41 U.S.C. § 1710 — Public-private competition required be-

Page 52 TITLE 41—PUBLIC CONTRACTS § 1709 In subsection (e)(1)(B)(i), the words ‘‘required for a bid or proposal for a contract described in’’ are sub- stituted for ‘‘required by’’ for clarity. In subsection (e)(1)(B)(ii), the words ‘‘required for an order described in’’ are substituted for ‘‘required by’’ for clarity. Editorial Notes AMENDMENTS 2021—Subsec. (b)(2)(A). Pub. L. 117–81 substituted ‘‘section 3204(a)’’ for ‘‘section 2304(c)’’. 2018—Subsecs. (c)(6), (e)(3). Pub. L. 115–232 substituted ‘‘commercial products or commercial services’’ for ‘‘commercial items’’. 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. APPLICABILITY TO TENNESSEE VALLEY AUTHORITY Pub. L. 98–577, title III, § 303(c), Oct. 30, 1984, 98 Stat. 3079, provided that: ‘‘The provisions of the amendments made by subsection (a) of this section [see Tables for classification] shall apply to the Tennessee Valley Au- thority only with respect to procurements to be paid from appropriated funds.’’ § 1709. Contracting functions performed by Fed- eral personnel (a) COVERED PERSONNEL.—Personnel referred to in subsection (b) are— (1) an employee, as defined in section 2105 of title 5; (2) a member of the armed forces; and (3) an individual assigned to a Federal agen- cy pursuant to subchapter VI of chapter 33 of title 5. (b) LIMITATION ON PAYMENT FOR ADVISORY AND ASSISTANCE SERVICES.—No individual who is not an individual described in subsection (a) may be paid by an executive agency for services to con- duct evaluations or analyses of any aspect of a proposal submitted for an acquisition unless personnel described in subsection (a) with ade- quate training and capabilities to perform the evaluations and analyses are not readily avail- able in the agency or another Federal agency. When administering this subsection, the head of each executive agency shall determine in ac- cordance with standards and procedures pre- scribed in the Federal Acquisition Regulation whether— (1) a sufficient number of personnel de- scribed in subsection (a) in the agency or an- other Federal agency are readily available 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 be- tween the Federal Government and a Federally funded research and development center. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3714.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1709(a) ........ 41:419(b). Pub. L. 93–400, § 23, as added Pub. L. 103–355, title VI, § 6002(a), Oct. 13, 1994, 108 Stat. 3363. 1709(b) ........ 41:419(a). 1709(c) ........ 41:419(c). In subsection (a), before paragraph (1), the words ‘‘Personnel referred to in subsection (b) are’’ are sub- stituted for ‘‘For purposes of subsection (a) of this sec- tion, the personnel described in this subsection are as follows’’ to eliminate unnecessary words. In paragraph (3), the words ‘‘employee from State or local govern- ments’’ are substituted for ‘‘person’’ for clarity. SENATE REVISION AMENDMENT In subsec. (a)(3), ‘‘individual’’ substituted for ‘‘em- ployee from State or local governments’’ by S. Amdt. 4726 (111th Cong.). See 156 Cong. Rec. 18682 (2010). Statutory Notes and Related Subsidiaries REQUIREMENT FOR GUIDANCE AND REGULATIONS Pub. L. 103–355, title VI, § 6002(b), Oct. 13, 1994, 108 Stat. 3363, provided that: ‘‘The Federal Acquisition Regulatory Council established by section 25(a) of the Office of Federal Procurement Policy Act ([former] 41 U.S.C. 421(a)) [now 41 U.S.C. 1302(a)] shall— ‘‘(1) review part 37 of title 48 of the Code of Federal Regulations as it relates to the use of advisory and assistance services; and ‘‘(2) provide guidance and promulgate regulations regarding— ‘‘(A) what actions Federal agencies are required to take to determine whether expertise is readily available within the Federal Government before contracting for advisory and technical services to conduct acquisitions; and ‘‘(B) the manner in which personnel with exper- tise may be shared with agencies needing expertise for such acquisitions.’’ § 1710. Public-private competition required be- fore conversion to contractor performance (a) PUBLIC-PRIVATE COMPETITION.— (1) WHEN CONVERSION TO CONTRACTOR PER- FORMANCE IS ALLOWED.—A function of an exec- utive agency performed by 10 or more agency civilian employees may not be converted, in whole or in part, to performance by a con- tractor unless the conversion is based on the results of a public-private competition that— (A) formally compares the cost of perform- ance of the function by agency civilian em- ployees with the cost of performance by a contractor; (B) creates an agency tender, including a most efficient organization plan, in accord- ance 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 of- fers meet the needs of the executive agency with respect to factors other than cost, in- cluding 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 con- tractor will result in savings to the Federal Page 53 TITLE 41—PUBLIC CONTRACTS § 1710 Government over the life of the contract, in- cluding— (i) the estimated cost to the Federal Government (based on offers received) for performance of the function by a con- tractor; (ii) the estimated cost to the Federal Government for performance of the func- tion 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 un- less the difference 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 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, modernized, up- graded, expanded, or changed to become more efficient, but still essentially provides the same service, shall not be considered a new re- quirement. (3) PROHIBITIONS.—In no case may a function being performed by executive agency per- sonnel be— (A) modified, reorganized, divided, or in any way changed for the purpose of exempt- ing the conversion of the function from the requirements of this section; or (B) converted to performance by a con- tractor to circumvent a civilian personnel ceiling. (b) CONSULTING WITH AFFECTED EMPLOYEES OR THEIR REPRESENTATIVES.— (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 executive agency— (A) shall, at least monthly during the de- velopment and preparation of the perform- ance 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 determina- tion. (2) CONSULTING WITH REPRESENTATIVES.— (A) EMPLOYEES REPRESENTED BY A LABOR ORGANIZATION.—In the case of employees rep- resented by a labor organization accorded exclusive recognition under section 7111 of title 5, consultation with representatives of that labor organization shall satisfy the con- sultation requirement in paragraph (1). (B) EMPLOYEES NOT REPRESENTED BY A LABOR ORGANIZATION.—In the case of employ- ees other than employees referred to in sub- paragraph (A), consultation with appropriate representatives of those employees shall sat- isfy the consultation requirement in para- graph (1). (3) REGULATIONS.—The head of each execu- tive agency shall prescribe regulations to carry out this subsection. The regulations shall include provisions for the selection or designation of appropriate representatives of employees referred to in paragraph (2)(B) for purposes of consultation required by para- graph (1). (c) CONGRESSIONAL NOTIFICATION.— (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-pri- vate competition is to be conducted. (B) The location at which the function is performed by agency civilian employees. (C) The number of agency civilian em- ployee 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 per- formance 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 EF- FECT.—The report required under paragraph (1) shall include an examination 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 perform- ance; and (B) the local community and the Federal Government, if more than 50 agency civilian employees perform the function. (3) OBJECTIONS TO PUBLIC-PRIVATE COMPETI- TION.— (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 para- graph (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: Page 54 TITLE 41—PUBLIC CONTRACTS § 1711 (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 SOLICITATION OR AWARD OF CON- TRACT.—If the head of the executive agency determines that the report required by para- graph (1) was not submitted or that the re- quired certification was not included in the submitted report, the function 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 until, respec- tively, the report is submitted or a report containing the certification in full compli- ance with the certification requirement is submitted. (d) EXEMPTION FOR THE PURCHASE OF PRODUCTS AND SERVICES OF THE BLIND AND OTHER SE- VERELY DISABLED PEOPLE.—This section shall not apply to a commercial or industrial type function of an executive agency that is— (1) included on the procurement list estab- lished pursuant to section 8503 of this title; or (2) planned to be changed to performance by a qualified nonprofit agency for the blind or by a qualified nonprofit agency for other se- verely disabled people in accordance with chapter 85 of this title. (e) INAPPLICABILITY DURING WAR OR EMER- GENCY.—The provisions of this section shall not apply during war or during a period of national emergency declared by the President or Con- gress. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3715.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1710 ............ 41:439. Pub. L. 93–400, § 43, as added Pub. L. 110–181, title III, § 327(a), Jan. 28, 2008, 122 Stat. 63. In the heading for subsection (d) and in subsection (d)(2), the words ‘‘disabled people’’ are substituted for ‘‘handicapped persons’’ for consistency with chapter 85 of the revised title. § 1711. Value engineering Each executive agency shall establish and maintain cost-effective procedures and processes for analyzing the functions of a program, project, system, product, item of equipment, building, facility, service, or supply of the agen- cy. The analysis shall be— (1) performed by qualified agency or con- tractor personnel; and (2) directed at improving performance, reli- ability, quality, safety, and life cycle costs. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3718.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1711 ............ 41:432. Pub. L. 93–400, § 36, as added Pub. L. 104–106, title XLIII, § 4306(a), Feb. 10, 1996, 110 Stat. 665. § 1712. Record requirements (a) MAINTAINING RECORDS ON COMPUTER.—Each executive agency shall establish and maintain for 5 years a computer file, by fiscal year, con- taining unclassified records of all procurements greater than the simplified acquisition thresh- old in that fiscal year. (b) CONTENTS.—The record established under subsection (a) shall include, with respect to each procurement carried out using— (1) competitive procedures— (A) the date of contract award; (B) information identifying the source to whom the contract was awarded; (C) the property or services the Federal Government obtains under the procurement; and (D) the total cost of the procurement; or (2) procedures other than competitive proce- dures— (A) the information described in paragraph (1); (B) the reason under section 3304(a) of this title or section 3204(a) of title 10 for using the procedures; and (C) the identity of the organization or ac- tivity that conducted the procurement. (c) SEPARATE RECORD CATEGORY FOR PROCURE- MENTS RESULTING IN ONE BID OR PROPOSAL.—In- formation included in a record pursuant to sub- section (b)(1) that relates to procurements re- sulting in the submission of a bid or proposal by only one responsible source shall be separately categorized from the information relating to other procurements included in the record. The record of that information shall be designated ‘‘noncompetitive procurements using competi- tive procedures’’. (d) TRANSMISSION AND DATA ENTRY OF INFOR- MATION.—The head of each executive agency shall— (1) ensure the accuracy of the information included in the record established and main- tained by the agency under subsection (a); and (2) transmit in a timely manner such infor- mation to the General Services Administra- tion for entry into the Federal Procurement Data System referred to in section 1122(a)(4) of this title, or any successor system. (Pub. L. 111–350, § 3, Jan. 4, 2011, 124 Stat. 3718; Pub. L. 117–81, div. A, title XVII, § 1702(h)(5), Dec. 27, 2021, 135 Stat. 2158.) HISTORICAL AND REVISION NOTES Revised Section Source (U.S. Code) Source (Statutes at Large) 1712 ............ 41:417. Pub. L. 93–400, § 19, as added Pub. L. 98–369, title VII, § 2732(a), July 18, 1984, 98 Stat. 1197; Pub. L. 103–355, title IV, § 4403, Oct. 13, 1994, 108 Stat. 3349; Pub. L. 110–417, title VIII, § 874(b), Oct. 14, 2008, 122 Stat. 4558.