QuestionandAnswerRound8.xls
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Q A Round 8
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| Q&A Round 8 | |||
| 21-Mar-08 | |||
| Reference | Question | Gov. Response | |
| 1 | Upon further review of the OMB Circular No. A-76 dated May 29, 2003 and in accordance with Paragraph B of Attachment B, "An agency shall make a formal public announcement (at the local level and FedBizOps.gov) for each streamlined or standard competition....The public announcement date is the official start date for a streamlined or standard competition." Additionally, in accordance with OMB Memorandum M-08-11 dated 20 February, 2008 paragraph 1. Health and retirement fringe benefit comparability requirements it states “Section 739 (a)(1)(C)prohibits agencies from converting an activity performed by more than 10 Federal employees to a contractor through a public-private competition unless the contractor does not receive an advantage for a proposal that would reduce costs to the Federal Government by not making contributions to health insurance and retirement that are equal to or greater than what the agency contributes for its own employees. This requirement applies to competitions that are publicly announced on or after December 26, 2007.” | Although the government posted a pre-solicitation release in January 2008, several documents which included a draft PWS dated September 2007 with RFI responses due in October 2007 and the Competitive Sourcing Document Part 1 posted 21 Feb 2007 were available to the public. If in fact these documents constitute a public announcement, it would appear to void the requirement for the health and retirement benefit comparability. | Our understanding of the issue is the OMB memo dtd 20 Feb 08 talks to PL 110-161 which was signed by the President on 26 Dec 2007. However, the National Defense Authorization Act (NDAA 2008)(P.L. 110-181), signed 28 Jan 08, provides different guidance as shown below. There was no effective date included in the NDAA 2008 making it effective upon signature. Therefore, DoD must include health and retirement factors for Performance Decisions made after 28 Jan 08. |
| H.R.4986 National Defense Authorization Act for Fiscal Year 2008 (Enrolled as Agreed to or Passed by Both House and Senate) | |||
| SEC. 322. MODIFICATION TO PUBLIC-PRIVATE COMPETITION REQUIREMENTS BEFORE CONVERSION TO CONTRACTOR PERFORMANCE. | |||
| (a) Comparison of Retirement System Costs- Section 2461(a)(1) of title 10, United States Code, is amended-- | |||
| (1) in subparagraph (F), by striking `and' at the end; | |||
| (2) by redesignating subparagraph (G) as subparagraph (H); and | |||
| (3) by inserting after subparagraph (F) the following new subparagraph (G): | |||
| `(G) requires that the contractor shall not receive an advantage for a proposal that would reduce costs for the Department of Defense by-- | |||
| `(i) not making an employer-sponsored health insurance plan (or payment that could be used in lieu of such a plan), health savings account, or medical savings account available to the workers who are to be employed to perform the function under the contract; | |||
| `(ii) offering to such workers an employer-sponsored health benefits plan that requires the employer to contribute less towards the premium or subscription share than the amount that is paid by the Department of Defense for health benefits for civilian employees of the Department under chapter 89 of title 5; or | |||
| `(iii) offering to such workers a retirement benefit that, in any year, costs less than the annual retirement cost factor applicable to civilian employees of the Department of Defense under chapter 84 of title 5; and'. | |||
| (b) Conforming Amendments- Such title is further amended-- | |||
| (1) by striking section 2467; and | |||
| (2) in section 2461-- | |||
| (A) by redesignating subsections (b) through (d) as subsections (c) through (e), respectively; and | |||
| (B) by inserting after subsection (a) the following new subsection (b): | |||
| `(b) Requirement to Consult DOD Employees- (1) Each officer or employee of the Department of Defense responsible for determining under Office of Management and Budget Circular A-76 whether to convert to contractor performance any function of the Department of Defense-- | |||
| `(A) shall, at least monthly during the development and preparation of the performance work statement and the management efficiency study used in making that determination, consult with civilian employees who will be affected by that determination and consider the views of such employees on the development and preparation of that statement and that study; and | |||
| `(B) may consult with such employees on other matters relating to that determination. | |||
| `(2)(A) In the case of employees represented by a labor organization accorded exclusive recognition under section 7111 of title 5, consultation with representatives of that labor organization shall satisfy the consultation requirement in paragraph (1). | |||
| `(B) In the case of employees other than employees referred to in subparagraph (A), consultation with appropriate representatives of those employees shall satisfy the consultation requirement in paragraph (1). | |||
| `(C) The Secretary of Defense 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 subparagraph (B) for purposes of the consultation required by paragraph (1).'. | |||
| (c) Technical Amendments- Section 2461 of such title, as amended by this section, is further amended-- | |||
| (1) in subsection (a)(1)-- | |||
| (A) in subparagraph (B), by inserting after `2003' the following: `, or any successor circular'; and | |||
| (B) in subparagraph (D), by striking `and reliability' and inserting `, reliability, and timeliness'; and | |||
| (2) in subsection (c)(2), as redesignated by subsection (b)(2), by inserting `of' after `examination'. | |||
| (d) Clerical Amendment- The table of sections at the beginning of chapter 146 of such title is amended by striking the item relating to section 2467. |
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