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TITLE III — OPERATION AND MAINTENANCE

House Conference Report 109-360

SEC. 343. PERFORMANCE OF CERTAIN WORK BY FEDERAL GOVERNMENT EMPLOYEES.

(a) Guidelines-

(1) IN GENERAL- The Secretary of Defense shall prescribe guidelines and procedures for ensuring that consideration is given to using Federal Government employees for work that is currently performed or would otherwise be performed under Department of Defense contracts.

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

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

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

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

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

(b) 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.

(c) Definitions- In this section:

(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.

(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).

The House bill contained a provision (sec. 323) that would establish a pilot program for public-private competition for work that is currently performed by contractors.

The Senate amendment contained a provision (sec. 809G) that would require the Secretary of Defense to prescribe guidelines and procedures to ensure that consideration is given to using federal government employees for work that is currently performed under Department of Defense contracts and new requirements.

The House recedes with an amendment that would require the Secretary to prescribe guidelines and procedures to ensure that consideration is given to using federal government employees for work that would otherwise be performed under Department of Defense contracts, but could be performed by federal government employees. The conferees expect these guidelines to provide for the assignment of work to federal government employees (and for hiring new federal government employees) in appropriate circumstances, without the requirement to perform public-private competition under Office of Management and Budget Circular A-76 or any other provision of law or regulation.