[Congressional Record (Bound Edition), Volume 150 (2004), Part 9]
[Senate]
[Pages 11203-11206]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           TEXT OF AMENDMENTS

                                 ______
                                 
  SA 3257. Mr. KENNEDY (for himself and Mr. Chambliss) submitted an

[[Page 11204]]

amendment intended to be proposed by him to the bill S. 2400, to 
authorize appropriations for fiscal year 2005 for military activities 
of the Department of Defense, for military construction, and for 
defense activities of the Department of Energy, to prescribe personnel 
strengths for such fiscal year for the Armed Services, and for other 
purposes; which was ordered to lie on the table; as follows:

       On page 184, between lines 16 and 17, insert the following:

                Subtitle F--Public-Private Competitions

     SEC. 856. PUBLIC-PRIVATE COMPETITION FOR WORK PERFORMED BY 
                   CIVILIAN EMPLOYEES OF THE DEPARTMENT OF 
                   DEFENSE.

       (a) Limitation.--Section 2461(b) of title 10, United States 
     Code, is amended by adding at the end the following new 
     paragraph:
       ``(5)(A) Notwithstanding subsection (d), a function of the 
     Department of Defense performed by 10 or more civilian 
     employees may not be converted, in whole or in part, to 
     performance by a contractor unless the conversion is based on 
     the results of a public-private competition process that--
       ``(i) formally compares the cost of civilian employee 
     performance of that function with the costs of performance by 
     a contractor;
       ``(ii) creates an agency tender, including a most efficient 
     organization plan, in accordance with Office of Management 
     and Budget Circular A-76, as implemented on May 29, 2003;
       ``(iii) requires continued performance of the function by 
     civilian employees unless the competitive sourcing official 
     concerned determines that, over all performance periods 
     stated in the solicitation of offers for performance of the 
     activity or function, the cost of performance of the activity 
     or function by a contractor would be less costly to the 
     Department of Defense by an amount that equals or exceeds the 
     lesser of $10,000,000 or 10 percent of the most efficient 
     organization's personnel-related costs for performance of 
     that activity or function by Federal employees;
       ``(iv) provides no advantage to an offeror in the cost 
     comparison process for a proposal to reduce costs for the 
     Department of Defense by not making an employer-sponsored 
     health insurance plan available to the workers who are to be 
     employed in the performance of such function under a 
     contract; and
       ``(v) provides no advantage to an offeror in the cost 
     comparison process for a proposal to reduce costs for the 
     Department of Defense by offering to such workers an 
     employer-sponsored health benefits plan that requires the 
     employer to contribute less towards the premium or 
     subscription share than that which is paid by the Department 
     of Defense for health benefits for civilian employees under 
     chapter 89 of title 5.
       ``(B) Any function that is performed by civilian employees 
     of the Department of Defense and is proposed to be 
     reengineered, reorganized, modernized, upgraded, expanded, or 
     changed in order to become more efficient shall not be 
     considered a new requirement for the purpose of the 
     competition requirements in subparagraph (A) or the 
     requirements for public-private competition in Office of 
     Management and Budget Circular A-76.
       ``(C) A function performed by more than 10 Federal 
     Government employees may not be separated into separate 
     functions for the purposes of avoiding the competition 
     requirement in subparagraph (A) or the requirements for 
     public-private competition in Office of Management and Budget 
     Circular A-76.
       ``(D) The cost savings requirement specified in 
     subparagraph (A) does not apply to any contract for special 
     studies and analyses, medical services, scientific and 
     technical services related to (but not in support of) 
     research and development, depot-level maintenance and repair 
     services, or services performed for any laboratory that is 
     owned or operated by the Department of Defense and is funded 
     exclusively through working-capital funds.
       ``(E) The Secretary of Defense may waive the requirement 
     for a public-private competition under subparagraph (A) in 
     specific instances if--
       ``(i) the written waiver is prepared by the Secretary of 
     Defense or the relevant Assistant Secretary of Defense, 
     Secretary of a military department, or head of a Defense 
     Agency;
       ``(ii) the written waiver is accompanied by a detailed 
     determination that national security interests are so 
     compelling as to preclude compliance with the requirement for 
     a public-private competition; and
       ``(iii) a copy of the waiver is published in the Federal 
     Register within 10 working days after the date on which the 
     waiver is granted, although use of the waiver need not be 
     delayed until its publication.''.
       (b) Inapplicability to Best-Value Source Selection Pilot 
     Program.--(1) Paragraph (5) of section 2461(b) of title 10, 
     United States Code, as added by subsection (a), shall not 
     apply with respect to the pilot program for best-value source 
     selection for performance of information technology services 
     authorized by section 336 of the National Defense 
     Authorization Act for Fiscal Year 2004 (Public Law 108-136; 
     117 Stat. 1444; 10 U.S.C. 2461 note).

     SEC. 857. PERFORMANCE OF CERTAIN WORK BY FEDERAL GOVERNMENT 
                   EMPLOYEES.

       (a) Guidelines.--(1) The Secretary of Defense shall 
     prescribe and enforce guidelines for ensuring that Federal 
     Government employees can compete through the public-private 
     process pursuant to Office of Management and Budget Circular 
     A-76 on a regular basis for work that is performed under 
     Department of Defense contracts and could be performed by 
     Federal Government employees.
       (2) The guidelines prescribed under paragraph (1) shall 
     provide for special consideration to be given to contracts 
     that--
       (A) have been performed by Federal Government employees at 
     any time on or after October 1, 1980;
       (B) are associated with the performance of inherently 
     governmental functions;
       (C) were not awarded on a competitive basis; or
       (D) have been determined by a contracting officer to be 
     poorly performed due to excessive costs or inferior quality.
       (b) New Requirements.--(1) No public-private competition 
     may be required under Office of Management and Budget 
     Circular A-76 or any other provision of law or regulation 
     before the performance of a new requirement by Federal 
     Government employees commences or the scope of an existing 
     activity performed by Federal Government employees is 
     expanded. Office of Management and Budget Circular A-76 shall 
     be revised to ensure that the heads of all Federal agencies 
     give fair consideration to the performance of new 
     requirements by Federal Government employees.
       (2) The Secretary of Defense shall, to the maximum extent 
     practicable, ensure that Federal Government employees are 
     fairly considered for the performance of new requirements, 
     with special consideration given to new requirements that 
     include functions that--
       (A) are similar to functions that have been performed by 
     Federal Government employees at any time on or after October 
     1, 1980; or
       (B) are associated with the performance of inherently 
     governmental functions.
       (c) Use of Flexible Hiring Authority.--The Secretary shall 
     include the use of the flexible hiring authority available 
     through the National Security Personnel System in order to 
     facilitate performance by Federal Government employees of new 
     requirements and work that is performed under Department of 
     Defense contracts.
       (d) Inspector General Report.--Not later than 180 days 
     after the enactment of this Act, the Inspector General of the 
     Department of Defense shall submit to the Committees on Armed 
     Services of the Senate and the House of Representatives a 
     report on the compliance of the Secretary of Defense with the 
     requirements of this section.
       (e) Definitions.--In this section:
       (1) The term ``National Security Personnel System'' means 
     the human resources management system established under the 
     authority of section 9902 of title 5, United States Code.
       (2) The term ``inherently governmental function'' has the 
     meaning given that term in section 5 of the Federal 
     Activities Inventory Reform Act of 1998 (Public Law 105-270; 
     112 Stat. 2384; 31 U.S.C. 501 note).

     SEC. 858. COMPETITIVE SOURCING REPORTING REQUIREMENT.

       Not later than February 1, 2005, the Inspector General of 
     the Department of Defense shall submit to Congress a report 
     addressing whether the Department of Defense--
       (1) employs a sufficient number of adequately trained 
     civilian employees--
       (A) to conduct satisfactorily, taking into account equity, 
     efficiency and expeditiousness, all of the public-private 
     competitions that are scheduled to be undertaken by the 
     Department of Defense during the next fiscal year (including 
     a sufficient number of employees to formulate satisfactorily 
     the performance work statements and most efficient 
     organization plans for the purposes of such competitions); 
     and
       (B) to administer any resulting contracts; and
       (2) has implemented a comprehensive and reliable system to 
     track and assess the cost and quality of the performance of 
     functions of the Department of Defense by service 
     contractors.
                                 ______
                                 
  SA 3258. Mr. GRAHAM of South Carolina (for himself, Mr. Daschle, Mrs. 
Clinton, Ms. Cantwell, Mr. Dayton, Mr. Allen, Ms. Murkowski, Mr. Lott, 
Mr. Coleman, Mr. DeWine, Mr. Leahy, Mrs. Lincoln, Mr. Corzine, Mr. 
Dorgan, Mr. Bingaman, Mrs. Murray, and Ms. Landrieu) proposed an 
amendment to the bill S. 2400, to authorize appropriations for fiscal 
year 2005 for military activities of the Department of Defense, for 
military construction, and for defense activities of the Department of 
Energy, to prescribe personnel strengths for such fiscal year for the 
Armed Services, and for other purposes; as follows:


[[Page 11205]]

       Beginning on page 134, strike line 18 and all that follows 
     through page 141, line 12, and insert the following:

     SEC. 706. EXPANDED ELIGIBILITY OF READY RESERVE MEMBERS UNDER 
                   TRICARE PROGRAM.

       (a) Unconditional Eligibility.--Subsection (a) of section 
     1076b of title 10, United States Code, is amended by striking 
     ``is eligible, subject to subsection (h), to enroll in 
     TRICARE'' and all that follows through ``an employer-
     sponsored health benefits plan'' and inserting ``, except for 
     a member who is enrolled or is eligible to enroll in a health 
     benefits plan under chapter 89 of title 5, is eligible to 
     enroll in TRICARE, subject to subsection (h)''.
       (b) Permanent Authority.--Subsection (l) of such section is 
     repealed.
       (c) Conforming Repeal of Obsolete Provisions.--Such section 
     is further amended--
       (1) by striking subsections (i) and (j); and
       (2) by redesignating subsection (k) as subsection (i).

     SEC. 707. CONTINUATION OF NON-TRICARE HEALTH BENEFITS PLAN 
                   COVERAGE FOR CERTAIN RESERVES CALLED OR ORDERED 
                   TO ACTIVE DUTY AND THEIR DEPENDENTS.

       (a) Required Continuation.--(1) Chapter 55 of title 10, 
     United States Code, is amended by inserting after section 
     1078a the following new section:

     ``Sec. 1078b. Continuation of non-TRICARE health benefits 
       plan coverage for dependents of certain Reserves called or 
       ordered to active duty

       ``(a) Payment of Premiums.--The Secretary concerned shall 
     pay the applicable premium to continue in force any qualified 
     health benefits plan coverage for the members of the family 
     of an eligible reserve component member for the benefits 
     coverage continuation period if timely elected by the member 
     in accordance with regulations prescribed under subsection 
     (j).
       ``(b) Eligible Member; Family Members.--(1) A member of a 
     reserve component is eligible for payment of the applicable 
     premium for continuation of qualified health benefits plan 
     coverage under subsection (a) while serving on active duty 
     pursuant to a call or order issued under a provision of law 
     referred to in section 101(a)(13)(B) of this title during a 
     war or national emergency declared by the President or 
     Congress.
       ``(2) For the purposes of this section, the members of the 
     family of an eligible reserve component member include only 
     the member's dependents described in subparagraphs (A), (D), 
     and (I) of section 1072(2) of this title.
       ``(c) Qualified Health Benefits Plan Coverage.--For the 
     purposes of this section, health benefits plan coverage for 
     the members of the family of a reserve component member 
     called or ordered to active duty is qualified health benefits 
     plan coverage if--
       ``(1) the coverage was in force on the date on which the 
     Secretary notified the reserve component member that issuance 
     of the call or order was pending or, if no such notification 
     was provided, the date of the call or order;
       ``(2) on such date, the coverage applied to the reserve 
     component member and members of the family of the reserve 
     component member; and
       ``(3) the coverage has not lapsed.
       ``(d) Applicable Premium.--The applicable premium payable 
     under this section for continuation of health benefits plan 
     coverage for the family members of a reserve component member 
     is the amount of the premium payable by the member for the 
     coverage of the family members.
       ``(e) Maximum Amount.--The total amount that the Department 
     of Defense may pay for the applicable premium of a health 
     benefits plan for the family members of a reserve component 
     member under this section in a fiscal year may not exceed the 
     amount determined by multiplying--
       ``(1) the sum of one plus the number of the family members 
     covered by the health benefits plan, by
       ``(2) the per capita cost of providing TRICARE coverage and 
     benefits for dependents under this chapter for such fiscal 
     year, as determined by the Secretary of Defense.
       ``(f) Benefits Coverage Continuation Period.--The benefits 
     coverage continuation period under this section for qualified 
     health benefits plan coverage for the family members of an 
     eligible reserve component member called or ordered to active 
     duty is the period that--
       ``(1) begins on the date of the call or order; and
       ``(2) ends on the earlier of--
       ``(A) the date on which the reserve component member's 
     eligibility for transitional health care under section 
     1145(a) of this title terminates under paragraph (3) of such 
     section; or
       ``(B) the date on which the reserve component member elects 
     to terminate the continued qualified health benefits plan 
     coverage of the member's family members.
       ``(g) Extension of Period of COBRA Coverage.--
     Notwithstanding any other provision of law--
       ``(1) any period of coverage under a COBRA continuation 
     provision (as defined in section 9832(d)(1) of the Internal 
     Revenue Code of 1986) for an eligible reserve component 
     member under this section shall be deemed to be equal to the 
     benefits coverage continuation period for such member under 
     this section; and
       ``(2) with respect to the election of any period of 
     coverage under a COBRA continuation provision (as so 
     defined), rules similar to the rules under section 
     4980B(f)(5)(C) of such Code shall apply.
       ``(h) Nonduplication of Benefits.--A member of the family 
     of a reserve component member who is eligible for benefits 
     under qualified health benefits plan coverage paid on behalf 
     of the reserve component member by the Secretary concerned 
     under this section is not eligible for benefits under the 
     TRICARE program during a period of the coverage for which so 
     paid.
       ``(i) Revocability of Election.--A reserve component member 
     who makes an election under subsection (a) may revoke the 
     election. Upon such a revocation, the member's family members 
     shall become eligible for benefits under the TRICARE program 
     as provided for under this chapter.
       ``(j) Regulations.--The Secretary of Defense shall 
     prescribe regulations for carrying out this section. The 
     regulations shall include such requirements for making an 
     election of payment of applicable premiums as the Secretary 
     considers appropriate.''.
       (2) The table of sections at the beginning of such chapter 
     is amended by inserting after the item relating to section 
     1078a the following new item:

``1078b. Continuation of non-TRICARE health benefits plan coverage for 
              dependents of certain Reserves called or ordered to 
              active duty.''.

       (b) Applicability.--Section 1078b of title 10, United 
     States Code (as added by subsection (a)), shall apply with 
     respect to calls or orders of members of reserve components 
     of the Armed Forces to active duty as described in subsection 
     (b) of such section, that are issued by the Secretary of a 
     military department before, on, or after the date of the 
     enactment of this Act, but only with respect to qualified 
     health benefits plan coverage (as described in subsection (c) 
     of such section) that is in effect on or after the date of 
     the enactment of this Act.
                                 ______
                                 
  SA 3259. Mr. HOLLINGS submitted an amendment intended to be proposed 
by him to the bill S. 2400, to authorize appropriations for fiscal year 
2005 for military activities of the Department of Defense, for military 
construction, and for defense activities of the Department of Energy, 
to prescribe personnel strengths for such fiscal year for the Armed 
Services, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 365, between lines 18 and 19, insert the following:

     SEC. 2830. MODIFICATION OF AUTHORITY FOR LAND CONVEYANCE, 
                   EQUIPMENT AND STORAGE YARD, CHARLESTON, SOUTH 
                   CAROLINA.

       Section 563(h) of the Water Resources Development Act of 
     1999 (Public Law 106-53; 113 Stat. 360) is amended to read as 
     follows:
       ``(h) Charleston, South Carolina.--
       ``(1) In general.--The Secretary may convey all right, 
     title, and interest of the United States in and to a parcel 
     of real property of the Corps of Engineers, together with any 
     improvements thereon, that is known as the Equipment and 
     Storage Yard and is located on Meeting Street in Charleston, 
     South Carolina, in as-is condition.
       ``(2) Consideration.--As consideration for the conveyance 
     of property under paragraph (1), the party to which such 
     property is conveyed shall provide the United States, whether 
     by cash payment, exchange of property or facilities, or a 
     combination thereof, an amount that is not less than the fair 
     market value of the property conveyed, as determined by the 
     Secretary.
       ``(3) Discharge of authority through division engineer, 
     south atlantic division.--The Division Engineer, South 
     Atlantic Division, may, on behalf of the United States, 
     execute deeds of conveyance and accept the consideration 
     described in paragraph (2) in connection with the conveyance 
     of property under paragraph (1).
       ``(4) Use of proceeds.--Amounts received as consideration 
     under this subsection may be used by the Corps of Engineers, 
     Charleston District--
       ``(A) to cover costs associated with the lease, purchase, 
     or construction of an office facility within the boundaries 
     of Charleston, Berkeley, and Dorchester Counties, South 
     Carolina, notwithstanding any requirements in the Plant 
     Replacement and Improvement Program (PRIP), or existing PRIP 
     balances;
       ``(B) to cover any of the costs previously incurred in 
     connection with the move of the District Headquarters of the 
     Charleston District; or
       ``(C) to cover any of the costs previously incurred in 
     connection with the Equipment and Storage Yard.''.
                                 ______
                                 
  SA 3260. Mr. WARNER (for himself, Mr. Levin, and Mr. Stevens) 
proposed an amendment to the bill S. 2400, to authorize appropriations 
for fiscal year 2005 for military activities of the Department of 
Defense, for military construction, and for defense activities of

[[Page 11206]]

the Department of Energy, to prescribe personnel strengths for such 
fiscal year for the Armed Services, and for other purposes; as follows:

       On page 239, between lines 2 and 3, insert the following:

     SEC. 1006. AUTHORIZATION OF APPROPRIATIONS FOR A CONTINGENT 
                   EMERGENCY RESERVE FUND FOR OPERATIONS IN IRAQ 
                   AND AFGHANISTAN.

       (a) Authorization of Supplemental Appropriations.--In 
     addition to any other amounts authorized to be appropriated 
     by this Act, there is hereby authorized to be appropriated 
     for the Department of Defense for fiscal year 2005, subject 
     to subsections (b) and (c), $25,000,000,000, to be available 
     only for activities in support of operations in Iraq and 
     Afghanistan.
       (b) Specific Amounts.--Of the amount authorized to be 
     appropriated under subsection (a), funds are authorized to be 
     appropriated in amounts for purposes as follows:
       (1) For the Army for operation and maintenance, 
     $14,000,000,000.
       (2) For the Navy for operation and maintenance, 
     $1,000,000,000.
       (3) For the Marine Corps for operation and maintenance, 
     $2,000,000,000.
       (4) For the Air Force for operation and maintenance, 
     $1,000,000,000.
       (5) For operation and maintenance, Defense-wide activities, 
     $2,000,000,000.
       (6) For military personnel, $2,000,000,000.
       (7) An additional amount of $3,000,000,000 to be available 
     for transfer to--
       (A) operation and maintenance accounts;
       (B) military personnel accounts;
       (C) research, development, test, and evaluation accounts;
       (D) procurement accounts;
       (E) classified programs; and
       (F) Coast Guard operating expenses.
       (c) Authorization Contingent on Budget Request.--The 
     authorization of appropriations in subsection (a) shall be 
     effective only to the extent that a budget request for all or 
     part of the amount authorized to be appropriated under such 
     subsection for the purposes set forth in such subsection is 
     transmitted by the President to Congress after the date of 
     the enactment of this Act and includes a designation of the 
     requested amount as an emergency and essential to support 
     activities in Iraq and Afghanistan.
       (d) Transfer Authority.--(1) Of the amount authorized to be 
     appropriated under subsection (b)(7) for transfer, no 
     transfer may be made until the Secretary of Defense consults 
     with the Chairmen and Ranking Members of the congressional 
     defense committees and then notifies such committees in 
     writing not later than five days before the transfer is made.
       (2) The transfer authority provided under this section is 
     in addition to any other transfer authority available to the 
     Department of Defense.
       (e) Monthly Report.--The Secretary of Defense shall submit 
     to the congressional defense committees each month a report 
     on the use of funds authorized to be appropriated under this 
     section. The report for a month shall include in a separate 
     display for each of Iraq and Aghanistan, the activity for 
     which the funds were used, the purpose for which the funds 
     were used, the source of the funds used to carry out that 
     activity, and the account to which those expenditures were 
     charged.

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