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(c) WAIVER OF LIMITATION.-The Secretary of the military department concerned and, with respect to a Defense Agency, the Secretary of Defense may waive the applicability of subsection (a) for a fiscal year, to a particular workload, or to a particular depotlevel activity if the Secretary determines that the waiver is necessary for reasons of national security and notifies Congress regarding the reasons for the waiver.
(d) EXCEPTION.-Subsection (a) shall not apply with respect to the Sacramento Army Depot, Sacramento, California.
(e) REPORT.-Not later than January 15, 1995, the Secretary of Defense shall submit to Congress a report identifying, for each military department and Defense Agency, the percentage of funds referred to in subsection (a) that was used during fiscal year 1994 to contract for the performance by non-Federal Government personnel of depot-level maintenance and repair workload.
(Added P.L. 100-456, §326(a), Sept. 29, 1988, 102 Stat. 1955, and amended P.L. 101-189, § 313, Nov. 29, 1989, 103 Stat. 1412; P.L. 102–190, § 314(a), Dec. 5, 1991, 105 Stat. 1336; P.L. 102484, §352(a)-(c), Oct. 23, 1992, 106 Stat. 2378; P.L. 103-337, § 332, Oct. 5, 1994, 108 Stat. 2715.)
§ 2467. Cost comparisons: requirements with respect to retirement costs and consultation with employees
(a) REQUIREMENT TO INCLUDE RETIREMENT COSTS.-(1) In any comparison conducted by the Department of Defense under Office of Management and Budget Circular A-76 (or any successor administrative regulation or policy) of the cost of performing commercial activities by Department of Defense personnel and the cost of performing such activities by contractor personnel, the Secretary of Defense shall include retirement system costs (as described in paragraphs (2) and (3)) of both the Department of Defense and the
(2) The retirement system costs of the Department of Defense shall include (to the extent applicable) the following:
(A) The cost of the Federal Employees' Retirement System, valued by using the normal-cost percentage (as defined by section 8401(23) of title 5, United States Code).
(B) The cost of the Civil Service Retirement System under subchapter III of chapter 83 of such title 5.
(C) The cost of the thrift savings plan under subchapter III of chapter 84 of such title 5.
(D) The cost of the old age, survivors, and disability insurance taxes imposed under section 3111 (a) of the Internal Revenue Code of 1986.
(3) The retirement system costs of the contractor shall include the cost of the old age, survivors, and disability insurance taxes imposed under section 3111(a) of the Internal Revenue Code of 1986, the cost of thrift or other retirement savings plans, and other relevant retirement costs.
(b) REQUIREMENT TO CONSULT DOD EMPLOYEES.-(1) Each officer or employee of the Department of Defense responsible for determining under Office of Management and Budget Circular A-76 whether to convert to contractor performance any commercial activity of the Department
(A) shall, at least monthly during the development and preparation of the performance work statement and the man
agement efficiency study used in making that determination, consult with civilian employees who will be affected by that determination and consider the views of such employees on the development and preparation of that statement and that study; and
(B) may consult with such employees on other matters relating to that determination.
(2)(A) In the case of employees represented by a labor organization accorded exclusive recognition under section 7111 of title 5, United States Code, consultation with representatives of that labor organization shall satisfy the consultation requirement in paragraph (1).
(B) In the case of employees other than employees referred to in subparagraph (A), consultation with appropriate representatives of those employees shall satisfy the consultation requirement in paragraph (1).
(3) The Secretary of Defense shall prescribe regulations to carry out this subsection. The regulations shall include provisions for the selection or designation of appropriate representatives of employees referred to in paragraph (2)(B) for purposes of consultation required by paragraph (1).
(Added P.L. 100-456, § 331(a), Sept. 29, 1988, 102 Stat. 1957.)
§ 2468. Military installations: authority of base commanders over contracting for commercial activities
(a) AUTHORITY OF BASE COMMANDER.-The Secretary of Defense shall direct that the commander of each military installation shall have the authority and the responsibility to enter into contracts in accordance with this section for the performance of a commercial activity on the military installation.
(b) YEARLY DUTIES OF BASE COMMANDER.-To enter into a contract under subsection (a) for a fiscal year, the commander of a military installation shall
(1) prepare an inventory for that fiscal year of commercial activities carried out by Government personnel on the military installation;
(2) decide which commercial activities shall be reviewed under the procedures and requirements of Office of Management and Budget Circular A-76 (or any successor administrative regulation or policy); and
(3) conduct a solicitation for contracts for the performance of those commercial activities selected for conversion to contractor performance under the Circular A-76 process.
(c) LIMITATIONS.-(1) The Secretary of Defense shall prescribe regulations under which the commander of each military installation may exercise the authority and responsibility provided under subsection (a).
(2) The authority and responsibility provided under subsection (a) are subject to the authority, direction, and control of the Secretary.
(d) ASSISTANCE TO DISPLACED EMPLOYEES.-If the commander of a military installation enters into a contract under subsection (a), the commander shall, to the maximum extent practicable, as
sist in finding suitable employment for any employee of the Department of Defense who is displaced because of that contract.
(e) MILITARY INSTALLATION DEFINED.-In this section, the term "military installation" means a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department which is located within the United States, the Commonwealth of Puerto Rico, or Guam.
(f) TERMINATION OF AUTHORITY.-The authority provided to commanders of military installations by subsection (a) shall terminate on September 30, 1995.
(Added P.L. 101-189, § 1131(a)(1), Nov. 29, 1989, 103 Stat. 1560, and amended P.L. 101-510, 8921, Nov. 5, 1990, 104 Stat. 1627; P.L. 102–190, §315(a), Dec. 5, 1991, 105 Stat. 1337; P.L. 103-160, §370(c), Nov. 30, 1993, 107 Stat. 1634; P.L. 103-337, § 386(c), Oct. 5, 1994, 108 Stat. 2742.)
§ 2469. Contracts to perform workloads previously performed by depot-level activities of the Department of Defense: requirement of competition
(a) REQUIREMENT FOR COMPETITION.-The Secretary of Defense shall ensure that the performance of a depot-level maintenance or repair workload described in subsection (b) is not changed to performance by a contractor or by another depot-level activity of the Department of Defense unless the change is made using
(1) merit-based selection procedures for competitions among all depot-level activities of the Department of Defense;
(2) competitive procedures for competitions among private and public sector entities.
(b) SCOPE.-Subsection (a) applies to any depot-level maintenance or repair workload that has a value of not less than $3,000,000 and is being performed by a depot-level activity of the Department of Defense.
(c) INAPPLICABILITY OF OMB CIRCULAR A-76.-Office of Management and Budget Circular A-76 (or any successor administrative regulation or policy) does not apply to a performance change to which subsection (a) applies.
(Added P.L. 102-484, § 353(a), Oct. 23, 1992, 106 Stat. 2378, and amended P.L. 103-160, § 346, Nov. 30, 1993, 107 Stat. 1625; P.L. 103–337, § 338, Oct. 5, 1994, 108 Stat. 2718.)
§ 2470. Depot-level activities of the Department of Defense: authority to compete for maintenance and repair workloads of other Federal agencies
A depot-level activity of the Department of Defense shall be eligible to compete for the performance of any depot-level maintenance and repair workload of a Federal agency for which competitive procedures are used to select the entity to perform the workload.
(Added P.L. 103–337, § 335(a), Oct. 5, 1994, 108 Stat. 2716.)
§ 2471. Persons outside the Department of Defense: lease of excess depot-level equipment and facilities by
(a) AUTHORITY TO LEASE EXCESS EQUIPMENT AND FACILITIES.-Subject to subsection (b), the Secretary of a military department and, with respect to a Defense Agency, the Secretary of Defense, may lease excess equipment and facilities of a depot-level ac
tivity of the military department, or the Defense Agency, to a person outside the Department of Defense.
(b) LIMITATIONS.-A lease under subsection (a) may be entered into only if
(1) the lease of any such equipment or facilities will not have a significant adverse effect on the readiness of the armed forces, as determined by the Secretary concerned;
(2) the person leasing such equipment or facilities agrees to reimburse the Department of Defense for the costs (both direct and indirect costs, including any rental costs, as determined 3 the Secretary concerned) attributable to the lease of such equipment or facilities;
(3) the person leasing such equipment or facilities agrees to hold harmless and indemnify the United States, except in cases of willful conduct or gross negligence, from any claim for damages or injury to any person or property arising out the lease of such equipment or facilities; and
(4) the person leasing such equipment or facilities agrees to hold harmless and indemnify the United States from any liability or claim for damages or injury to any person or property arising out of a decision by the Secretary concerned to suspend or terminate the lease during a war or national emergency.
(c) CREDIT TO TREASURY.-Any reimbursement (including the payment of rental costs) received under this section shall be credited to the Treasury as miscellaneous receipts.
(Added P.L. 103–337, § 336(a), Oct. 5, 1994, 108 Stat. 2717.)
3 In section 2471(b)(2), “as determined" should be followed by "by”. *In section 2471(b)(3), “arising out" should be followed by "of”.
CHAPTER 147-UTILITIES AND SERVICES
Utilities and services: sale; expansion and extension of systems and facilities.
Commissary stores: private operation.
Sale of electricity from alternate energy and cogeneration production facilities.
Commissary stores: expenses.
Donation of unusable food: commissary stores and other activities.
Commissary stores: merchandise that may be sold; uniform surcharges and pricing.
Commissary stores: limitations on release of sales information.
Nonappropriated fund instrumentalities: purchase of alcoholic beverages.
§ 2481. Utilities and services: sale; expansion and extension of systems and facilities
(a) Under such regulations and for such periods and at such prices as he may prescribe, the Secretary concerned or his designee may sell or contract to sell to purchasers within or in the immediate vicinity of an activity of the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be, any of the following utilities and related services, if it is determined that they are not available from another local source and that the sale is in the interest of national defense or in the public interest:
(1) Electric power.
(3) Compressed air.
(5) Sewage and garbage disposal.
(6) Natural, manufactured, or mixed gas.
(8) Mechanical refrigeration.
(9) Telephone service.
(b) Proceeds of sales under subsection (a) shall be credited to the appropriation currently available for the supply of that utility or service.
(c) To meet local needs the Secretary concerned may make minor expansions and extensions of any distributing system or facility within an activity through which a utility or service is furnished under subsection (a).
(Aug. 10, 1956, ch. 1041, 70A Stat. 141; Aug. 14, 1959, P.L. 86-156, § 1, 73 Stat. 338.)
$2482. Commissary stores: private operation
Private persons may operate commissary stores under such regulations as the Secretary of Defense may approve. A contract with a private person for the operation of any commissary store may not require or permit the contractor to carry out functions for