10 U.S. Code § 1599g - Public-private talent exchange

(a) Assignment Authority.—

Under regulations prescribed by the Secretary of Defense, the Secretary may, with the agreement of a private-sector organization and the consent of the employee, arrange for the temporary assignment of an employee to such private-sector organization, or from such private-sector organization to a Department of Defense organization under this section.

(b) Agreements.—

(1) The Secretary of Defense shall provide for a written agreement among the Department of Defense, the private-sector organization, and the employee concerned regarding the terms and conditions of the employee’s assignment under this section. The agreement—

(A) shall require that the employee of the Department of Defense, upon completion of the assignment, will serve in the Department of Defense, or elsewhere in the civil service if approved by the Secretary, for a period equal to twice the length of the assignment;

(B) shall provide that if the employee of the Department of Defense or of the private-sector organization (as the case may be) fails to carry out the agreement, such employee shall be liable to the United States for payment of all expenses of the assignment, unless that failure was for good and sufficient reason, as determined by the Secretary of Defense; and

(C) shall contain language ensuring that such employee of the Department does not improperly use information that such employee knows relates to a Department acquisition or procurement for the benefit or advantage of the private-sector organization.

(2) An amount for which an employee is liable under paragraph (1) shall be treated as a debt due the United States.

(3) The Secretary may waive, in whole or in part, collection of a debt described in paragraph (2) based on a determination that the collection would be against equity and good conscience and not in the best interests of the United States, after taking into account any indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee.

(c) Termination.—

An assignment under this section may, at any time and for any reason, be terminated by the Department of Defense or the private-sector organization concerned.

(d) Duration.—

(1) An assignment under this section shall be for a period of not less than three months and not more than two years, renewable up to a total of four years. No employee of the Department of Defense may be assigned under this section for more than a total of 4 years inclusive of all such assignments.

(2) An assignment under this section may be for a period in excess of two years, but not more than four years, if the Secretary determines that such assignment is necessary to meet critical mission or program requirements.

(e) Status of Federal Employees Assigned to Private-sector Organizations.—

(1) An employee of the Department of Defense who is assigned to a private-sector organization under this section shall be considered, during the period of assignment, to be on detail to a regular work assignment in the Department for all purposes. The written agreement established under subsection (b)(1) shall address the specific terms and conditions related to the employee’s continued status as a Federal employee.

(2) In establishing a temporary assignment of an employee of the Department of Defense to a private-sector organization, the Secretary of Defense shall—

(A) ensure that the normal duties and functions of such employee can be reasonably performed by other employees of the Department of Defense without the permanent transfer or reassignment of other personnel of the Department of Defense, including members of the armed forces;

(B) ensure that the normal duties and functions of such employees are not, as a result of and during the course of such temporary assignment, performed or augmented by contractor personnel in violation of the provisions of section 2461 of this title; and

(C) certify that the temporary assignment of such employee shall not have an adverse or negative impact on mission attainment, warfighter support, or organizational capabilities associated with the assignment.

(f) Terms and Conditions for Private-sector Employees.—

An employee of a private-sector organization who is assigned to a Department of Defense organization under this section—

(1) shall continue to receive pay and benefits from the private-sector organization from which such employee is assigned and shall not receive pay or benefits from the Department of Defense, except as provided in paragraph (2);

(2) is deemed to be an employee of the Department of Defense for the purposes of—

(A) chapters 73 and 81 of title 5;

(B) sections 201, 203, 205, 207, 208, 209, 603, 606, 607, 643, 654, 1905, and 1913 of title 18;

(C) sections 1343, 1344, and 1349(b) of title 31;

(D) the Federal Tort Claims Act and any other Federal tort liability statute;

(E) the Ethics in Government Act of 1978; and

(F) chapter 21 of title 41;

(3) shall not have access to any trade secrets or to any other nonpublic information which is of commercial value to the private-sector organization from which such employee is assigned;

(4) may not perform work that is considered inherently governmental in nature; and

(5) may not be used to circumvent the provision of section 2461 of this title nor to circumvent any limitation or restriction on the size of the Department’s workforce.

(g) Prohibition Against Charging Certain Costs to the Federal Government.—

A private-sector organization may not charge the Department or any other agency of the Federal Government, as direct or indirect costs under a Federal contract, the costs of pay or benefits paid by the organization to an employee assigned to a Department organization under this section for the period of the assignment.

(h) Considerations.—

In carrying out this section, the Secretary of Defense—

(1) shall ensure that, of the assignments made under this section each year, at least 20 percent are from small business concerns (as defined by section 3703(e)(2)(A) of title 5);

(2) shall take into consideration the question of how assignments under this section might best be used to help meet the needs of the Department of Defense with respect to the training of employees; and

(3) shall take into consideration, where applicable, areas of particular private sector expertise, such as cybersecurity.

(i) Conflicts of Interest.—

A private-sector organization that is temporarily assigned a member of the acquisition workforce under this section shall not be considered to have a conflict of interest with the Department of Defense solely because of participation in the program established under this section.

(j) Funding; Use of Defense Acquisition Workforce Development Fund.—

Funds for the expenses for the program established under this section may be provided from amounts in the Department of Defense Acquisition Workforce Development Fund. Expenses for the program include—

(1) notwithstanding section 1705(e)(5) of this title, the base salary of a civilian member of the acquisition workforce assigned to a private-sector organization under this section, during the period of that assignment;

(2) expenses relating to assignment under this section of a member of the acquisition workforce away from the member’s regular duty station, including expenses for travel, per diem, and lodging; and

(3) expenses for the administration of the program.

(Added Pub. L. 114–328, div. A, title XI, § 1104(a), Dec. 23, 2016, 130 Stat. 2445; amended Pub. L. 116–92, div. A, title VIII, § 863(a), title XI, § 1116, Dec. 20, 2019, 133 Stat. 1522, 1604; Pub. L. 116–283, div. A, title XI, § 1102(a), Jan. 1, 2021, 134 Stat. 3885.)

Editorial Notes

References in Text

The Federal Tort Claims Act, referred to in subsec. (f)(2)(D), is title IV of act Aug. 2, 1946, ch. 753, 60 Stat. 842, which was classified principally to chapter 20 (§§ 921, 922, 931–934, 941–946) of former Title 28, Judicial Code and Judiciary. Title IV of act Aug. 2, 1946, was substantially repealed and reenacted as sections 1346(b) and 2671 et seq. of Title 28, Judiciary and Judicial Procedure, by act June 25, 1948, ch. 646, 62 Stat. 992, the first section of which enacted Title 28. The Federal Tort Claims Act is also commonly used to refer to chapter 171 of Title 28, Judiciary and Judicial Procedure. For complete classification of title IV to the Code, see Tables. For distribution of former sections of Title 28 into the revised Title 28, see Table at the beginning of Title 28.

The Ethics in Government Act of 1978, referred to in subsec. (f)(2)(E), is Pub. L. 95–521, Oct. 26, 1978, 92 Stat. 1824. For complete classification of this Act to the Code, see Short Title note set out under section 101 of Pub. L. 95–521 in the Appendix to Title 5, Government Organization and Employees, and Tables.

Amendments

2021—Subsec. (b)(1)(C). Pub. L. 116–283, § 1102(a)(1), amended subpar. (C) generally. Prior to amendment, subpar. (C) read as follows: “shall contain language ensuring that such employee of the Department does not improperly use pre-decisional or draft deliberative information that such employee may be privy to or aware of related to Department programing, budgeting, resourcing, acquisition, or procurement for the benefit or advantage of the private-sector organization.”

Subsec. (f)(4). Pub. L. 116–283, § 1102(a)(2), amended par. (4) generally. Prior to amendment, par. (4) read as follows: “may perform work that is considered inherently governmental in nature only when requested in writing by the Secretary of Defense; and”.

2019—Subsec. (e)(2)(A). Pub. L. 116–92, § 1116, inserted “permanent” after “without the”.

Subsecs. (i), (j). Pub. L. 116–92, § 863(a), added subsecs. (i) and (j).

Statutory Notes and Related Subsidiaries

Enhancement of Public-Private Talent Exchange Programs in the Department of Defense

Pub. L. 116–283, div. A, title XI, § 1102(b)–(d), Jan. 1, 2021, 134 Stat. 3885, 3886, provided that:

“(b) Application of Exchange Authority to Modernization Priorities.—

Not later than 90 days after the date of the enactment of this Act [Jan. 1, 2021], the Secretary of Defense shall take steps to ensure that the authority of the Secretary to carry out a public-private talent exchange program under section 1599g of title 10, United States Code (as amended by subsection (a)), is used to—

“(1) carry out exchanges of personnel with private sector entities that are working on the modernization priorities of the Department of Defense; and

“(2) carry out exchanges in—

“(A) the office of the Under Secretary of Defense for Research and Engineering;

“(B) the office of the Chief Information Officer of the Department of Defense;

“(C) each Armed Force under the jurisdiction of the Secretary of a military department; and

“(D) any other organizations or elements of the Department of Defense the Secretary determines appropriate.

“(c) Conflicts of Interest.—

The Secretary shall implement a system to identify, mitigate, and manage any conflicts of interests that may arise as a result of an individual’s participation in a public-private talent exchange under section 1599g of title 10, United States Code.

“(d) Treatment of Program Participants.—

The Secretary of Defense, in consultation with each Secretary of a military department, shall develop practices to ensure that participation by a member of an Armed Force under the jurisdiction of the Secretary of a military department in an public-private talent exchange under section 1599g of title 10, United States Code, is taken into consideration in subsequent assignments.”