Truthfulness, Responsibility, and Accountability in Contracting Act of 2003 - Requires the head of each Federal agency to submit to the Director of the Office of Management and Budget a certification that a contracting function decision was based on a public-private competition and that the agency: (1) has established a centralized reporting system; (2) is not managing Federal employees by any arbitrary limitations; and (3) is reviewing work performed by contractors, recompeting or contracting in work when appropriate, and subjecting to public-private competition a certain number of Federal employee and contractor positions.
Prohibits the head of an agency from entering into any contract for the performance of services until the Director, after reviewing the certification required, determines that the agency is making substantial progress toward meeting requirements under this Act. Allows the Director to waive the applicability of this Act for national security and other specified reasons.
Requires that any decision by an agency to either transfer the performance of a function from Federal employees to a contractor or to assign to a contractor the performance of a function not currently performed by Federal employees to be based on the results of a public-private competition process that formally compares the costs of Federal employee versus contractor performance.
Directs the Comptroller General to monitor agency compliance with this Act. Authorizes: (1) the Secretaries of Defense and of Homeland Security to waive the application of the public-private competition requirements under specified circumstances; and (2) the Director to carry out a limited pilot program regarding the use of alternative public-private competition processes.
[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3426 Introduced in House (IH)]
108th CONGRESS
1st Session
H. R. 3426
To ensure that the business of the Federal Government is conducted in
the public interest and in a manner that provides for public
accountability, efficient delivery of services, reasonable cost
savings, and prevention of unwarranted Government expenses, and for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
October 30, 2003
Mr. Wynn (for himself, Mr. Kanjorski, Ms. Baldwin, Mr. Boswell, Mrs.
Capps, Ms. Carson of Indiana, Mr. Costello, Mr. Crowley, Mr. Cummings,
Mr. Davis of Illinois, Ms. DeLauro, Mr. Dicks, Mr. Dingell, Mr.
Doggett, Mr. Filner, Mr. Frank of Massachusetts, Mr. Frost, Mr.
Hoeffel, Mr. Holden, Ms. Jackson-Lee of Texas, Mrs. Jones of Ohio, Ms.
Kilpatrick, Mr. Kind, Mr. Kucinich, Mr. Lampson, Mr. Leach, Mr. Levin,
Mr. Matsui, Mrs. McCarthy of New York, Ms. McCarthy of Missouri, Ms.
McCollum, Mr. McIntyre, Mr. Michaud, Mr. Moore, Mr. Neal of
Massachusetts, Ms. Norton, Mr. Oberstar, Mr. Peterson of Minnesota, Mr.
Sanders, Mr. Sandlin, Ms. Schakowsky, Mr. Serrano, Mr. Thompson of
Mississippi, Mr. Towns, Mr. Udall of Colorado, Ms. Watson, Mr. Waxman,
and Ms. Roybal-Allard) introduced the following bill; which was
referred to the Committee on Government Reform
_______________________________________________________________________
A BILL
To ensure that the business of the Federal Government is conducted in
the public interest and in a manner that provides for public
accountability, efficient delivery of services, reasonable cost
savings, and prevention of unwarranted Government expenses, 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; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Truthfulness,
Responsibility, and Accountability in Contracting Act of 2003''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Statement of purpose.
Sec. 3. Definitions.
Sec. 4. Certification of compliance.
Sec. 5. Agency reporting systems and required reports.
Sec. 6. Requirement for public-private competition for functions
performed by Federal employees.
Sec. 7. Requirement for public-private competition for new functions.
Sec. 8. Review of contractor performance.
Sec. 9. Comptroller General reports.
Sec. 10. Repeal of certain reporting requirements.
Sec. 11. Applicability.
Sec. 12. Waivers from public-private competition requirements for
reason of national security and homeland
security.
Sec. 13. Limited pilot program to implement recommendations of
commercial activities panel.
SEC. 2. STATEMENT OF PURPOSE.
The purpose of this Act is to promote the interests of the
taxpayers through the use of a fair public-private competition process,
and to provide accountability to the taxpayers for Government work
performed by contractors and Federal employees.
SEC. 3. DEFINITIONS.
For purposes of this Act:
(1) Agency.--The term ``agency'' means any department,
agency, bureau, commission, activity, or organization of the
United States, that employs an employee as defined under
paragraph (6).
(2) Contracting.--The term ``contracting''--
(A) means--
(i) the transfer of a function from
performance by Federal employees to a
contractor; or
(ii) the assignment to a contractor of the
performance of a function not currently
performed by Federal employees or a contractor;
and
(B) includes privatization, outsourcing, and
contracting out.
(3) Contracting in.--The term ``contracting in'' means the
transfer of the performance of a function from a contractor to
Federal employees.
(4) Contractor.--The term ``contractor'' means an
individual or other person that performs a function for an
agency under a contract with a contractor.
(5) Federal employee.--The term ``Federal employee'' means
any individual employed--
(A) as a civilian in a military department (as
defined in section 102 of title 5, United States Code);
(B) in an Executive agency (as defined in section
105 of title 5, United States Code), including an
employee who is paid from nonappropriated funds;
(C) in those units of the legislative and judicial
branches of the Federal Government having positions in
the competitive service;
(D) in the Library of Congress;
(E) in the Government Printing Office; or
(F) by the Governors of the Federal Reserve System.
(6) Function.--The term ``function'' means a service
activity, not procurement of goods.
(7) Most efficient organization.--The term ``most efficient
organization'' means the organization of Federal employees that
would most efficiently perform a function after a public-
private competition, as proposed by a Federal employee.
(8) Offer.--The term ``offer'' means the formal response of
a bidder or the most efficient organization to a solicitation.
(9) Patient care.--The term ``patient care''--
(A) means direct patient medical and hospital care
that the Department of Veterans Affairs or other
Federal hospitals or clinics are not capable of
furnishing because of geographical inaccessibility,
medical emergency, or particularly unique type of care
or service required; and
(B) does not include support and administrative
services for hospital and clinic operations, including
food service, laundry services, grounds maintenance,
transportation services, office operations, and supply
processing and distribution services.
(10) Public-private competition.--The term ``public-private
competition''--
(A) means the process by which it is determined
whether a function is to be performed by Federal
employees or contractors, that is cost based and that
takes into account items other than cost, including
quality and reliability; and
(B) includes, but does not require, the public-
private competition process described in Office of
Management and Budget Circular A-76.
(11) Solicitation.--The term ``solicitation'' means the
formal offer of an agency to review functions, whether or not
currently performed by Federal employees or contractors, for
public-private competition.
SEC. 4. CERTIFICATION OF COMPLIANCE.
(a) Requirements for Heads of Agencies.--
(1) Certifications.--Not later than 1 year after the date
of enactment of this Act, the head of each agency shall submit
to the Director of the Office of Management and Budget a
certification that--
(A) the agency has established a centralized
reporting system in accordance with section 5;
(B) in the case of each function of the agency that
is being performed under contracting undertaken after
the date of enactment of this Act, the contracting
function decision was based on a public-private
competition described under section 6 or 7, as
applicable;
(C) the agency is not managing Federal employees by
any arbitrary limitations in accordance with sections 6
or 7, as applicable, and 9; and
(D) the agency is reviewing work performed by
contractors, recompeting or contracting in work when
appropriate, and subjecting to public-private
competition an approximate number of Federal employee
and contractor positions in accordance with section 9.
(2) Public availability.--The Director of the Office of
Management and Budget shall--
(A) promptly, after receiving certifications under
paragraph (1)(B), publish in the Federal Register
notices of the availability of the certifications to
the public, including the names, business addresses,
and business telephone numbers of the officials from
whom the certifications can be obtained; and
(B) ensure that, after the removal of proprietary
information, the head of each agency makes the
certifications of that agency available to the public--
(i) upon request; and
(ii) on the World Wide Web.
(b) Suspension of Contracting for Services Pending Satisfaction of
Certification Requirement.--
(1) Initial determinations.--Beginning 1 year after the
date of enactment of this Act, the head of an agency may not
enter into any contract for the performance of services until
the Director of the Office of Management and Budget, after
reviewing the certification required under subsection (a)(1),
determines that the agency is making substantial progress
toward meeting the requirements under subsection (a)(1) (A),
(B), (C), and (D).
(2) Inapplicability.--This subsection does not apply to
work performed by a contractor before the date of enactment of
this Act.
(3) Subsequent determinations.--If an agency head is
prohibited from entering into a contract after a determination
is made under paragraph (1), that agency head may subsequently
request another determination from the Director of the Office
of Management and Budget under that paragraph.
(4) Public availability.--The Director of the Office of
Management and Budget shall--
(A) promptly after making a determination as to
whether an agency is making substantial progress under
paragraph (1), publish that determination in the
Federal Register; and
(B) make that determination available to the
public--
(i) upon request; and
(ii) on the World Wide Web.
(c) Waiver of Suspension.--
(1) In general.--The Director of the Office of Management
and Budget may waive the applicability of this section with
respect to a contract for services if--
(A) the Director determines that it is necessary to
do so in the interest of the national security,
homeland security, extraordinary economic harm, or
patient care; and
(B) the contract is awarded in accordance with the
public-private competition requirements established in
sections 6 and 7, as applicable.
(2) Notice.--After granting any waiver under this
subsection, the Director of the Office of Management and Budget
shall promptly publish a notice of that waiver in the Federal
Register that--
(A) identifies the facilities, units, or activities
affected;
(B) explains the justification for the waiver; and
(C) identifies the duration of the waiver.
(d) GAO Monitoring.--While an agency is operating under a
suspension of contracting authority under subsection (b), the
Comptroller General shall--
(1) monitor the agency's compliance with the requirements
of this Act; and
(2) submit to Congress, every 60 days, a report on the
extent of the agency's compliance with such requirements.
(e) Exception.--
(1) In general.--Notwithstanding subsection (b), an agency
may undertake a contracting effort of a function if the
function--
(A) is not performed by Federal employees at the
time of the undertaking; and
(B) under the contracting would be performed by--
(i) the blind, as defined under section
5(1) of the Javits-Wagner-O'Day Act (41 U.S.C.
48b(1)); or
(ii) individuals with a disability as
defined under section 7(9) of the
Rehabilitation Act of 1973 (29 U.S.C. 705(9)).
(2) Termination of contract.--If the Director of the Office
of Management and Budget determines that the performance of the
function in a contract entered into under paragraph (1) is not
being performed by individuals described under clause (i) or
(ii) of paragraph (1)(B), the contract shall be immediately
terminated.
SEC. 5. AGENCY REPORTING SYSTEMS AND REQUIRED REPORTS.
(a) Centralized Reporting System.--Not later than 1 year after the
date of enactment of this Act, the head of each agency shall establish
a centralized reporting system in accordance with guidance promulgated
by the Director of the Office of Management and Budget that allows the
agency to generate periodic reports on the contracting efforts of the
agency. Such centralized reporting system shall be designed to enable
the agency to generate reports on efforts regarding both contracting
and contracting in.
(b) Reports on Contracting Efforts.--
(1) Initial reports.--Not later than 1 year after the date
of enactment of this Act, the head of each agency shall prepare
and submit to the Director of the Office of Management and
Budget a report on the contracting efforts of the agency
undertaken during the fiscal year immediately preceding the
fiscal year in which this Act is enacted. Such report shall
comply with the requirements in paragraph (3).
(2) Subsequent reports.--For the fiscal year in which this
Act is enacted and every fiscal year thereafter, the head of
each agency shall complete and submit to the Director of the
Office of Management and Budget a report on the contracting
efforts undertaken by the agency during that fiscal year. The
report for a fiscal year shall comply with the requirements in
paragraph (3), and shall be completed and submitted not later
than the end of the first fiscal quarter of the subsequent
fiscal year.
(3) Contents.--With regard to each contracting effort
undertaken by the agency, the reports referred to in this
subsection shall include the following information:
(A) The contract number and the Federal supply
class or service code.
(B) The names, business addresses, and business
telephone numbers of the officials who supervised the
contracting effort.
(C) The competitive process used or the statutory
or regulatory authority relied on to enter into the
contract without public-private competition.
(D) The cost of Federal employee performance at the
time the work was contracted out (if the work had
previously been performed by Federal employees).
(E) The cost of Federal employee performance under
the most efficient organization plan identified for
that performance (if the work was contracted out
through Office of Management and Budget Circular A-76).
(F) The anticipated cost of contractor performance,
based on the award.
(G) The current cost of contractor performance.
(H) The actual savings and cost increases,
expressed both as a dollar amount and as a percentage
of the cost of performance by Federal employees, based
on the current cost, and an explanation of the
difference, if any.
(I) A description of the quality control process
used by the agency in connection with monitoring the
contracting effort, identification of the applicable
quality control standards, the frequency of the
preparation of quality control reports, and an
assessment of whether the contractor met, exceeded, or
failed to achieve the quality control standards.
(J) The number of contractor employees performing
the contracting effort under the contract and any
related subcontracts.
(c) Report on Contracting in Efforts.--
(1) In general.--For the current fiscal year and every
fiscal year thereafter, every agency shall complete and submit
to the Director of the Office of Management and Budget a report
on the contracting in efforts undertaken by the agency during
that fiscal year. The report for a fiscal year shall comply
with the requirements in paragraph (2), and shall be completed
and submitted not later than the end of the first fiscal
quarter of the subsequent fiscal year.
(2) Contents.--The reports referred to in paragraph (1)
shall include for each contracting in effort undertaken by the
agency the following information:
(A) A description of the type of work involved.
(B) The names, business addresses, and business
telephone numbers of the officials who supervised the
contracting in effort.
(C) The cost of performance at the time the work
was contracted in.
(D) The current cost of performance by Federal
employees or military personnel.
(d) Report on Federal Employee Positions.--Not later than 30 days
after the end of each fiscal year, every agency shall submit to the
Office of Management and Budget a report on the number of Federal
employee positions and contractor employee positions that have been
subject to public-private competition during that fiscal year.
(e) Submission of Reports to Congress.--
(1) In general.--The Director of the Office of Management
and Budget shall compile all reports submitted under this
section and submit the reports to the committees referred to
under paragraph (2), not later than 120 days after the end of
the applicable fiscal year.
(2) Committees.--The reports compiled under this subsection
shall be submitted to the Committee on Government Reform of the
House of Representatives and to the Committee on Governmental
Affairs of the Senate.
(f) Public Availability of Reports.--
(1) Publications.--The Director of the Office of Management
and Budget shall promptly publish in the Federal Register
notices including a description of when the reports referred to
in this section are available to the public and the names,
business addresses, and business telephone numbers of the
officials from whom the reports may be obtained.
(2) Availability on internet.--The reports referred to in
this section shall be made available through the Internet.
(3) Proprietary and national security information.--
Proprietary information or information to which section
552(b)(1) of title 5, United States Code, applies shall be
excised from information published or reports made available
under this subsection.
(g) Review.--The Director of the Office of Management and Budget
shall review the reports referred to in this section and consult with
the head of the agency regarding the content of such reports.
SEC. 6. REQUIREMENT FOR PUBLIC-PRIVATE COMPETITION FOR FUNCTIONS
PERFORMED BY FEDERAL EMPLOYEES.
After the date of enactment of this Act and in accordance with
section 3, any decision by an agency to transfer the performance of a
function, in whole or in part, from Federal employees to a contractor
shall be based on the results of a public-private competition process
that--
(1) formally compares the costs of Federal employee
performance of the new function with the costs of the
performance by a contractor;
(2) employs the most efficient organization process;
(3) determines whether the offers submitted meet the needs
of the agency with respect to items other than cost, including
quality and reliability;
(4) does not include in the cost comparison any savings to
the agency attributable to lower pay, health insurance
benefits, or retirement benefits provided by the contractor;
and
(5) ensures continued performance of the function by
Federal employees if the agency determines that at least a 10-
percent cost savings would not be achieved by performance of
the function by a contractor.
SEC. 7. REQUIREMENT FOR PUBLIC-PRIVATE COMPETITION FOR NEW FUNCTIONS.
(a) In General.--After the date of enactment of this Act and in
accordance with section 3, any decision by an agency to assign to a
contractor the performance of a function not currently performed by
Federal employees or a contractor shall be based on the results of a
public-private competition process that--
(1) formally compares the costs of Federal employee
performance of the new function with the costs of the
performance by a contractor;
(2) employs the most efficient organization process;
(3) determines whether the offers submitted meet the needs
of the agency with respect to items other than cost, including
quality and reliability;
(4) does not include in the cost comparison any savings to
the agency attributable to lower pay, health insurance
benefits, or retirement benefits provided by the contractor;
and
(5) includes a determination that performance of the
function by a contractor would be less costly over the term of
the contract than performance by Federal employees during the
same period.
(b) Waiver of Public-Private Competition Requirement.--
(1) In general.--The head of an Agency may waive the
application of subsection (a) to a function if--
(A) there is no reasonable expectation that Federal
employees would win a public-private competition for
the function; and
(B) issuance of a waiver would not serve to reduce
significantly the level of or quality of public-private
competition in the future award or performance of work
associated with the function.
(2) Publication of waiver.--The head of an agency shall
promptly publish in the Federal Register a copy of each waiver
under this subsection.
(c) Minimal Levels of Public-Private Competition for New
Functions.--
(1) In general.--No later than 5 years after the date of
enactment of this Act, not less than one-half of the funds
expended each fiscal year by an agency for the performance by
contractors of functions that are not performed by Federal
employees or contractors of the agency on the date of enactment
of this Act shall be expended for contracts that are awarded
after completion of public-private competitions in accordance
with this section.
(2) Expiration.--The application of paragraph (1) to an
agency expires upon the earlier of the following:
(A) The end of the first full fiscal year beginning
after the date of enactment of this Act during which
not less than one-half of the funds expended by the
agency for the performance of new functions are
expended after completion of public-private
competitions.
(B) The end of the fifth full fiscal year beginning
after enactment of this Act.
(d) Inapplicability To Subject New Functions to Public-Private
Competition.--This section does not apply to--
(1) functions performed by contractors before the date of
enactment of this Act; or
(2) any contract with a value less than $1,000,000, if--
(A) the functions to be performed under the
contract are not divided, modified, or in any way
changed in a manner that results in this section not
applying to the contracting for those functions; and
(B) the contract is awarded to one or more small
business concerns that meet the requirements under
section 3(a) of the Small Business Act (15 U.S.C.
632(a)) and regulations under that section.
SEC. 8. REVIEW OF CONTRACTOR PERFORMANCE.
(a) In General.--
(1) Agency action after review.--If a report completed
under section 5 indicates that, for 2 consecutive years, the
actual cost of contractor performance of a particular function
exceeds the anticipated cost, based on the award (referred to
in section 5(b)(3)(G)), after adjustment for changes in the
scope of work, inflation, and wage rates, or fails to
substantially meet quality control standards (referred to in
section 5(b)(3)(J)), the agency shall conduct a new public-
private competition not later than the earlier of the date of
the expiration of the contract or the beginning of the first
fiscal year that is not more than 12 months after the initial
determination that the cost of a contracting effort exceeds the
anticipated cost of contractor performance or that quality
standards have not been substantially met. Any resulting
terminations for convenience may be undertaken without cost to
the United States Government.
(2) Inapplicability.--This subsection does not apply to
work performed by contractors before the date of enactment of
this Act.
(b) Comparable Public-Private Competition.--
(1) In general.--No later than in the fifth year after the
date of enactment of this Act, an agency shall subject to
public-private competition annually approximately the same
number of Federal employee positions and positions held by
contractor employees.
(2) Expiration.--The requirement for comparable public-
private competition expires upon the earlier of the following:
(A) The end of the first full fiscal year beginning
after the date of enactment of this Act during which an
agency subjects to public-private competition an
approximate number of Federal employee positions and
positions held by contractor employees.
(B) The end of the fifth full fiscal year beginning
after enactment of this Act.
(c) Public-Private Competition Process for Functions Performed by
Contractors.--After the date of enactment of this Act, any decision by
an agency to initiate a contracting in for the performance of a
function not previously performed by Federal employees, in accordance
with this subsection, shall be based on the results of a public-private
competition process that--
(1) formally compares the costs of Federal employee
performance of the new function with the costs of the
performance by a contractor;
(2) determines whether the offers submitted meet the needs
of the agency with respect to items other than costs, including
quality and reliability;
(3) employs the most efficient organization process;
(4) does not include in the cost comparison any savings to
the agency attributable to lower pay, health insurance
benefits, or retirement benefits provided by the contractor;
and
(5) ensures continued performance of the function by a
contractor if an agency determines that at least a 10-percent
cost savings would not be achieved by performance of the
function by Federal employees.
(d) Particular Functions.--In complying with this subsection--
(1) agencies shall, to the extent possible, subject to
public-private competition those positions held by contractor
employees that are associated with functions that are or have
been performed at least in part by Federal employees at any
time on or after October 1, 1980; and
(2) agencies shall not receive credit towards compliance
with the requirement for comparable public-private competition
for subjecting to public-private competition any contractor
employees--
(A) associated with functions performed by small
business concerns that meet the requirements under
section 3(a) of the Small Business Act (15 U.S.C.
632(a)) and regulations under that section; or
(B) whose minimum monetary wages and fringe
benefits are based on 4(c) of the Service Contract Act
(41 U.S.C. 353(c)), or whose minimum monetary wages and
fringe benefits will become covered by section 4(c) of
the Service Contract Act at the beginning of the next
contract year.
(e) Inapplicability of Certain Limitation.--Notwithstanding any
limitation on the number of Federal employees established by law,
regulation, or policy, an agency may continue to employ or may hire
such Federal employees as are necessary to perform work acquired
through public-private competition required by this section.
SEC. 9. COMPTROLLER GENERAL REPORTS.
The Comptroller General shall report to the Committee on Government
Reform of the House of Representatives and the Committee on
Governmental Affairs of the Senate annually on the compliance by
agencies with the requirements of this Act.
SEC. 10. REPEAL OF CERTAIN REPORTING REQUIREMENTS.
(a) In General.--Sections 2461, 2461a, 2463, and 2467(c) of title
10, United States Code, are repealed.
(b) Technical and Conforming Amendments.--The table of sections for
chapter 141 of title 10, United States Code, is amended by striking the
items relating to sections 2461, 2461a, and 2463.
SEC. 11. APPLICABILITY.
This Act does not apply with respect to the following:
(1) The General Accounting Office.
(2) Depot-level maintenance and repair of the Department of
Defense (as defined in section 2460 of title 10, United States
Code).
(3) Contracts for the construction of new structures or the
remodeling of or additions made to existing structures,
facilities, and capital projects, except this Act shall apply
to contracts for services related to the repair and maintenance
of any structures.
(4) Financial assistance awards (including grants and
cooperative agreements).
SEC. 12. WAIVERS FROM PUBLIC-PRIVATE COMPETITION REQUIREMENTS FOR
REASON OF NATIONAL SECURITY AND HOMELAND SECURITY.
(a) In General.--The Secretary of Defense and the Secretary of
Homeland Security may each, with respect to their department, waive the
application of the public-private competition requirements of sections
6, 7, and 8 of this Act, on a case-by-case basis, for specific
functions if--
(1) the waiver is prepared in writing--
(A) by the Secretary of Defense, or an Assistant
Secretary of Defense, in the case of a national
security waiver for the Department of Defense; or
(B) by the Secretary of Homeland Security, or an
Assistant Secretary of Homeland Security, in the case
of a homeland security waiver for the Department of
Homeland Security;
(2) the written waiver is accompanied by a detailed
determination that national security or homeland security
interests, respectively, are so compelling as to preclude
compliance with the requirements; and
(3) a copy of the waiver is published in the Federal
Register, although use of the waiver need not be delayed until
its publication.
(b) Suspension of Incremental Requirements.--The Secretary of
Defense and the Secretary of Homeland Security may each, with respect
to their department, temporarily suspend either or both of the
requirements for incremental public-private competition for new work
(as established in section 7) and incremental public-private
competition for contractor work (as established in section 8) with
respect to the functions of their department if--
(1) the determination to suspend is prepared in writing--
(A) by the Secretary of Defense, in the case of a
national security suspension for the Department of
Defense; or
(B) by the Secretary of Homeland Security, in the
case of a homeland security suspension for the
Department of Homeland Security;
(2) the written determination to suspend is accompanied by
a detailed determination that national security or homeland
security interests, respectively, are so compelling as to
preclude compliance with the requirements; and
(3) a copy of the determination to suspend is published in
the Federal Register, although use of the waiver need not be
delayed until its publication.
(c) Duration.--The duration of a temporary suspension under
subsection (b) shall be no longer than the 1-year period beginning on
the date it is first invoked (without regard to the date it is first
published).
(d) Subsequent Suspensions.--The Secretaries of Defense and
Homeland Security may issue additional temporary suspensions. During
the period of such suspensions, the expiration dates under sections
7(c)(2) and 8(b)(2), as applicable, are tolled, and the effective
period of such suspensions shall not be counted toward the fifth fiscal
year milestones under sections 7(c)(2)(B) and 8(b)(2)(B), as
applicable.
SEC. 13. LIMITED PILOT PROGRAM TO IMPLEMENT RECOMMENDATIONS OF
COMMERCIAL ACTIVITIES PANEL.
(a) Use of Alternative Public-Private Competition Processes.--The
Director of the Office of Management and Budget, in coordination with
the heads of agencies, may carry out a limited pilot program to examine
and evaluate the feasibility and advisability of using public-private
competition processes other than the process described in Office of
Management and Budget Circular A-76 for functions performed for
agencies other than the Department of Defense (or any military
department or agency thereof) by Federal employees or contractors, or
proposed for performance for such agencies by Federal employees or
contractors.
(b) Duration of Pilot Program.--The Director of the Office of
Management and Budget may carry out the pilot program during fiscal
years 2003 through 2005.
(c) Extent of Pilot Program.--The total value of the functions
reviewed under the pilot program may not exceed $300,000,000.
(d) Possible Alternatives.--
(1) In general.--The alternatives to Office of Management
Budget Circular A-76 that could be tested and evaluated by the
pilot program include only the following:
(A) The process known as low-price/technically
acceptable (under the framework of the Federal
Acquisition Regulation).
(B) The process known as cost/technical trade off
(under the framework of the Federal Acquisition
Regulation).
(C) The process known as bid-to-goal.
(2) Bid-to-goal defined.--In paragraph (1)(C), the term
``bid-to-goal'' means a process that--
(A) uses a series of competitive performance
targets, included in a performance work statement, to
compare for specific functions the cost of public
sector performance with the cost of performance by
private sector contractors and other public sector entities at the
Federal, State, and local levels; and
(B) allows managers and affected employees to
create streamlined and improved work plans that, if
determined to be viable by an independent party, are
incorporated into a detailed service agreement awarded
to the public sector entity for implementation and
performance of the functions.
(e) Required Elements.--The alternatives examined and evaluated
under the framework of the Federal Acquisition Regulation shall
include--
(1) the most efficient organization process;
(2) the framework for calculating the public sector price
cost estimate;
(3) the framework for calculating the evaluated price for
private sector proposals to take into account costs such as
contract administration costs; and
(4) the 10-percent cost differential in favor of whichever
sector is currently performing the work, as described in Office
of Management and Budget Circular A-76 or any successor
administrative regulation.
(f) Comparability.--To the maximum extent practicable, the Director
of the Office of Management and Budget shall ensure that comparable
amounts of work, as measured in dollars, performed by Federal
employees, performed by contractors, or new work that is not yet
performed by Federal employees or contractors should be tested and
evaluated under the alternatives authorized for the pilot program.
(g) Relation to A-76 Process.--In order to provide proper test and
evaluation conditions for the pilot program, functions designated for
study under the pilot program shall be exempt for the duration of the
pilot program from review initiated under Office of Management and
Budget Circular A-76 or any successor administrative regulation, and no
function that has been announced for or is undergoing such a review
shall be selected for the pilot program.
(h) Limitation.--With respect to the Department of Defense and
agencies in such department, no alternatives may be used under the
pilot project established by this Act that would be contrary to
sections 129a and 2462 of title 10, United States Code.
(i) Consultation.--
(1) In general.--The officer or Federal employee of an
agency responsible for determining, under the alternatives
authorized for the pilot program by subsection (d), whether to
convert a function from Federal employee performance to
contractor performance or from contractor performance to
Federal employee performance--
(A) shall, at least monthly during the development
and preparation of the performance work statement and
the management efficiency study used in making that
determination, consult with Federal employees or
contractor employees who will be affected by that
determination and consider the views of such employees
on the development and preparation of that statement
and that study; and
(B) may consult with such employees or contractors
on other matters relating to that determination.
(2) Federal employees represented by recognized labor
organization.--In the case of Federal employees represented by
a labor organization accorded exclusive recognition under
section 7111 of title 5, United States Code, consultation with
representatives of that labor organization shall satisfy the
consultation requirements of paragraph (1).
(3) Contractor employees.--In the case of contractor
employees, consultation with appropriate representatives of
those employees (including appropriate labor organizations
representing such Federal employees) shall satisfy the
consultation requirements of paragraph (1) with respect to
those employees.
(j) Reporting Requirements.--
(1) In general.--Not later than 90 days after the end of
each fiscal year in which the pilot program is conducted, the
Director of the Office of Management and Budget and the
Comptroller General of the United States shall each submit to
the Congress a report of the results of the pilot program and
lessons learned. For each function covered by the program, the
report shall address the following factors:
(A) The cost of conducting each alternative tested
under the pilot program with respect to that function.
(B) The time necessary to conduct the alternative.
(C) The savings, if any, expected to be achieved
from conducting the alternative.
(D) The savings, if any, actually achieved from
conducting the alternative.
(E) The gains in efficiency or effectiveness, if
any, expected to be achieved from conducting the
alternative.
(F) The gains in efficiency or effectiveness, if
any, actually achieved from conducting the alternative.
(G) The impact on Federal employees and contractors
(and contractor employees) from conducting the
alternative.
(2) Comparison.--To the maximum extent possible, the report
shall compare each alternative undertaking, with respect to the
factors specified in paragraph (1), with an undertaking of
Office of Management and Budget Circular A-76 that has been
completed within at least 2 years prior to the date of the
enactment of this Act for work that is comparable in nature and
scope.
(3) Recommendations.--The final report shall include
recommended changes with respect to implementation of policies
and proposed legislation.
(k) Regulations.--The Director of the Office of Management and
Budget shall prescribe such regulations as the Director considers
necessary to carry out the pilot program.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Government Reform.
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