, during the year covered by the report, of alternative time periods for public-private competitions under this section, and the explanations of the Secretary for such alternative time periods.''

    (b) Effective Date.--Paragraph (5) of section 2461(a) of title 10, United States Code, as added by subsection (a), shall apply with respect to a public-private competition covered by such section that is initiated on or after the date of the enactment of this Act.

    (c) Comptroller General Reviews.--Not later than two years after the date of the enactment of this Act, and three years thereafter, the Comptroller General shall submit to the congressional defense committees a report on the use by the Secretary of Defense of the alternative time period authority under section 2461(a)(5)(B) of title 10, United States Code, and the appropriateness and thoroughness of the explanations of the Secretary for such use.

   The House bill contained a provision (sec. 322) that would establish an 18-month time limitation on public-private competitions, starting with the date on which preliminary planning begins.

   The Senate amendment contained a provision (sec. 323B) that would establish a time limitation of 30 months for single function activities and 36 months for multi-function activities.

   The Senate recedes with an amendment that would establish a time limitation of 24 months, while providing the Secretary of Defense with the flexibility to extend the time for a competition (up to specified limits) in certain circumstances.

House Report 111-166 - NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2010

SECTION 322--TIME LIMITATION ON DURATION OF PUBLIC-PRIVATE COMPETITIONS

This section would restrict to 540 days the time from the beginning of preliminary planning to when a final performance decision is made for any public-private competitions conducted pursuant to Office of Management and Budget Circular A-76. The time period would take into account any delays resulting from a protest before the Government Accountability Office or the U.S. Court of Federal Claims. The committee does not intend this statute to be used by the Department of Defense to stop an A-76 competition that has overrun the 540 days to then restart at a later date. The committee notes that public-private competitions that last a lengthy amount of time create an unfair strain on the federal employees whose jobs are being competed, as well as on the contractors who have submitted bids for the work. In addition, estimated savings will less likely be achieved the longer a competition takes to reach a final performance decision.