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SEC. 329. BID PROTESTS BY FEDERAL EMPLOYEES IN AC-
TIONS 
UNDER 
OFFICE 
OF 
MANAGEMENT 
BUDGET CIRCULAR A–76. 
(a) ELIGIBILITY TO PROTEST PUBLIC-PRIVATE COM-
PETITIONS.—Section 3551(2) of title 31, United States 
Code, is amended to read as follows: 
‘‘(2) The term ‘interested party’— 
‘‘(A) with respect to a contract or a solici-
tation or other request for offers described in 
paragraph (1), means an actual or prospective 
bidder or offeror whose direct economic interest 
would be affected by the award of the contract 
or by failure to award the contract; and 
‘‘(B) with respect to a public-private com-
petition conducted under Office of Management 
and Budget Circular A–76 with respect to the 
performance of an activity or function of a Fed-
eral agency, or a decision to convert a function 
performed by Federal employees to private sec-
tor performance without a competition under 
Office of Management and Budget Circular A– 
76, includes— 
‘‘(i) any official who submitted the 
agency tender in such competition; and 
‘‘(ii) any one individual who, for the 
purpose of representing the Federal em-
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ployees engaged in the performance of the 
activity or function for which the public- 
private competition is conducted in a pro-
test under this subchapter that relates to 
such public-private competition, has been 
designated as the agent of the Federal em-
ployees by a majority of such employees.’’. 
(b) EXPEDITED ACTION.— 
(1) IN GENERAL.—Subchapter V of chapter 35 
of such title is amended by adding at the end the 
following new section: 
‘‘SEC. 3557. EXPEDITED ACTION IN PROTESTS OF PUBLIC- 
PRIVATE COMPETITIONS. 
‘‘For any protest of a public-private competition con-
ducted under Office of Management and Budget Circular 
A–76 with respect to the performance of an activity or 
function of a Federal agency, the Comptroller General 
shall administer the provisions of this subchapter in the 
manner best suited for expediting the final resolution of 
the protest and the final action in the public-private com-
petition.’’. 
(2) CLERICAL AMENDMENT.—The chapter anal-
ysis at the beginning of such chapter is amended by 
inserting after the item relating to section 3556 the 
following new item: 
‘‘3557. Expedited action in protests of public-private competitions.’’.
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(c) RIGHT TO INTERVENE IN CIVIL ACTION.—Sec-
tion 1491(b) of title 28, United States Code, is amended 
by adding at the end the following new paragraph: 
‘‘(5) If an interested party who is a member of 
the private sector commences an action described in 
paragraph (1) with respect to a public-private com-
petition conducted under Office of Management and 
Budget Circular A–76 regarding the performance of 
an activity or function of a Federal agency, or a de-
cision to convert a function performed by Federal 
employees to private sector performance without a 
competition under Office of Management and Budg-
et Circular A–76, then an interested party described 
in section 3551(2)(B) of title 31 shall be entitled to 
intervene in that action.’’. 
(d) APPLICABILITY.—Subparagraph (B) of section 
3551(2) of title 31, United States Code (as added by sub-
section (a)), and paragraph (5) of section 1491(b) of title 
28, United States Code (as added by subsection (c)), shall 
apply to— 
(1) a protest or civil action that challenges final 
selection of the source of performance of an activity 
or function of a Federal agency that is made pursu-
ant to a study initiated under Office of Management
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and Budget Circular A–76 on or after January 1, 
2004; and 
(2) any other protest or civil action that relates 
to a public-private competition initiated under Office 
of Management and Budget Circular A–76, or to a 
decision to convert a function performed by Federal 
employees to private sector performance without a 
competition under Office of Management and Budg-
et Circular A–76, on or after the date of the enact-
ment of this Act. 
SEC. 330. PUBLIC-PRIVATE COMPETITION REQUIRED BE-
FORE CONVERSION TO CONTRACTOR PER-
FORMANCE. 
(a) IN GENERAL.—The Office of Federal Procure-
ment Policy Act (41 U.S.C. 403 et seq.) is amended by 
adding at the end the following new section: 
‘‘SEC. 43. PUBLIC-PRIVATE COMPETITION REQUIRED BE-
FORE CONVERSION TO CONTRACTOR PER-
FORMANCE. 
‘‘(a) PUBLIC-PRIVATE COMPETITION.—(1) A func-
tion of an executive agency performed by 10 or more agen-
cy civilian employees may not be converted, in whole or 
in part, to performance by a contractor unless the conver-
sion is based on the results of a public-private competition 
that—
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‘‘(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 A–76, as im-
plemented on May 29, 2003, or any successor cir-
cular; 
‘‘(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, reli-
ability, 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 contrac-
tors to demonstrate whether converting to perform-
ance by a contractor will result in savings to the 
Government 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 contractor; 
‘‘(ii) the estimated cost to the Government 
for performance of the function by agency civil-
ian employees; and
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‘‘(iii) an estimate of all other costs and ex-
penditures that the Government would incur be-
cause of the award of such a contract; 
‘‘(F) requires continued performance of the 
function by agency civilian employees unless the dif-
ference 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 solicita-
tion, 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 asso-
ciated with the performance of the function. 
‘‘(2) 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 essentially provides the same service, shall not be 
considered a new requirement. 
‘‘(3) In no case may a function being performed by 
executive agency personnel be—