Correction of Long-Standing Errors in Agencies' Unsustainable Procurements Act of 2009 or the CLEAN-UP Act - Requires executive agencies to ensure that: (1) inherently governmental functions, functions closely related to such functions, and mission-essential functions are performed by federal employees; (2) other functions are performed by the more efficient form of personnel, whether federal employees, contractors, or military personnel; and (3) consideration is given to using federal employees to perform new functions on a regular basis.
Requires each agency head to submit to the Director of the Office of Management and Budget (OMB): (1) an annual report on service contracts for new work; (2) a Functions At Risk Report that describes those functions required to be performed by federal employees that are actually performed by contractors (requires agencies to reduce the total number of contractor employees described in that Report by 70% within six years); and (3) a strategic human capital plan to ensure the capability of the agency's federal employee workforce to perform agency functions. Prohibits an agency from conducting a public-private competition for any function that such plan identifies as experiencing a gap in its federal employee workforce.
Requires agencies subject to the Federal Activities Inventory Reform Act of 1998 (other than the Department of Defense [DOD]) to: (1) submit an annual inventory of activities performed pursuant to contracts for services; (2) review those contracts and identify activities that should be considered for conversion to performance by civilian employees; and (3) develop a plan for such conversion by June 30 of the following year.
Authorizes agency heads to expedite the hiring of certain professionals in shortage category positions.
Requires the Director to: (1) develop guidelines for the establishment of business process re-engineering projects; and (2) conduct annual performance reviews of such projects that are ongoing.
Sets forth revisions, requirements, and restrictions applicable to studies and public-private competitions for the conversion of agency functions to contractor performance pursuant to OMB Circular A-76.
[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2736 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 2736
To ensure efficient performance of agency functions.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 4, 2009
Mr. Sarbanes (for himself, Mr. Clay, Mr. Hastings of Florida, Mr.
Carnahan, Ms. Linda T. Sanchez of California, Mr. Filner, Mr.
Ruppersberger, Ms. Norton, Ms. DeLauro, Mr. Michaud, Mrs. Napolitano,
Mr. Ellison, Mr. Hinchey, Ms. Woolsey, Ms. Richardson, Mr. Hall of New
York, Mr. Costello, Mr. Cummings, Mr. Baca, Mr. Rush, Mr. Brady of
Pennsylvania, Mr. Johnson of Georgia, Mr. Mollohan, Mr. Pallone, Mr.
Delahunt, Mr. Holt, Mr. Serrano, Mr. Schauer, Mr. Walz, Mr. Kagen, Ms.
Corrine Brown of Florida, Mr. Gene Green of Texas, Mr. Langevin, Mr.
Peters, Ms. Shea-Porter, Mr. Conyers, Mr. Van Hollen, Mr. Payne, Ms.
Giffords, Mr. Al Green of Texas, Mr. Tim Murphy of Pennsylvania, Mr.
Miller of North Carolina, Mr. Grijalva, Mr. Space, Mrs. Maloney, Ms.
Tsongas, Mr. Tierney, Ms. Titus, Mr. Levin, Mrs. Davis of California,
and Mr. Nye) introduced the following bill; which was referred to the
Committee on Oversight and Government Reform
_______________________________________________________________________
A BILL
To ensure efficient performance of agency functions.
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 ``Correction of
Long-Standing Errors in Agencies' Unsustainable Procurements Act of
2009'' or the ``CLEAN-UP Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Findings.
Sec. 4. Purposes.
Sec. 5. General personnel policy.
Sec. 6. Consideration of in-house performance required for new work.
Sec. 7. Transition to Federal employee performance of certain
functions.
Sec. 8. Establishment of inventories and reviews of contracts for
services.
Sec. 9. Identifying and addressing shortages of Federal employees.
Sec. 10. Expedited hiring authority for performance of certain
functions by Federal employees.
Sec. 11. Establishment of business process reengineering projects as a
preferred alternative to the OMB Circular
A-76 process.
Sec. 12. Reforms to the OMB Circular A-76 process.
Sec. 13. Establishment of temporary suspension on use of OMB Circular
A-76 process until reforms required in this
Act have been substantially implemented.
SEC. 2. DEFINITIONS.
In this Act:
(1) Inherently governmental functions.--The term
``inherently governmental functions'' has the meaning given the
term under section 5 of the Federal Activities Inventory Act of
1998 (31 U.S.C. 501 note) and subpart 7.5 of part 7 of the
Federal Acquisition Regulation.
(2) Functions closely associated with inherently
governmental functions.--The term ``functions closely
associated with inherently governmental functions'' means the
functions described in section 7.503(d) of the Federal
Acquisition Regulation that are recurring.
(3) Mission-essential functions.--The term ``mission-
essential functions'' refers to functions that, although
neither necessarily inherently governmental nor necessarily
closely related to an inherently governmental function, are
nevertheless considered by executive agency officials to be
more appropriate for performance by Federal employees.
(4) Business process reengineering project.--The term
``business process reengineering project'' refers to a process
whereby an existing organization is reinvented, consolidated,
or expanded to result in a new organization whose performance
exceeds that of previous and comparable performers, whether
performed by Federal employees or contractors or a combination
of Federal employees and contractors.
(5) Executive agency.--The term ``executive agency'' has
the meaning given the term in section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403).
(6) Personal services contract.--The term ``personal
services contract'' has the meaning given to the term under
section 37.104 of the Federal Acquisition Regulation, unless
the functions to be performed under the contract are included
in statutory exceptions, including sections 1296 and 1091 of
title 10, United States Code.
(7) Standard study.--The term ``standard study'' has the
meaning given to the specific type of cost-comparison study
outlined in attachment B in the OMB Circular A-76 process, as
revised in May 2003.
SEC. 3. FINDINGS.
Congress makes the following findings:
(1) Functions that should have been performed by Federal
employees because they are inherently governmental functions,
functions that are closely related to inherently governmental
functions and recurring, or mission-essential functions have
been wrongly outsourced, including preparing budgets,
developing policy, supporting acquisition, developing and
interpreting regulations, developing reorganizations, and
developing and implementing ``competitive sourcing'' plans.
(2) Federal agencies have been pushed to outsource
significant amounts of work with little competition, while
Federal employees, despite having won 83 percent of the OMB
Circular A-76 privatization reviews conducted since the
circular was revised in 2003, are rarely given opportunities to
perform new work or outsourced work.
(3) The capacity of the Federal Government to oversee
contractors and the OMB Circular A-76 privatization process
continues to decline, as demonstrated in scandals involving
reconstruction efforts in Iraq, Hurricane Katrina recovery
efforts, and conditions at Walter Reed Army Medical Center. The
Government Accountability Office (GAO), in two 2008 reports on
the use of ``competitive sourcing'' in different agencies,
determined that costs of A-76 privatization reviews often
exceeded savings because of systematically bad direction from
the Office of Management and Budget. In the latter report, on
the Department of Labor, GAO wrote, ``Without a better system
to assess performance and track all of the costs associated
with competitive sourcing, DoL cannot reliably assess whether
competitive sourcing truly provides the best deal for the
taxpayers.''.
(4) The OMB Circular A-76 process retains fundamental
inequities. The minimum cost differential fails to take into
account the quantifiable costs (such as hiring consultants and
diverting Federal employees from their regular duties) of
carrying out A-76 privatization studies. All in-house bids are
charged 12 percent of their personnel costs for overhead costs,
even though a Department of Defense Inspector General study
revealed that overhead costs may not differ significantly, if
at all, whether the functions are kept in-house or contracted
out, even in the case of studies of large numbers of Federal
employees. Despite time limits established in law and as part
of the OMB Circular process A-76 process, privatization studies
are allowed to continue indefinitely. The longer an A-76
privatization study lasts, the more it costs to conduct, the
less likely there are to be savings from that study, and the
more likely it will cost taxpayers more than it will save. In
fact, given the costs and controversies associated with the OMB
Circular A-76 privatization process, OMB should be encouraging
agencies to use internal reengineering efforts, as OMB finally
did, during the last year of George W. Bush's presidency.
SEC. 4. PURPOSES.
The purposes of this Act are as follows:
(1) To build upon the foundation established by the 110th
Congress that suspended the use of the OMB Circular A-76
privatization process, required all executive agencies to
develop policies to promote the insourcing of new work and
outsourced work, and required the Department of Defense to
develop a comprehensive inventory of its service contracts.
(2) To establish a policy that provides that--
(A) Federal employees must perform inherently
governmental functions, functions closely related to
inherently governmental functions, and mission
essential functions;
(B) other functions may be performed by Federal
employees or contractors, depending on the needs of
executive agencies and all relevant public-private
competition requirements; and
(C) Federal employees should not be subject to
headcounts, personnel ceilings, or constraints, which
force executive agencies to contract out functions
without public-private competition.
(3) To prevent executive agencies from contracting out new
functions if those new functions should be performed by Federal
employees and require agencies to explain in annual reports to
Congress why functions ultimately contracted out were not
considered for performance by Federal employees.
(4) To require executive agencies--
(A) to determine which of their functions must
actually be performed by Federal employees because the
work is inherently governmental, closely related to
inherently governmental work, or mission essential, and
how many contractor employees are currently performing
those functions;
(B) to report on how wrongly contracted out work
will be insourced; and
(C) to incrementally insource over several years 70
percent of the wrongly contracted out workload.
(5) To require civilian agencies to establish inventories
to track the cost and quality, among other features, of
specific contracts, based on the inventory that the 110th
Congress required the Department of Defense to establish.
(6) To require executive agencies to determine if they are
now experiencing or will experience shortages of Federal
employees and what their plans are for addressing these
personnel shortfalls.
(7) To encourage the use of a regulated alternative to the
often costly and controversial OMB Circular A-76 process,
including business process reengineering, which is commonly
used by executive agencies to generate efficiencies through
internal reorganizations.
(8) To direct the President to undertake several reforms of
the OMB Circular A-76 privatization process, including imposing
time limitations on how long privatization studies can last,
charging in-house bids only for actual overhead costs, and
considering quantifiable costs of conducting A-76 privatization
studies in the minimum differential.
(9) To impose a temporary suspension on the use of the OMB
Circular A-76 privatization process until the reforms required
by this Act have been substantially implemented, consistent
with the temporary suspension on the same process enacted in
the 110th Congress.
SEC. 5. GENERAL PERSONNEL POLICY.
(a) Required Performance of Inherently Governmental Functions by
Federal Employees.--The head of each executive agency shall ensure that
inherently governmental functions, functions closely related to
inherently governmental functions, and mission-essential functions are
performed by Federal employees.
(b) Performance of Other Functions by More Efficient Workforce in
Accordance With Public-Private Competition Requirements.--The head of
each executive agency shall ensure that functions that are not
inherently governmental functions, functions closely related to
inherently governmental functions, or mission-essential functions are
performed by the more efficient form of personnel, whether Federal
employees, contractors, or, in the case of the Department of Defense,
military personnel, consistent with requirements for quality and
reliability and other needs of that executive agency and with all
public-private competition requirements.
(c) Use of Most Efficient Workforce.--Notwithstanding any other
provision of law, the heads of executive agencies shall not be
constrained by any in-house personnel ceiling, headcount, or staffing
limitation in ensuring that functions are performed in the most
efficient manner possible.
(d) Shifting Functions Between Workforces.--In developing personnel
authorization requests to Congress and in carrying out personnel
policies generally, the head of each executive agency shall consider
particularly the advantages of converting from one form of personnel
(Federal or private contract personnel, or in the case of the
Department of Defense, Federal, private contract, or military
personnel) to another form of personnel for the performance of
functions that are not inherently governmental functions, functions
closely related to inherently governmental functions, or mission-
essential functions using any relevant public-private competition
processes.
SEC. 6. CONSIDERATION OF IN-HOUSE PERFORMANCE REQUIRED FOR NEW WORK.
(a) Finding.--Pursuant to section 739 of the Financial Services and
General Government Appropriations Act, 2008 (division D of Public Law
110-161; 31 U.S.C. 501 note) each covered executive agency is required
to devise and implement guidelines and procedures to ensure that
consideration is given to using, on a regular basis, Federal employees
to perform new functions.
(b) Certification Required Before Awarding a Service Contract.--The
Chief Acquisition Officer of each executive agency, or, if no such
position exists, the executive agency's representative on the Chief
Acquisition Officers Council, shall, with respect to each service
contract entered into by such agency for the performance of a function
or functions, including the award or placement of a task or delivery
order or the exercise of an option under an existing contract, certify,
together with supporting rationales, that--
(1) each function to be performed under such contract is
not an inherently governmental function, a function closely
related to an inherently governmental function, or a mission-
essential function;
(2) the contract is not actually an unauthorized personal
services contract; and
(3) performance by employees of the agency of the function
to be performed by a contractor was explicitly considered, with
particular consideration given if such function is comparable
to functions already performed by Federal employees in the
executive agency or another executive agency, either currently
or within the last 10 years.
(c) Reports Required.--
(1) In general.--Not later than November 1, 2009, and
annually thereafter, the head of each covered executive agency
shall submit to the Director of the Office of Management and
Budget a report on each of the service contracts for new work
entered into during the previous fiscal year.
(2) Content.--Each report submitted under paragraph (1)
shall describe the following:
(A) Each function or functions performed under a
contract with a contractor, the approximate number of
employees used by contractors under each such contract,
the date each such contract was entered into, the
duration of each contract, and each certification
required under subsection (b).
(B) Each new function that was assigned by the
executive agency to employees of the agency, including,
for each function, a brief description of the work, a
determination of the dollar value, and the number of
new Federal employees who were hired or transferred
from the performance of other functions.
(C) Any obstacles to assigning new functions to
Federal employees, as well as recommendations for
legislation to overcome those obstacles.
(d) Publication of Reports Required.--The Director of the Office of
Management and Budget shall promptly publish in the Federal Register
information about obtaining each report prepared under subsection (c),
including the names, addresses, and telephone numbers of the officials
from whom the reports may be obtained. The reports shall also be made
available on a publicly available Internet website. The Director shall
remove proprietary and confidential information from reports made
available pursuant to this section.
SEC. 7. TRANSITION TO FEDERAL EMPLOYEE PERFORMANCE OF CERTAIN
FUNCTIONS.
(a) Report on Functions That Should Be Performed by Federal
Employees.--
(1) Report required.--Not later than 180 days after the
date of the enactment of this Act, the head of each executive
agency shall submit to the Director of the Office of Management
and Budget a report, to be known as the ``Functions At Risk
Report'', that--
(A) describes any function that is, in whole or in
part, an inherently governmental function, a function
closely related to an inherently governmental function,
or a mission-essential function and which, despite the
requirement that such function only be performed by
Federal employees, is actually performed, in whole or
in part, by a contractor (in this section referred to
as an ``at-risk function'');
(B) describes the number of contractor employees
performing the function, in whole or in part, and the
nature of their work;
(C) includes a plan for ensuring that the function
is performed by Federal employees;
(D) identifies any impediments to carrying out such
plan; and
(E) includes any recommendations for additional
legislation necessary to implement this section.
(2) Limitation on designee.--The head of an affected
executive agency may not assign responsibility for compliance
with the report requirement established by this subsection
below the level of an assistant secretary.
(3) Publication of reports required.--The Director of the
Office of Management and Budget shall promptly publish in the
Federal Register information about obtaining each report
prepared under paragraph (1), including the names, addresses,
and telephone numbers of the officials from whom the reports
may be obtained. The reports shall also be made available on a
publicly available Internet website. The Director shall remove
proprietary and confidential information from reports made
available pursuant to this section.
(b) Requirement To Reduce Number of At-Risk Functions.--The head of
each executive agency shall reduce the total number of contractor
employees reported in that executive agency's Functions At Risk Report
by--
(1) 5 percent within 1 year after the date of the enactment
of this Act;
(2) 10 percent within 2 years after the date of the
enactment of this Act;
(3) 20 percent within 3 years after the date of the
enactment of this Act;
(4) 40 percent within 4 years after the date of the
enactment of this Act;
(5) 60 percent within 5 years after the date of the
enactment of this Act; and
(6) 70 percent within 6 years after the date of the
enactment of this Act.
(c) Evaluation of Schedule.--The Comptroller General of the United
States shall--
(1) evaluate the success of the incremental schedule
required under subsection (b) in ensuring that functions that
should be performed by Federal employees are actually performed
by Federal employees; and
(2) provide recommendations for future legislation,
particularly with respect to addresses remaining at-risk
functions.
(d) Suspension of Reduction Schedule Requirement.--The Director of
the Office of Management and Budget may suspend the requirement to
reduce positions pursuant to subsection (b) for a particular executive
agency for a specific period of time upon certifying to the Committee
on Oversight and Government Reform of the House of Representatives and
the Committee on Homeland Security and Governmental Affairs of the
Senate that compliance during that specific period of time would
undermine national security, homeland security, or patient care.
SEC. 8. ESTABLISHMENT OF INVENTORIES AND REVIEWS OF CONTRACTS FOR
SERVICES.
(a) In General.--Not later than June 30, 2010, and annually
thereafter, the head of each executive agency subject to the Federal
Activities Inventory Reform Act of 1998 (Public Law 105-270; 31 U.S.C.
501 note), other than the Department of Defense, shall submit to the
Director of the Office of Management and Budget an annual inventory of
the activities performed during the preceding fiscal year pursuant to
contracts for services for or on behalf of such agency.
(b) Content.--The entry for an activity on an inventory under this
section shall include, for the fiscal year covered by such entry, the
following:
(1) The functions performed by the contractor.
(2) Information regarding the contractor, the part of the
executive agency administering the contract, and the part of
the agency whose requirements are being met through contractor
performance of the function.
(3) The funding source for the contract under which the
function is performed.
(4) The fiscal year for which the activity first appeared
on an inventory under this section.
(5) The number of full-time contractor employees (or its
equivalent) compensated for the performance of the activity.
(6) Whether the contract has been performed pursuant to a
contract awarded on a noncompetitive basis, either originally
or upon a subsequent renewal.
(7) Whether the contract has been performed poorly, as
determined by a contracting officer, during the 5-year period
preceding the date of such determination, because of excessive
costs or inferior quality.
(c) Form.--The inventory required under this section shall be
submitted in unclassified form, but may include a classified annex.
(d) Publication.--The Director of the Office of Management and
Budget shall promptly publish in the Federal Register information about
obtaining each report prepared under subsection (a), including the
names, addresses, and telephone numbers of the officials from whom the
reports may be obtained. The reports shall be made available on a
publicly available Internet website. The Director shall remove
proprietary information from reports made available pursuant to this
subsection.
(e) Review and Planning Requirements.--Not later than 90 days after
the date on which an inventory is submitted under subsection (a), the
head of each executive agency or an official designated personally by
the agency head shall--
(1) review the contracts and activities in the inventory;
(2) ensure that--
(A) each contract on the list that is a personal
services contract has been entered into, and is being
performed, in accordance with applicable laws and
regulations;
(B) the activities on the list do not include any
inherently governmental functions; and
(C) to the maximum extent practicable, the
activities on the list do not include any functions
closely associated with inherently governmental
functions;
(3) identify activities that should be considered for
conversion to performance by civilian employees of the
executive agency pursuant to section 739 of the Financial
Services and General Government Appropriations Act, 2008
(division D of Public Law 110-161; 31 U.S.C. 501 note); and
(4) develop a plan to provide for appropriate consideration
of the conversion by June 30 of the following year of the
activities identified under paragraph (3), which shall be
included as an attachment to the next required annual
inventory.
(f) Rule of Construction.--Nothing in this section shall be
construed to authorize the performance of personal services by a
contractor except as otherwise provided by law.
(g) Priority of Contractor Inventory.--Notwithstanding any other
provision of law, prior to the submission to the Office of Management
and Budget of an inventory pursuant to the Federal Activities Inventory
Reform Act of 1998 (Public Law 105-270; 31 U.S.C. 501 note), OMB
Circular A-76, or any other related administrative regulation,
directive, or policy, or to publication in the Federal Register, the
head of an executive agency shall submit the inventory required under
this section to Congress and the Director of the Office of Management
and Budget and shall publish the inventory required under this section
in the Federal Register.
SEC. 9. IDENTIFYING AND ADDRESSING SHORTAGES OF FEDERAL EMPLOYEES.
(a) Annual Strategic Human Capital Plan Required.--Not later than 1
year after the date of the enactment of this Act, and annually
thereafter, the head of each executive agency shall submit to the
Director of the Office of Management and Budget a strategic human
capital plan to ensure the capability of the Federal employee workforce
of the executive agency to perform its functions.
(b) Content.--Each strategic human capital plan submitted under
subsection (a) shall include the following:
(1) An assessment of--
(A) the critical skills and competencies in the
Federal employee workforce that will be needed to
perform the executive agency's functions over the next
10 years, based on expected losses due to retirement
and other attrition; and
(B) gaps in the capability of the Federal employee
workforce, both existing and projected, to perform the
executive agency's functions over that period.
(2) A plan of action for developing the Federal employee
workforce of the executive agency to address the current or
anticipated gaps, including--
(A) specific hiring, promoting, and retention
schedules, including the funding needed to achieve such
schedules; and
(B) specific strategies for developing, training,
and promoting the Federal employee workforce of the
executive agency, including the funding needed to
implement such strategies.
(c) Enhancement of Human Capital Planning.--All human capital
planning efforts should be considered through any existing labor-
management partnership arrangements.
(d) Addressing Gaps in Federal Workforces.--
(1) In general.--The head of an executive agency may not
conduct a public-private competition under Office of Management
and Budget Circular A-76 or any other provision of law of any
function that has been identified in the strategic human
capital plan of such agency as one that either is experiencing
or will experience a gap in its Federal employee workforce.
(2) Shortcomings constituting gaps in workforce.--For
purposes of this section, gaps in the workforce include
shortcomings--
(A) in the skills and competencies of employees;
(B) in the number of employees possessing such
skills and competencies; and
(C) in the skills and competencies of employees or
in the number of employees that would make it difficult
to effectively supervise a contractor and intelligently
oversee its performance or reconstitute that function
for performance within the agency in the event of
contractor nonperformance.
(e) Publication.--The Director of the Office of Management and
Budget shall promptly publish in the Federal Register information about
obtaining each report prepared under subsection (a), including the
names, addresses, and telephone numbers of the officials from whom the
reports may be obtained. The reports shall be made available on a
publicly available Internet website.
SEC. 10. EXPEDITED HIRING AUTHORITY FOR PERFORMANCE OF CERTAIN
FUNCTIONS BY FEDERAL EMPLOYEES.
(a) Expedited Hiring Authority.--For purposes of sections 3304,
5333, and 5753 of title 5, United States Code, the head of an executive
agency may--
(1) designate any category of professional positions within
the agency as shortage category positions; and
(2) utilize the authorities in such sections to recruit and
appoint highly qualified persons directly to positions so
designated,
in order to comply with the requirements of this Act, and section 739
of the Financial Services and General Government Appropriations Act,
2008 (division D of Public Law 110-161; 31 U.S.C. 501 note), which
requires each covered executive agency to devise and implement
guidelines and procedures to ensure that consideration is given to
using, on a regular basis, Federal employees to perform new functions
as well as functions that are currently performed by contractors.
(b) Veterans Preference.--In using the authority provided under
this section, the head of an executive agency shall apply the
principles of preference for the hiring of veterans and other persons
established in subchapter 1 of chapter 33 of title 5, United States
Code.
(c) Termination of Authority.--Expedited hiring authority may not
be used to appoint a person to a position of employment under this
section after the date that is 6 years after the date of the enactment
of this Act.
(d) Report on the Use of Expedited Hiring Authority.--Not later
than December 31, 2009, and annually thereafter for 3 years, the Office
of Personnel Management shall submit to the Committee on Oversight and
Government Reform of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs of the Senate a report on
the use by executive agencies of the expedited hiring authority under
this section consistent with merit principles, including
recommendations for how authority for expedited hiring might be
improved.
SEC. 11. ESTABLISHMENT OF BUSINESS PROCESS REENGINEERING PROJECTS AS A
PREFERRED ALTERNATIVE TO THE OMB CIRCULAR A-76 PROCESS.
(a) Statement of Policy.--Each executive agency should constantly
strive to generate efficiencies and improvements through business
process reengineering, even if such efforts reduce or increase the need
for Federal employees and contractors.
(b) Guidelines.--The Director of the Office of Management and
Budget shall develop guidelines for the establishment of business
process reengineering projects. Such guidelines shall ensure
consideration and assessment of the following:
(1) The number of Federal employees and contractor
employees to be affected by the initiative, and how they will
be affected.
(2) The resources needed to conduct the initiative.
(3) The location or locations where the initiative will be
performed, and the location of the affected Federal and
contractor employees if different from the initiative location
or locations.
(4) The functions to be included in the initiative.
(5) The timeline for development and implementation of the
initiative.
(6) The estimated duration of the initiative if such
initiative is deemed to be temporary.
(7) The anticipated budget savings and programmatic
improvements.
(c) Pre-Implementation Report.--Not later than 45 days before
beginning implementation of a business process reengineering project,
the head of the executive agency shall submit to the Committee on
Oversight and Government Reform of the House of Representatives and the
Committee on Homeland Security and Governmental Affairs of the Senate a
report on the proposed project, including the information described in
subsection (b).
(d) Consistency With Existing Law.--All business process
reengineering projects shall be implemented in a manner that is
consistent with paragraphs (2) and (3) of section 7106(b) of title 5,
United States Code. Such projects shall not result in a change of the
collective bargaining status of affected Federal employees in the
executive agency or in the representation status of a labor
organization with exclusive representation status, as provided under
section 7114 of title 5, United States Code.
(e) Enhancement of Federal Employee Buy-In.--The head of an
executive agency shall, in order to promote the active cooperation of
affected Federal employees--
(1) consider all business process reengineering projects
through any labor-management partnership arrangements;
(2) provide any reports required under subsection (c) to
any labor organization with national consultation rights under
section 7113 of title 5, United States Code, at least 60 days
before they are provided to Congress under such subsection; and
(3) involve discussions and bargaining over the impact of
implementation of any projects upon any bargaining unit with
the exclusive representatives of the executive agency's Federal
workforce, as provided under section 7114 and sections
7106(b)(2) and (b)(3) of title 5, United States Code.
(f) Personnel Increases or Reductions.--Any personnel increases or
reductions in the Federal employee or contractor workforces must be
based on the requirements of a specific business process reengineering
project and not on unrelated or predetermined cost and savings
assumptions.
(g) Annual Evaluation.--Not later than October 31, 2010, and
annually thereafter, the Director of the Office of Management and
Budget shall conduct a performance review of ongoing business process
reengineering projects and submit a report on such review to the
Committee on Oversight and Government Reform of the House of
Representatives and the Committee on Homeland Security and Governmental
Affairs of the Senate. Each business process reengineering project
shall be evaluated with respect to the level of performance in the
following areas:
(1) Costs, savings, and overall financial performance of
the organization.
(2) Organic knowledge, skills or expertise.
(3) Efficiency and effectiveness of key functions or
processes.
(4) Efficiency and effectiveness of the overall
organization.
SEC. 12. REFORMS TO THE OMB CIRCULAR A-76 PROCESS.
(a) Sense of Congress.--It is the sense of Congress that, with
respect to Office of Management and Budget Circular A-76 or any other
related administrative regulation, directive, or policy, the following
policies and procedures should be implemented:
(1) A standard study shall last no longer than 2 years,
from the beginning of the preliminary planning process to the
rendering of the award decision, which period shall be
calculated as follows:
(A) Any days during which a standard study is
suspended because of bid protests on behalf of the
affected Federal employees shall not be included when
determining the length of a standard study.
(B) However, any days during which a standard study
is extended because of additional activity that is
either required by the Government Accountability
Office, directed by the contracting officer subsequent
to an appeal to the Government Accountability Office or
the dismissal or denial of a protest to the Government
Accountability Office shall be included when
determining the length of a standard study.
(C) No executive agency may stop and restart a
standard study in order to avoid compliance with this
paragraph. Similarly, an executive agency may not
subject a function to a standard study if it was
earlier subjected to a standard study that had to be
stopped because of the length limitation under this
paragraph.
(2) The conversion differential shall be--
(A) significantly increased in order to include the
large costs that are currently excluded from
consideration, including preliminary planning costs,
consultants costs, costs of Federal employees diverted
from their actual jobs to work on studies, transition
costs, post-competition reviews costs, and proportional
costs for agencies' privatization bureaucracies
(including both Federal employees and contractors); and
(B) doubled when a standard study begins its
thirteenth month, which period shall be calculated as
follows:
(i) Any days during which a standard study
is suspended because of bid protests on behalf
of the affected Federal employees shall not be
included when determining the length of a
standard study for purposes of doubling the
cost differential.
(ii) However, any days during which a
standard study is extended because of
additional activity that is either required by
the Government Accountability Office, directed
by the contracting officer subsequent to an
appeal to the Government Accountability Office
or the dismissal or denial of a protest to the
Government Accountability Office shall be
included when determining the length of a
standard study.
(3) Bids or tenders filed on behalf of Federal employees
shall include only the overhead costs actually incurred for
those Federal employees performing the specific functions being
reviewed, and may not include an assessment of an automatic
charge for overhead.
(4) A reliable system to track costs, savings, and quality
from OMB Circular A-76 studies that has been implemented,
tested, and determined to be accurate and reliable over a long-
term and a short-term period should be established. The system
established should also take into account the possibility for
greater efficiencies and programmatic improvements that can be
generated through business process reengineering projects,
pursuant to section 10.
(5) No recompetition required.--No Federal employee
workforce should be recompeted under OMB Circular A-76 unless
the head of the relevant executive agency, without delegation--
(A) has signed a certification that such workforce
failed to fulfill the terms of the letter of obligation
or other agreement, as applicable, pursuant to an
earlier OMB Circular A-76 study; and
(B) published that certification on fedbizopps.gov
before the end of the expiration of the performance
period.
(b) GAO Report.--
(1) Report required.--Not later than 18 months after the
date of the enactment of this Act, the Comptroller General of
the United States shall submit to the Committee on Oversight
and Government Reform of the House of Representatives and the
Committee on Homeland Security and Governmental Affairs of the
Senate a report with recommendations for executive agencies
(other than the Office of Management and Budget) to more
fairly, effectively, expeditiously, transparently, and
apolitically oversee studies conducted under the Office of
Management and Budget Circular A-76 or any other related
administrative regulation, directive, or policy, and enforce
the rules that govern those studies.
(2) Clarification of scope of report.--This subsection does
not require the Government Accountability Office to examine the
rule-making authority of the Office of Management and Budget
with regard to OMB Circular A-76 or any other related
administrative regulation, directive, or policy.
(3) Consultation with agencies and stakeholders.--In
preparing the report under this subsection, the Comptroller
General of the United States should consult with personnel of
the Office of Management and Budget, staffing and manpower
personnel of other executive agencies, personnel in the offices
of other agencies' inspectors general, and representatives from
Federal employee unions and contractor associations.
SEC. 13. ESTABLISHMENT OF TEMPORARY SUSPENSION ON USE OF OMB CIRCULAR
A-76 PROCESS UNTIL REFORMS REQUIRED IN THIS ACT HAVE BEEN
SUBSTANTIALLY IMPLEMENTED.
No study or public-private competition regarding the conversion to
contractor performance of any function performed by Federal employees
pursuant to Office of Management and Budget Circular A-76 or any other
administrative regulation, directive, or policy, may be prepared for,
announced, undertaken, continued, or finished until the Director of the
Office of Management and Budget, in consultation with the inspectors
general of the 5 largest Federal departments in terms of annual budgets
as of the date of the enactment of this Act, determines that--
(1) at least three-fourths of all executive agencies have
made substantial progress in the implementation of all the
reforms--
(A) required in sections 6, 7, 8, and 9 of this
Act; and
(B) enacted pursuant to section 739 of the
Financial Services and General Government
Appropriations Act, 2008 (division D of Public Law 110-
161; 31 U.S.C. 501 note), under which each covered
executive agency is required to devise and implement
guidelines and procedures to ensure that consideration
is given to using, on a regular basis, Federal
employees to perform new functions as well as functions
that are currently performed by contractors; and
(2) the Office of Management and Budget has implemented the
reforms to the OMB Circular A-76 described under section 12.
<all>
Introduced in House
Introduced in House
Sponsor introductory remarks on measure. (CR E1326)
Referred to the House Committee on Oversight and Government Reform.
Referred to the Subcommittee on Government Management, Organization, and Procurement.
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