10 U.S.C. § 129a

Current through P.L. 118-106 (published on www.congress.gov on 10/04/2024)

Section 129a - General policy for total force management

(a) POLICIES AND PROCEDURES.-The Secretary of Defense shall establish policies and procedures for determining the most appropriate and cost efficient mix of military, civilian, and contractor personnel to perform the mission of the Department of Defense.

(b) RISK MITIGATION OVER COST.-In establishing the policies and procedures under subsection (a), the Secretary shall clearly provide that attainment of a Department of Defense workforce sufficiently sized and comprised of the appropriate mix of personnel necessary to carry out the mission of the Department and the core mission areas of the armed forces takes precedence over cost. The Secretary may not reduce the civilian workforce programmed full-time equivalent levels unless the Secretary conducts an appropriate analysis of the impacts of such reductions on workload, military force structure, lethality, readiness, operational effectiveness, stress on the military force, and fully burdened costs.

(c) DELEGATION OF RESPONSIBILITIES.-The Secretary shall delegate responsibility for implementation of the policies and procedures established under subsection (a) as follows:

(1) The Under Secretary of Defense for Personnel and Readiness shall have overall responsibility for guidance to implement such policies and procedures.

(2) The Secretaries of the military departments and the heads of the Defense Agencies shall have overall responsibility for the requirements determination, planning, programming, and budgeting for such policies and procedures. The Secretary of Defense shall ensure that the requirements determination, planning, programming, and budgeting conducted under this paragraph considers all components of the total force (including active and reserve military, the civilian workforce, and contract support) in a holistic manner-

(A) to avoid duplication of efforts and waste of resources attributable to a component working outside the scope of its responsibilities; and

(B) to ensure that risk, cost, and mission validation and prioritization considerations are consistent with the national defense strategy.

(3) The Under Secretary of Defense for Acquisition and Sustainment shall be responsible for ensuring that the defense acquisition system, as defined in section 3001 of this title, is consistent with such policies and procedures and with implementation pursuant to paragraph (1).

(4) The Under Secretary of Defense (Comptroller) shall be responsible for ensuring that the budget for the Department of Defense is consistent with such policies and procedures. The Under Secretary shall notify the congressional defense committees of any deviations from such policies and procedures that are recommended in the budget.

(d) USE OF PLAN, INVENTORY, AND LIST.-The policies and procedures established by the Secretary under subsection (a) shall specifically require the Department of Defense to use the following when making determinations regarding the appropriate workforce mix necessary to perform its mission:

(1) The inventory of contracts for services required by section 4505(c) of this title.

(2) The list of activities required by the Federal Activities Inventory Reform Act of 1998 (Public Law 105-270; 31 U.S.C. 501 note).

(e) CONSIDERATIONS IN CONVERTING PERFORMANCE OF FUNCTIONS.- If conversion of functions to performance by either Department of Defense civilian personnel or contractor personnel is considered, the Under Secretary of Defense for Personnel and Readiness shall ensure compliance with-

(1) section 2463 of this title (relating to guidelines and procedures for use of civilian employees to perform Department of Defense functions); and

(2) section 2461 of this title (relating to public-private competition required before conversion to contractor performance).

(f) CONSTRUCTION WITH OTHER REQUIREMENTS.-Nothing in this title may be construed as authorizing-

(1) a military department or Defense Agency to directly convert a function to contractor performance without complying with section 2461 of this title;

(2) the use of contractor personnel for functions that are inherently governmental even if there is a military or civilian personnel shortfall in the Department of Defense;

(3) restrictions on the use by a military department or Defense Agency of contractor personnel to perform functions closely associated with inherently governmental functions, provided that-

(A) there are adequate resources to maintain sufficient capabilities within the Department in the functional area being considered for performance by contractor personnel; and

(B) there is adequate Government oversight of contractor personnel performing such functions;

(4) the establishment of numerical goals or budgetary savings targets for the conversion of functions to performance by either Department of Defense civilian personnel or for conversion to performance by contractor personnel; or

(5) the imposition of a civilian hiring freeze that may inhibit the implementation of the policies and procedures established under subsection (a).

(g) PERFORMANCE OF CIVILIAN FUNCTIONS BY MILITARY PERSONNEL.-

(1) Functions performed by civilian personnel should not be performed by military personnel except-

(A) if the Secretary of the military department concerned determines in writing based on mission requirements that the performance of such functions by military personnel is cost-effective, taking into account the fully-burdened costs of the civilian, military, and contractor workforces, including the impact of the performance of such functions on military career progression or when required by military necessity; or

(B) such functions may be performed by military personnel for a period that does not exceed one year if the Secretary of the military department concerned determines that-

(i) the performance of such functions by military personnel is required to address critical staffing needs resulting from a reduction in personnel or budgetary resources by reason of an Act of Congress; and

(ii) the military department concerned is in compliance with the policies, procedures, and analysis required by this section and section 129 of this title.

(2) In determining the workforce mix between civilian and military personnel, the Secretary of a military department shall reserve military personnel for the performance of the functions that, in the estimation of the Secretary, are required to be performed by military personnel in order to achieve national defense goals or in order to enable the proper functioning of the military department. In making workforce decisions, the Secretary shall account for the relative budgetary impact of military versus civilian personnel in determining the functions required to be performed by military personnel.

10 U.S.C. § 129a

Added Pub. L. 101-510, div. A, title XIV, §1483(b)(2), Nov. 5, 1990, 104 Stat. 1715; amended Pub. L. 112-81, div. A, title IX, §931(a), Dec. 31, 2011, 125 Stat. 1541; Pub. L. 114-328, div. A, title IX, §914, Dec. 23, 2016, 130 Stat. 2350; Pub. L. 115-91, div. A, title X, §§1051(a)(6)(B), 1081(a)(5), Dec. 12, 2017, 131 Stat. 1560, 1594; Pub. L. 115-232, div. A, title IX, §933, Aug. 13, 2018, 132 Stat. 1938; Pub. L. 116-92, div. A, title IX, §902(1), title XI, §1106, Dec. 20, 2019, 133 Stat. 1542, 1597; Pub. L. 116-283, div. A, title IX, §912, title XVIII, §§1808(d)(1), 1883(b)(2), Jan. 1, 2021, 134 Stat. 3802, 4160, 4294; Pub. L. 118-31, div. A, title IX, §911, Dec. 22, 2023, 137 Stat. 364.

EDITORIAL NOTES

PRIOR PROVISIONSProvisions similar to those in this section were contained in section 115(b)(5) of this title, prior to repeal by Pub. L. 101-510, §1483(a) .

AMENDMENTS2023-Subsec. (c)(2). Pub. L. 118-31 inserted at end "The Secretary of Defense shall ensure that the requirements determination, planning, programming, and budgeting conducted under this paragraph considers all components of the total force (including active and reserve military, the civilian workforce, and contract support) in a holistic manner-" and added subpars. (A) and (B).2021-Subsec. (b). Pub. L. 116-283, §912, inserted at end "The Secretary may not reduce the civilian workforce programmed full-time equivalent levels unless the Secretary conducts an appropriate analysis of the impacts of such reductions on workload, military force structure, lethality, readiness, operational effectiveness, stress on the military force, and fully burdened costs."Subsec. (c)(3). Pub. L. 116-283, §1808(d)(1), substituted "section 3001" for "section 2545".Subsec. (d)(1). Pub. L. 116-283, §1883(b)(2), substituted "section 4505(c)" for "section 2330a(c)". 2019-Subsec. (c)(3). Pub. L. 116-92, §902(1), substituted "Under Secretary of Defense for Acquisition and Sustainment" for "Under Secretary of Defense for Acquisition, Technology, and Logistics".Subsec. (g)(1)(B). Pub. L. 116-92, §1106, amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "if the performance of such functions by military personnel is required to address critical staffing needs resulting from a reduction in personnel or budgetary resources by reason of an Act of Congress, in which case such functions may not be performed by military personnel for a period in excess of one year."2018-Subsec. (g)(1)(A). Pub. L. 115-232 substituted "is cost-effective, taking into account the fully-burdened costs of the civilian, military, and contractor workforces, including the impact of the performance of such functions on military career progression or when required by military necessity" for ",including a permanent conversion of such functions to performance by military personnel, is cost-effective or required by a mission". 2017-Subsec. (b). Pub. L. 115-91, §1081(a)(5), struck out "(as identified pursuant to section 118b of this title)" after "armed forces".Subsec. (d). Pub. L. 115-91, §1051(a)(6)(B), redesignated pars. (3) and (4) as (1) and (2), respectively, and struck out former pars. (1) and (2) which read as follows:"(1) The civilian strategic workforce plan (required by section 115b of this title)."(2) The civilian positions master plan (required by section 1597(c) of this title)." 2016-Subsec. (g). Pub. L. 114-328 added subsec. (g).2011- Pub. L. 112-81 amended section generally. Prior to amendment, text read as follows: "The Secretary of Defense shall use the least costly form of personnel consistent with military requirements and other needs of the Department. In developing the annual personnel authorization requests to Congress and in carrying out personnel policies, the Secretary shall-"(1) consider particularly the advantages of converting from one form of personnel (military, civilian, or private contract) to another for the performance of a specified job; and"(2) include in each manpower requirements report submitted under section 115a of this title a complete justification for converting from one form of personnel to another."

STATUTORY NOTES AND RELATED SUBSIDIARIES

EFFECTIVE DATE OF 2021 AMENDMENT Amendment by sections 1808(d)(1) and 1883(b)(2) of Pub. L. 116-283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116-283, set out as a note preceding section 3001 of this title.

MANAGEMENT INNOVATION ACTIVITIES Pub. L. 117-81, div. A, title IX, §908, Dec. 27, 2021, 135 Stat. 1875, provided that:"(a) IN GENERAL.-The Secretary of Defense shall carry out a set of activities to improve the effectiveness of management activities within the Department of Defense, with the goals of incorporating appropriate private sector management practices and technologies and enhancing the capabilities of the defense management workforce. "(b) MANAGEMENT ACTIVITIES.-Subject to the total force management requirements under section 129a of title 10, United States Code, the activities carried out under subsection (a) may include the following: "(1) Public-private partnerships with appropriate private sector and government organizations."(2) Personnel exchange programs with appropriate industry, academic, and government organizations to enhance the capabilities of the defense management workforce."(3) Research, development, and technology and business process prototyping activities to create new technological capabilities to support management missions, or development and testing of new management concepts and business transformation activities."(4) The designation of appropriate organizations to lead management innovation activities. "(5) A process by which defense business process owners and other personnel of the Department of Defense can identify management and business process challenges and opportunities that could be addressed by activities carried out under this section."(6) Processes to develop, prototype, test, and field new business processes and practices to improve defense management capabilities."(7) Academic research and educational activities related to defense management missions to promote-"(A) development of innovative management concepts;"(B) analyses and addressing of appropriate management challenges; and"(C) development of programs and activities to develop the defense management workforce."(8) Academic research and independent studies from federally funded research and development centers assessing lessons learned from previous Departmental management reform initiatives and whether legacy organizations exist and should be consolidated."(c) PLAN REQUIRED.-Not later than February 1, 2023, the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a plan for carrying out the activities under this section."(d) BRIEFINGS.-"(1) INITIAL BRIEFING.-Not later than July 1, 2022, the Secretary of Defense shall provide to the congressional defense committees an initial briefing on the activities carried out and plans developed under this section."(2) SUBSEQUENT BRIEFING.-On a date occurring after the briefing under paragraph (1), but not later than July 1, 2023, the Secretary of Defense shall provide to the congressional defense committees a briefing on the activities carried out and plans developed under this section."

STRATEGIC POLICY FOR THE RETROGRADE, RECONSTITUTION, AND REPLACEMENT OF OPERATING FORCES USED TO SUPPORT OVERSEAS CONTINGENCY OPERATIONS Pub. L. 113-66, div. A, title III, §324, Dec. 26, 2013, 127 Stat. 733, provided that:"(a) ESTABLISHMENT OF POLICY.-"(1) IN GENERAL.-The Secretary of Defense shall establish a policy setting forth the programs and priorities of the Department of Defense for the retrograde, reconstitution, and replacement of units and materiel used to support overseas contingency operations. The policy shall take into account national security threats, the requirements of the combatant commands, the current readiness of the operating forces of the military departments, and risk associated with strategic depth and the time necessary to reestablish required personnel, equipment, and training readiness in such operating forces. "(2) ELEMENTS.-The policy required under paragraph (1) shall include the following elements: "(A) Establishment and assignment of responsibilities and authorities within the Department for oversight and execution of the planning, organization, and management of the programs to reestablish the readiness of redeployed operating forces. "(B) Guidance concerning priorities, goals, objectives, timelines, and resources to reestablish the readiness of redeployed operating forces in support of national defense objectives and combatant command requirements."(C) Oversight reporting requirements and metrics for the evaluation of Department of Defense and military department progress on restoring the readiness of redeployed operating forces in accordance with the policy required under paragraph (1)."(D) A framework for joint departmental reviews of military services' annual budgets proposed for retrograde, reconstitution, or replacement activities, including an assessment of the strategic and operational risk assumed by the proposed levels of investment across the Department of Defense."(b) IMPLEMENTATION PLAN.- "(1) IN GENERAL.-Not later than 90 days after the date of the enactment of this Act [Dec. 26, 2013], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a plan for implementation of the policy required under this section. "(2) ELEMENTS.-The implementation plan required under paragraph (1) shall include the following elements: "(A) The assignment of responsibilities and authorities for oversight and execution of the planning, organization, and management of the programs to reestablish the readiness of redeployed operating forces. "(B) Establishment of priorities, goals, objectives, timelines, and resources to reestablish the readiness of redeployed operating forces in support of national defense objectives and combatant command requirements."(C) A description of how the plan will be implemented, including a schedule with milestones to meet the goals of the plan."(D) An estimate of the resources by military service and by year required to implement the plan, including an assessment of the risks assumed in the plan. "(3) UPDATES.-Not later than one year after submitting the plan required under paragraph (1), and annually thereafter for two years, the Secretary of Defense shall submit to the congressional defense committees an update on progress toward meeting the goals of the plan."(c) COMPTROLLER GENERAL REPORT.-Not later than 120 days after the date of the enactment of this Act, and annually after the submittal of each update to the implementation plan under subsection (b), the Comptroller General of the United States shall review the implementation plan submitted under subsection (b) and the policy required by subsection (a), and submit to the congressional defense committees a report describing the findings of such review and progress made toward meeting the goals of the plan and including any additional information relating to the policy and plan that the Comptroller General determines appropriate."

SAVINGS TO BE ACHIEVED IN CIVILIAN PERSONNEL WORKFORCE AND SERVICE CONTRACTOR WORKFORCE OF THE DEPARTMENT OF DEFENSE Pub. L. 112-239, div. A, title IX, §955, Jan. 2, 2013, 126 Stat. 1896, which related to efficiencies plan for the civilian personnel workforce and service contractor workforce of the Department of Defense, requiring specific savings, excluding certain expenses, setting reporting requirements, limiting transfers of functions, recommending application of certain funds saved to transition assistance for personnel separated from the Armed Forces, and providing definition of "service contractor workforce", was repealed by Pub. L. 114-328, div. A, title IX, §915, Dec. 23, 2016, 130 Stat. 2350.

CONVERSION OF MILITARY POSITIONS TO CIVILIAN POSITIONS Pub. L. 104-106, div. A, title X, §1032, Feb. 10, 1996, 110 Stat. 429, as amended by Pub. L. 104-201, div. A, title XVI, §1601, Sept. 23, 1996, 110 Stat. 2734, directed Secretary of Defense, by Sept. 30, 1996, to convert at least 3,000 military positions to civilian positions and, not later than Mar. 31, 1996, submit to Congress a plan for the implementation of conversion.

PROHIBITION ON USE OF FUNDS TO ASSIGN SUPERVISOR'S TITLE OR GRADE BASED UPON NUMBER OF PEOPLE SUPERVISED Pub. L. 104-61, §8031, Dec. 1, 1995, 109 Stat. 658, provided that: "None of the funds appropriated during the current fiscal year and hereafter, may be used by the Department of Defense to assign a supervisor's title or grade when the number of people he or she supervises is considered as a basis for this determination: Provided, That savings that result from this provision are represented as such in future budget proposals."Similar provisions were contained in the following prior appropriation acts: Pub. L. 103-335, §8036, Sept. 30, 1994, 108 Stat. 2626. Pub. L. 103-139, §8040, Nov. 11, 1993, 107 Stat. 1449. Pub. L. 102-396, §9053, Oct. 6, 1992, 106 Stat. 1914. Pub. L. 102-172, §8055, Nov. 26, 1991, 105 Stat. 1184. Pub. L. 101-511, §8063, Nov. 5, 1990, 104 Stat. 1888. Pub. L. 101-165, §9085, Nov. 21, 1989, 103 Stat. 1147. Pub. L. 100-463, title VIII, §8079, Oct. 1, 1988, 102 Stat. 2270-30.Pub. L. 100-202, §101(b) [title VIII, §8105], Dec. 22, 1987, 101 Stat. 1329-43, 1329-81.

Defense Agency: The term "Defense Agency" means an organizational entity of the Department of Defense-(A) that is established by the Secretary of Defense under section 191 of this title (or under the second sentence of section 125(d) of this title (as in effect before October 1, 1986)) to perform a supply or service activity common to more than one military department (other than such an entity that is designated by the Secretary as a Department of Defense Field Activity); or(B) that is designated by the Secretary of Defense as a Defense Agency.
armed forces: The term "armed forces" means the Army, Navy, Air Force, Marine Corps, Space Force, and Coast Guard.
congressional defense committees: The term "congressional defense committees" means-(A) the Committee on Armed Services and the Committee on Appropriations of the Senate; and(B) the Committee on Armed Services and the Committee on Appropriations of the House of Representatives.
grade: The term "grade" means a step or degree, in a graduated scale of office or military rank, that is established and designated as a grade by law or regulation.
military departments: The term "military departments" means the Department of the Army, the Department of the Navy, and the Department of the Air Force.