I 

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. SA ́NCHEZ 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Correction of Long-Standing Errors in Agencies’ 


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1 Unsustainable Procurements Act of 2009’’ or the 

2 ‘‘CLEAN-UP Act’’. 

3 (b) TABLE OF CONTENTS.—The table of contents for 

4 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. 

5 SEC. 2. DEFINITIONS. 

6 In this Act: 

7 (1) INHERENTLY GOVERNMENTAL FUNC8 TIONS.—The term ‘‘inherently governmental func9 tions’’ has the meaning given the term under section 

10 5 of the Federal Activities Inventory Act of 1998 

11 (31 U.S.C. 501 note) and subpart 7.5 of part 7 of 

12 the Federal Acquisition Regulation. 

13 (2) FUNCTIONS CLOSELY ASSOCIATED WITH IN14 HERENTLY GOVERNMENTAL FUNCTIONS.—The term 

15 ‘‘functions closely associated with inherently govern16 mental functions’’ means the functions described in 


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1 section 7.503(d) of the Federal Acquisition Regula2 tion that are recurring. 

3 (3) MISSION-ESSENTIAL FUNCTIONS.—The 

4 term ‘‘mission-essential functions’’ refers to func5 tions that, although neither necessarily inherently 

6 governmental nor necessarily closely related to an in7 herently governmental function, are nevertheless 

8 considered by executive agency officials to be more 

9 appropriate for performance by Federal employees. 

10 (4) BUSINESS PROCESS REENGINEERING

11 PROJECT.—The term ‘‘business process re12 engineering project’’ refers to a process whereby an 

13 existing organization is reinvented, consolidated, or 

14 expanded to result in a new organization whose per15 formance exceeds that of previous and comparable 

16 performers, whether performed by Federal employ17 ees or contractors or a combination of Federal em18 ployees and contractors. 

19 (5) EXECUTIVE AGENCY.—The term ‘‘executive 

20 agency’’ has the meaning given the term in section 

21 4 of the Office of Federal Procurement Policy Act 

22 (41 U.S.C. 403). 

23 (6) PERSONAL SERVICES CONTRACT.—The 

24 term ‘‘personal services contract’’ has the meaning 

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1 eral Acquisition Regulation, unless the functions to 

2 be performed under the contract are included in 

3 statutory exceptions, including sections 1296 and 

4 1091 of title 10, United States Code. 

5 (7) STANDARD STUDY.—The term ‘‘standard 

6 study’’ has the meaning given to the specific type of 

7 cost-comparison study outlined in attachment B in 

8 the OMB Circular A–76 process, as revised in May 

9 2003. 

10 SEC. 3. FINDINGS. 

11 Congress makes the following findings: 

12 (1) Functions that should have been performed 

13 by Federal employees because they are inherently 

14 governmental functions, functions that are closely 

15 related to inherently governmental functions and re16 curring, or mission-essential functions have been 

17 wrongly outsourced, including preparing budgets, de18 veloping policy, supporting acquisition, developing 

19 and interpreting regulations, developing reorganiza20 tions, and developing and implementing ‘‘competitive 

21 sourcing’’ plans. 

22 (2) Federal agencies have been pushed to 

23 outsource significant amounts of work with little 

24 competition, while Federal employees, despite having 

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1 ization reviews conducted since the circular was re2 vised in 2003, are rarely given opportunities to per3 form new work or outsourced work. 

4 (3) The capacity of the Federal Government to 

5 oversee contractors and the OMB Circular A–76 pri6 vatization process continues to decline, as dem7 onstrated in scandals involving reconstruction efforts 

8 in Iraq, Hurricane Katrina recovery efforts, and 

9 conditions at Walter Reed Army Medical Center. 

10 The Government Accountability Office (GAO), in 

11 two 2008 reports on the use of ‘‘competitive 

12 sourcing’’ in different agencies, determined that 

13 costs of A–76 privatization reviews often exceeded 

14 savings because of systematically bad direction from 

15 the Office of Management and Budget. In the latter 

16 report, on the Department of Labor, GAO wrote, 

17 ‘‘Without a better system to assess performance and 

18 track all of the costs associated with competitive 

19 sourcing, DoL cannot reliably assess whether com20 petitive sourcing truly provides the best deal for the 

21 taxpayers.’’. 

22 (4) The OMB Circular A–76 process retains 

23 fundamental inequities. The minimum cost differen24 tial fails to take into account the quantifiable costs 

25 (such as hiring consultants and diverting Federal 


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1 employees from their regular duties) of carrying out 

2 A–76 privatization studies. All in-house bids are 

3 charged 12 percent of their personnel costs for over4 head costs, even though a Department of Defense 

5 Inspector General study revealed that overhead costs 

6 may not differ significantly, if at all, whether the 

7 functions are kept in-house or contracted out, even 

8 in the case of studies of large numbers of Federal 

9 employees. Despite time limits established in law 

10 and as part of the OMB Circular process A–76 proc11 ess, privatization studies are allowed to continue in12 definitely. The longer an A–76 privatization study 

13 lasts, the more it costs to conduct, the less likely 

14 there are to be savings from that study, and the 

15 more likely it will cost taxpayers more than it will 

16 save. In fact, given the costs and controversies asso17 ciated with the OMB Circular A–76 privatization 

18 process, OMB should be encouraging agencies to use 

19 internal reengineering efforts, as OMB finally did, 

20 during the last year of George W. Bush’s presidency. 

21 SEC. 4. PURPOSES. 

22 The purposes of this Act are as follows: 

23 (1) To build upon the foundation established by 

24 the 110th Congress that suspended the use of the 

25 OMB Circular A–76 privatization process, required 


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1 all executive agencies to develop policies to promote 

2 the insourcing of new work and outsourced work, 

3 and required the Department of Defense to develop 

4 a comprehensive inventory of its service contracts. 

5 (2) To establish a policy that provides that— 

6 (A) Federal employees must perform inher7 ently governmental functions, functions closely 

8 related to inherently governmental functions, 

9 and mission essential functions; 

10 (B) other functions may be performed by 

11 Federal employees or contractors, depending on 

12 the needs of executive agencies and all relevant 

13 public-private competition requirements; and 

14 (C) Federal employees should not be sub15 ject to headcounts, personnel ceilings, or con16 straints, which force executive agencies to con17 tract out functions without public-private com18 petition. 

19 (3) To prevent executive agencies from con20 tracting out new functions if those new functions 

21 should be performed by Federal employees and re22 quire agencies to explain in annual reports to Con23 gress why functions ultimately contracted out were 

24 not considered for performance by Federal employ25 ees. 


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1 (4) To require executive agencies— 

2 (A) to determine which of their functions 

3 must actually be performed by Federal employ4 ees because the work is inherently govern5 mental, closely related to inherently govern6 mental work, or mission essential, and how 

7 many contractor employees are currently per8 forming those functions; 

9 (B) to report on how wrongly contracted 

10 out work will be insourced; and 

11 (C) to incrementally insource over several 

12 years 70 percent of the wrongly contracted out 

13 workload. 

14 (5) To require civilian agencies to establish in15 ventories to track the cost and quality, among other 

16 features, of specific contracts, based on the inven17 tory that the 110th Congress required the Depart18 ment of Defense to establish. 

19 (6) To require executive agencies to determine 

20 if they are now experiencing or will experience short21 ages of Federal employees and what their plans are 

22 for addressing these personnel shortfalls. 

23 (7) To encourage the use of a regulated alter24 native to the often costly and controversial OMB 

25 Circular A–76 process, including business process 


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1 reengineering, which is commonly used by executive 

2 agencies to generate efficiencies through internal re3 organizations. 

4 (8) To direct the President to undertake several 

5 reforms of the OMB Circular A–76 privatization 

6 process, including imposing time limitations on how 

7 long privatization studies can last, charging in-house 

8 bids only for actual overhead costs, and considering 

9 quantifiable costs of conducting A–76 privatization 

10 studies in the minimum differential. 

11 (9) To impose a temporary suspension on the 

12 use of the OMB Circular A–76 privatization process 

13 until the reforms required by this Act have been 

14 substantially implemented, consistent with the tem15 porary suspension on the same process enacted in 

16 the 110th Congress. 

17 SEC. 5. GENERAL PERSONNEL POLICY. 

18 (a) REQUIRED PERFORMANCE OF INHERENTLY GOV19 ERNMENTAL FUNCTIONS BY FEDERAL EMPLOYEES.— 

20 The head of each executive agency shall ensure that inher21 ently governmental functions, functions closely related to 

22 inherently governmental functions, and mission-essential 

23 functions are performed by Federal employees. 

24 (b) PERFORMANCE OF OTHER FUNCTIONS BY MORE

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1 PRIVATE COMPETITION REQUIREMENTS.—The head of 

2 each executive agency shall ensure that functions that are 

3 not inherently governmental functions, functions closely 

4 related to inherently governmental functions, or mission5 essential functions are performed by the more efficient 

6 form of personnel, whether Federal employees, contrac7 tors, or, in the case of the Department of Defense, mili8 tary personnel, consistent with requirements for quality 

9 and reliability and other needs of that executive agency 

10 and with all public-private competition requirements. 

11 (c) USE OF MOST EFFICIENT WORKFORCE.—Not12 withstanding any other provision of law, the heads of exec13 utive agencies shall not be constrained by any in-house 

14 personnel ceiling, headcount, or staffing limitation in en15 suring that functions are performed in the most efficient 

16 manner possible. 

17 (d) SHIFTING FUNCTIONS BETWEEN

18 WORKFORCES.—In developing personnel authorization re19 quests to Congress and in carrying out personnel policies 

20 generally, the head of each executive agency shall consider 

21 particularly the advantages of converting from one form 

22 of personnel (Federal or private contract personnel, or in 

23 the case of the Department of Defense, Federal, private 

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1 ently governmental functions, functions closely related to 

2 inherently governmental functions, or mission-essential 

3 functions using any relevant public-private competition 

4 processes. 

5 SEC. 6. CONSIDERATION OF IN-HOUSE PERFORMANCE RE6 QUIRED FOR NEW WORK. 

7 (a) FINDING.—Pursuant to section 739 of the Finan8 cial Services and General Government Appropriations Act, 

9 2008 (division D of Public Law 110–161; 31 U.S.C. 501 

10 note) each covered executive agency is required to devise 

11 and implement guidelines and procedures to ensure that 

12 consideration is given to using, on a regular basis, Federal 

13 employees to perform new functions. 

14 (b) CERTIFICATION REQUIRED BEFORE AWARDING

15 A SERVICE CONTRACT.—The Chief Acquisition Officer of 

16 each executive agency, or, if no such position exists, the 

17 executive agency’s representative on the Chief Acquisition 

18 Officers Council, shall, with respect to each service con19 tract entered into by such agency for the performance of 

20 a function or functions, including the award or placement 

21 of a task or delivery order or the exercise of an option 

22 under an existing contract, certify, together with sup23 porting rationales, that— 

24 (1) each function to be performed under such 

25 contract is not an inherently governmental function, 


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1 a function closely related to an inherently govern2 mental function, or a mission-essential function; 

3 (2) the contract is not actually an unauthorized 

4 personal services contract; and 

5 (3) performance by employees of the agency of 

6 the function to be performed by a contractor was ex7 plicitly considered, with particular consideration 

8 given if such function is comparable to functions al9 ready performed by Federal employees in the execu10 tive agency or another executive agency, either cur11 rently or within the last 10 years. 

12 (c) REPORTS REQUIRED.— 

13 (1) IN GENERAL.—Not later than November 1, 

14 2009, and annually thereafter, the head of each cov15 ered executive agency shall submit to the Director of 

16 the Office of Management and Budget a report on 

17 each of the service contracts for new work entered 

18 into during the previous fiscal year. 

19 (2) CONTENT.—Each report submitted under 

20 paragraph (1) shall describe the following: 

21 (A) Each function or functions performed 

22 under a contract with a contractor, the approxi23 mate number of employees used by contractors 

24 under each such contract, the date each such 

25 contract was entered into, the duration of each 


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1 contract, and each certification required under 

2 subsection (b). 

3 (B) Each new function that was assigned 

4 by the executive agency to employees of the 

5 agency, including, for each function, a brief de6 scription of the work, a determination of the 

7 dollar value, and the number of new Federal 

8 employees who were hired or transferred from 

9 the performance of other functions. 

10 (C) Any obstacles to assigning new func11 tions to Federal employees, as well as rec12 ommendations for legislation to overcome those 

13 obstacles. 

14 (d) PUBLICATION OF REPORTS REQUIRED.—The Di15 rector of the Office of Management and Budget shall 

16 promptly publish in the Federal Register information 

17 about obtaining each report prepared under subsection (c), 

18 including the names, addresses, and telephone numbers of 

19 the officials from whom the reports may be obtained. The 

20 reports shall also be made available on a publicly available 

21 Internet website. The Director shall remove proprietary 

22 and confidential information from reports made available 

23 pursuant to this section. 


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1 SEC. 7. TRANSITION TO FEDERAL EMPLOYEE PERFORM2 ANCE OF CERTAIN FUNCTIONS. 

3 (a) REPORT ON FUNCTIONS THAT SHOULD BE PER4 FORMED BY FEDERAL EMPLOYEES.— 

5 (1) REPORT REQUIRED.—Not later than 180 

6 days after the date of the enactment of this Act, the 

7 head of each executive agency shall submit to the 

8 Director of the Office of Management and Budget a 

9 report, to be known as the ‘‘Functions At Risk Re10 port’’, that— 

11 (A) describes any function that is, in whole 

12 or in part, an inherently governmental function, 

13 a function closely related to an inherently gov14 ernmental function, or a mission-essential func15 tion and which, despite the requirement that 

16 such function only be performed by Federal em17 ployees, is actually performed, in whole or in 

18 part, by a contractor (in this section referred to 

19 as an ‘‘at-risk function’’); 

20 (B) describes the number of contractor em21 ployees performing the function, in whole or in 

22 part, and the nature of their work; 

23 (C) includes a plan for ensuring that the 

24 function is performed by Federal employees; 

25 (D) identifies any impediments to carrying 

26 out such plan; and 


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1 (E) includes any recommendations for ad2 ditional legislation necessary to implement this 

3 section. 

4 (2) LIMITATION ON DESIGNEE.—The head of 

5 an affected executive agency may not assign respon6 sibility for compliance with the report requirement 

7 established by this subsection below the level of an 

8 assistant secretary. 

9 (3) PUBLICATION OF REPORTS REQUIRED.— 

10 The Director of the Office of Management and 

11 Budget shall promptly publish in the Federal Reg12 ister information about obtaining each report pre13 pared under paragraph (1), including the names, ad14 dresses, and telephone numbers of the officials from 

15 whom the reports may be obtained. The reports shall 

16 also be made available on a publicly available Inter17 net website. The Director shall remove proprietary 

18 and confidential information from reports made 

19 available pursuant to this section. 

20 (b) REQUIREMENT TO REDUCE NUMBER OF AT21 RISK FUNCTIONS.—The head of each executive agency 

22 shall reduce the total number of contractor employees re23 ported in that executive agency’s Functions At Risk Re24 port by— 


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1 (1) 5 percent within 1 year after the date of the 

2 enactment of this Act; 

3 (2) 10 percent within 2 years after the date of 

4 the enactment of this Act; 

5 (3) 20 percent within 3 years after the date of 

6 the enactment of this Act; 

7 (4) 40 percent within 4 years after the date of 

8 the enactment of this Act; 

9 (5) 60 percent within 5 years after the date of 

10 the enactment of this Act; and 

11 (6) 70 percent within 6 years after the date of 

12 the enactment of this Act. 

13 (c) EVALUATION OF SCHEDULE.—The Comptroller 

14 General of the United States shall— 

15 (1) evaluate the success of the incremental 

16 schedule required under subsection (b) in ensuring 

17 that functions that should be performed by Federal 

18 employees are actually performed by Federal em19 ployees; and 

20 (2) provide recommendations for future legisla21 tion, particularly with respect to addresses remain22 ing at-risk functions. 

23 (d) SUSPENSION OF REDUCTION SCHEDULE RE24 QUIREMENT.—The Director of the Office of Management 

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1 tions pursuant to subsection (b) for a particular executive 

2 agency for a specific period of time upon certifying to the 

3 Committee on Oversight and Government Reform of the 

4 House of Representatives and the Committee on Home5 land Security and Governmental Affairs of the Senate that 

6 compliance during that specific period of time would un7 dermine national security, homeland security, or patient 

8 care. 

9 SEC. 8. ESTABLISHMENT OF INVENTORIES AND REVIEWS 

10 OF CONTRACTS FOR SERVICES. 

11 (a) IN GENERAL.—Not later than June 30, 2010, 

12 and annually thereafter, the head of each executive agency 

13 subject to the Federal Activities Inventory Reform Act of 

14 1998 (Public Law 105–270; 31 U.S.C. 501 note), other 

15 than the Department of Defense, shall submit to the Di16 rector of the Office of Management and Budget an annual 

17 inventory of the activities performed during the preceding 

18 fiscal year pursuant to contracts for services for or on be19 half of such agency. 

20 (b) CONTENT.—The entry for an activity on an in21 ventory under this section shall include, for the fiscal year 

22 covered by such entry, the following: 

23 (1) The functions performed by the contractor. 

24 (2) Information regarding the contractor, the 

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1 tract, and the part of the agency whose require2 ments are being met through contractor performance 

3 of the function. 

4 (3) The funding source for the contract under 

5 which the function is performed. 

6 (4) The fiscal year for which the activity first 

7 appeared on an inventory under this section. 

8 (5) The number of full-time contractor employ9 ees (or its equivalent) compensated for the perform10 ance of the activity. 

11 (6) Whether the contract has been performed 

12 pursuant to a contract awarded on a noncompetitive 

13 basis, either originally or upon a subsequent re14 newal. 

15 (7) Whether the contract has been performed 

16 poorly, as determined by a contracting officer, dur17 ing the 5-year period preceding the date of such de18 termination, because of excessive costs or inferior 

19 quality. 

20 (c) FORM.—The inventory required under this section 

21 shall be submitted in unclassified form, but may include 

22 a classified annex. 

23 (d) PUBLICATION.—The Director of the Office of 

24 Management and Budget shall promptly publish in the 

25 Federal Register information about obtaining each report 


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1 prepared under subsection (a), including the names, ad2 dresses, and telephone numbers of the officials from whom 

3 the reports may be obtained. The reports shall be made 

4 available on a publicly available Internet website. The Di5 rector shall remove proprietary information from reports 

6 made available pursuant to this subsection. 

7 (e) REVIEW AND PLANNING REQUIREMENTS.—Not 

8 later than 90 days after the date on which an inventory 

9 is submitted under subsection (a), the head of each execu10 tive agency or an official designated personally by the 

11 agency head shall— 

12 (1) review the contracts and activities in the in13 ventory; 

14 (2) ensure that— 

15 (A) each contract on the list that is a per16 sonal services contract has been entered into, 

17 and is being performed, in accordance with ap18 plicable laws and regulations; 

19 (B) the activities on the list do not include 

20 any inherently governmental functions; and 

21 (C) to the maximum extent practicable, the 

22 activities on the list do not include any func23 tions closely associated with inherently govern24 mental functions; 


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1 (3) identify activities that should be considered 

2 for conversion to performance by civilian employees 

3 of the executive agency pursuant to section 739 of 

4 the Financial Services and General Government Ap5 propriations Act, 2008 (division D of Public Law 

6 110–161; 31 U.S.C. 501 note); and 

7 (4) develop a plan to provide for appropriate 

8 consideration of the conversion by June 30 of the 

9 following year of the activities identified under para10 graph (3), which shall be included as an attachment 

11 to the next required annual inventory. 

12 (f) RULE OF CONSTRUCTION.—Nothing in this sec13 tion shall be construed to authorize the performance of 

14 personal services by a contractor except as otherwise pro15 vided by law. 

16 (g) PRIORITY OF CONTRACTOR INVENTORY.—Not17 withstanding any other provision of law, prior to the sub18 mission to the Office of Management and Budget of an 

19 inventory pursuant to the Federal Activities Inventory Re20 form Act of 1998 (Public Law 105–270; 31 U.S.C. 501 

21 note), OMB Circular A–76, or any other related adminis22 trative regulation, directive, or policy, or to publication in 

23 the Federal Register, the head of an executive agency shall 

24 submit the inventory required under this section to Con25 gress and the Director of the Office of Management and 


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1 Budget and shall publish the inventory required under this 

2 section in the Federal Register. 

3 SEC. 9. IDENTIFYING AND ADDRESSING SHORTAGES OF 

4 FEDERAL EMPLOYEES. 

5 (a) ANNUAL STRATEGIC HUMAN CAPITAL PLAN RE6 QUIRED.—Not later than 1 year after the date of the en7 actment of this Act, and annually thereafter, the head of 

8 each executive agency shall submit to the Director of the 

9 Office of Management and Budget a strategic human cap10 ital plan to ensure the capability of the Federal employee 

11 workforce of the executive agency to perform its functions. 

12 (b) CONTENT.—Each strategic human capital plan 

13 submitted under subsection (a) shall include the following: 

14 (1) An assessment of— 

15 (A) the critical skills and competencies in 

16 the Federal employee workforce that will be 

17 needed to perform the executive agency’s func18 tions over the next 10 years, based on expected 

19 losses due to retirement and other attrition; and 

20 (B) gaps in the capability of the Federal 

21 employee workforce, both existing and pro22 jected, to perform the executive agency’s func23 tions over that period. 


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1 (2) A plan of action for developing the Federal 

2 employee workforce of the executive agency to ad3 dress the current or anticipated gaps, including— 

4 (A) specific hiring, promoting, and reten5 tion schedules, including the funding needed to 

6 achieve such schedules; and 

7 (B) specific strategies for developing, 

8 training, and promoting the Federal employee 

9 workforce of the executive agency, including the 

10 funding needed to implement such strategies. 

11 (c) ENHANCEMENT OF HUMAN CAPITAL PLAN12 NING.—All human capital planning efforts should be con13 sidered through any existing labor-management partner14 ship arrangements. 

15 (d) ADDRESSING GAPS IN FEDERAL

16 WORKFORCES.— 

17 (1) IN GENERAL.—The head of an executive 

18 agency may not conduct a public-private competition 

19 under Office of Management and Budget Circular 

20 A–76 or any other provision of law of any function 

21 that has been identified in the strategic human cap22 ital plan of such agency as one that either is experi23 encing or will experience a gap in its Federal em24 ployee workforce. 


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1 (2) SHORTCOMINGS CONSTITUTING GAPS IN

2 WORKFORCE.—For purposes of this section, gaps in 

3 the workforce include shortcomings— 

4 (A) in the skills and competencies of em5 ployees; 

6 (B) in the number of employees possessing 

7 such skills and competencies; and 

8 (C) in the skills and competencies of em9 ployees or in the number of employees that 

10 would make it difficult to effectively supervise a 

11 contractor and intelligently oversee its perform12 ance or reconstitute that function for perform13 ance within the agency in the event of con14 tractor nonperformance. 

15 (e) PUBLICATION.—The Director of the Office of 

16 Management and Budget shall promptly publish in the 

17 Federal Register information about obtaining each report 

18 prepared under subsection (a), including the names, ad19 dresses, and telephone numbers of the officials from whom 

20 the reports may be obtained. The reports shall be made 

21 available on a publicly available Internet website. 


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1 SEC. 10. EXPEDITED HIRING AUTHORITY FOR PERFORM2 ANCE OF CERTAIN FUNCTIONS BY FEDERAL 

3 EMPLOYEES. 

4 (a) EXPEDITED HIRING AUTHORITY.—For purposes 

5 of sections 3304, 5333, and 5753 of title 5, United States 

6 Code, the head of an executive agency may— 

7 (1) designate any category of professional posi8 tions within the agency as shortage category posi9 tions; and 

10 (2) utilize the authorities in such sections to re11 cruit and appoint highly qualified persons directly to 

12 positions so designated, 

13 in order to comply with the requirements of this Act, and 

14 section 739 of the Financial Services and General Govern15 ment Appropriations Act, 2008 (division D of Public Law 

16 110–161; 31 U.S.C. 501 note), which requires each cov17 ered executive agency to devise and implement guidelines 

18 and procedures to ensure that consideration is given to 

19 using, on a regular basis, Federal employees to perform 

20 new functions as well as functions that are currently per21 formed by contractors. 

22 (b) VETERANS PREFERENCE.—In using the author23 ity provided under this section, the head of an executive 

24 agency shall apply the principles of preference for the hir25 ing of veterans and other persons established in sub26 chapter 1 of chapter 33 of title 5, United States Code. 


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1 (c) TERMINATION OF AUTHORITY.—Expedited hiring 

2 authority may not be used to appoint a person to a posi3 tion of employment under this section after the date that 

4 is 6 years after the date of the enactment of this Act. 

5 (d) REPORT ON THE USE OF EXPEDITED HIRING

6 AUTHORITY.—Not later than December 31, 2009, and an7 nually thereafter for 3 years, the Office of Personnel Man8 agement shall submit to the Committee on Oversight and 

9 Government Reform of the House of Representatives and 

10 the Committee on Homeland Security and Governmental 

11 Affairs of the Senate a report on the use by executive 

12 agencies of the expedited hiring authority under this sec13 tion consistent with merit principles, including rec14 ommendations for how authority for expedited hiring 

15 might be improved. 

16 SEC. 11. ESTABLISHMENT OF BUSINESS PROCESS RE17 ENGINEERING PROJECTS AS A PREFERRED 

18 ALTERNATIVE TO THE OMB CIRCULAR A–76 

19 PROCESS. 

20 (a) STATEMENT OF POLICY.—Each executive agency 

21 should constantly strive to generate efficiencies and im22 provements through business process reengineering, even 

23 if such efforts reduce or increase the need for Federal em24 ployees and contractors. 


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1 (b) GUIDELINES.—The Director of the Office of 

2 Management and Budget shall develop guidelines for the 

3 establishment of business process reengineering projects. 

4 Such guidelines shall ensure consideration and assessment 

5 of the following: 

6 (1) The number of Federal employees and con7 tractor employees to be affected by the initiative, 

8 and how they will be affected. 

9 (2) The resources needed to conduct the initia10 tive. 

11 (3) The location or locations where the initia12 tive will be performed, and the location of the af13 fected Federal and contractor employees if different 

14 from the initiative location or locations. 

15 (4) The functions to be included in the initia16 tive. 

17 (5) The timeline for development and imple18 mentation of the initiative. 

19 (6) The estimated duration of the initiative if 

20 such initiative is deemed to be temporary. 

21 (7) The anticipated budget savings and pro22 grammatic improvements. 

23 (c) PRE-IMPLEMENTATION REPORT.—Not later than 

24 45 days before beginning implementation of a business 

25 process reengineering project, the head of the executive 


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1 agency shall submit to the Committee on Oversight and 

2 Government Reform of the House of Representatives and 

3 the Committee on Homeland Security and Governmental 

4 Affairs of the Senate a report on the proposed project, 

5 including the information described in subsection (b). 

6 (d) CONSISTENCY WITH EXISTING LAW.—All busi7 ness process reengineering projects shall be implemented 

8 in a manner that is consistent with paragraphs (2) and 

9 (3) of section 7106(b) of title 5, United States Code. Such 

10 projects shall not result in a change of the collective bar11 gaining status of affected Federal employees in the execu12 tive agency or in the representation status of a labor orga13 nization with exclusive representation status, as provided 

14 under section 7114 of title 5, United States Code. 

15 (e) ENHANCEMENT OF FEDERAL EMPLOYEE BUY16 IN.—The head of an executive agency shall, in order to 

17 promote the active cooperation of affected Federal employ18 ees— 

19 (1) consider all business process reengineering 

20 projects through any labor-management partnership 

21 arrangements; 

22 (2) provide any reports required under sub23 section (c) to any labor organization with national 

24 consultation rights under section 7113 of title 5, 


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1 United States Code, at least 60 days before they are 

2 provided to Congress under such subsection; and 

3 (3) involve discussions and bargaining over the 

4 impact of implementation of any projects upon any 

5 bargaining unit with the exclusive representatives of 

6 the executive agency’s Federal workforce, as pro7 vided under section 7114 and sections 7106(b)(2) 

8 and (b)(3) of title 5, United States Code. 

9 (f) PERSONNEL INCREASES OR REDUCTIONS.—Any 

10 personnel increases or reductions in the Federal employee 

11 or contractor workforces must be based on the require12 ments of a specific business process reengineering project 

13 and not on unrelated or predetermined cost and savings 

14 assumptions. 

15 (g) ANNUAL EVALUATION.—Not later than October 

16 31, 2010, and annually thereafter, the Director of the Of17 fice of Management and Budget shall conduct a perform18 ance review of ongoing business process reengineering 

19 projects and submit a report on such review to the Com20 mittee on Oversight and Government Reform of the House 

21 of Representatives and the Committee on Homeland Secu22 rity and Governmental Affairs of the Senate. Each busi23 ness process reengineering project shall be evaluated with 

24 respect to the level of performance in the following areas: 


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1 (1) Costs, savings, and overall financial per2 formance of the organization. 

3 (2) Organic knowledge, skills or expertise. 

4 (3) Efficiency and effectiveness of key functions 

5 or processes. 

6 (4) Efficiency and effectiveness of the overall 

7 organization. 

8 SEC. 12. REFORMS TO THE OMB CIRCULAR A–76 PROCESS. 

9 (a) SENSE OF CONGRESS.—It is the sense of Con10 gress that, with respect to Office of Management and 

11 Budget Circular A–76 or any other related administrative 

12 regulation, directive, or policy, the following policies and 

13 procedures should be implemented: 

14 (1) A standard study shall last no longer than 

15 2 years, from the beginning of the preliminary plan16 ning process to the rendering of the award decision, 

17 which period shall be calculated as follows: 

18 (A) Any days during which a standard 

19 study is suspended because of bid protests on 

20 behalf of the affected Federal employees shall 

21 not be included when determining the length of 

22 a standard study. 

23 (B) However, any days during which a 

24 standard study is extended because of addi25 tional activity that is either required by the 


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1 Government Accountability Office, directed by 

2 the contracting officer subsequent to an appeal 

3 to the Government Accountability Office or the 

4 dismissal or denial of a protest to the Govern5 ment Accountability Office shall be included 

6 when determining the length of a standard 

7 study. 

8 (C) No executive agency may stop and re9 start a standard study in order to avoid compli10 ance with this paragraph. Similarly, an execu11 tive agency may not subject a function to a 

12 standard study if it was earlier subjected to a 

13 standard study that had to be stopped because 

14 of the length limitation under this paragraph. 

15 (2) The conversion differential shall be— 

16 (A) significantly increased in order to in17 clude the large costs that are currently excluded 

18 from consideration, including preliminary plan19 ning costs, consultants costs, costs of Federal 

20 employees diverted from their actual jobs to 

21 work on studies, transition costs, post-competi22 tion reviews costs, and proportional costs for 

23 agencies’ privatization bureaucracies (including 

24 both Federal employees and contractors); and 


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1 (B) doubled when a standard study begins 

2 its thirteenth month, which period shall be cal3 culated as follows: 

4 (i) Any days during which a standard 

5 study is suspended because of bid protests 

6 on behalf of the affected Federal employees 

7 shall not be included when determining the 

8 length of a standard study for purposes of 

9 doubling the cost differential. 

10 (ii) However, any days during which a 

11 standard study is extended because of ad12 ditional activity that is either required by 

13 the Government Accountability Office, di14 rected by the contracting officer subse15 quent to an appeal to the Government Ac16 countability Office or the dismissal or de17 nial of a protest to the Government Ac18 countability Office shall be included when 

19 determining the length of a standard 

20 study. 

21 (3) Bids or tenders filed on behalf of Federal 

22 employees shall include only the overhead costs actu23 ally incurred for those Federal employees performing 

24 the specific functions being reviewed, and may not 


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1 include an assessment of an automatic charge for 

2 overhead. 

3 (4) A reliable system to track costs, savings, 

4 and quality from OMB Circular A–76 studies that 

5 has been implemented, tested, and determined to be 

6 accurate and reliable over a long-term and a short7 term period should be established. The system estab8 lished should also take into account the possibility 

9 for greater efficiencies and programmatic improve10 ments that can be generated through business proc11 ess reengineering projects, pursuant to section 10. 

12 (5) NO RECOMPETITION REQUIRED.—No Fed13 eral employee workforce should be recompeted under 

14 OMB Circular A–76 unless the head of the relevant 

15 executive agency, without delegation— 

16 (A) has signed a certification that such 

17 workforce failed to fulfill the terms of the letter 

18 of obligation or other agreement, as applicable, 

19 pursuant to an earlier OMB Circular A–76 

20 study; and 

21 (B) published that certification on 

22 fedbizopps.gov before the end of the expiration 

23 of the performance period. 

24 (b) GAO REPORT.— 


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1 (1) REPORT REQUIRED.—Not later than 18 

2 months after the date of the enactment of this Act, 

3 the Comptroller General of the United States shall 

4 submit to the Committee on Oversight and Govern5 ment Reform of the House of Representatives and 

6 the Committee on Homeland Security and Govern7 mental Affairs of the Senate a report with rec8 ommendations for executive agencies (other than the 

9 Office of Management and Budget) to more fairly, 

10 effectively, expeditiously, transparently, and apoliti11 cally oversee studies conducted under the Office of 

12 Management and Budget Circular A–76 or any 

13 other related administrative regulation, directive, or 

14 policy, and enforce the rules that govern those stud15 ies. 

16 (2) CLARIFICATION OF SCOPE OF REPORT.— 

17 This subsection does not require the Government 

18 Accountability Office to examine the rule-making au19 thority of the Office of Management and Budget 

20 with regard to OMB Circular A–76 or any other re21 lated administrative regulation, directive, or policy. 

22 (3) CONSULTATION WITH AGENCIES AND

23 STAKEHOLDERS.—In preparing the report under 

24 this subsection, the Comptroller General of the 

25 United States should consult with personnel of the 


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1 Office of Management and Budget, staffing and 

2 manpower personnel of other executive agencies, per3 sonnel in the offices of other agencies’ inspectors 

4 general, and representatives from Federal employee 

5 unions and contractor associations. 

6 SEC. 13. ESTABLISHMENT OF TEMPORARY SUSPENSION ON 

7 USE OF OMB CIRCULAR A–76 PROCESS UNTIL 

8 REFORMS REQUIRED IN THIS ACT HAVE 

9 BEEN SUBSTANTIALLY IMPLEMENTED. 

10 No study or public-private competition regarding the 

11 conversion to contractor performance of any function per12 formed by Federal employees pursuant to Office of Man13 agement and Budget Circular A–76 or any other adminis14 trative regulation, directive, or policy, may be prepared 

15 for, announced, undertaken, continued, or finished until 

16 the Director of the Office of Management and Budget, in 

17 consultation with the inspectors general of the 5 largest 

18 Federal departments in terms of annual budgets as of the 

19 date of the enactment of this Act, determines that— 

20 (1) at least three-fourths of all executive agen21 cies have made substantial progress in the imple22 mentation of all the reforms— 

23 (A) required in sections 6, 7, 8, and 9 of 

24 this Act; and 


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1 (B) enacted pursuant to section 739 of the 

2 Financial Services and General Government Ap3 propriations Act, 2008 (division D of Public 

4 Law 110–161; 31 U.S.C. 501 note), under 

5 which each covered executive agency is required 

6 to devise and implement guidelines and proce7 dures to ensure that consideration is given to 

8 using, on a regular basis, Federal employees to 

9 perform new functions as well as functions that 

10 are currently performed by contractors; and 

11 (2) the Office of Management and Budget has 

12 implemented the reforms to the OMB Circular A–76 

13 described under section 12. 

Æ 


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