OFFICE
OF MANAGEMENT AND BUDGET
Implementation
of the Federal Activities Inventory Reform Act of 1998, (Public
Law 105-270) ("the FAIR Act")
AGENCY:
Office of Management and Budget, Executive Office of the President
ACTION:
Proposed Guidance on the Implementation of the FAIR Act Through
Revisions to the Supplemental Handbook to OMB Circular A-76.
SUMMARY:
The Office of Management and Budget (OMB) requests agency and public
comments on its proposed guidance to implement the recently-enacted
"Federal Activities Inventory Reform Act of 1998" (Public Law 105-270)
(the "FAIR Act"). The FAIR Act directs agencies to develop inventories
of their commercial activities and to conduct cost comparisons to
determine whether a commercial activity that is performed by a governmental
source should instead be performed by a private-sector source. The
FAIR Act requires that Federal agencies must submit to OMB, each
fiscal year, a list of all their activities that are not inherently
governmental ("commercial activities") and that are performed by
Federal employees, with their associated Full-Time-Equivalents (FTE).
(FAIR Act, Section 2(a)). OMB will review each agency's list for
the fiscal year and consult with the agency regarding its content.
(FAIR Act, Section 2(b)). Upon the completion of this review and
consultation, the agency must transmit a copy of the list to Congress
and make the list available to the public. (FAIR Act, Section 2(c)).
An interested party, as defined by FAIR, may then challenge the
omission or inclusion of a particular activity on the list (FAIR
Act, Section 3) and the agency must then notify Congress of any
changes to the list that result from this process and make the changes
available to the public. (FAIR Act, Section 2(c)(2)). Finally, the
Fair Act requires agencies, within a reasonable time after making
final decisions to include or exclude activities on the list, to
review the activities on the list for possible performance by the
private sector. When an agency considers contracting with a private-sector
source for the performance of a commercial activity, the agency
must use a competitive process to select the source (except as may
otherwise be provided in a law, Executive order, regulation, or
executive branch circular), in accordance with OMB guidance. In
conducting cost comparisons, agencies must ensure that all costs
are considered (including certain specified costs) and that these
costs are realistic and fair. (FAIR Act, Section 2(d)-(e))
In
complying with the FAIR Act, agencies will implement the OMB Circular
A-76, "Performance of Commercial Activities," which establishes
Federal policy for the performance of recurring commercial activities.
The Circular distinguishes between those agency activities that
are commercial in nature and those that are inherently governmental.
See Circular A-76, Sections 6a and 6e (definitions of "commercial
activity" and "governmental function"); Office of Federal Procurement
Policy Letter 92-1, "Inherently Governmental Functions," 57 FR
45096 (September 30, 1992). Guidance for implementing the Circular's
general policies is contained in a Supplemental Handbook for Circular
A-76, which OMB revised in 1996. See 61 FR 14338 (April
1, 1996). Under the Circular and its Supplemental Handbook, agencies
must develop and maintain annual inventories of their commercial
activities. When deciding whether to have an activity performed
by a governmental or private-sector source, agencies must also
conduct cost comparisons according to specified criteria and procedures.
The proposed revisions to the Handbook would inform agencies of
the Act's requirements and conform the Handbook to those requirements.
The revisions also would revise the Handbook to clarify that agencies
must rely on the Handbook's guidance with respect to the cost-comparison
competition requirements of the FAIR Act. These requirements establish
a competitive source-selection process which compares costs in
a complete, fair, and reasonable manner.
DATES:
Written comments on the proposed revisions must be
filed on or before April 15 to be considered.
ADDRESSES:
Address all comments to the Budget Analysis and Systems Division,
NEOB Room 6002, Office of Management and Budget, 725 17th Street,
N.W., Washington, D.C. 20503, FAX Number (202) 395-7230.
FOR
FURTHER INFORMATION CONTACT: Mr. David Childs, (202)
395-6104.
AVAILABILITY:
Copies of the FAIR Act, the current OMB Circular A-76 and its
Supplemental Handbook may be obtained by contacting the Executive
Office of the President, Office of Administration, Publications
Office, Washington, D.C. 20503, at (202) 395-7332. These documents
are also accessible on the OMB Home page. The online OMB Home
page address (URL) is whitehouse.gov/OMB.
SUPPLEMENTARY
INFORMATION: On October 12, 1998, President Clinton
signed into law the "Federal Activities Inventory Reform Act
of 1998" (Public Law 105-270) (the "FAIR Act"). The FAIR Act
directs agencies to develop inventories of their commercial
activities and to conduct cost comparisons to determine whether
a commercial activity that is performed by a governmental source
should instead be performed by a private-sector source.
To
facilitate agency implementation of the FAIR Act, OMB proposes
to revise the Supplemental Handbook (particularly Appendix 2,
which addresses the commercial-activity inventory). These proposed
revisions would inform agencies of the FAIR Act's requirements
and, to avoid duplication, conform Handbook provisions so that
they cross-reference and parallel relevant FAIR Act provisions.
The changes would incorporate the statutory deadline of June 30th
for agency submissions to OMB of annual commercial-activity inventories
and would add two data elements to the inventory's description
of each activity.
Under
the FAIR Act, when an agency considers contracting with a private-sector
source for the performance of an activity on the inventory, it
must use a competitive process to select the source and must ensure
that all costs are considered (including certain specified costs)
and that the costs considered are realistic and fair. See
FAIR Act, Section 2(d)-(e). This proposal would revise the Supplemental
Handbook (in Part I, Chapter 1, Paragraph A, and in Part II, Chapter
1, Paragraph A) to clarify that agencies conducting such cost-comparisons
must rely on the guidance in Circular A-76 and the Supplemental
Handbook. They require that all competitive costs of in-house
and contract performance be included in the cost comparison, including
all costs of quality assurance, technical monitoring, liability
insurance, retirement benefits, disability benefits, and overhead
that may be allocated to the function under study or may otherwise
be expected to change as a result of changing the method of performance.
Since the Supplemental Handbook's guidance on cost comparisons
has been recently revised and is fully consistent with the FAIR
Act, OMB does not propose to revise that guidance at this time.
OMB
requests comments on its proposed guidance for implementing the
FAIR Act through revisions to the Supplemental Handbook for Circular
A-76.
G.
Edward DeSeve
Deputy Director for Management
To
implement the FAIR Act, OMB proposes to make the following revisions
to the Supplemental Handbook for OMB Circular A-76:
1.
Part I, Chapter 1, Paragraph A of the Supplemental Handbook
(p. 3) is revised by adding a reference to the FAIR Act in the
first sentence. As revised, Paragraph A would read as follows:
"A.
General
"This
Part sets forth the principles and procedures for managing the
Government's acquisition of recurring commercial supporting activities,
implementing the "Federal Activities Inventory Reform Act of 1998"
(FAIR Act, P.L. 105-270) and Circular A-76. Exhibit 1 summarizes
the conditions that permit conversion to or from in-house, contract
or interservice support agreement (ISSA) performance."
2.
Part II, Chapter 1, Paragraph A.1 of the Supplemental Handbook
(p. 17) is revised by adding a reference to the FAIR Act in the
first sentence. No revisions are proposed to Paragraph A.2-4.
As revised, Paragraph A.1 would read as follows:
"1.
Part II provides generic and streamlined cost comparison guidance
to comply with the provisions of the "Federal Activities Inventory
Reform Act of 1998" (P.L. 105-270)(the "FAIR Act"), Circular A-76
and this Supplement. This includes guidance for developing in-house
costs based upon the Government's Most Efficient Organization
(MEO) and other adjustments to the contract and interservice support
agreement (ISSA) price. It also sets out the principles for development
of cost-based performance standards or other measures that are
comparable to those used by commercial sources. Appendices 6 and
7 provide sector-specific cost comparison guidance."
3.
The title of Appendix 2 of the Supplemental Handbook (p. 38) is
revised from "OMB Circular No. A-76 Inventory" to "Commercial
Activity Inventory". This inventory is now required by the FAIR
Act as well as by Circular A-76.
4.
Paragraph A of Appendix 2 of the Supplemental Handbook (p. 38)
is revised in several ways. The introductory sentences now refer
to the FAIR Act's requirements and incorporate its due date (June
30th) for submission to OMB of an agency's commercial-activity
inventory. Two data elements are added to the inventory's description
of an activity. These additional data elements (k and l, below)
correspond to the data elements required under Section 2(a)(1)
and (3) of the FAIR Act (the Handbook already requests the full-time
employee data under Section 2(a)(2)). In addition, the existing
data element for "Location/organization unit" is being separated
out into two elements ("Location" and "Organization Unit"). Finally,
a concluding sentence is added to clarify that agencies have the
flexibility to automate and structure the inventory so long as
all data elements are included. As revised, Paragraph A would
read as follows:
"A.
Preface
"Agencies
must implement and manage cost comparisons in accordance with
the "Federal Activities Inventory Reform Act of 1998" (P.L. 105-270)(the
"FAIR Act"), Circular A-76 and this Supplement. In this regard,
by June 30 of each year, each agency must submit to OMB a report
that contains an inventory of the agency's commercial activities.
These reports must identify those commercial activities that are
exempt from cost comparison requirements and must describe the
status of activities that are subject to cost comparison. Each
agency must maintain an annual inventory of all commercial activities
performed by in-house FTE, including, at a minimum, the following
data elements:
a.
State.
b. Location.
c. Organization unit.
d. FTE.
e. Activity function code.
f. Reason code.
g. Year of cost comparison or conversion.
h. CIV/FTE savings.
i. Annual dollar savings.
j. Date of completed Post-MEO Performance Review.
k. Year the activity first appeared on the agency inventory,
under FAIR.
l. Name of a Federal employee responsible for the activity from
whom additional information about the activity may be obtained.
Agencies
have the discretion to automate and to structure this detailed
inventory as they believe most appropriate, so long as the inventory
includes each of these data elements."
5.
Appendix 2 of the Supplemental Handbook (p. 38) is revised by
adding two new paragraphs that reflect the requirements of the
FAIR Act. New Paragraph G describes the review and publication
of the agency commercial-activity inventories and the challenge-and-appeals
process pertaining to their development. New Paragraph H requires
agencies to review the activities on their inventories of commercial
activities and to use a competitive process, with established
cost comparison procedures, when the agency considers contracting
with a private-sector source for the performance of an activity
on the inventory. The new Paragraphs G and H would read as follows:
"G.
FAIR Act review and publication of inventories; challenges and
appeals regarding such inventories
"In
accordance with Section 2 of the FAIR Act, OMB will review the
agency's inventory of commercial activities and consult with the
agency regarding its content. (Section 4 of the FAIR Act specifies
the agencies that are subject to the Act, and exceptions from
the Act's coverage.) Upon completion of this review and consultation,
the agency must transmit a copy of the inventory to Congress and
make the inventory available to the public. OMB will publish a
notice in the Federal Register that the inventories are
available to the public.
"Under
Section 3 of the FAIR Act, an agency's decision to include or
exclude a particular activity from the inventory is subject to
administrative challenge and appeal by an "interested party."
Section 3(b) of the FAIR Act defines "interested party"as:
1.
A private sector source that (A) is an actual or prospective offeror
for any contract or other form of agreement to perform the activity;
and (B) has a direct economic interest in performing the activity
that would be adversely affected by a determination not to procure
the performance of the activity from a private sector source.
2.
A representative of any business or professional association that
includes within its membership private sector sources referred
to in 1. above.
3.
An officer or employee of an organization within an executive
agency that is an actual or prospective offeror to perform the
activity.
4.
The head of any labor organization referred to in section 7103(a)
(4) of title, 5 United States Code, that includes within its membership
officers or employees of an organization referred to in 3. above.
An
interested party may submit an initial challenge, to the inclusion
or exclusion of an activity, within 30 calendar days after publication
of the notice of availability in the Federal Register.
The challenge must set forth the reasons for the interested party's
belief that the particular activity should be reclassified as
inherently governmental (and therefore be deleted from the inventory)
or as commercial (and therefore be added to the inventory), in
accordance with OFPP Policy Letter 92-1 (see Appendix 5). Each
agency must designate the agency official who has the responsibility
for receiving and deciding such challenges (that official may
be the official identified in paragraph 9.a of the Circular, or
that official's designee). The deciding official must decide the
initial challenge and transmit to the interested party a written
notification of the decision within 28 calendar days of receiving
the challenge. The notification must include a discussion of the
rationale for the decision and, if the decision is adverse, an
explanation of the party's right to file an appeal. An interested
party may appeal an adverse decision to the head of the agency
within 10 working days after receiving the written notification
of the decision. Within 10 working days of receipt of the appeal,
the agency head must decide the appeal and transmit to the interested
party a written notification of the decision together with a discussion
of the rationale for the decision."
"H.
FAIR Act competitions
"Section
2(d) of the FAIR Act requires each agency, within a reasonable time
after the publication of its commercial-activity inventory, to review
the activities on the inventory. In addition, Section 2(d)-(e) of
the FAIR Act provides that, when an agency considers contracting
with a private-sector source for the performance of an activity
on the inventory, the agency must use a competitive process to select
the source and must ensure that, for the comparison of costs, all
costs are considered (including certain specified costs) and the
costs considered are realistic and fair. In carrying out these requirements,
agencies must rely on the guidance contained in Circular A-76 and
this Supplemental Handbook. All competitive costs of in-house and
contract performance are included in the cost comparison, including
the costs of quality assurance, technical monitoring, liability
insurance, retirement benefits, disability benefits and overhead
that may be allocated to the function under study or may otherwise
be expected to change as a result of changing the method of performance."
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