Back to NDAA 2008 Contents

TITLE III— Operation and Maintenance

Subtitle C — Workplace and Depot Issues

NDAA Section

House Conference Report 110-477

SEC. 324. GUIDELINES ON INSOURCING NEW AND CONTRACTED OUT FUNCTIONS.

(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:

`Sec. 2463. Guidelines and procedures for use of civilian employees to perform Department of Defense functions

`(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 five-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:

(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.

The House bill contained a provision (sec. 326) that would require the Under Secretary of Defense for Personnel and Readiness to establish guidelines and procedures for ensuring that full consideration is given to using federal employees to perform new functions and other categories of work that would otherwise be performed under contract.

The Senate amendment contained a similar provision (sec. 368).

The Senate recedes with an amendment that would eliminate language prohibiting the Department of Defense from initiating any new public-private competitions until the guidelines and procedures are issued. The amendment would require the Inspector General of the Department of Defense to report to the Committees on Armed Services of the Senate and the House of Representatives on the compliance of the Secretary of Defense with the requirements of this section.

House Armed Services Committee Report 110-146

SECTION 326--GUIDELINES ON INSOURCING NEW AND CONTRACTED OUT FUNCTIONS

This section would require the Under Secretary of Defense for Personnel and Readiness to develop and implement guidance to provide managers within the Department of Defense (DOD) and the military services with the flexibility to consider using federal civilian employees for work that is new or currently being performed by contractors in certain circumstances. The guidance must be developed within 60 days after enactment and no public-private competition studies could be conducted until such guidance is issued. The section also would require the Department to establish an inventory of the functions being performed by contractors. Within 90 days after date of enactment, the DOD Inspector General would be required to provide an assessment to the congressional defense committees of the implementation of the guidance and the establishment of the inventory.