(a)
(2) The guidelines and procedures required under paragraph (1) may not include any specific limitation or restriction on the number of functions or activities that may be converted to performance by Department of Defense civilian employees.
(b)
(1) is performed by a contractor and—
(A) is a critical function that—
(i) is necessary to maintain sufficient Government expertise and technical capabilities; or
(ii) entails operational risk associated with contractor performance;
(B) is an acquisition workforce function;
(C) is a function closely associated with the performance of an inherently governmental function;
(D) has been performed by Department of Defense civilian employees at any time during the previous 10-year period;
(E) has been performed pursuant to a contract awarded on a non-competitive basis; or
(F) has been performed poorly, as determined by a contracting officer during the 5-year period preceding the date of such determination, because of excessive costs or inferior quality; or
(2) is a new requirement, with particular emphasis given to a new requirement that is similar to a function previously performed by Department of Defense civilian employees or is a function closely associated with the performance of an inherently governmental function.
(c)
(1) in the case of a new Department of Defense function, assigning the performance of the function to Department of Defense civilian employees;
(2) in the case of any Department of Defense function described in subsection (b), converting the function to performance by Department of Defense civilian employees; or
(3) in the case of a Department of Defense function performed by Department of Defense civilian employees, expanding the scope of the function.
(d)
(2) The Secretary shall make use of the inventory required by section 2330a(c) of this title for the purpose of identifying functions that should be considered for performance by Department of Defense civilian employees pursuant to subsection (b).
(e)
(A) develop methodology for determining costs based on the guidance outlined in the Directive-Type Memorandum 09–007 entitled "Estimating and Comparing the Full Costs of Civilian and Military Manpower and Contractor Support" or any successor guidance for the determination of costs when costs are the sole basis for the determination;
(B) take into consideration any supplemental guidance issued by the Secretary of a military department for determinations affecting functions of that military department; and
(C) ensure that the difference in the cost of performing the function by a contractor compared to the cost of performing the function by Department of Defense civilian employees would be equal to or exceed the lesser of—
(i) 10 percent of the personnel-related costs for performance of that function; or
(ii) $10,000,000.
(2) Paragraph (1) shall not apply to any function that is inherently governmental or any function described in subparagraph (A), (B), or (C) of subsection (b)(1).
(f)
(g)
(1) The term "functions closely associated with inherently governmental functions" has the meaning given that term in section 2383(b)(3) of this title.
(2) The term "acquisition function" has the meaning given that term under section 1721(a) of this title.
(3) The term "inherently governmental function" has the meaning given that term in the Federal Activities Inventory Reform Act of 1998 (Public Law 105–270; 31 U.S.C. 501 note).
(Added Pub. L. 110–181, div. A, title III, §324(a)(1), Jan. 28, 2008, 122 Stat. 60; amended Pub. L. 111–383, div. A, title III, §353, Jan. 7, 2011, 124 Stat. 4194; Pub. L. 112–81, div. A, title IX, §938, Dec. 31, 2011, 125 Stat. 1547.)
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