Sec. 321. Assignment of certain new requirements based on determinations of cost-efficiency
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Chapter 146 of title 10, United States Code, is amended by inserting after section 2463 the following new section: Except as provided in paragraph
(2)and subject to subsection (b), the assignment of performance of a new requirement by the Department of Defense to members of the Armed Forces, civilian employees, or contractors shall be based on a determination of which sector of the Department’s workforce can perform the new requirement in the most cost-efficient manner, based on an analysis of the costs to the Federal Government in accordance with Department of Defense Instruction 7041.04 ( ) or successor guidance, consistent with the needs of the Department with respect to factors other than cost, including quality, reliability, and timeliness. Estimating and Comparing the Full Costs of Civilian and Active Duty Military Manpower and Contract Support Paragraph
(1)shall not apply in the case of a new requirement that is inherently governmental, closely associated with inherently governmental functions, critical, or required by law to be performed by members of the Armed Forces or Department of Defense civilian employees. Nothing in this section may be construed as affecting the requirements of the Department of Defense under policies and procedures established by the Secretary of Defense under section 129a of this title for determining the most appropriate and cost-efficient mix of military, civilian, and contractor personnel to perform the mission of the Department of Defense. The head of an agency may waive subsection
(a)for a specific new requirement in the event of an emergency or exigent circumstances, as long as the head of an agency, within 60 days of exercising the waiver, submits to the Committees on Armed Services of the Senate and House of Representatives notice of the specific new requirement involved, where such new requirement is being performed, and the date on which it would be practical to subject such new requirement to the requirements of subsection (a). If a new requirement is assigned to a Department of Defense civilian employee consistent with the requirements of this section— the Secretary of Defense may not— impose any constraint or limitation on the size of the civilian workforce in terms of man years, end strength, full-time equivalent positions, or maximum number of employees; or require offsetting funding for civilian pay or benefits or require a reduction in civilian full-time equivalents or civilian end-strengths; and the Secretary may assign performance of such requirement without regard to whether the employee is a temporary, term, or permanent employee. For purposes of this section, a new requirement is an activity or function that is not being performed, as of the date of consideration for assignment of performance under this section, by military personnel, civilian personnel, or contractor personnel at a Department of Defense component, organization, installation, or other entity. For purposes of the preceding sentence, an activity or function that is performed at such an entity and that is re-engineered, reorganized, modernized, upgraded, expanded, or changed to become more efficient but is still essentially providing the same service shall not be considered a new requirement. . The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 2463 the following new item: 2463a. Assignment of certain new requirements based on determinations of cost-efficiency. .