118 STAT. 1849 PUBLIC LAW 108–375—OCT. 28, 2004 (e) RULE OF CONSTRUCTION.—The amendments made by this section shall not be construed to authorize the use of a protest under subchapter V of chapter 35 of title 31, United States Code, with regard to a decision made by an agency tender official. SEC. 327. LIMITATIONS ON CONVERSION OF WORK PERFORMED BY DEPARTMENT OF DEFENSE CIVILIAN EMPLOYEES TO CONTRACTOR PERFORMANCE. (a) REQUIRED COST SAVINGS THRESHOLD FOR CONVERSION.— If a public private competition conducted under the Office of Management and Budget Circular A–76 dated May 29, 2003 (68 Fed. Reg. 32134), regarding an activity or function performed by civilian employees of the Department of Defense is required to include a formal comparison of the cost of civilian employee perform ance of the activity or function with the cost of contractor perform ance, the Secretary of Defense shall maintain the continued performance of the activity or function by civilian employees unless the competitive sourcing official determines that, over all perform ance periods stated in the solicitation of offers for performance of the activity or function, the cost of performance of the activity or function by a contractor would be less costly to the Department of Defense by an amount that equals or exceeds the lesser of the following: (1) $10,000,000. (2) 10 percent of the most efficient organization’s personnel related costs for performance of the activity or function by civilian employees. (b) PROHIBITION ON MODIFICATION OF FUNCTIONS TO PERMIT STREAMLINED A–76 STUDY.—The Secretary of Defense shall ensure that no organization, function, or activity of the Department of Defense is consolidated, restructured, reengineered, or otherwise modified in any way for the purpose of exempting any public private competition conducted under the Office of Management and Budget Circular A–76 dated May 29, 2003 (68 Fed. Reg. 32134), regarding a commercial or industrial type function of the Depart ment of Defense from the requirement to formally compare, in accordance with such Circular, the cost of civilian employee perform ance of the function with the cost of contractor performance. (c) EXCEPTION.—Subsection (a) does not apply in the case of a public private competition conducted as part of the best value source selection pilot program authorized by section 336 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108–136; 10 U.S.C. 2461 note). SEC. 328. COMPETITIVE SOURCING REPORTING REQUIREMENT. Not later than February 1, 2005, the Inspector General of the Department of Defense shall submit to Congress a report addressing whether the Department of Defense— (1) employs a sufficient number of adequately trained civilian employees— (A) to conduct satisfactorily, taking into account equity, efficiency and expeditiousness, all of the public private com petitions that are scheduled to be undertaken by the Department of Defense during the next fiscal year (including a sufficient number of employees to formulate satisfactorily the performance work statements and most efficient organization plans for the purposes of such com petitions); and 10 USC 2461 note. 31 USC 3551 note.
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