10 U.S.C. § 2469 — Contracts to perform workloads pre-

Page 1952 TITLE 10—ARMED FORCES [§ 2467 grams while also allowing the depot-level activities to remain in operation to continue to perform their defense readiness mission. ‘‘(b) CONDITIONS.—The Secretary shall ensure that ac- tivities conducted under this section— ‘‘(1) do not interfere with the closure or realign- ment of a depot-level activity of the military depart- ments under a base closure law; and ‘‘(2) do not adversely affect the readiness or pri- mary mission of a participating depot-level activity.’’ CONTINUATION OF PERCENTAGE LIMITATIONS ON PERFORMANCE OF DEPOT-LEVEL MAINTENANCE Pub. L. 103–160, div. A, title III, § 343, Nov. 30, 1993, 107 Stat. 1624, provided that: ‘‘The Secretary of Defense shall ensure that the percentage limitations applicable to the depot-level maintenance workload performed by non-Federal Government personnel set forth in section 2466 of title 10, United States Code, are adhered to.’’ EFFECT OF 1992 AMENDMENTS ON EXISTING CONTRACTS Pub. L. 102–484, div. A, title III, § 352(d), Oct. 23, 1992, 106 Stat. 2378, provided that: ‘‘The Secretary of a mili- tary department and the Secretary of Defense, with re- spect to the Defense Agencies, may not cancel a depot- level maintenance contract in effect on the date of the enactment of this Act [Oct. 23, 1992] in order to comply with the requirements of section 2466(a) of title 10, United States Code, as amended by subsection (a).’’ PROHIBITION ON CANCELLATION OF CONTRACTS IN EFFECT ON DECEMBER 5, 1991 Pub. L. 102–190, div. A, title III, § 314(a)(3), Dec. 5, 1991, 105 Stat. 1337, provided that: ‘‘The Secretary of the Army and the Secretary of the Air Force may not can- cel a depot-level maintenance contract in effect on the date of the enactment of this Act [Dec. 5, 1991] in order to comply with the requirements of section 2466(a) of such title, as amended by subsection (a).’’ COMPETITION PILOT PROGRAM; REVIEW AND REPORT Pub. L. 102–190, div. A, title III, § 314(b)–(d), Dec. 5, 1991, 105 Stat. 1337, as amended by Pub. L. 102–484, div. A, title III, § 354, Oct. 23, 1992, 106 Stat. 2379, required the Comptroller General to submit to Congress, not later than Feb. 1, 1994, an evaluation of all depot main- tenance workloads of the Department of Defense that were performed by an entity selected pursuant to com- petitive procedures, and required the Secretary of De- fense to submit to Congress, not later than Dec. 1, 1993, a report containing a five-year strategy of the Depart- ment of Defense to use competitive procedures for the selection of entities to perform depot maintenance workloads and describing the cost savings anticipated. PILOT PROGRAM FOR DEPOT MAINTENANCE WORKLOAD COMPETITION Pub. L. 101–510, div. A, title IX, § 922, Nov. 5, 1990, 104 Stat. 1627, authorized a depot maintenance workload competition pilot program during fiscal year 1991, out- lined elements of the program, and provided for a re- port not later than Mar. 31, 1992, to congressional de- fense committees, prior to repeal by Pub. L. 102–190, div. A, title III, § 314(b)(2), Dec. 5, 1991, 105 Stat. 1337. [§ 2467. Repealed. Pub. L. 110–181, div. A, title III, § 322(b)(1), Jan. 28, 2008, 122 Stat. 59] Section, added Pub. L. 100–456, div. A, title III, § 331(a), Sept. 29, 1988, 102 Stat. 1957; amended Pub. L. 106–65, div. A, title III, § 342(a), (b)(1), Oct. 5, 1999, 113 Stat. 569; Pub. L. 107–107, div. A, title X, § 1048(a)(22), Dec. 28, 2001, 115 Stat. 1224, related to cost comparisons: inclusion of retirement costs; consultation with em- ployees; waiver of comparison. [§ 2468. Repealed. Pub. L. 107–107, div. A, title X, § 1048(e)(10)(A), Dec. 28, 2001, 115 Stat. 1228] Section, added Pub. L. 101–189, div. A, title XI, § 1131(a)(1), Nov. 29, 1989, 103 Stat. 1560; amended Pub. L. 101–510, div. A, title IX, § 921, Nov. 5, 1990, 104 Stat. 1627; Pub. L. 102–190, div. A, title III, § 315(a), Dec. 5, 1991, 105 Stat. 1337; Pub. L. 103–160, div. A, title III, § 370(c), Nov. 30, 1993, 107 Stat. 1634; Pub. L. 103–337, div. A, title III, § 386(c), Oct. 5, 1994, 108 Stat. 2742, related to authority of military base commanders over contracting for com- mercial activities. § 2469. Contracts to perform workloads pre- viously performed by depot-level activities of the Department of Defense: requirement of competition (a) REQUIREMENT FOR COMPETITION.—The Sec- retary of Defense shall ensure that the perform- ance of a depot-level maintenance and repair workload described in subsection (b) is not changed to performance by a contractor or by another depot-level activity of the Department of Defense unless the change is made using— (1) merit-based selection procedures for com- petitions among all depot-level activities of the Department of Defense; or (2) competitive procedures for competitions among private and public sector entities. (b) SCOPE.—Except as provided in subsection (c), subsection (a) applies to any depot-level maintenance and repair workload that has a value of not less than $3,000,000 (including the cost of labor and materials) and is being per- formed by a depot-level activity of the Depart- ment of Defense. (c) EXCEPTION FOR PUBLIC-PRIVATE PARTNER- SHIPS.—The requirements of subsection (a) may be waived in the case of a depot-level mainte- nance and repair workload that is performed at a Center of Industrial and Technical Excellence designated under subsection (a) of section 2474 of this title by a public-private partnership entered into under subsection (b) of such section con- sisting of a depot-level activity and a private en- tity. (d) INAPPLICABILITY OF OMB CIRCULAR A–76.— Office of Management and Budget Circular A–76 (or any successor administrative regulation or policy) does not apply to a performance change to which subsection (a) applies. (Added Pub. L. 102–484, div. A, title III, § 353(a), Oct. 23, 1992, 106 Stat. 2378; amended Pub. L. 103–160, div. A, title III, § 346, title XI, § 1182(a)(7), Nov. 30, 1993, 107 Stat. 1625, 1771; Pub. L. 103–337, div. A, title III, § 338, Oct. 5, 1994, 108 Stat. 2718; Pub. L. 104–106, div. A, title III, § 311(f)(1), Feb. 10, 1996, 110 Stat. 248; Pub. L. 105–85, div. A, title III, §§ 355(b), 363, Nov. 18, 1997, 111 Stat. 1694, 1702; Pub. L. 106–65, div. A, title III, § 334, Oct. 5, 1999, 113 Stat. 568; Pub. L. 108–136, div. A, title III, § 333, Nov. 24, 2003, 117 Stat. 1442.) Editorial Notes AMENDMENTS 2003—Subsec. (b). Pub. L. 108–136, § 333(1), substituted ‘‘Except as provided in subsection (c), subsection’’ for ‘‘Subsection’’. Subsecs. (c), (d). Pub. L. 108–136, § 333(2), (3), added subsec. (c) and redesignated former subsec. (c) as (d). 1999—Subsec. (b). Pub. L. 106–65 inserted ‘‘(including the cost of labor and materials)’’ after ‘‘$3,000,000’’. 1997—Pub. L. 105–85, § 363, repealed Pub. L. 104–106, § 311(f)(1). See 1996 Amendment note below. Subsecs. (a), (b). Pub. L. 105–85, § 355(b), substituted ‘‘maintenance and repair’’ for ‘‘maintenance or repair’’. Page 1953 TITLE 10—ARMED FORCES § 2473 1996—Pub. L. 104–106, § 311(f)(1), which directed repeal of this section, was repealed by Pub. L. 105–85, § 363. 1994—Pub. L. 103–337 amended section generally. Prior to amendment, section read as follows: ‘‘(a) REQUIREMENT FOR COMPETITION.—The Secretary of Defense or the Secretary of a military department may not change the performance of a depot-level main- tenance workload that has a value of not less than $3,000,000 and is being performed by a depot-level activ- ity of the Department of Defense to performance by a contractor unless the Secretary uses competitive pro- cedures for the selection of the contractor to perform such workload. ‘‘(b) INAPPLICABILITY OF OMB CIRCULAR A–76.—The use of Office of Management and Budget Circular A–76 shall not apply to a performance change under sub- section (a).’’ 1993—Pub. L. 103–160, § 346, amended section, as amended by Pub. L. 103–160, § 1182(a)(7), (h), by desig- nating existing provisions as subsec. (a), inserting heading, striking out ‘‘threshold’’ before ‘‘value’’, sub- stituting ‘‘to performance by a contractor unless the Secretary uses competitive procedures for the selection of the contractor to perform such workload’’ for ‘‘un- less the Secretary uses competitive procedures to make the change’’, and adding subsec. (b). Pub. L. 103–160, § 1182(a)(7), struck out ‘‘, prior to any such change,’’ after ‘‘Department of Defense unless’’. [§ 2469a. Repealed. Pub. L. 107–314, div. A, title III, § 333(a), Dec. 2, 2002, 116 Stat. 2514] Section, added Pub. L. 105–85, div. A, title III, § 359(a)(1), Nov. 18, 1997, 111 Stat. 1696; amended Pub. L. 106–65, div. A, title III, § 335, title X, § 1066(a)(20), Oct. 5, 1999, 113 Stat. 568, 771, related to use of competitive pro- cedures in contracting for performance of depot-level maintenance and repair workloads formerly performed at closed or realigned military installations. § 2470. Depot-level activities of the Department of Defense: authority to compete for mainte- nance and repair workloads of other Federal agencies A depot-level activity of the Department of Defense shall be eligible to compete for the per- formance of any depot-level maintenance and repair workload of a Federal agency for which competitive procedures are used to select the entity to perform the workload. (Added Pub. L. 103–337, div. A, title III, § 335(a), Oct. 5, 1994, 108 Stat. 2716.) [§ 2471. Repealed. Pub. L. 106–398, § 1 [[div. A], title III, § 341(g)(1)], Oct. 30, 2000, 114 Stat. 1654, 1654A–64] Section, added Pub. L. 103–337, div. A, title III, § 336(a), Oct. 5, 1994, 108 Stat. 2717; amended Pub. L. 104–106, div. A, title XV, § 1503(a)(26), Feb. 10, 1996, 110 Stat. 512; Pub. L. 105–85, div. A, title III, § 361(b)(1), Nov. 18, 1997, 111 Stat. 1701, related to lease of excess depot- level equipment and facilities by persons outside the Department of Defense. § 2472. Prohibition on management of depot em- ployees by end strength The civilian employees of the Department of Defense, including the civilian employees of the military departments and the Defense Agencies, who perform, or are involved in the performance of, depot-level maintenance and repair work- loads may not be managed on the basis of any constraint or limitation in terms of man years, end strength, full-time equivalent positions, or maximum number of employees. Such employ- ees shall be managed solely on the basis of the available workload and the funds made available for such depot-level maintenance and repair. (Added and amended Pub. L. 104–106, div. A, title III, § 312(a), (b), Feb. 10, 1996, 110 Stat. 250; Pub. L. 105–85, div. A, title III, § 360, Nov. 18, 1997, 111 Stat. 1700; Pub. L. 106–65, div. A, title X, § 1067(1), Oct. 5, 1999, 113 Stat. 774; Pub. L. 108–375, div. A, title III, § 322(a), (b)(1), Oct. 28, 2004, 118 Stat. 1846.) Editorial Notes CODIFICATION The text of section 2466(b) of this title, which was transferred to this section and redesignated subsec. (a) by Pub. L. 104–106, § 312(b), was based on Pub. L. 102–190, div. A, title III, § 314(a)(1), Dec. 5, 1991, 105 Stat. 1336; Pub. L. 103–337, div. A, title III, § 332(b), Oct. 5, 1994, 108 Stat. 2715. AMENDMENTS 2004—Pub. L. 108–375 substituted ‘‘Prohibition on management of depot employees by end strength’’ for ‘‘Management of depot employees’’ in section catch- line, struck out subsec. (a) designation and heading be- fore ‘‘The civilian’’, and struck out heading and text of subsec. (b). Text read as follows: ‘‘Not later than De- cember 1 of each fiscal year, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the number of employees employed and expected to be employed by the Department of Defense during that fiscal year to perform depot-level maintenance and repair of mate- riel. The report shall indicate whether that number is sufficient to perform the depot-level maintenance and repair functions for which funds are expected to be pro- vided for that fiscal year for performance by Depart- ment of Defense employees.’’ 1999—Subsec. (b). Pub. L. 106–65 substituted ‘‘and the Committee on Armed Services’’ for ‘‘and the Com- mittee on National Security’’. 1997—Subsec. (a). Pub. L. 105–85 inserted first sen- tence and struck out former first sentence which read as follows: ‘‘The civilian employees of the Department of Defense involved in the depot-level maintenance and repair of materiel may not be managed on the basis of any end-strength constraint or limitation on the num- ber of such employees who may be employed on the last day of a fiscal year.’’ 1996—Subsec. (a). Pub. L. 104–106, § 312(b), renumbered section 2466(b) of this title as subsec. (a) of this section. Statutory Notes and Related Subsidiaries SUBMISSION OF INITIAL REPORT Pub. L. 104–106, div. A, title III, § 312(c), Feb. 10, 1996, 110 Stat. 250, required the report under subsec. (b) of this section for fiscal year 1996 to be submitted not later than Mar. 15, 1996. § 2473. Annual five-year plans on improvement of depot infrastructure (a) SUBMISSION.—As part of the annual budget submission of the President under section 1105(a) of title 31, each Secretary of a military department shall submit to the congressional defense committees a plan describing the objec- tives of that Secretary to improve depot infra- structure during the five fiscal years following the fiscal year for which such budget is sub- mitted. (b) ELEMENTS.—Each plan submitted by a Sec- retary of a military department under sub- section (a) shall include the following: