12 2 STA T .64PUBLIC LA W 11 0– 1 8 1 —J A N .28 , 2008 ‘ ‘ SEC.43 . PUBLI C - P R I VAT EC OM PETITIO N RE Q UIRE D BE F ORE CONVER- SION TO CONTRACTOR PERFORMANCE. ‘ ‘ (a)PUBLIC- P R I VATECOMP ETITIO N.— ( 1 ) Afunctio nofan ex ecu- ti v ea g enc yp e r for m e db y1 0 or more agency civi l ian employee s may not be converted , in wh ole or in part, to performance by a contractor unless the conversion is based on the results of a public-private competition that— ‘‘(A) formally compares the cost of performance of the func- tion by agency civilian employees with the cost of performance by a contractor
‘‘( B ) creates an agency tender, including a most efficient organi z ation plan, in accordance with O ffice of M anagement and Budget Circular A –76 , as implemented on May 29 , 200 3 , or any successor circular; ‘‘(C) includes the issuance of a solicitation; ‘‘( D ) determines whether the submitted offers meet the needs of the executive agency with respect to factors other than cost, including q uality, reliability, and timeliness; ‘‘( E ) examines the cost of performance of the function by agency civilian employees and the cost of performance of the function by one or more contractors to demonstrate whether converting to performance by a contractor will result in savings to the G overnment over the life of the contract, including— ‘‘(i) the estimated cost to the Government (based on offers received) for performance of the function by a con- tractor; ‘‘(ii) the estimated cost to the Government for perform- ance of the function by agency civilian employees; and ‘‘(iii) an estimate of all other costs and expenditures that the Government would incur because of the award of such a contract; ‘‘( F ) requires continued performance of the function by agency civilian employees unless the difference in the cost of performance of the function by a contractor compared to the cost of performance of the function by agency civilian employees would, over all performance periods required by the solicitation, be equal to or exceed the lesser of— ‘‘(i) 10 percent of the personnel-related costs for performance of that function in the agency tender; or ‘‘(ii) $ 10,000,000; and ‘‘(G) examines the effect of performance of the function by a contractor on the agency mission associated with the performance of the function. ‘‘(2) A function that is performed by the executive agency and is reengineered, reorganized, modernized, upgraded, expanded, or changed to become more efficient, but still essentially provides the same service, shall not be considered a new requirement. ‘‘(3) I n no case may a function being performed by executive agency personnel be— ‘‘(A) modified, reorganized, divided, or in any way changed for the purpose of exempting the conversion of the function from the requirements of this section; or ‘‘(B) converted to performance by a contractor to circumvent a civilian personnel ceiling. ‘‘(b) R E Q UIREMENT TO CON S ULT EMPLO Y EES.—(1) Each civilian employee of an executive agency responsible for determining under 41USC 4 39.
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