Back to NDAA 2008 Contents

TITLE III— Operation and Maintenance

Subtitle C — Workplace and Depot Issues

NDAA Section

House Conference Report 110-477

SEC. 325. RESTRICTION ON OFFICE OF MANAGEMENT AND BUDGET INFLUENCE OVER DEPARTMENT OF DEFENSE PUBLIC-PRIVATE COMPETITIONS.

(a) Restriction on Office of Management and Budget- The Office of Management and Budget may not direct or require the Secretary of Defense or the Secretary of a military department to prepare for, undertake, continue, or complete a public-private competition or direct conversion of a Department of Defense function to performance by a contractor under Office of Management and Budget Circular A-76, or any other successor regulation, directive, or policy.

(b) Restriction on Secretary of Defense- The Secretary of Defense or the Secretary of a military department may not prepare for, undertake, continue, or complete a public-private competition or direct conversion of a Department of Defense function to performance by a contractor under Office of Management and Budget Circular A-76, or any other successor regulation, directive, or policy by reason of any direction or requirement provided by the Office of Management and Budget.

(c) Inspector General Review-

(1) COMPREHENSIVE REVIEW REQUIRED- The Inspector General of the Department of Defense shall conduct a comprehensive review of the compliance of the Secretary of Defense and the Secretaries of the military departments with the requirements of this section during calendar year 2008. The Inspector General shall submit to the congressional defense committees the following reports on the comprehensive review:

(A) An interim report, to be submitted by not later than 90 days after the date of the enactment of this Act.

(B) A final report, to be submitted by not later than December 31, 2008.

(2) INSPECTOR GENERAL ACCESS- For the purpose of determining compliance with the requirements of this section, the Secretary of Defense shall ensure that the Inspector General has access to all Department records of relevant communications between Department officials and officials of other departments and agencies of the Federal Government, whether such communications occurred inside or outside of the Department.

The House bill contained a provision (sec. 328) that would prohibit the Office of Management and Budget (OMB) from directing or requiring the Secretary of Defense or the secretary of a military department to undertake a particular public-private competition under OMB Circular A-76.

The Senate amendment contained a similar provision (sec. 369).

The Senate recedes with an amendment that would strike the requirement that the Secretary of Defense suspend public-private competitions under OMB Circular A-76 and substitute a requirement that the Inspector General conduct a comprehensive review of the compliance of the Secretary of Defense and the secretaries of the military departments with the requirements of the provision.

The conferees remain concerned about efforts by OMB to intervene in internal Department of Defense (DOD) decisions regarding how the Department should best be staffed to carry out its vital national security functions. Most recently, the Deputy Director of OMB sent a memorandum to the Deputy Secretary of Defense complaining that the Department of the Army had not subjected a large enough number of federal employee positions to public-private competition and that DOD had classified too many positions as being inappropriate for public-private competition. The OMB memorandum further urged DOD to actively review positions in the intelligence community for possible public-private competition.

The conferees agree that decisions about which functions should be performed by DOD employees in the interest of national security are best made by the Department of Defense. In recent years the DOD budget has grown dramatically as the Department has taken on substantial new burdens in the global war on terrorism. The Department of the Army and the defense intelligence agencies bear a particularly heavy share of these burdens. Under these circumstances, the conferees believe that DOD decisions regarding the structure of the civilian workforce required to meet national defense needs should be made without outside interference. Accordingly, the conferees direct the Secretary of Defense to make these decisions on the merits, without regard to any views that may be expressed by OMB officials.

House Armed Services Committee Report 110-146

SECTION 328--RESTRICTION ON OFFICE OF MANAGEMENT AND BUDGET INFLUENCE OVER DEPARTMENT OF DEFENSE PUBLIC-PRIVATE COMPETITIONS

This section would prohibit the Office of Management and Budget (OMB) from requiring the Department of Defense (DOD) to meet any OMB-imposed quotas on public-private competitions conducted under OMB Circular A-76. In the Omnibus Appropriations Act for Fiscal Year 2003 (Public Law 108-7), Congress directed that such competition quotas could only be used if they are based on an analysis of past activities and are consistent with the stated mission of the executive agency. The committee is concerned that in order to meet OMB performance ratings, the Department and all federal agencies continue to be assigned specific competition quotas.

The committee notes that this section in no way prevents DOD managers from subjecting federal civilian employees to OMB Circular A-76 reviews. However, such decisions must be made independently of any direction or requirement from OMB.