SEC. 321. COMPREHENSIVE ANALYSIS
AND DEVELOPMENT OF SINGLE GOVERNMENT-WIDE DEFINITION OF
INHERENTLY GOVERNMENTAL FUNCTION AND CRITERIA FOR CRITICAL
FUNCTIONS.
(a) Development and Implementation- The Director of the Office
of Management and Budget, in consultation with appropriate
representatives of the Chief Acquisition Officers Council under
section 16A of the Office of Federal Procurement Policy Act (41
U.S.C. 414b) and the Chief Human Capital Officers Council under
section 1401 of title 5, United States Code, shall--
(1) review the definitions of the term `inherently governmental
function' described in subsection (b) to determine whether such
definitions are sufficiently focused to ensure that only
officers or employees of the Federal Government or members of
the Armed Forces perform inherently governmental functions or
other critical functions necessary for the mission of a Federal
department or agency;
(2) develop a single consistent definition for such term that
would--
(A) address any deficiencies in the existing definitions, as
determined pursuant to paragraph (1);
(B) reasonably apply to all Federal departments and agencies;
and
(C) ensure that the head of each such department or agency is
able to identify each position within that department or agency
that exercises an inherently governmental function and should
only be performed by officers or employees of the Federal
Government or members of the Armed Forces;
(3) develop criteria to be used by the head of each such
department or agency to--
(A) identify critical functions with respect to the unique
missions and structure of that department or agency; and
(B) identify each position within that department or agency
that, while the position may not exercise an inherently
governmental function, nevertheless should only be performed by
officers or employees of the Federal Government or members of
the Armed Forces to ensure the department or agency maintains
control of its mission and operations;
(4) in addition to the actions described under paragraphs (1),
(2), and (3), provide criteria that would identify positions
within Federal departments and agencies that are to be performed
by officers or employees of the Federal Government or members of
the Armed Forces to ensure that the head of each Federal
department or agency--
(A) develops and maintains sufficient organic expertise and
technical capability;
(B) develops guidance to implement the definition of inherently
governmental as described in paragraph (2) and the criteria for
critical functions as described in paragraph (3) in a manner
that is consistent with agency missions and operational goals;
and
(C) develops guidance to manage internal decisions regarding
staffing in an integrated manner to ensure officers or employees
of the Federal Government or members of the Armed Forces are
filling critical management roles by identifying--
(i) functions, activities, or positions, or some combination
thereof, or
(ii) additional mechanisms and factors, including the management
or oversight of awarded contracts, statutory mandates, and
international obligations; and
(5) solicit the views of the public regarding the matters
identified in this section.
(b) Definitions of Inherently Governmental Function- The
definitions of inherently governmental function described in
this subsection are the definitions of such term that are
contained in--
(1) the Federal Activities Inventory Reform Act of 1998 (Public
Law 105-270; 31 U.S.C. 501 note);
(2) section 2383 of title 10, United States Code;
(3) Office of Management and Budget Circular A-76;
(4) the Federal Acquisition Regulation; and
(5) any other relevant Federal law or regulation, as determined
by the Director of the Office of Management and Budget in
consultation with the Chief Acquisition Officers Council and the
Chief Human Capital Officers Council.
(c) Report to Congress- Not later than one year after the date
of the enactment of this Act, the Director of the Office of
Management and Budget, in consultation with the Chief
Acquisition Officers Council and the Chief Human Capital
Officers Council, shall submit to the Committees on Armed
Services of the Senate and House of Representatives, the
Committee on Homeland Security and Governmental Affairs in the
Senate, and the Committee on Oversight and Government Reform of
the House of Representatives a report on the actions taken by
the Director under this section. Such report shall contain each
of the following:
(1) A description of the actions taken by the Director under
this section to develop a single definition of inherently
governmental function and criteria for critical functions.
(2) Such legislative recommendations as the Director determines
are necessary to further the purposes of this section.
(3) A description of such steps as may be necessary--
(A) to ensure that the single definition and criteria developed
under this section are consistently applied through all Federal
regulations, circulars, policy letters, agency guidance, and
other documents;
(B) to repeal any existing Federal regulations, circular, policy
letters, agency guidance and other documents determined to be
superseded by the definition and criteria developed under this
section; and
(C) to develop any necessary implementing guidance under this
section for agency staffing and contracting decisions, along
with appropriate milestones.
(d) Regulations- Not later than 180 days after submission of the
report required by subsection (c), the Director of the Office of
Management and Budget shall issue regulations to implement
actions taken under this section to develop a single definition
of inherently governmental function and criteria for critical
functions.
|
SECTION 322--COMPREHENSIVE ANALYSIS
AND DEVELOPMENT OF SINGLE GOVERNMENT-WIDE DEFINITION OF
INHERENTLY GOVERNMENTAL FUNCTION
This section would require the Director of
the Office of Management and Budget and appropriate
representatives of the Chief Acquisition Officers Council and the
Chief Human Capital Council to review the existing statutory and
regulatory definitions of `inherently governmental' functions and
to develop a single consistent definition. The single definition
should address any deficiencies in the current definitions and be
sufficiently generic to enable federal agencies to determine
which functions or positions should be performed only by
government civilian or military personnel. Criteria should be
developed to enable federal agencies to identify the functions
and positions that, though not falling within the definition of
inherently governmental, should nevertheless be performed by
government employees. In developing the single government-wide
definition, public comment should be solicited. This section also
requires a report on the actions taken to develop the single
definition and make recommendations for any necessary legislative
actions. The report shall be submitted one year after date of
enactment of this Act to the appropriate committees of Congress.
Implementing regulations shall be issued 180 days after
submission of the report.
|
