H. R. 1107—39 
(b) LIMITATION ON PAYMENT FOR ADVISORY AND ASSISTANCE SERV-
ICES.—No individual who is not an individual described in sub-
section (a) may be paid by an executive agency for services to 
conduct evaluations or analyses of any aspect of a proposal sub-
mitted for an acquisition unless personnel described in subsection 
(a) with adequate training and capabilities to perform the evalua-
tions and analyses are not readily available in the 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 avail-
able 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 affect the relationship between the Federal Government and 
a Federally funded 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 
ALLOWED.—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 com-
petition 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 
organization 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, including 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 performance by a contractor will 
result in savings to the Federal Government over the life 
of the contract, including— 
(i) the estimated cost to the Federal Government 
(based on offers received) for performance of the func-
tion by a contractor; 
(ii) the estimated cost to the Federal Government 
for performance of the function by agency civilian 
employees; and 
(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
H. R. 1107—40 
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) NOT A NEW REQUIREMENT.—A function that is performed 
by the executive agency and is reengineered, reorganized, mod-
ernized, upgraded, expanded, or changed to become more effi-
cient, but still essentially provides the same service, shall not 
be considered a new requirement. 
(3) PROHIBITIONS.—In no case may a function being per-
formed 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 cir-
cumvent a civilian personnel ceiling. 
(b) CONSULTING WITH AFFECTED EMPLOYEES
OR THEIR REP-
RESENTATIVES.— 
(1) CONSULTING WITH AFFECTED EMPLOYEES.—Each civilian 
employee of an executive agency responsible for determining 
under Office of Management and Budget Circular A76 whether 
to convert to contractor performance any function of the execu-
tive agency— 
(A) shall, at least monthly during the development and 
preparation of the performance work statement and the 
management efficiency study used in making that deter-
mination, consult with civilian employees who will be 
affected by that determination and consider the views of 
the employees on the development and preparation of that 
statement and that study; and 
(B) may consult with the employees on other matters 
relating to that determination. 
(2) CONSULTING WITH REPRESENTATIVES.— 
(A) EMPLOYEES
REPRESENTED
BY
A
LABOR
ORGANIZA-
TION.—In the case of employees represented by a labor 
organization accorded exclusive recognition under section 
7111 of title 5, consultation with representatives of that 
labor organization shall satisfy the consultation require-
ment 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 appro-
priate representatives of those employees shall satisfy the 
consultation requirement in paragraph (1). 
(3) REGULATIONS.—The head of each executive agency shall 
prescribe regulations to carry out this subsection. The regula-
tions shall include provisions for the selection or designation 
of appropriate representatives of employees referred to in para-
graph (2)(B) for purposes of consultation required by paragraph 
(1). 
(c) CONGRESSIONAL NOTIFICATION.—
H. R. 1107—41 
(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 
competition, and a specific identification of the budgetary 
line item from which funds will be used to cover the cost 
of the public-private 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 limitations 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 examina-
tion of the potential economic effect of performance of the 
function by a contractor on— 
(A) agency civilian employees who would be affected by 
such a conversion in performance; and 
(B) the local community and the Federal Government, 
if more than 50 agency civilian employees perform the 
function. 
(3) OBJECTIONS TO PUBLIC-PRIVATE COMPETITION.— 
(A) GROUNDS.—A representative individual or entity at 
a facility where a public-private competition is conducted 
may submit to the head of the executive agency an objection 
to the public-private competition on the grounds that— 
(i) the report required by paragraph (1) has not 
been submitted; or 
(ii) the certification required by paragraph (1)(E) 
was not included in the report required by paragraph 
(1). 
(B) DEADLINES.—The objection shall be in writing and 
shall be submitted within 90 days after the following date: 
(i) In the case of a failure to submit the report 
when required, the date on which the representative 
individual or an official of the representative entity 
authorized to pose the objection first knew or should 
have known of that failure. 
(ii) In the case of a failure to include the certification 
in a submitted report, the date on which the report 
was submitted to Congress. 
(C) REPORT AND CERTIFICATION REQUIRED BEFORE SOLICI-
TATION OR AWARD OF CONTRACT.—If the head of the execu-
tive agency determines that the report required by para-
graph (1) was not submitted or that the required certifi-
cation was not included in the submitted report, the func-
tion for which the public-private competition was conducted 
for which the objection was submitted may not be the 
subject of a solicitation of offers for, or award of, a contract