
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 2002]
[CITE: 10USC2469a]

 
                         TITLE 10--ARMED FORCES
 
                    Subtitle A--General Military Law
 
                PART IV--SERVICE, SUPPLY, AND PROCUREMENT
 
   CHAPTER 146--CONTRACTING FOR PERFORMANCE OF CIVILIAN COMMERCIAL OR 
                        INDUSTRIAL TYPE FUNCTIONS
 
Sec. 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, Sec. 359(a)(1), Nov. 18, 1997, 
111 Stat. 1696; amended Pub. L. 106-65, div. A, title III, Sec. 335, 
title X, Sec. 1066(a)(20), Oct. 5, 1999, 113 Stat. 568, 771.)


                               Amendments

    1999--Subsec. (c)(3). Pub. L. 106-65, Sec. 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, Sec. 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)).''
