[105th Congress Public Law 270]
[From the U.S. Government Printing Office]
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[DOCID: f:publ270.105]
[[Page 2381]]
FEDERAL ACTIVITIES INVENTORY REFORM ACT OF 1998
[[Page 112 STAT. 2382]]
Public Law 105-270
105th Congress
An Act
To provide a process for identifying the functions of the Federal
Government that are not inherently governmental functions, and for other
purposes. <<NOTE: Oct. 19, 1998 - [S. 314]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Federal
Activities Inventory Reform Act of 1998. 31 USC 501 note.>>
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Activities Inventory Reform
Act of 1998''.
SEC. 2. <<NOTE: Records.>> ANNUAL LISTS OF GOVERNMENT ACTIVITIES
NOT INHERENTLY GOVERNMENTAL IN NATURE.
(a) <<NOTE: Deadline.>> Lists Required.--Not later than the end of
the third quarter of each fiscal year, the head of each executive agency
shall submit to the Director of the Office of Management and Budget a
list of activities performed by Federal Government sources for the
executive agency that, in the judgment of the head of the executive
agency, are not inherently governmental functions. The entry for an
activity on the list shall include the following:
(1) The fiscal year for which the activity first appeared on
a list prepared under this section.
(2) The number of full-time employees (or its equivalent)
that are necessary for the performance of the activity by a
Federal Government source.
(3) The name of a Federal Government employee responsible
for the activity from whom additional information about the
activity may be obtained.
(b) OMB Review and Consultation.--The Director of the Office of
Management and Budget shall review the executive agency's list for a
fiscal year and consult with the head of the executive agency regarding
the content of the final list for that fiscal year.
(c) Public Availability of Lists.--
(1) Publication.--Upon the completion of the review and
consultation regarding a list of an executive agency--
(A) the head of the executive agency shall promptly
transmit a copy of the list to Congress and make the
list available to the public; and
(B) <<NOTE: Federal Register, Publication.>> the
Director of the Office of Management and Budget shall
promptly publish in the Federal Register a notice that
the list is available to the public.
(2) Changes.--If the list changes after the publication of
the notice as a result of the resolution of a challenge under
section 3, the head of the executive agency shall promptly--
(A) make each such change available to the public
and transmit a copy of the change to Congress; and
[[Page 112 STAT. 2383]]
(B) <<NOTE: Federal Register, Publication.>> publish
in the Federal Register a notice that the change is
available to the public.
(d) Competition Required.--Within a reasonable time after the date
on which a notice of the public availability of a list is published
under subsection (c), the head of the executive agency concerned shall
review the activities on the list. Each time that the head of the
executive agency considers contracting with a private sector source for
the performance of such an activity, the head of the executive agency
shall use a competitive process to select the source (except as may
otherwise be provided in a law other than this Act, an Executive order,
regulations, or any executive branch circular setting forth requirements
or guidance that is issued by competent executive authority). The
Director of the Office of Management and Budget shall issue guidance for
the administration of this subsection.
(e) Realistic and Fair Cost Comparisons.--For the purpose of
determining whether to contract with a source in the private sector for
the performance of an executive agency activity on the list on the basis
of a comparison of the costs of procuring services from such a source
with the costs of performing that activity by the executive agency, the
head of the executive agency shall ensure that all costs (including the
costs of quality assurance, technical monitoring of the performance of
such function, liability insurance, employee retirement and disability
benefits, and all other overhead costs) are considered and that the
costs considered are realistic and fair.
SEC. 3. CHALLENGES TO THE LIST.
(a) Challenge Authorized.--An interested party may submit to an
executive agency a challenge of an omission of a particular activity
from, or an inclusion of a particular activity on, a list for which a
notice of public availability has been published under section 2.
(b) Interested Party Defined.--For the purposes of this section, the
term ``interested party'', with respect to an activity referred to in
subsection (a), means the following:
(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 paragraph (1).
(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 paragraph (3).
(c) Time for Submission.--A challenge to a list shall be submitted
to the executive agency concerned within 30 days after the publication
of the notice of the public availability of the list under section 2.
[[Page 112 STAT. 2384]]
(d) <<NOTE: Deadline.>> Initial Decision.--Within 28 days after an
executive agency receives a challenge, an official designated by the
head of the executive agency shall--
(1) decide the challenge; and
(2) transmit to the party submitting the challenge a written
notification of the decision together with a discussion of the
rationale for the decision and an explanation of the party's
right to appeal under subsection (e).
(e) Appeal.--
(1) <<NOTE: Deadline.>> Authorization of appeal.--An
interested party may appeal an adverse decision of the official
to the head of the executive agency within 10 days after
receiving a notification of the decision under subsection (d).
(2) Decision on appeal.--Within 10 days after the head of an
executive agency receives an appeal of a decision under
paragraph (1), the head of the executive agency shall decide the
appeal and transmit to the party submitting the appeal a written
notification of the decision together with a discussion of the
rationale for the decision.
SEC. 4. APPLICABILITY.
(a) Executive Agencies Covered.--Except as provided in subsection
(b), this Act applies to the following executive agencies:
(1) Executive department.--An executive department named in
section 101 of title 5, United States Code.
(2) Military department.--A military department named in
section 102 of title 5, United States Code.
(3) Independent establishment.--An independent
establishment, as defined in section 104 of title 5, United
States Code.
(b) Exceptions.--This Act does not apply to or with respect to the
following:
(1) General accounting office.--The General Accounting
Office.
(2) Government corporation.--A Government corporation or a
Government controlled corporation, as those terms are defined in
section 103 of title 5, United States Code.
(3) Nonappropriated funds instrumentality.--A part of a
department or agency if all of the employees of that part of the
department or agency are employees referred to in section
2105(c) of title 5, United States Code.
(4) Certain depot-level maintenance and repair.--Depot-level
maintenance and repair of the Department of Defense (as defined
in section 2460 of title 10, United States Code).
SEC. 5. DEFINITIONS.
In this Act:
(1) Federal government source.--The term ``Federal
Government source'', with respect to performance of an activity,
means any organization within an executive agency that uses
Federal Government employees to perform the activity.
(2) Inherently governmental function.--
(A) Definition.--The term ``inherently governmental
function'' means a function that is so intimately
related to the public interest as to require performance
by Federal Government employees.
[[Page 112 STAT. 2385]]
(B) Functions included.--The term includes
activities that require either the exercise of
discretion in applying Federal Government authority or
the making of value judgments in making decisions for
the Federal Government, including judgments relating to
monetary transactions and entitlements. An inherently
governmental function involves, among other things, the
interpretation and execution of the laws of the United
States so as--
(i) to bind the United States to take or not
to take some action by contract, policy,
regulation, authorization, order, or otherwise;
(ii) to determine, protect, and advance United
States economic, political, territorial, property,
or other interests by military or diplomatic
action, civil or criminal judicial proceedings,
contract management, or otherwise;
(iii) to significantly affect the life,
liberty, or property of private persons;
(iv) to commission, appoint, direct, or
control officers or employees of the United
States; or
(v) to exert ultimate control over the
acquisition, use, or disposition of the property,
real or personal, tangible or intangible, of the
United States, including the collection, control,
or disbursement of appropriated and other Federal
funds.
(C) Functions excluded.--The term does not normally
include--
(i) gathering information for or providing
advice, opinions, recommendations, or ideas to
Federal Government officials; or
(ii) any function that is primarily
ministerial and internal in nature (such as
building security, mail operations, operation of
cafeterias, housekeeping, facilities operations
and maintenance, warehouse operations, motor
vehicle fleet management operations, or other
routine electrical or mechanical services).
SEC. 6. EFFECTIVE DATE.
This Act shall take effect on October 1, 1998.
Approved October 19, 1998.
LEGISLATIVE HISTORY--S. 314:
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SENATE REPORTS: No. 105-269 (Comm. on Governmental Affairs).
CONGRESSIONAL RECORD, Vol. 144 (1998):
July 30, considered and passed Senate.
Oct. 5, considered and passed House.
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