10 U.S.C. § 2464 — Core logistics capabilities

Page 1947 TITLE 10—ARMED FORCES § 2464 and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title. PROHIBITION ON ESTABLISHING GOALS OR QUOTAS FOR CONVERSION OF FUNCTIONS TO PERFORMANCE BY DE- PARTMENT OF DEFENSE CIVILIAN EMPLOYEES Pub. L. 111–383, div. A, title III, § 323, Jan. 7, 2011, 124 Stat. 4184, as amended by Pub. L. 117–81, div. A, title XVII, § 1702(b)(2), Dec. 27, 2021, 135 Stat. 2155, provided that: ‘‘(a) PROHIBITION.—The Secretary of Defense may not establish, apply, or enforce any numerical goal, target, or quota for the conversion of Department of Defense functions to performance by Department of Defense ci- vilian employees, unless such goal, target, or quota is based on considered research and analysis, as required by section 2463, 3137 [sic, probably should refer to former section 235], or 4505 of title 10, United States Code. ‘‘(b) DECISIONS TO INSOURCE.—In deciding which func- tions should be converted to performance by Depart- ment of Defense civilian employees pursuant to section 2463 of title 10, United States Code, the Secretary of De- fense shall use the costing methodology outlined in the Directive-Type Memorandum 09–007 (Estimating and Comparing the Full Costs of Civilian and Military Man- power and Contractor Support) or any successor guid- ance for the determination of costs when costs are the sole basis for the decision. The Secretary of a military department may issue supplemental guidance to assist in such decisions affecting functions of that military department. ‘‘(c) REPORTS.— ‘‘(1) REPORT TO CONGRESS.—Not later than March 31, 2011, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the deci- sions with respect to the conversion of functions to performance by Department of Defense civilian em- ployees made during fiscal year 2010. Such report shall identify, for each such decision— ‘‘(A) the agency or service of the Department in- volved in the decision; ‘‘(B) the basis and rationale for the decision; and ‘‘(C) the number of contractor employees whose functions were converted to performance by De- partment of Defense civilian employees. ‘‘(2) COMPTROLLER GENERAL REVIEW.—Not later than 120 days after the submittal of the report under para- graph (1), the Comptroller General of the United States shall submit to the congressional defense com- mittees an assessment of the report. ‘‘(d) CONSTRUCTION.—Nothing in this section shall be construed— ‘‘(1) to preclude the Secretary of Defense from es- tablishing, applying, and enforcing goals for the con- version of acquisition functions and other critical functions to performance by Department of Defense civilian employees, where such goals are based on considered research and analysis; or ‘‘(2) to require the Secretary of Defense to conduct a cost comparison before making a decision to con- vert any acquisition function or other critical func- tion to performance by Department of Defense civil- ian employees, where factors other than cost serve as a basis for the Secretary’s decision.’’ DEADLINE FOR ISSUANCE OF GUIDELINES AND PROCEDURES Pub. L. 110–181, div. A, title III, § 324(a)(3), Jan. 28, 2008, 122 Stat. 61, provided that: ‘‘The Secretary of De- fense shall implement the guidelines and procedures re- quired under section 2463 of title 10, United States Code, as added by paragraph (1), by not later than 60 days after the date of the enactment of this Act [Jan. 28, 2008].’’ § 2464. Core logistics capabilities (a) NECESSITY FOR CORE LOGISTICS CAPABILI- TIES.—(1) It is essential for the national defense that the Department of Defense maintain a core logistics capability that is Government-owned and Government-operated (including Govern- ment personnel and Government-owned and Government-operated equipment and facilities) to ensure a ready and controlled source of tech- nical competence and resources necessary to en- sure effective and timely response to a mobiliza- tion, national defense contingency situations, and other emergency requirements. (2) The Secretary of Defense shall identify the core logistics capabilities described in para- graph (1) and the workload required to maintain those capabilities. (3) The core logistics capabilities identified under paragraphs (1) and (2) shall include those capabilities that are necessary to maintain and repair the weapon systems and other military equipment (including mission-essential weapon systems or materiel not later than four years after achieving initial operational capability, but excluding systems and equipment under spe- cial access programs, nuclear aircraft carriers, and commercial products or commercial serv- ices described in paragraph (5)) that are identi- fied by the Secretary, in consultation with the Chairman of the Joint Chiefs of Staff, as nec- essary to enable the armed forces to fulfill the strategic and contingency plans prepared by the Chairman of the Joint Chiefs of Staff under sec- tion 153(a) of this title. (4) The Secretary of Defense shall require the performance of core logistics workloads nec- essary to maintain the core logistics capabili- ties identified under paragraphs (1), (2), and (3) at Government-owned, Government-operated fa- cilities of the Department of Defense (including Government-owned, Government-operated fa- cilities of a military department) and shall as- sign such facilities sufficient workload to ensure cost efficiency and technical competence in peacetime while preserving the surge capacity and reconstitution capabilities necessary to sup- port fully the strategic and contingency plans referred to in paragraph (3). (5) The commercial products or commercial services covered by paragraph (3) are commer- cial products (as defined in section 103 of title 41) or commercial services (as defined in section 103a of such title) that have been sold or leased in substantial quantities to the general public and are purchased without modification in the same form that they are sold in the commercial marketplace, or with minor modifications to meet Federal Government requirements. (b) LIMITATION ON CONTRACTING.—(1) Except as provided in paragraph (2), performance of work- load needed to maintain a logistics capability identified by the Secretary under subsection (a)(2) may not be contracted for performance by non-Government personnel under the procedures and requirements of Office of Management and Budget Circular A–76 or any successor adminis- trative regulation or policy (hereinafter in this section referred to as OMB Circular A–76). (2) The Secretary of Defense may waive para- graph (1) in the case of any such logistics capa- Page 1948 TITLE 10—ARMED FORCES § 2464 bility and provide that performance of the work- load needed to maintain that capability shall be considered for conversion to contractor perform- ance in accordance with OMB Circular A–76. Any such waiver shall be made under regulations prescribed by the Secretary and shall be based on a determination by the Secretary that Gov- ernment performance of the workload is no longer required for national defense reasons. Such regulations shall include criteria for deter- mining whether Government performance of any such workload is no longer required for national defense reasons. (3)(A) A waiver under paragraph (2) may not take effect until the expiration of the first pe- riod of 30 days of continuous session of Congress that begins on or after the date on which the Secretary submits a report on the waiver to the Committee on Armed Services and the Com- mittee on Appropriations of the Senate and the Committee on Armed Services and the Com- mittee on Appropriations of the House of Rep- resentatives. (B) For the purposes of subparagraph (A)— (i) continuity of session is broken only by an adjournment of Congress sine die; and (ii) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of any period of time in which Congress is in continuous session. (c) NOTIFICATION OF DETERMINATIONS REGARD- ING CERTAIN COMMERCIAL PRODUCTS OR COMMER- CIAL SERVICES.—The first time that a weapon system or other item of military equipment de- scribed in subsection (a)(3) is determined to be a commercial product or commercial service for the purposes of the exception contained in that subsection, the Secretary of Defense shall sub- mit to Congress a notification of the determina- tion, together with the justification for the de- termination. The justification for the deter- mination shall include, at a minimum, the fol- lowing: (1) The estimated percentage of com- monality of parts of the version of the item that is sold or leased in the commercial mar- ketplace and the Government’s version of the item. (2) The value of any unique support and test equipment and tools that are necessary to sup- port the military requirements if the item were maintained by the Government. (3) A comparison of the estimated life cycle logistics support costs that would be incurred by the Government if the item were main- tained by the private sector with the esti- mated life cycle logistics support costs that would be incurred by the Government if the item were maintained by the Government. (d) BIENNIAL CORE REPORT.—Not later than April 1 of each even-numbered year, the Sec- retary of Defense shall submit to Congress a re- port identifying, for each of the armed forces (except for the Coast Guard), for the fiscal year after the fiscal year during which the report is submitted, each of the following: (1) The core depot-level maintenance and re- pair capability requirements and sustaining workloads, organized by work breakdown structure, expressed in direct labor hours. (2) The corresponding workloads necessary to sustain core depot-level maintenance and repair capability requirements, expressed in direct labor hours and cost. (3) In any case where core depot-level main- tenance and repair capability requirements ex- ceed or are expected to exceed sustaining workloads, a detailed rationale for any and all shortfalls and a plan either to correct or miti- gate the effects of the shortfalls. (4) Any workload shortfalls at any work breakdown structure category designated as a lower-level category pursuant to Department of Defense Instruction 4151.20, or any successor instruction. (5) A description of any workload executed at a category designated as a first-level cat- egory pursuant to such Instruction, or any successor instruction, that could be used to mitigate shortfalls in similar categories. (6) A description of any progress made on implementing mitigation plans developed pur- suant to paragraph (3). (7) A description of core capability require- ments and corresponding workloads at the first level category. (8) In the case of any shortfall that is identi- fied, a description of the shortfall and an iden- tification of the subcategory of the work breakdown structure in which the shortfall oc- curred. (9) In the case of any work breakdown struc- ture category designated as a special interest item or other pursuant to such Instruction, or any successor instruction, an explanation for such designation. (10) Whether the core depot-level mainte- nance and repair capability requirements de- scribed in the report submitted under this sub- section for the preceding fiscal year have been executed. (Added and amended Pub. L. 112–239, div. A, title III, § 322(b)(2)(A), (d), Jan. 2, 2013, 126 Stat. 1695; Pub. L. 115–91, div. A, title III, § 332, Dec. 12, 2017, 131 Stat. 1354; Pub. L. 115–232, div. A, title VIII, § 836(e)(10), Aug. 13, 2018, 132 Stat. 1870; Pub. L. 118–31, div. A, title III, § 342, Dec. 22, 2023, 137 Stat. 224.) Editorial Notes CODIFICATION Section 322(b)(2)(A) of Pub. L. 112–239, cited as a cred- it to this section, revived section 2464 of this title as in effect the day before the date of the enactment of Pub. L. 112–81, Dec. 31, 2011. See Prior Provisions note below. PRIOR PROVISIONS A prior section 2464, added Pub. L. 100–370, § 2(a)(1), July 19, 1988, 102 Stat. 853; amended Pub. L. 101–189, div. A, title XVI, § 1622(c)(7), Nov. 29, 1989, 103 Stat. 1604; Pub. L. 104–106, div. A, title III, § 314, Feb. 10, 1996, 110 Stat. 251; Pub. L. 105–85, div. A, title III, § 356(a), Nov. 18, 1997, 111 Stat. 1694; Pub. L. 105–261, div. A, title III, § 343(a), Oct. 17, 1998, 112 Stat. 1976; Pub. L. 106–65, div. A, title X, § 1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 112–81, div. A, title III, § 327(a), Dec. 31, 2011, 125 Stat. 1366, related to core depot-level maintenance and repair capabilities prior to repeal by Pub. L. 112–239, div. A, title III, § 322(a)(2), Jan. 2, 2013, 126 Stat. 1694. AMENDMENTS 2023—Subsec. (e). Pub. L. 118–31 struck out subsec. (e). Text read as follows: ‘‘The Comptroller General of the Page 1949 TITLE 10—ARMED FORCES § 2465 United States shall review each report submitted under subsection (d) for completeness and compliance and shall submit to the congressional defense committees findings and recommendations with respect to the re- port by not later than 60 days after the date on which the report is submitted to Congress.’’ 2018—Subsec. (a)(3). Pub. L. 115–232, § 836(e)(10)(A)(i), substituted ‘‘commercial products or commercial serv- ices’’ for ‘‘commercial items’’. Subsec. (a)(5). Pub. L. 115–232, § 836(e)(10)(A)(ii), sub- stituted ‘‘The commercial products or commercial services covered by paragraph (3) are commercial prod- ucts (as defined in section 103 of title 41) or commercial services (as defined in section 103a of such title)’’ for ‘‘The commercial items covered by paragraph (3) are commercial items’’. Subsec. (c). Pub. L. 115–232, § 836(e)(10)(B), in heading, substituted ‘‘Commercial Products or Commercial Services’’ for ‘‘Commercial Items’’ and, in introductory provisions, substituted ‘‘commercial product or com- mercial service’’ for ‘‘commercial item’’. 2017—Subsec. (d)(4) to (10). Pub. L. 115–91 added pars. (4) to (10). 2013—Subsecs. (d), (e). Pub. L. 112–239, § 322(d), added subsecs. (d) and (e). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–232 effective Jan. 1, 2020, subject to a savings provision, see section 836(h) of Pub. L. 115–232, set out as an Effective Date of 2018 Amend- ment; Savings Provision note under section 453b of Title 6, Domestic Security. EFFECTIVE DATE Section and amendment by Pub. L. 112–239 effective Dec. 31, 2011, immediately after enactment of Pub. L. 112–81. See section 322(f) of Pub. L. 112–239, set out as an Effective Date of 2013 Amendment note under section 4251 of this title. UPDATED GUIDANCE REGARDING BIENNIAL CORE REPORT Pub. L. 115–91, div. A, title III, § 338, Dec. 12, 2017, 131 Stat. 1360, provided that: ‘‘To ensure that the biennial core reporting procedures of the Department of Defense align with the requirements of section 2464 of title 10, United States Code, and that each reporting agency provides accurate and complete information, the Sec- retary of Defense shall direct the Under Secretary of Defense for Acquisition, Technology and Logistics to update the Department of Defense Guidance, in par- ticular Department of Defense Instruction 4151.20, to require future biennial core reports include instruc- tions to the reporting agencies on how to— ‘‘(1) report additional depot workload performed that has not been identified as a core requirement; ‘‘(2) accurately capture inter-service workload; ‘‘(3) calculate shortfalls; and ‘‘(4) estimate the cost of planned workload.’’ § 2465. Prohibition on contracts for performance of firefighting or security-guard functions (a) Except as provided in subsection (b), funds appropriated to the Department of Defense may not be obligated or expended for the purpose of entering into a contract for the performance of firefighting or security-guard functions at any military installation or facility. (b) The prohibition in subsection (a) does not apply to the following contracts: (1) A contract to be carried out at a location outside the United States (including its com- monwealths, territories, and possessions) at which members of the armed forces would have to be used for the performance of a func- tion described in subsection (a) at the expense of unit readiness. (2) A contract to be carried out on a Govern- ment-owned but privately operated installa- tion. (3) A contract (or the renewal of a contract) for the performance of a function under con- tract on September 24, 1983. (4) A contract for the performance of fire- fighting functions if the contract is— (A) for a period of one year or less; and (B) covers only the performance of fire- fighting functions that, in the absence of the contract, would have to be performed by members of the armed forces who are not readily available to perform such functions by reason of a deployment. (Added Pub. L. 99–661, div. A, title XII, § 1222(a)(1), Nov. 14, 1986, 100 Stat. 3976, § 2693; amended Pub. L. 100–180, div. A, title XI, § 1112(a)–(b)(2), Dec. 4, 1987, 101 Stat. 1147; renum- bered § 2465, Pub. L. 100–370, § 2(b)(1), July 19, 1988, 102 Stat. 854; Pub. L. 104–106, div. A, title XV, § 1503(a)(25), Feb. 10, 1996, 110 Stat. 512; Pub. L. 108–136, div. A, title III, § 331, Nov. 24, 2003, 117 Stat. 1442.) Editorial Notes AMENDMENTS 2003—Subsec. (b). Pub. L. 108–136 substituted ‘‘apply to the following contracts:’’ for ‘‘apply—’’ in introduc- tory provisions, ‘‘A’’ for ‘‘to a’’ at beginning of pars. (1) to (3), period for semicolon at end of par. (1), and period for ‘‘; or’’ at end of par. (2), and added par. (4). 1996—Subsec. (b)(3). Pub. L. 104–106 substituted ‘‘under contract on September 24, 1983’’ for ‘‘under con- tract or September 24, 1983’’. 1988—Pub. L. 100–370 renumbered section 2693 of this title as this section. 1987—Pub. L. 100–180 inserted ‘‘or security-guard’’ be- fore ‘‘functions’’ in section catchline and subsec. (a), and substituted ‘‘a function’’ for ‘‘the function’’ in sub- sec. (b)(1). Statutory Notes and Related Subsidiaries TEMPORARY AUTHORITY TO CONTRACT WITH LOCAL AND STATE GOVERNMENTS FOR PERFORMANCE OF SECURITY FUNCTIONS AT UNITED STATES MILITARY INSTALLA- TIONS Pub. L. 107–56, title X, § 1010, Oct. 26, 2001, 115 Stat. 395, which provided authority, during Operation Endur- ing Freedom and the subsequent 180 days, to use de- fense funds to contract with local and state govern- ments to perform security functions at military instal- lations, was repealed by Pub. L. 115–232, div. A, title VIII, § 812(b)(53), Aug. 13, 2018, 132 Stat. 1850. PERFORMANCE OF EMERGENCY RESPONSE FUNCTIONS AT CHEMICAL WEAPONS STORAGE INSTALLATIONS Pub. L. 106–398, § 1 [[div. A], title III, § 355], Oct. 30, 2000, 114 Stat. 1654, 1654A–75, provided that: ‘‘(a) RESTRICTION ON CONVERSION.—The Secretary of the Army may not convert to contractor performance the emergency response functions of any chemical weapons storage installation that, as of the date of the enactment of this Act [Oct. 30, 2000], are performed for that installation by employees of the United States until the certification required by subsection (c) has been submitted in accordance with that subsection. ‘‘(b) COVERED INSTALLATIONS.—For the purposes of this section, a chemical weapons storage installation is any installation of the Department of Defense on which lethal chemical agents or munitions are stored.