AFCT Enhancement Course RSCA.pdf

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Request for Services Contract Approval Form

_ Project Name for Contract/Task Order (indicate if this is for Base Year/Modification)

Name of HQDA Principal, Army Command, Army Service Component Command, or Direct Reporting Organization

Dates and Cost of Requested Period of Performance (POP) Contract Duration (base year including option years)

Justification for Contract (consider the following): _____________________________________________________________

1) Has a Cost-Benefit Analysis been completed? (If yes, please provide the approval date.) And, if so, has the cost of labor been determined using DoDI 7041.04?

2) Does this contract requirement support a core functionality of your mission or division?

3) Has this mission been mandated by regulation or directed by higher Headquarters?

4) In the event that this contract is not awarded, has the operational impact been considered?

____________________ I approve and certify that: OR ____________________ I disapprove.

1) this requirement does not include inherently governmental functions;

2) in the case of work closely associated with inherently governmental functions or non-competitive contracts, special consideration has been given to using Federal Government employees;

3) this requirement does not include unauthorized personal services, either in the way the work statement is written or in the way the contract operates;

4) this contract (check the applicable box):

a) has been reported in the Contract Manpower Reporting Application (CMRA);

b) has not been reported in CMRA, and an explanation is enclosed;

c) the CMRA reporting requirement has been included in the statement of work for this new requirement;

d) has not been reported in CMRA, because it is Civil Works funded and is exempt from CMRA reporting;

5) the workload for this requirement has been validated using an accepted form of analysis and the contract requirement has been documented in the Panel for Documentation of Contractors module of CMRA;

6) sufficiently trained and experienced officials (including, but not limited to, Contracting Officer’s Representatives) are available within the agency to manage and oversee the contract administration function and evaluate the contractor work product.

Name / Rank / Position Signature Date

Worksheets prepared by: _____________________________________________________________ _________________

Date

Signature: _________________________________________________________________________

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Estimated CFTEs Labor Cost for Requested POP Contract or Delivery/Task Order #

Accountable Official Decision

For Official Use Only/Procurement Sensitive Information

Unit Identification Code (UIC)

Base Year Cost Option Year 1 Cost Option Year 2 Cost Option Year 3 Cost Option Year 4 Cost Total Project Cost Option Year 5 Cost

AMSCO MDEP

http://www.asamra.army.mil/scra/documents/OSD%20DTM-09-007%20Estimating%20and%20Comparing%20the%20Full%20Costs%20of%20Civilian%20and%20Military%20Manpower%20and%20Contract%20Support%20(03%20SEP%202011).pdf

The following rules govern the required use of the certification and worksheets of this Form:

This Form is required for all service contracts, regardless of whether the contracts are enduring, temporary,about to end, funded in the base budget, or funded under Overseas Contingency Operations.

The RSCA form need not be used when options exercised, provided that there are no changes in the terms, conditions, scope of work or level of effort and provided that an RSCA form was completed when the contract was originally awarded. However, the RSCA business process must still be used when contracts are modified and when task orders, purchase orders or delivery orders are issued.

4. The RSCA Form is required for all service contracts (see FAR 7.502 Applicability). A “service contract” is for tasks to b e performed, rather than supplies to be delivered. The following do not require the RSCA:

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»Manufacturing/production contracts;

»Off-the-shelf software;

»Construction projects funded using Military Construction Army funds (however, repairs, maintenance, construction, and demolition projects that utilize Operations and Maintenance funds do require the Form);

»Help desk and customer service support incidental to equipment or off-the-shelf software purchases;

»Software licensing agreements and updates (customized software development, maintenance, and upgrades, however, are considered services);

»Manufacturer’s warranties (extended maintenance/repair beyond the standard manufacturer’s warranty, however, is considered a service requiring the RSCA);

»Delivery services incidental to a supply purchase.

»Rental of equipment »Rental of hotel rooms »Purchases using a government credit card

1. The Request for Services Contract Approval (RSCA) Form is required by Army Federal Acquisition Regulation Supplement

(AFARS) Subpart 5107.503(e).

2. The most current version of the Form must be used and can be found at:

http://www.asamra.army.mil/scra/documents/RSCA%20Version%202.0.pdf The Form may not be altered in any way; local supplementation is acceptable only when such supplements are used with— and attached to—the Form.

3. The Form is required and must be completed in the following circumstances:

»Before new solicitations are issued or contracts are awarded;

»Before contracts are modified;

»When each task order/delivery order is issued;

»When funds are added (although the incremental funding of contracts does not require re-submission of the form);

»When Army funds are being used to buy contractor labor, regardless of which organization is awarding or administering the contract;

»When Army is the requiring activity, or is the executive agent for the mission/organization requiring the services;

»When Army funds are being transferred to contracts outside of the Department of Defense.

INSTRUCTIONS

For USE OF the Request for Services Contract Approval Form http://www.asamra.army.mil/scra/documents/AFARS%20Subpart%205107%205%20-%20Inherently%20Governmental%20Functions.pdf http://www.asamra.army.mil/scra/documents/AFARS%20Subpart%205107%205%20-%20Inherently%20Governmental%20Functions.pdf http://www.asamra.army.mil/scra/documents/FAR%207-5(c)%20Examples%20of%20Inherently%20Governmental%20Functions.pdf

5. Certification by the accountable GO/SES at the requiring activity is required.

»For a contract with a total value below the Simplified Acquisition Threshold (SAT) (including all supplies and services, as well as all the option years combined), the accountable GO or SES in a requiring activity may delegate signature authority to a GS-15/O-6.

»For National Guard contracts, the U.S. Property and Fiscal Officer (USPFO) may approve/certify the Form.

»For services to support Courts-Martial, no approval/certification is required, but the Form must still be completed.

6.

7.

INSTRUCTIONS

For USE OF the Request for Services Contract Approval Form

9.

Worksheet questions should be answered by persons in the requiring activity who know how the contract is administered, how it is performed, and who thoroughly understand the work being performed by the contractor. Worksheet questions should be answered carefully, to ensure that the accountable GO/SES and the contracting officer have all relevant facts to support their decisions and/or certification.

8. For the purposes of the RSCA process, the term "contract" includes the following:

-Intergovernmental support agreements (IGSAs) -any contract or agreement between a U.S. Federal government agency and a non-U.S. federal government entity which obligates the seller to furnish services and the buyer to pay for them using appropriated funds.

Garrison commanders or equivalent at the O-6/GS-15 level are permitted to submit one RSCA form for facility contracts (O&M Funded Maintenance, Repair, and Construction) in conjunction with the garrison's annual work plan for a given year.

Due to congressional moratorium on A-76/ public private competitions, no out-sourcing is currently allowed. If the moratorium on A-76/ public private competitions ends, a streamlined competition is required. Work currently being performed by in-house civilian employees or designated for in-house civilian employee performance may not be directly converted to contractor performance. If law and policy is ever changed to allow direct conversions to contract performance, a cost comparison must still be done under DoDI 7041.04 (Estimating and Comparing the Full Costs of Civilian and Active Duty Military Manpower and Contract Support, 3 July 2013), in order to establish which source of labor is the least costly.

The term "contract" does not include grants and cooperative agreements pursuant to 31 U.S.C. 6301 et seq.

A CFTE is calculated by dividing the total direct labor hours by 2087. Calculations will be rounded to the one-hundredth (.xx) decimal level.

If issues arise regarding the correct use or completion of the Request for Services Contract Approval Form, please contact the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) Force Management, Manpower and

Resources, at (703) 693-2109 or eileen.g.ginsburg.civ@mail.mil.

10.

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Worksheet A (1 of 3) Inherently Governmental Functions

An “inherently governmental function” is one that has been determined to be—through statute or otherwise—a function that must be performed by Government personnel, either civilian or military, and may not be performed by a contractor. All the sections of

Worksheet A must be filled out and are designed to help determine whether or not a function is inherently governmental in nature.

Read each question and apply it to the function in question. Answer “Yes” or “No” to the questions that apply below, based on the work statement and the way the contract is performed. A “Yes” response to any of the below indicates that the function must be performed in-house and may not be contracted.

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Does the function:

1 Involve contractors providing legal advice and interpretations of regulations and statutes to

Government officials?

2 Involve the direct conduct of criminal investigations?

3 Involve the control of prosecutions and performance of adjudicatory functions other than those relating to arbitration or other methods of alternative dispute resolution?

4 Involve the command of military forces, especially the leadership of military personnel who are members of the combat, combat support, or combat service support role?

5 Involve the conduct of foreign relations and the determination of foreign policy?

6 Involve the determination of agency policy, such as—among other things—determining the content and application of regulations?

7 Involve the determination of Federal program priorities for budget requests?

8 Involve the direction and control of Federal employees?

9 Involve the direction and control of intelligence and counter-intelligence operations?

10 Involve the selection or non-selection of individuals for Federal Government employment, including the interviewing of individuals for employment?

11 Involve the approval of position descriptions and performance standards for Federal employees?

12 Involve the determination of what Government property is to be disposed of and on what terms

(although an agency may give contractors authority to dispose of property at prices within specified ranges and subject to other reasonable conditions deemed appropriate by the agency)?

13 Involve:

i) Determining what supplies or services are to be acquired by the Government (although an agency may give contractors authority to acquire supplies at prices within specified ranges and subject to other reasonable conditions deemed appropriate by the agency);

ii) Participating as a voting member on any source selection boards;

iii) Approving any contractual document, including documents defining requirements, incentive plans, and evaluation criteria;

Inherently Governmental YES NO

Answer “Yes” or “No” to the functions that apply below, based on the work statement and the way the contract is performed.

A “Yes” response to any of the below indicates that the function must be performed in-house and may not be contracted.

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Worksheet A (2 of 3) Inherently Governmental Functions

Does the function:

13 (continued from the previous page) Involve:

iv) Awarding contracts;

v) Administering contracts (including ordering changes in contract performance or contract quantities, taking action based on evaluations of contract performance, and accepting or rejecting contractor products or services);

vi) Terminating contracts;

vii) Determining whether contract costs are reasonable, allocable, and allowable; and

viii) Participating as a voting member on performance evaluation boards.

14 Involve the approval of agency responses to Freedom of Information Act (FOIA) requests (other than routine responses that, because of statute, regulation, or agency policy, do not require the exercise of judgment in determining whether documents are to be released or withheld), and the approval of agency responses to the administrative appeals of denials of FOIA requests?

15 Involve the conduct of administrative hearings to determine the eligibility of any person for a security clearance, or involve actions that affect matters of personal reputation or eligibility to participate in Government programs?

16 Involve the approval of Federal licensing actions and inspections?

17 Involve the determination of budget policy, guidance, and strategy?

18 Involve the collection, control, and disbursement of fees, royalties, duties, fines, taxes, and other public funds, unless authorized by statute, such as 31 U.S.C. § 952 (relating to private collection contractors) and 31 U.S.C. § 3718 (relating to private attorney collection services), but does not include:

i) Collection of fees, fines, penalties, costs, or other charges from visitors to or patrons of mess halls, post or base exchange concessions, national parks, and similar entities or activities, or from other persons, where the amount to be collected is easily calculated or predetermined and the funds collected can be easily controlled using standard case management techniques; and

ii) Routine voucher and invoice examination.

19 Involve the control of the treasury accounts?

20 Involve the administration of public trusts?

21 Involve the drafting of Congressional testimony, responses to Congressional correspondence, or agency responses to audit reports from the Inspector General, the Government Accountability

Office, or other Federal audit entity?

Inherently Governmental YES NO

Answer “Yes” or “No” to the functions that apply below, based on the work statement and the way the contract is performed.

A “Yes” response to any of the below indicates that the function must be performed in-house and may not be contracted.

The above functions/examples are drawn from the following sources: The Federal Activities Inventory Reform (FAIR) Act (31

United States Code (U.S.C.) Section 501); the Federal Acquisition Regulation (FAR) Part 7.5; and the Office of Federal

Procurement Policy (OFPP) Policy Letter 11-01.

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Worksheet A (3 of 3) Inherently Governmental Functions

Does the function:

22 Require the exercise of discretion in applying Federal Government Authority?

23 Require the making of value judgments in making decisions for the Federal Government?

24 Require making judgments relating to monetary transactions and entitlements?

25 Involve the interpretation and execution of the laws of the United States so as to bind the US to take or not take some action by contract, policy, regulation, authorization, order, or otherwise?

26 Involve the interpretation and execution of the laws of the United States to determine, protect, and advance the US’ economic, political, territorial, property, or other interests by military or diplomatic action, civil or criminal judicial proceedings, contract management or otherwise?

27 Involve the interpretation and execution of the laws of the United States to significant affect the life, liberty, or property of private persons?

28 Involve the interpretation and execution of the laws of the United States to commission, appoint, direct, or control officers or employees of the United States?

29 Involve the interpretation and execution of the laws of the United States to exert ultimate control over the acquisition, use, or disposition of the property—real or personal, tangible or intangible— of the US, including the collection, control, or disbursement of appropriate or other Federal funds?

30 Involve security operations performed in direct support of combat as part of a larger integrated combat force, or performed in environments where there is significant potential for the security operations to evolve into combat? (Where the US military is present, the judgment of the military commander should be sought regarding the potential for the operations to evolve into combat.)

31 Involve representation of the Government before administrative and judicial tribunals, unless a statute expressly authorizes the use4 of attorneys whose services are procured through contract?

32 Involve combat?

33 Involve the interrogation of detainees? (However, some functions in support of interrogation may be performed by contractors; see item 20 on Worksheet B.)

34 Involve the contractor performing as the effective or de facto decision-maker?

Inherently Governmental YES NO http://www.asamra.army.mil/scra/documents/FAR%207-5(c)%20Examples%20of%20Inherently%20Governmental%20Functions.pdf http://www.asamra.army.mil/scra/fair.cfm http://www.asamra.army.mil/scra/fair.cfm http://www.asamra.army.mil/scra/documents/OFPP%20Policy%20Letter%2011-01.pdf http://www.asamra.army.mil/scra/documents/OFPP%20Policy%20Letter%2011-01.pdf

A “closely associated with inherently governmental function” is one that approaches being inherently governmental in nature because of the nature of the function, the manner in which the contractor performs the contract, or the manner in which the government administers contract performance. A designation of closely associated with inherently governmental does not preclude from contracting for a function, but does require additional oversight, as well as special consideration for in-sourcing.

Pursuant to 10 U.S.C. § 2330a(e), however, reliance on contractors to perform closely associated with inherently governmental functions should be reduced “to the maximum extent practicable.”

Answer “Yes” or “No” to the questions below, based on the work statement and the way the contract is performed.

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Worksheet B (1 of 2) Closely Associated with Inherently Governmental Functions

Does the performance involve:

1 Services that involve or relate to budget preparation, including workload modeling, fact finding, efficiency studies, and should-cost analyses, etc.?

2 Services that involve or relate to reorganization and planning activities?

3 Services that involve or relate to analyses, feasibility studies, and strategy options to be used by agency personnel in developing policy?

4 Services that involve or relate to the development of regulations?

5 Services that involve or relate to the evaluation of another contractor’s performance?

6 Services in support of acquisition planning?

7 Contractors providing assistance in contract management (such as where the contractor might influence official evaluations of other contractors)?

8 Contractors providing technical evaluation of contract proposals?

9 Contractors providing assistance in the development of statements of work?

10 Contractors providing support in preparing responses to Freedom of Information Act requests?

11 Contractors working in any situation that permits or might permit them to gain access to confidential business information and/or any other sensitive information (other than situations covered by the National Industry Security Program described in 4.402(b))?

12 Contractors providing information regarding agency policies or regulations, such as attending conferences on behalf of an agency, conducting community relations campaigns, or conducting agency training courses?

13 Contractors participating in any situation where it might be assumed that they are agency employees or representatives?

14 Contractors participating as technical advisors to a source selection board or participating as voting or non-voting members of a source evaluation board?

Closely Associated with Inherently Governmental YES NO http://www.asamra.army.mil/scra/documents/Sec%20936%20Amendments%20to%20Requirement%20for%20Inventory%20of%20Contracts%20for%20Services%20(FY12%20NDAA,%20HR1540%20Conf%20Report).pdf

Answer “Yes” or “No” to the functions that apply below, based on the work statement and the way the contract is performed.

Contracting for closely associated with inherently governmental functions is permissible, but levels of oversight must be employed to maintain the appropriateness of the contract. If the answer to any of the prior questions, 1-23, is “Yes” and the answer to any of the following question, 24-26, is “No,” then the function may not be contracted.

“Closely associated with inherently governmental” is defined in Title 10, United States Code § 2383(b) and FAR 7.503.

Additionally, pursuant to 10 U.S.C. § 2463, special consideration must be given to in-sourcing closely associated with inherently governmental functions.

On Worksheet H, please document the special consideration you gave to having in-house civilian employees perform the function.

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Worksheet B (2 of 2) Closely Associated with Inherently Governmental Functions

Does the performance involve:

15 Contractors serving as arbitrators or providing alternative methods of dispute resolution?

16 Contractors constructing building or structures intended to be secure from electronic eavesdropping or other penetration by foreign governments?

17 Contractors providing inspection services?

18 Contractors providing special non-law enforcement, security activities that do not directly involve criminal investigations, such as prisoner detention or transport, and non-military national security details? (The direction and control of confinement facilities in areas of operations, however, is inherently governmental.)

19 Private security contractors in operational environments overseas?

20 Supporting the interrogation of detainees? (Pursuant to Section 1038 of the National Defense

Authorization Act for Fiscal Year 2010, contractor personnel may not interrogate detainees.)

i) Contractor personnel may be used as linguists, interpreters, report writers, information technology technicians, and may fill other ancillary positions, including trainers of and advisors to interrogators.

ii) Such personnel are subject to the same rules, procedures, and laws pertaining to detainee operations and interrogations as apply to government personnel, and must be properly overseen by Department of Defense military/civilian personnel.

21 Contractors providing combat and security training?

22 Contract logistics support required for weapon systems that deploy with operational units?

23 Work that is at risk of becoming inherently governmental?

Closely Associated with Inherently Governmental YES NO

24 Is there sufficient organic Government expertise to oversee contractor performance of the contract?

25 Are there sufficient control mechanisms and sufficient numbers of military and civilian employees to ensure that contractors are not performing inherently governmental functions?

26 Is there sufficient COR capability to ensure adequate oversight of contract performance?

Oversight of Contracted Functions YES NO http://www.asamra.army.mil/scra/documents/10%20USC%20Sec%202383.doc http://www.asamra.army.mil/scra/documents/Sec%20938%20Conversion%20of%20Certain%20Functions%20from%20Contractor%20Performance%20to%20P%20erformance%20by%20DoD%20Civilian%20Employees%20(FY12%20NDAA,%20HR1540%20Conf%20Report)%20.pdf http://www.asamra.army.mil/scra/documents/FAR%207-5(d)%20Examples%20of%20Functions%20Closely%20Related%20to%20Inherently%20Governmental%20Functions.pdf

A “personal services” contract is characterized by “the employer-employee relationship it creates between the Government and the contractor’s personnel.” This occurs when contractor personnel are being treated in a manner akin to that of a Government employee. A contract may involve unauthorized personal services either by its written terms or in the way it is actually performed. Care should be taken to avoid situations that may lend themselves to the performance of personal services (for example, having contractors on-site can lend to a “blended workforce” where contractors work side-by-side with government personnel and are treated in the same way).

Answering “Yes” to questions 2-9 may indicate a personal service and special scrutiny should be given to contracted functions for which any/all such items have been selected in order to avoid a personal services contract. A “Yes” answer to question 1, however, indicates a personal service and precludes contracting for that function. See Worksheet H for further instructions.

The questions below detail the situations in which a personal services contract is permissible (pursuant to 10 USC § 129b).

Answering “Yes” to any of questions 10-14 indicates the statutory exception that allows a personal services contract. Select

“N/A” either if you do not have a personal services contract and/or if none of the exceptions apply.

Personal services are defined in FAR Part 37.104. A contract involving personal services, either by its written terms or in the way it is actually performed, must be modified, in-sourced, or divested, or the functions must be performed in such a way as to avoid creating an employer-employee relationship.

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Worksheet C Personal Services

1 The contractor personnel are subject to the relatively continuous supervision and control of a

Governmental officer.

2 The contractor personnel are performing on a Government site.

3 The principal tools and equipment are furnished by the Government.

4 The services are applied directly to the integral effort of agencies or an organizational subpart in furtherance of an assigned function or mission.

5 The need for the service provided can reasonably be expected to last beyond one year.

6 The inherent nature of the service, or the manner in which it is provided, reasonably requires

(directly or indirectly) Government direction or supervision of contractor employees in order to:

adequately protect the Government’s interest; retain control of the function involved; or, retain full personal responsibility for the function supposed in a duly authorized Federal officer or employee.

7 Comparable services meeting comparable needs are performed in this agency or similar agencies using civil-service personnel.

8 The contractor personnel are providing administrative support to Government personnel.

9 Government personnel are giving contractor personnel tasks on an ad hoc basis.

Personal Services YES NO

10 Experts or consultants where the services cannot be adequately provided by the Department.

11 Direct support of a defense intelligence component or counter-intelligence organization of the DoD where the services are urgent or unique and cannot be practically obtained within the DoD.

12 Direct support of special operations command where the services are urgent or unique and cannot be practically obtained within the DoD.

13 Services provided by individuals outside the United States regardless of their nationality.

14 Carrying out healthcare responsibilities in DoD medical treatment facilities per 10 U.S.C. § 1091.

Exceptions: Authorized Personal Services YES N/a http://www.asamra.army.mil/scra/documents/FAR%2037-104%20Definition%20of%20Personal%20Services%20Contracts.pdf http://www.gpo.gov/fdsys/pkg/USCODE-2011-title10/pdf/USCODE-2011-title10-subtitleA-partI-chap3-sec129b.pdf

Pursuant to 10 U.S.C. § 2463, special consideration should be given to in-sourcing closely associated with inherently governmental and critical functions. The following items may also be relevant when an agency/organization is considering in-sourcing a function to governmental performance. An answer of either “Yes” or “No” to question 1 does not preclude contracting. However, an explanation of the special consideration given to in-sourcing must be documented on Worksheet H.

Pursuant to 10 U.S.C. § 2383, the contracting officer for the contract must ensure there are no organizational conflicts of interest for the function at issue. In the event of an organizational conflict of interest, the requiring activity must take steps to remedy the situation: this may mean in-sourcing or divestiture of the function. However, a conflict of interest may be mitigated by utilizing a different contractor (i.e. a conflict of interest does not necessarily preclude contracting entirely, it may only preclude contracting with a specific contractor).

A “No” answer to question 2 precludes contracting until such time as the requiring activity has taken steps to mitigate the conflict of interest.

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Worksheet D Special Considerations

1 Has in-sourcing been considered? Special consideration should be given to civilians in the following situations:

i) This function has been performed by DoD civilian employees at any time during the previous ten-year period.

ii) The function is closely associated with the performance of an inherently governmental function

(see Worksheet B).

iii) The function is performed pursuant to a contract awarded on a non-competitive basis.

iv) The contracting officer has determined that the contract has been performed poorly because of excessive costs or inferior quality.

v) The function is an acquisition workforce function.

vi) The function is a critical function (see Worksheet F).

Special Considerations YES NO

2 Has the agency addressed any potential organizational conflict of interest of the contractor in the performance of this function, consistent with FAR Part 9, Subpart 9.5 and the best interests of the

DoD?

Organizational Conflict of Interest YES NO http://www.asamra.army.mil/scra/documents/10%20USC%20Sec%202383.doc http://www.asamra.army.mil/scra/documents/Sec%20938%20Conversion%20of%20Certain%20Functions%20from%20Contractor%20Performance%20to%20P%20erformance%20by%20DoD%20Civilian%20Employees%20(FY12%20NDAA,%20HR1540%20Conf%20Report)%20.pdf http://www.acquisition.gov/far/html/Subpart%209_5.html

When contracting for services, care must be taken to ensure that no illegal out-sourcing or improper conversion is taking place.

Illegal “out-sourcing” and improper conversion involve shifting work from civilian positions to contract personnel (this can happen even if the civilian position is not encumbered). In environments that involve fiscal uncertainty, declining budgets, or hiring freezes, special vigilance is required to ensure these things do not occur.

A “Yes” response to questions 1-4 below may make contracting this function prohibited and agencies are recommended to discuss the issue with their employment and personnel law advisor and their contract law advisor. A “Yes” answer to either or both of questions 5 and 6 below indicates that contracting is not allowed.

Title 10, United States Code § 2461 prohibits converting a function performed by at least one appropriated fund government employee to contract performance unless there has been a public-private competition under Office of Management and Budget

Circular A-76. There is currently a Congressional moratorium on public-private competitions pursuant to the National Defense

Authorization Act for Fiscal Year 2010, Section 325. However, “conversion” of functions does not include the augmenting of civilian staff with contractors unless government employees are displaced, reassigned, subjected to a reduction in force, or otherwise adversely affected. Please note that all in-house civilian authorizations must be filled before we supplement the in-house workforce with contractor labor.

(For additional information, please see the Government Accountability Office case John P. Santry B-402827. Agencies are recommended to discuss the issue with their employment and personnel law advisor and their contract law advisor.)

If there is an applicable bargaining unit agreement concerning out-sourcing, the provisions of the agreement will prevail and must be adhered to for bargaining unit employees (though such an agreement does not take precedence over Title 10, U.S.C.).

Further prohibitions on contracting under certain conditions can be found in 10 U.S.C. § 129a(f).

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Worksheet E Out-Sourcing and Conversion of Functions

1 Will any non-temporary or non-term appropriated fund employee currently performing any functions described in the contract Statement of Work be displaced, reassigned, subjected to a reduction in force, or otherwise adversely affected as a result of the proposed contract action?

2 Is the function proposed for contract performance meeting a requirement previously performed by a particular Army civilian position (or positions) when a program or budget decision eliminated the civilian position (whether that function was formerly documented with an authorization or was undocumented and performed by an overhire)?

3 Is the function proposed for contract performance meeting a requirement previously approved for in-sourcing but that was never encumbered?

4 Will the proposed contract action fundamentally change the nature of the work performed by appropriated fund employees?

5 Is this new contract (or this increase in level of effort on a pre-existing contract) the result of the establishment of numerical goals or budgetary savings targets regarding the civilian workforce?

Is this contract, modification, or this increase in level of effort on a pre-existing contract, the result of the imposition of a civilian hiring freeze?

Out-sourcing and Conversion of Functions YES NO

Due to congressional moratorium on A-76/ public private competitions, no out-sourcing is currently allowed. If the moratorium on A-76/ public private competitions ends, a competition is required. Work currently being performed by in-house civilian employees or designated for in-house civilian employee performance may not be directly converted to contractor performance. If law and policy is ever changed to allow direct conversions to contract performance, a cost comparison must still be done under DoDI 7041.04 (Estimating and Comparing the Full Costs of Civilian and Active Duty Military Manpower and Contract Support, 3 July 2013), in order to establish which source of labor is the least costly.

http://www.asamra.army.mil/scra/documents/Sec%20937%20Preliminary%20Planning%20and%20Duration%20of%20Public-Private%20Competitions%20(FY12%20NDAA,%20HR1540%20Conf%20Report).pdf http://www.asamra.army.mil/scra/documents/Sec%20931%20General%20Policy%20for%20Total%20Force%20Management%20(FY12%20NDAA,%20HR1540%20Conf%20Report).pdf

A “critical function” is one that involves a function central to an agency’s mission or operation. It is permissible to contract for critical functions, but agencies should ensure they have an adequate number of Federal employees that understand the agency’s requirements and can monitor contractors supporting the Federal workforce.

Answering “Yes” to questions 1-3 may indicate a critical function.* If the function is critical, you must be able to answer "yes" to items 4 and 5 in order to contract the function. See additional instructions for documenting your analysis below.

Pursuant to 10 U.S.C. § 2463(b) and OFPP Policy Letter 11-01, special consideration should be given to in-sourcing “critical functions” to ensure that agencies have sufficient internal capability to maintain control over functions that are central to the agency’s missions and operations.

In the event that a function is determined to be critical in nature, the preparer should ensure that adequate government oversight will be available, pursuant to OFPP Policy Letter 11-01.

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Worksheet F Critical Functions

1 Is the function necessary to the Army being able to effectively perform and maintain control of its core missions and operations and/or to maintain sufficient Government expertise/technical capabilities?

2 Is the function recurring and long-term in duration?

3 Does the performance of the function by a contractor entail operational risk to a core Army mission (for example, if the contractor were to quit or otherwise suddenly be unable to perform their duties)?

4 Does the agency have an adequate number of positions filled with Federal employees with the appropriate training, experience, and expertise to continue critical operations with in-house resources, another contractor, or a combination of the two in the event of contractor default?

5 Does the agency have sufficient capability and internal expertise to oversee and manage any contractors being used to support the Federal workforce, taking into account, among other things the: i) agency's mission; ii) complexity of the function and the need for special skill; iii) current strength of the agency's in-house expertise; iv) current size and capability of the agency's acquisition workforce; and v) effect of contractor default on mission performance

Critical Functions YES NO

Please explain in Worksheet H, your organization's analysis in considering in-sourcing this critical function and how you plan to ensure adequate government oversight regarding questions 4 and 5 above.

http://www.asamra.army.mil/scra/documents/Sec%20938%20Conversion%20of%20Certain%20Functions%20from%20Contractor%20Performance%20to%20P%20erformance%20by%20DoD%20Civilian%20Employees%20(FY12%20NDAA,%20HR1540%20Conf%20Report)%20.pdf http://www.asamra.army.mil/scra/documents/Sec%20938%20Conversion%20of%20Certain%20Functions%20from%20Contractor%20Performance%20to%20P%20erformance%20by%20DoD%20Civilian%20Employees%20(FY12%20NDAA,%20HR1540%20Conf%20Report)%20.pdf

Security and/or firefighting functions may not be contracted unless they qualify for certain statutory exceptions. If the answer to question 1 is “Yes,” then answer the subsequent questions to determine if one of the exceptions is applicable. If there are no applicable exceptions, then the function may not be contracted.

Title 10, United States Code § 2465(a) prohibits the use of contracts for the performance of security guard or firefighting functions except under certain circumstances (reflected in the exceptions questions above). The prohibition was waived by

Section 332 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2003 and then extended through FY12 by

Section 343 of the FY08 NDAA. The waiver has expired and is no longer in effect.

Title 5, U.S.C. § 3107 prohibits the use of appropriated funds to pay for publicity experts unless such funds have been specifically appropriated for that purpose. If the answer to question 2 is “Yes” and the answer to question 2a is “No,” then contracting is not allowed.

Publicity and propaganda clauses in appropriations law restrict the use of funds for puffery of an agency, purely partisan communications, and covert propaganda. (These restrictions do not apply to OCONUS activities.) If the answer to questions 3a, 3b, 3c, or 4 is “Yes,” then contracting is not allowed.

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Worksheet G Security, Firefighting, and Publicity Functions

1 Is this contract for the performance of security guard or firefighting functions?

If the answer to the above question is “Yes,” do any of the following exceptions apply?

a) The contract is to be carried out at a location outside the United States, its commonwealths, territories, possessions, and military installations, at which members of the armed forces would have to be used at the expense of unit readiness.

b) The contract is to be carried out on a Government-owned but privately-operated installation.

c) The contract (or renewal of the contract) is for the performance of a function under contract on

September 24, 1983.

d) The contract is for a firefighting function for a period of one year or less and covers only the performance of firefighting 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.

Security and Firefighting Functions YES NO

2 Is this a contract for a publicity expert?

a) If so, were the funds for this contract specifically appropriated for this purpose?

Publicity Experts YES NO

3 Does this contract involve advertising and marketing or public relations functions?

If the answer to the above question is “Yes,” does it involve any of the following?

a) Self-aggrandizement or puffery of the agency, its personnel, or activities;

b) Any activity that is purely partisan in nature (i.e. an activity that is designed to aid a political party or candidate);

c) Covert propaganda (i.e. communication that does not reveal that Government appropriations were expended to produce it).

4 Is the statement of work so broadly written that it could be interpreted to condone or encourage any of the activities described in 3a, 3b, or 3c?

Publicity and Propaganda YES NO http://www.law.cornell.edu/uscode/text/10/2465 http://www.law.cornell.edu/uscode/text/5/3107

Worksheet H narrative description of work and justification

A. Brief description of the work the contractor will perform:

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B. For work which is closely associated with inherently governmental functions (Worksheet B), explain: 1) how special consideration was given to using in-house governmental personnel, and 2) how the risk of contractors performing inherently governmental functions will be eliminated.

C. For work with personal services indicators ("yes" answers to any of items 1 through 9 on Worksheet C), please explain how the contract will be administered and performed in a way that does not constitute a personal service.

D. For work which is a Critical Function (Worksheet F) describe: 1.) steps the requiring activity will take to maintain internal control over missions and operations considering the factors outlined on Worksheet F and 2.) explain how special consideration was given to using in-house civilian personnel.

CMRA is not required based on the dollar amount of the requirement.

In the event that this contract is not awarded, the operational impact will be detrimental to filling the vacancies within the force. Due to a large scale MTOE conversion, the equipment and occupational military skills have been impacted. If this class is not conducted, the battalion loses the ability to provide communications support to their costumers and unable to perform their METL.