§2469a. Use of competitive procedures in contracting for performance of depot-level maintenance and repair workloads formerly performed at certain military installations

(a) Definitions.-In this section:

(1) The term "closed or realigned military installation" means a military installation where a depot-level maintenance and repair facility was approved in 1995 for closure or realignment under the Defense Base Closure and Realignment Act of 1990 (part A of title XXIX of Public Law 101–510; 10 U.S.C. 2687 note).

(2) The term "military installation" includes a former military installation that was a military installation when it was approved in 1995 for closure or realignment under the Defense Base Closure and Realignment Act of 1990 and that has been closed or realigned under the Act.

(3) The terms "realignment" and "realigned" mean a decision under the Defense Base Closure and Realignment Act of 1990 that results in both a reduction and relocation of functions and civilian personnel positions.

(b) Covered Depot-Level Maintenance and Repair Workloads.-Except as provided in subsection (c), this section applies with respect to any depot-level maintenance and repair workload that-

(1) was performed as of January 1, 1997, at a military installation that was approved in 1995 for closure or realignment under the Defense Base Closure and Realignment Act of 1990 and that has been closed or realigned under the Act; and

(2) is proposed to be converted from performance by Department of Defense personnel to performance by a private sector source.

(c) Exceptions.-This section shall not apply with respect to-

(1) a depot-level maintenance and repair workload that is to be consolidated to another military installation (other than a closed or realigned military installation) as a result of a base closure or realignment action or a decision made by the Secretary concerned or the Defense Depot Maintenance Council;

(2) a workload necessary to maintain a core logistics capability identified under section 2464 of this title; or

(3) any contract originally entered into before November 18, 1997.

(d) Conditions and Solicitation.-A solicitation of offers for the performance of any depot-level maintenance and repair workload described in subsection (b) may be issued, and a contract may be awarded pursuant to such a solicitation, only if the following conditions are met with respect to the contract and the solicitation specifically states the conditions:

(1) The source selection process used in the case of the solicitation and contract permits the consideration of offers submitted by private sector sources and offers submitted by public sector sources.

(2) The source selection process used in the case of the solicitation and contract requires that, in the comparison of offers, there be taken into account-

(A) the fair market value (or if fair market value cannot be determined, the estimated book value) of any land, plant, or equipment from a military installation that is proposed by a private offeror to be used to meet a specific workload (whether these assets are provided to the offeror by a local redevelopment authority or by any other source approved by an official of the Department of Defense); and

(B) the total estimated direct and indirect costs that will be incurred by the Department of Defense and the total estimated direct and indirect savings (including overhead) that will be derived by the Department of Defense.

(3) The cost standards used to determine the depreciation of facilities and equipment shall, to the maximum extent practicable, provide identical treatment to all public and private sector offerors.

(4) Any offeror, whether public or private, may offer to perform the workload at any location or locations selected by the offeror and to team with any other public or private entity to perform that workload at one or more locations, including a Center of Industrial and Technical Excellence designated under section 2474 of this title.

(5) No offeror may be given any preferential consideration for, or in any way be limited to, performing the workload in-place or at any other single location.

(e) Contracts for Multiple Workloads.-(1) A solicitation may be issued for a single contract for the performance of multiple depot-level maintenance and repair workloads described in subsection (b) only if-

(A) the Secretary of Defense determines in writing that the individual workloads cannot as logically and economically be performed without combination by sources that are potentially qualified to submit an offer and to be awarded a contract to perform those individual workloads;

(B) the Secretary submits to Congress a report setting forth the determination together with the reasons for the determination; and

(C) the solicitation of offers for the contract is issued more than 60 days after the date on which the Secretary submits the report.

(2) The Comptroller General shall review each report submitted under paragraph (1)(B) and, not later than 30 days after the report is submitted to Congress, shall submit to Congress the Comptroller General's views regarding the determination of the Secretary that is set forth in the report, together with any other findings that the Comptroller General considers appropriate.

(f) Competitive Procedures Required.-Section 2304(c)(7) of this title shall not be used as the basis for an exception to the requirement to use competitive procedures for any contract for a depot-level maintenance and repair workload described in subsection (b).

(g) Reviews of Competitive Procedures.-If a solicitation of offers for a contract for, or award of, any depot-level maintenance and repair workload described in subsection (b) is issued, the Comptroller General shall-

(1) within 45 days after the issuance of the solicitation, review the solicitation and report to Congress on whether the solicitation-

(A) provides substantially equal opportunity for public and private offerors to compete for the contract without regard to the location at which the workload is to be performed; and

(B) is in compliance with the requirements of this section and all applicable provisions of law and regulations; and

(2) within 45 days after any contract or award resulting from the solicitation is entered into or made, review the contract or award, including the contracting or award process, and report to Congress on whether-

(A) the procedures used to conduct the competition-

(i) provided substantially equal opportunity for public and private offerors to compete for the contract without regard to the location at which the workload is to be performed; and

(ii) were in compliance with the requirements of this section and all applicable provisions of law and regulations;

(B) appropriate consideration was given to factors other than cost in the selection of the source for performance of the workload; and

(C) the contract or award resulted in the lowest total cost to the Department of Defense for performance of the workload.

(h) Resolution of Workload Award Objections.-Any public or private entity may, pursuant to procedures established by the Secretary, object to a solicitation of offers under this section for the performance of any depot-level maintenance and repair workload, or the award or proposed award of any workload pursuant to such a solicitation. The Secretary may designate a qualified individual or entity to review the objection; however, the Secretary shall not designate the Source Selection Authority or any individual from the same military department as the Source Selection Authority to review the objection. The Secretary shall take appropriate action to address any defect in the solicitation or award in the event that the objection is sustained.

(i) Oversight of Contracts Awarded Public Entities.-The Secretary of Defense or the Secretary concerned may not impose on a public sector entity awarded a contract for the performance of any depot-level maintenance and repair workload described in subsection (b) any requirements regarding management systems, reviews, oversight, or reporting that are significantly different from the requirements used in the performance and management of other similar or identical depot-level maintenance and repair workloads by the entity, unless the requirements are specifically provided in the solicitation for the contract or are necessary to ensure compliance with the terms of the contract.

(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.)

Amendments

1999-Subsec. (c)(3). Pub. L. 106–65, §1066(a)(20), substituted "November 18, 1997" for "the date of the enactment of the National Defense Authorization Act for Fiscal Year 1998".

Subsec. (i). Pub. L. 106–65, §335, added subsec. (i).

Limitation Relating to Timing of Solicitation

Section 359(b) of Pub. L. 105–85 provided that: "The first solicitation of offers from private sector sources for the performance of a depot-level maintenance and repair workload described in subsection (b) of section 2469a of title 10, United States Code, as added by subsection (a), may be issued pursuant to such section only after the date that is 30 days after the latest of the following:

"(1) The date on which the Secretary of Defense publishes and submits to Congress a plan or Department of Defense directive that sets forth the specific procedures for the conduct of competitions among private and public sector entities for such depot-level maintenance and repair workloads.

"(2) The date on which the Secretary of Defense submits to Congress the report on allocation of workloads required under subsection (c) [set out below].

"(3) The date on which the Comptroller General is required to submit the report to Congress under subsection (d) [111 Stat. 1700]."

Report of Allocation of Workload

Section 359(c) of Pub. L. 105–85 provided that: "Before any solicitation of offers for the performance by a private sector source of a depot-level maintenance and repair workload at a closed or realigned installation described in subsection (b) of section 2469a of title 10, United States Code, as added by subsection (a), is to be issued, the Secretary of Defense shall submit to Congress a report describing the allocation proposed by the Secretary of all workloads that were performed at that closed or realigned military installation (as defined in subsection (a) of such section) as of July 1, 1995, including-

"(1) the workloads that are considered to be core logistics functions under section 2464 of such title;

"(2) the workloads that are proposed to be transferred to a military installation other than a closed or realigned military installation;

"(3) the workloads that are proposed to be included in the public-private competitions carried out under section 2469a of such title, and, if any of such workloads are to be combined for purposes of such a competition, the reasons for combining the workloads, together with a description of how the workloads are to be combined;

"(4) any workload that has been determined within the Department of Defense as no longer being necessary;

"(5) the proposed schedule for implementing the allocations covered by the report; and

"(6) the anticipated capacity utilization of the military installations and former military installations to which workloads are to be transferred, based on the maximum potential capacity certified to the 1995 Defense Base Closure and Realignment Commission, after the transfers are completed (not taking into account any workloads that may be transferred as a result of a public-private competition carried out under section 2469a of such title, as described in paragraph (3))."