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TITLE III--OPERATION AND MAINTENANCE

Subtitle C--Workplace and Depot Issues

P. L. 111-

House Conference Report 111-288

    (a) Temporary Suspension.--During the period beginning on the date of the enactment of this Act and ending on the date that is 30 days after the date on which the Secretary of Defense submits to the congressional defense committees the certification required under subsection (d), no study or competition regarding a public-private competition for the conversion to performance by a contractor for any function performed by Department of Defense civilian employees may be begun or announced pursuant to 2461 of title 10, United States Code, or otherwise pursuant to Office of Management and Budget Circular A-76.

    (b) Review and Report to Congress.--During fiscal year 2010, the Secretary of Defense, acting through the Under Secretary of Defense for Personnel Readiness, in consultation with the Under Secretary for Acquisition, Technology, and Logistics and the Comptroller of the Department of Defense, shall undertake a comprehensive review of the policies of the Department of Defense with respect to the conduct of public-private competitions. The Secretary shall submit to the congressional defense committees a report on such review not earlier than June 15, 2010. The review, at a minimum, shall address--

    (1) the status of the compliance of the Department with the requirement of 2461(a)(1) of title 10, United States Code, as amended by section 321 of this Act;

    (2) actions taken by the Secretary to address issues raised in the report of the Department of Defense Inspector General numbered D-2009-034 and dated December 15, 2008;

    (3) the reliability of systems in effect as of the date of the enactment of this Act to provide comprehensive and reliable data to track and assess the cost and quality of the performance of functions that have been subjected to a public-private competition;

    (4) the appropriateness of the cost differential in effect as of the date of the enactment of this Act for determining the quantifiable costs and the current overhead rates applied with respect to such functions; and

    (5) the adequacy of the policies of the Department of Defense in implementing the requirements of section 2461(a)(4) of title 10, United States Code.

    (c) Comptroller General Review.--Not later than 90 days after the date on which the report required under subsection (b) is submitted to the congressional defense committees, the Comptroller General shall conduct an assessment of the review required under paragraph (b) and shall submit to the congressional defense committees a report on the findings of such assessment and any conclusions or recommendations of the Comptroller General based on such assessment.

    (d) Certification Required.--The Secretary of Defense shall publish in the Federal Register and submit to the congressional defense committees certification that--

    (1) the review required by subsection (b) has been completed, and that the 90-day period during which the assessment of the Comptroller General is to be completed under subsection (c) has expired;

    (2) the Secretary of Defense has completed and submitted to the congressional defense committees a complete inventory of contracts for services for or on behalf of the Department in compliance with the requirements of subsection (c) of section 2330a of title 10, United States Code;

    (3) the Secretary of each military department and the head of each Defense Agency responsible for activities in the inventory has initiated the review and planning activities of subsection (e) of such section; and

    (4) the Secretary of Defense has submitted budget information on contract services in compliance with the requirements of section 236 of title 10, United States Code.

   The House bill contained a provision (sec. 327) that would suspend for 3 years the authority of the Secretary of Defense to initiate public-private competitions for the conversion of Department of Defense functions to contractor performance.

   The Senate amendment contained a provision (sec. 323) that would suspend such authority until the Secretary of Defense certifies that the Department of Defense is in compliance with the requirements of section 2330a of title 10, United States Code.

   The Senate recedes with an amendment that would suspend the authority to initiate public-private competitions until the Secretary certifies that the Department is in compliance with certain statutory requirements. Based on the timing of a required review and report, the earliest date on which this certification could be made would be October 15, 2010.

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

SECTION 327--TEMPORARY SUSPENSION OF PUBLIC-PRIVATE COMPETITIONS FOR CONVERSION OF DEPARTMENT OF DEFENSE FUNCTIONS TO PERFORMANCE BY A CONTRACTOR

This section would suspend until Fiscal Year 2012 any Department of Defense public-private competitions conducted pursuant to section 2461 of title 10, United States Code, or Office of Management and Budget Circular A-76.

Senate Report 111-035 - NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2010

The committee recommends a provision that would place a moratorium on the initiation of public-private competitions under Office of Management and Budget Circular A-76 until the Department of Defense (DOD) implements the requirements of section 2330a of title 10, United States Code.

Section 2330a requires DOD to develop an inventory of activities performed for the Department by service contractors. The required inventory will provide critical information needed for DOD to rationalize its supplier base, develop effective human capital plans, and identify functions that should be considered for public-private competition.

Section 2330a required that the first inventory be submitted to Congress by not later than July 1, 2008. Instead of collecting the data required to meet this requirement, the Department submitted what it called a `prototype inventory list,' consisting of limited data available from existing sources. Further, the Department developed a `phased implementation' plan which does not provide for full compliance until July 1, 2011--a full 3 years after the statutory deadline.

The committee notes that DOD and other federal agencies complied with a requirement imposed by the Federal Activities Inventory Reform Act of 1998 (Public Law 105-270) to inventory functions performed by federal employees within 1 year of the date of enactment. The committee concludes that the Department is capable of producing the inventory required by section 2330a within a comparable period of time.