Pub. L. 111-8, div. D, tit. VII, sec. 736

Sec. 736. Section 739 of division D of the Consolidated Appropriations Act, 2008 (Public Law 110–161; 121 Stat. 2030) is amended by striking subsection (b) and inserting the following:“(b) Guidelines on Insourcing New and Contracted Out Functions.—“(1) Guidelines required.—(A) The heads of executive agencies subject to the Federal Activities Inventory Reform Act of 1998 (Public Law 105–270; 31 U.S.C. 501 note) shall devise and implement guidelines and procedures to ensure that 123 STAT. 690 consideration is given to using, on a regular basis, Federal employees to perform new functions and functions that are performed by contractors and could be performed by Federal employees.“(B) The guidelines and procedures required under subparagraph (A) may not include any specific limitation or restriction on the number of functions or activities that may be converted to performance by Federal employees.“(2) Special consideration for certain functions.—The guidelines and procedures required under paragraph (1) shall provide for special consideration to be given to using Federal employees to perform any function that—“(A) is performed by a contractor and—“(i) has been performed by Federal employees at any time during the previous 10 years;“(ii) is a function closely associated with the performance of an inherently governmental function;“(iii) has been performed pursuant to a contract awarded on a non-competitive basis; or“(iv) 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; or“(B) is a new requirement, with particular emphasis given to a new requirement that is similar to a function previously performed by Federal employees or is a function closely associated with the performance of an inherently governmental function.“(3) Exclusion of certain functions from competitions.—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 or regulation before—“(A) in the case of a new agency function, assigning the performance of the function to Federal employees;“(B) in the case of any agency function described in paragraph (2), converting the function to performance by Federal employees; or“(C) in the case of an agency function performed by Federal employees, expanding the scope of the function.“(4) Deadline.—(A) The head of each executive agency shall implement the guidelines and procedures required under this subsection by not later than 120 days after the date of the enactment of this subsection.“(B) Not later than 210 days after the date of the enactment of this subsection, the Government Accountability Office shall submit a report on the implementation of this subsection to the Committees on Appropriations of the House of Representatives and the Senate, the Committee on Oversight and Government Reform of the House of Representatives, and the Committee on Homeland Security and Governmental Affairs of the Senate.“(5) Definitions.—In this subsection:“(A) The term ‘inherently governmental functions’ has the meaning given such term in subpart 7.5 of part 7 of the Federal Acquisition Regulation.123 STAT. 691“(B) The term ‘functions closely associated with inherently governmental functions’ means the functions described in section 7.503(d) of the Federal Acquisition Regulation.“(6) Applicability.—This subsection shall not apply to the Department of Defense.”.