HR 1107 RFS 
agency or another Federal agency. When administering this subsection, the 
head of each executive agency shall determine in accordance with standards 
and procedures prescribed in the Federal Acquisition Regulation whether— 
(1) a sufficient number of personnel described in subsection (a) in 
the agency or another Federal agency are readily available to perform 
a particular evaluation or analysis for the head of the executive agency 
making the determination; and 
(2) the readily available personnel have the training and capabilities 
necessary to perform the evaluation or analysis. 
(c) CERTAIN RELATIONSHIP NOT AFFECTED.—This section does not af-
fect the relationship between the Federal Government and a Federally fund-
ed research and development center. 
§ 1710. Public-private competition required before conver-
sion to contractor performance 
(a) PUBLIC-PRIVATE COMPETITION.— 
(1) WHEN
CONVERSION
TO
CONTRACTOR
PERFORMANCE
IS
AL-
LOWED.—A function of an executive agency performed by 10 or more 
agency civilian employees may not be converted, in whole 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 function 
by agency civilian employees with the cost of performance by a 
contractor; 
(B) creates an agency tender, including a most efficient organi-
zation plan, in accordance with Office of Management and Budget 
Circular A76, as implemented on May 29, 2003, 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, in-
cluding quality, 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 per-
formance by a contractor will result in savings to the Federal Gov-
ernment over the life of the contract, including— 
(i) the estimated cost to the Federal Government (based on 
offers received) for performance of the function by a con-
tractor; 
(ii) the estimated cost to the Federal Government for per-
formance of the function by agency civilian employees; and 
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HR 1107 RFS 
(iii) an estimate of all other costs and expenditures that the 
Federal Government would incur because of the award of the 
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 perform-
ance of the function by agency civilian employees would, over all 
performance periods required by the solicitation, be equal to or ex-
ceed the lesser of— 
(i) 10 percent of the personnel-related costs for perform-
ance of that function in the agency tender; or 
(ii) $10,000,000; and 
(G) examines the effect of performance of the function by a con-
tractor on the agency mission associated with the performance of 
the function. 
(2) NOT A NEW REQUIREMENT.—A function that is performed by 
the executive agency and is reengineered, reorganized, modernized, up-
graded, expanded, or changed to become more efficient, but still essen-
tially provides the same service, shall not be considered a new require-
ment. 
(3) PROHIBITIONS.—In 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) CONSULTING WITH AFFECTED EMPLOYEES OR THEIR REPRESENTA-
TIVES.— 
(1) CONSULTING WITH AFFECTED EMPLOYEES.—Each civilian em-
ployee of an executive agency responsible for determining under Office 
of Management and Budget Circular A76 whether to convert to con-
tractor performance any function of the executive agency— 
(A) shall, at least monthly during the development and prepara-
tion of the performance work statement and the management effi-
ciency study used in making that determination, consult with civil-
ian employees who will be affected by that determination and con-
sider the views of the employees on the development and prepara-
tion of that statement and that study; and 
(B) may consult with the employees on other matters relating 
to that determination. 
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(2) CONSULTING WITH REPRESENTATIVES.— 
(A) EMPLOYEES REPRESENTED BY A LABOR ORGANIZATION.— 
In the case of employees represented by a labor organization ac-
corded exclusive recognition under section 7111 of title 5, con-
sultation with representatives of that labor organization shall sat-
isfy the consultation requirement in paragraph (1). 
(B) EMPLOYEES NOT REPRESENTED BY A LABOR ORGANIZA-
TION.—In the case of employees other than employees referred to 
in subparagraph (A), consultation with appropriate representatives 
of those employees shall satisfy the consultation requirement in 
paragraph (1). 
(3) REGULATIONS.—The head of each executive agency shall pre-
scribe regulations to carry out this subsection. The regulations shall in-
clude provisions for the selection or designation of appropriate rep-
resentatives of employees referred to in paragraph (2)(B) for purposes 
of consultation required by paragraph (1). 
(c) CONGRESSIONAL NOTIFICATION.— 
(1) REPORT.—Before commencing a public-private competition 
under subsection (a), the head of an executive agency shall submit to 
Congress a report containing the following: 
(A) The function for which the public-private competition is to 
be conducted. 
(B) The location at which the function is performed by agency 
civilian employees. 
(C) The number of agency civilian employee positions potentially 
affected. 
(D) The anticipated length and cost of the public-private com-
petition, and a specific identification of the budgetary line item 
from which funds will be used to cover the cost of the public-pri-
vate competition. 
(E) A certification that a proposed performance of the function 
by a contractor is not a result of a decision by an official of an 
executive agency to impose predetermined constraints or limita-
tions on agency civilian employees in terms of man years, end 
strengths, full-time equivalent positions, or maximum number of 
employees. 
(2) EXAMINATION OF POTENTIAL ECONOMIC EFFECT.—The report 
required under paragraph (1) shall include an examination of the po-
tential economic effect of performance of the function by a contractor 
on— 
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