Requires notification to agency employees who are engaged in an activity listed as not being inherently governmental that such activity may be converted to performance by a private source.
Requires competitive procedures to be used when considering contracting with a private source for the performance of an activity that is not inherently governmental.
Requires OMB Circular A-76 and applicable Federal laws to be followed in cost comparisons of performing a function within the executive agency versus through a private source. Allows an activity not inherently governmental to be performed by a private source without a cost comparison if the activity is currently performed by fewer than ten full-time Federal employees.
Prohibits an agency activity not inherently governmental from being performed by another Federal source unless, within three years prior, performance of such activity has been justified pursuant to Federal competitive procedures. Prohibits the performance within State or local agencies of an activity not inherently governmental unless the head of such agency has first: (1) solicited offers for performance of such activity under Federal procurement requirements; and (2) determined that no responsible private source is available to meet the agency's needs with respect to that activity.
Allows an interested party to submit to an executive agency a challenge of the classification of any activity on a list for which a notice of public availability has been published. Revises publication deadlines.
Prohibits the conversion of agency performance of an activity not inherently governmental to performance by a Federal Prison Industries government corporation.
Excludes research and development from consideration as an inherently governmental function.
Requires the OMB Director to report to Congress on the portability of Federal pension benefits.
[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2242 Introduced in Senate (IS)]
106th CONGRESS
2d Session
S. 2242
To amend the Federal Activities Inventory Reform Act of 1998 to improve
the process for identifying the functions of the Federal Government
that are not inherently governmental functions, for determining the
appropriate organizations for the performance of such functions on the
basis of competition, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
March 9, 2000
Mr. Thomas introduced the following bill; which was read twice and
referred to the Committee on Governmental Affairs
_______________________________________________________________________
A BILL
To amend the Federal Activities Inventory Reform Act of 1998 to improve
the process for identifying the functions of the Federal Government
that are not inherently governmental functions, for determining the
appropriate organizations for the performance of such functions on the
basis of competition, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES TO FAIR ACT OF 1998.
(a) Short Title.--This Act may be cited as the ``Federal Activities
Inventory Reform Act Amendments of 2000''.
(b) References.--Except as otherwise expressly provided, whenever
in this Act an amendment or repeal is expressed in terms of an
amendment to, or repeal of, a section or other provision, the reference
shall be considered to be made to a section or other provision of the
Federal Activities Inventory Reform Act of 1998 (Public Law 105-270;
112 Stat. 2382; 31 U.S.C. 501 note).
SEC. 2. ANNUAL LISTS OF GOVERNMENT ACTIVITIES.
(a) Lists To Include Inherently Governmental Activities.--
Subsection (a) of section 2 is amended by inserting before the period
at the end of the first sentence the following: ``and those activities
performed by Federal Government sources for the executive agency that,
in that official's judgment, are inherently governmental functions''.
(b) Descriptive and Explanatory Matters To Be Included.--Such
subsection is further amended--
(1) by redesignating paragraph (3) as paragraph (5);
(2) by inserting after paragraph (2) the following new
paragraphs (3) and (4):
``(3) A description of the activity, including--
``(A) a narrative description of the activity;
``(B) the product or service code, if any, that
would be assigned to the activity under the Federal
Procurement Data System if the activity were performed
in the private sector; and
``(C) the Standard Industrial Classification code,
if any, that would be assigned to the activity if the
activity were performed in the private sector.
``(4) The organization within the executive agency that is
performing the activity, or for which the activity is
performed, and the location of that organization.''; and
(3) by adding at the end the following:
``(6) The identity of any provision of law or other
authority that, except for subsection (f), would expressly or
impliedly exempt the executive agency from the requirements of
this section or of Office of Management and Budget Circular A-
76 with respect to any activity that is not an inherently
governmental activity, together with a discussion of the
rationale for that exemption.''.
(c) Deadlines for Publication of Lists and Changes.--Subsection (c)
of such section is amended--
(1) in paragraph (1)(B), by striking ``promptly'' and
inserting ``, not later than 30 working days after receiving
the list,''; and
(2) in paragraph (2)(B), by inserting after ``(B)'' the
following: ``not later than 30 working days after the date of
the final decision to make the change,''.
SEC. 3. NOTIFICATION OF AFFECTED EMPLOYEES.
Section 2 is further amended by adding at the end the following:
``(f) Notification of Affected Employees.--At the same time that
the Director of the Office of Management and Budget publishes a notice
of the availability of a list of an executive agency under subsection
(c)(1), the head of the executive agency shall notify each employee of
the executive agency employed in an activity listed as not being an
inherently governmental function that the activity may be converted to
performance by a private sector source.''.
SEC. 4. COMPETITION REQUIREMENTS.
(a) Use of Competitive Procedures.--
(1) Requirement.--The second sentence of section 2(d) is
amended by striking ``use a competitive process'' and all that
follows and inserting ``select the source using competitive
procedures applicable to the executive agency's procurements.''
(2) Competitive procedures defined.--Section 5 is amended
by adding at the end the following:
``(3) Competitive procedures.--The term `competitive
procedures' has the meaning given that term in section 2302(2)
of title 10, United States Code, and section 309(b) of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 259(b)).''.
(b) Cost Comparisons.--Section 2(e) is amended to read as follows:
``(e) Cost Comparisons.--
``(1) Realistic and fair cost comparisons.--Before
determining to contract with a private sector source for the
performance of an executive agency activity on the basis of a
comparison of the costs of procuring services from such a
source with the cost of performing that activity by the
executive agency, the head of the executive agency shall ensure
that--
``(A) the cost comparison was conducted in
accordance with--
``(i) Office of Management and Budget
Circular A-76; and
``(ii) any provision of law that is
applicable to the cost comparison, including
(if applicable) title IX of the Federal
Property and Administrative Services Act of
1949 (40 U.S.C. 541 et seq.) relating to
architectural and engineering services
(including surveying and mapping services);
``(B) all costs have been considered, including the
costs of quality assurance, technical monitoring of the
performance of such activity, liability insurance,
employee retirement and disability benefits, and all
other overhead costs; and
``(C) the costs considered are realistic and fair.
``(2) Exemption.--Notwithstanding any other provision of
law, the performance of an activity that is not an inherently
governmental function may be converted to performance by a
private sector source without a cost comparison if the activity
is performed by fewer than 10 full-time employees of the United
States (or the equivalent in part-time employees or in a
combination of full-time and part-time employees).''.
SEC. 5. INAPPLICABILITY OF EXEMPTIONS IN OTHER LAWS.
Section 2 is amended by adding at the end the following:
``(f) Exemptions Inapplicable.--The head of each executive agency
shall carry out this Act notwithstanding any other provision of law
that expressly or impliedly exempts that executive agency from
developing an inventory of activities that are not inherently
governmental functions and are performed by the executive agency or by
Federal Government sources for the executive agency. The head of the
executive agency shall include in the annual list prepared under
subsection (a) a notation of each such exemption that, except for the
preceding sentence, would otherwise apply to the executive agency or
any such function.''.
SEC. 6. PERFORMANCE FOR OTHER GOVERNMENTAL ORGANIZATIONS.
(a) Limitations.--Section 2, as amended by section 5, is further
amended by adding at the end the following:
``(g) Limitations on Performance for Other Governmental
Organizations.--
``(1) Federal agencies.--An activity that is not an
inherently governmental function may not be performed for an
executive agency by another Federal Government source under
section 1535 of title 31, United States Code, unless, within
three years before the order for that activity is placed with
the other Federal Government source under that section,
performance of that activity by the executive agency has been
justified pursuant to a competition carried out under Office of
Management and Budget Circular A-76.
``(2) State and local governments.--The head of an
executive agency may not take any action under section 6505 of
title 31, United State Code, to perform for the benefit of an
agency of a State or a political subdivision of a State an
activity that is not an inherently governmental function unless
the head of the executive agency has first--
``(A) solicited offers for the performance of that
activity in accordance with section 18 of the Office of
Federal Procurement Policy Act (41 U.S.C. 416) and
section 8(e) of the Small Business Act (15 U.S.C.
637(e)); and
``(B) determined on the basis of the response to
the solicitation that no responsible private sector
source is available to meet the needs of the executive
agency for the performance of that activity for the
executive agency.''.
(b) State Defined.--Section 5, as amended by section 4(a)(2) of
this Act, is further amended by adding at the end the following:
``(4) State.--The term `State', includes the District of
Columbia, the Commonwealth of Puerto Rico, and the United
States Virgin Islands.''.
SEC. 7. CHALLENGES TO THE LIST.
(a) Matters Subject to Challenge.--Section 3(a) is amended by
striking ``or an inclusion of a particular activity on,'' and inserting
``an inclusion of a particular activity on, or the classification of
any activity on''.
(b) Revision of Deadlines.--Section 3 is amended--
(1) in subsection (c), by striking ``30 days'' and
inserting ``90 working days'';
(2) in subsection (d), by striking ``28 days'' and
inserting ``28 working days''; and
(3) in subsection (e)(2), by striking ``10 days'' and
inserting ``10 working days''.
(c) Publication of Resolution of Challenges.--Section 3 is amended
by adding at the end the following:
``(f) Publication of Resolution of Challenges.--Not later than 30
working days after the head of an executive agency makes a decision on
an appeal under subsection (e), the head of the executive agency shall
publish in the Federal Register the following:
``(1) Final list.--A final version of the list that was
challenged.
``(2) Schedule for review of list.--A schedule for the
review to be conducted of such list under section 2(d),
together with a description of the intended review.''.
(d) Working Days Defined.--Section 5, as amended by section 6(b) of
this Act, is further amended by adding at the end the following:
``(5) Working day.--The term `working day', in the
administration of sections 2 and 3 with respect to a list of an
executive agency, means a day on which the headquarters of the
executive agency is open for the conduct of the executive
agency's business.''.
SEC. 8. PROHIBITION ON CONVERSION TO PERFORMANCE BY FEDERAL PRISON
INDUSTRIES.
Section 4 is amended by adding at the end the following:
``(c) Prohibited Conversion.--The performance of an activity of an
executive agency that is not an inherently government function may not
be converted to performance by a government corporation provided for
under chapter 307 of title 18, United States Code.''.
SEC. 9. INHERENTLY GOVERNMENTAL FUNCTION NOT TO INCLUDE RESEARCH AND
DEVELOPMENT.
Section 5(2)(C) is amended--
(1) by striking ``or'' at the end of clause (i);
(2) by striking the period at the end of clause (ii) and
inserting ``; or''; and
(3) by adding at the end the following:
``(iii) the conduct of research and
development.''.
SEC. 10. PRIVATE SECTOR SOURCE DEFINED.
Section 5, as amended by section 7(d) of this Act, is further
amended by adding at the end the following:
``(6) Private sector source.--The term `private sector
source' means a person lawfully engaged in business for profit
in the United States.''.
SEC. 11. REPORT ON PORTABILITY OF FEDERAL PENSION BENEFITS.
(a) Requirement.--Not later than 180 days after the date of the
enactment of this Act, the Director of the Office of Management and
Budget shall submit to Congress a report on the portability of Federal
pension benefits. The report shall contain--
(1) an evaluation of current Federal law, policies, and
procedures relating to the conversion by Federal Government
employees of their Federal pension benefits to private sector
pension plans upon the transition of such employees from
Federal Government employment to private sector employment;
(2) a discussion of any impediments to the conversion of
Federal pension benefits as described in paragraph (1);
(3) an analysis of the scoring, under the Congressional
Budget Act of 1974, of the conversion of Federal pension
benefits as so described; and
(4) recommendations of the Director for any legislation
required to permit the ready conversion of Federal pension
benefits as so described.
(b) Consultation.--The Director of the Office of Management and
Budget shall consult with the Director of the Office of Personnel
Management and other appropriate interested parties in preparing the
report required by subsection (a).
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S1415-1416)
Read twice and referred to the Committee on Governmental Affairs.
Referred to Subcommittee on Oversight of Government Management, Restructuring and the District of Columbia.
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