5 USC Ch. 37: INFORMATION TECHNOLOGY EXCHANGE PROGRAM

From Title 5—GOVERNMENT ORGANIZATION AND EMPLOYEESPART III—EMPLOYEESSubpart B—Employment and Retention

CHAPTER 37—INFORMATION TECHNOLOGY EXCHANGE PROGRAM

Sec.

3701.

Definitions.

3702.

General provisions.

3703.

Assignment of employees to private sector organizations.

3704.

Assignment of employees from private sector organizations.

3705.

Application to Office of the Chief Technology Officer of the District of Columbia.

3706.

Reporting requirement.

3707.

Regulations.

§3701. Definitions

For purposes of this chapter—

(1) the term "agency" means an Executive agency, but does not include the Government Accountability Office; and

(2) the term "detail" means—

(A) the assignment or loan of an employee of an agency to a private sector organization without a change of position from the agency that employs the individual, or

(B) the assignment or loan of an employee of a private sector organization to an agency without a change of position from the private sector organization that employs the individual,

whichever is appropriate in the context in which such term is used.

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2925; amended Pub. L. 108–271, §8(b), July 7, 2004, 118 Stat. 814.)

Editorial Notes

Amendments

2004—Par. (1). Pub. L. 108–271 substituted "Government Accountability Office" for "General Accounting Office".

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

§3702. General provisions

(a) Assignment Authority.—On request from or with the agreement of a private sector organization, and with the consent of the employee concerned, the head of an agency may arrange for the assignment of an employee of the agency to a private sector organization or an employee of a private sector organization to the agency. An eligible employee is an individual who—

(1) works in the field of information technology management;

(2) is considered an exceptional performer by the individual's current employer; and

(3) is expected to assume increased information technology management responsibilities in the future.

An employee of an agency shall be eligible to participate in this program only if the employee is employed at the GS–11 level or above (or equivalent) and is serving under a career or career-conditional appointment or an appointment of equivalent tenure in the excepted service, and applicable requirements of section 209(b) of the E-Government Act of 2002 are met with respect to the proposed assignment of such employee.

(b) Agreements.—Each agency that exercises its authority under this chapter shall provide for a written agreement between the agency and the employee concerned regarding the terms and conditions of the employee's assignment. In the case of an employee of the agency, the agreement shall—

(1) require the employee to serve in the civil service, upon completion of the assignment, for a period equal to the length of the assignment; and

(2) provide that, in the event the employee fails to carry out the agreement (except for good and sufficient reason, as determined by the head of the agency from which assigned) the employee shall be liable to the United States for payment of all expenses of the assignment.

An amount under paragraph (2) shall be treated as a debt due the United States.

(c) Termination.—Assignments may be terminated by the agency or private sector organization concerned for any reason at any time.

(d) Duration.—Assignments under this chapter shall be for a period of between 3 months and 1 year, and may be extended in 3-month increments for a total of not more than 1 additional year, except that no assignment under this chapter may commence after the end of the 5-year period beginning on the date of the enactment of this chapter.

(e) Assistance.—The Chief Information Officers Council, by agreement with the Office of Personnel Management, may assist in the administration of this chapter, including by maintaining lists of potential candidates for assignment under this chapter, establishing mentoring relationships for the benefit of individuals who are given assignments under this chapter, and publicizing the program.

(f) Considerations.—In exercising any authority under this chapter, an agency shall take into consideration—

(1) the need to ensure that small business concerns are appropriately represented with respect to the assignments described in sections 3703 and 3704, respectively; and

(2) how assignments described in section 3703 might best be used to help meet the needs of the agency for the training of employees in information technology management.

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2925.)

Editorial Notes

References in Text

GS–11, referred to in subsec. (a), is contained in the General Schedule which is set out under section 5332 of this title.

Section 209(b) of the E-Government Act of 2002, referred to in subsec. (a), is section 209(b) of Pub. L. 107–347, which is set out in a note under section 3501 of Title 44, Public Printing and Documents.

The date of the enactment of this chapter, referred to in subsec. (d), is the date of enactment of Pub. L. 107–347, which was approved Dec. 17, 2002.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

Pilot Program for the Temporary Assignment of Cyber and Information Technology Personnel to Private Sector Organizations

Pub. L. 111–84, div. A, title XI, §1110, Oct. 28, 2009, 123 Stat. 2493, as amended by Pub. L. 113–66, div. A, title XI, §1106, Dec. 26, 2013, 127 Stat. 887; Pub. L. 114–92, div. A, title X, §1075(a), Nov. 25, 2015, 129 Stat. 997; Pub. L. 114–328, div. A, title XI, §1123, Dec. 23, 2016, 130 Stat. 2455; Pub. L. 117–263, div. A, title XI, §1112, Dec. 23, 2022, 136 Stat. 2820; Pub. L. 117–286, §4(c)(7), Dec. 27, 2022, 136 Stat. 4354, provided that:

"(a) Assignment Authority.—The Secretary of Defense may, with the agreement of the private sector organization concerned, 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. An employee shall be eligible for such an assignment only if—

"(1) the employee—

"(A) works in the field of cyber operations or information technology management;

"(B) is considered by the Secretary of Defense to be an exceptional employee;

"(C) is expected to assume increased cyber operations or information technology management responsibilities in the future; and

"(D) is compensated at not less than the GS–11 level (or the equivalent); and

"(2) the proposed assignment meets applicable requirements of section 209(b) of the E-Government Act of 2002 [Pub. L. 107–347] (44 U.S.C. 3501 note).

"(b) Agreements.—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—

"(1) shall require that employees of the Department of Defense, upon completion of the assignment, will serve in the civil service for a period equal to the length of the assignment; and

"(2) 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.

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

"(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.—An assignment under this section shall be for a period of not less than 3 months and not more than 1 year, and may be extended in 3-month increments for a total of not more than 1 additional year; however, no assignment under this section may commence after December 31, 2026.

"(e) 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) may continue to receive pay and benefits from the private sector organization from which such employee is assigned;

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

"(A) chapter 73 of title 5, United States Code;

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

"(C) sections 1343, 1344, and 1349(b) of title 31, United States Code;

"(D) the Federal Tort Claims Act [see Short Title note under section 2671 of Title 28, Judiciary and Judicial Procedure] and any other Federal tort liability statute;

"(E) chapter 131 of title 5, United States Code;

"(F) section 1043 of the Internal Revenue Code of 1986 [26 U.S.C. 1043]; and

"(G) section 27 of the Office of Federal Procurement Policy Act [now 41 U.S.C. 2101 et seq.]; and

"(3) may 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.

"(f) Prohibition Against Charging Certain Costs to the Federal Government.—A private sector organization may not charge the Department of Defense 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 of Defense organization under this section for the period of the assignment.

"(g) 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 to or from small business concerns (as defined by section 3703(e)(2)(A) of title 5, United States Code); and

"(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 in cyber operations or information technology management.

"(h) Numerical Limitation.—In no event may more than 50 employees be participating in assignments under this section at any given time.

"(i) Repeal of Superseded Section.—Section 1109 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181; 122 Stat. 358) [formerly set out as a note under this section] is repealed, except that—

"(1) nothing in this subsection shall, in the case of any assignment commencing under such section 1109 on or before the date of the enactment of this Act [Oct. 28, 2009], affect—

"(A) the duration of such assignment or the authority to extend such assignment in accordance with subsection (d) of such section 1109, as last in effect; or

"(B) the terms or conditions of the agreement governing such assignment, including with respect to any service obligation under subsection (b) thereof; and

"(2) any employee whose assignment is allowed to continue by virtue of paragraph (1) shall be taken into account for purposes of the numerical limitation under subsection (h)."

Pub. L. 110–181, div. A, title XI, §1109, Jan. 28, 2008, 122 Stat. 358, which authorized the Secretary of Defense to arrange for the temporary assignment of a Department of Defense employee to a private sector organization under certain terms, conditions, and considerations, and for a limited period, and required the Secretary to submit to the Committees on Armed Services a report on the potential benefits of temporarily assigning information technology specialists from private sector organizations to the Department of Defense, was repealed, with certain exceptions, by Pub. L. 111–84, div. A, title XI, §1110(i), formerly §1110(j), Oct. 28, 2009, 123 Stat. 2495, renumbered §1110(i), Pub. L. 114–92, div. A, title X, §1075(a)(2), Nov. 25, 2015, 129 Stat. 997, see above.

§3703. Assignment of employees to private sector organizations

(a) In General.—An employee of an agency assigned to a private sector organization under this chapter is deemed, during the period of the assignment, to be on detail to a regular work assignment in his agency.

(b) Coordination With Chapter 81.—Notwithstanding any other provision of law, an employee of an agency assigned to a private sector organization under this chapter is entitled to retain coverage, rights, and benefits under subchapter I of chapter 81, and employment during the assignment is deemed employment by the United States, except that, if the employee or the employee's dependents receive from the private sector organization any payment under an insurance policy for which the premium is wholly paid by the private sector organization, or other benefit of any kind on account of the same injury or death, then, the amount of such payment or benefit shall be credited against any compensation otherwise payable under subchapter I of chapter 81.

(c) Reimbursements.—The assignment of an employee to a private sector organization under this chapter may be made with or without reimbursement by the private sector organization for the travel and transportation expenses to or from the place of assignment, subject to the same terms and conditions as apply with respect to an employee of a Federal agency or a State or local government under section 3375, and for the pay, or a part thereof, of the employee during assignment. Any reimbursements shall be credited to the appropriation of the agency used for paying the travel and transportation expenses or pay.

(d) Tort Liability; Supervision.—The Federal Tort Claims Act and any other Federal tort liability statute apply to an employee of an agency assigned to a private sector organization under this chapter. The supervision of the duties of an employee of an agency so assigned to a private sector organization may be governed by an agreement between the agency and the organization.

(e) Small Business Concerns.—

(1) In general.—The head of each agency shall take such actions as may be necessary to ensure that, of the assignments made under this chapter from such agency to private sector organizations in each year, at least 20 percent are to small business concerns.

(2) Definitions.—For purposes of this subsection—

(A) the term "small business concern" means a business concern that satisfies the definitions and standards specified by the Administrator of the Small Business Administration under section 3(a)(2) of the Small Business Act (as from time to time amended by the Administrator);

(B) the term "year" refers to the 12-month period beginning on the date of the enactment of this chapter, and each succeeding 12-month period in which any assignments under this chapter may be made; and

(3) Reporting requirement.—An agency which fails to comply with paragraph (1) in a year shall, within 90 days after the end of such year, submit a report to the Committees on Government Reform and Small Business of the House of Representatives and the Committees on Governmental Affairs and Small Business of the Senate. The report shall include—

(A) the total number of assignments made under this chapter from such agency to private sector organizations in the year;

(B) of that total number, the number (and percentage) made to small business concerns; and

(4) Exclusion.—This subsection shall not apply to an agency in any year in which it makes fewer than 5 assignments under this chapter to private sector organizations.

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2926.)

Editorial Notes

References in Text

The Federal Tort Claims Act, referred to in subsec. (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.

Section 3(a)(2) of the Small Business Act, referred to in subsec. (e)(2)(A), is classified to section 632(a)(2) of Title 15, Commerce and Trade.

The date of the enactment of this chapter, referred to in subsec. (e)(2)(B), is the date of enactment of Pub. L. 107–347, which was approved Dec. 17, 2002.

Statutory Notes and Related Subsidiaries

Change of Name

Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

Committee on Small Business of Senate changed to Committee on Small Business and Entrepreneurship of Senate. See Senate Resolution No. 123, One Hundred Seventh Congress, June 29, 2001.

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

§3704. Assignment of employees from private sector organizations

(a) In General.—An employee of a private sector organization assigned to an agency under this chapter is deemed, during the period of the assignment, to be on detail to such agency.

(b) Terms and Conditions.—An employee of a private sector organization assigned to an agency under this chapter—

(1) may continue to receive pay and benefits from the private sector organization from which he is assigned;

(2) is deemed, notwithstanding subsection (a), to be an employee of the agency for the purposes of—

(A) chapter 73;

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

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

(E) chapter 131 of this title;

(F) section 1043 of the Internal Revenue Code of 1986; and

(G) chapter 21 of title 41;

(3) may 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 he is assigned; and

(4) is subject to such regulations as the President may prescribe.

The supervision of an employee of a private sector organization assigned to an agency under this chapter may be governed by agreement between the agency and the private sector organization concerned. Such an assignment may be made with or without reimbursement by the agency for the pay, or a part thereof, of the employee during the period of assignment, or for any contribution of the private sector organization to employee benefit systems.

(c) Coordination With Chapter 81.—An employee of a private sector organization assigned to an agency under this chapter who suffers disability or dies as a result of personal injury sustained while performing duties during the assignment shall be treated, for the purpose of subchapter I of chapter 81, as an employee as defined by section 8101 who had sustained the injury in the performance of duty, except that, if the employee or the employee's dependents receive from the private sector organization any payment under an insurance policy for which the premium is wholly paid by the private sector organization, or other benefit of any kind on account of the same injury or death, then, the amount of such payment or benefit shall be credited against any compensation otherwise payable under subchapter I of chapter 81.

(d) Prohibition Against Charging Certain Costs to the Federal Government.—A private sector organization may not charge 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 an agency under this chapter for the period of the assignment.

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2928; amended Pub. L. 111–350, §5(a)(6), Jan. 4, 2011, 124 Stat. 3841; Pub. L. 117–286, §4(c)(8), Dec. 27, 2022, 136 Stat. 4354.)

Editorial Notes

References in Text

The Federal Tort Claims Act, referred to in subsec. (b)(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.

Section 1043 of the Internal Revenue Code of 1986, referred to in subsec. (b)(2)(F), is classified to section 1043 of Title 26, Internal Revenue Code.

Amendments

2022—Subsec. (b)(2)(E). Pub. L. 117–286 substituted "chapter 131 of this title;" for "the Ethics in Government Act of 1978;".

2011—Subsec. (b)(2)(G). Pub. L. 111–350 substituted "chapter 21 of title 41" for "section 27 of the Office of Federal Procurement Policy Act".

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

§3705. Application to Office of the Chief Technology Officer of the District of Columbia

(a) In General.—The Chief Technology Officer of the District of Columbia may arrange for the assignment of an employee of the Office of the Chief Technology Officer to a private sector organization, or an employee of a private sector organization to such Office, in the same manner as the head of an agency under this chapter.

(b) Terms and Conditions.—An assignment made pursuant to subsection (a) shall be subject to the same terms and conditions as an assignment made by the head of an agency under this chapter, except that in applying such terms and conditions to an assignment made pursuant to subsection (a), any reference in this chapter to a provision of law or regulation of the United States shall be deemed to be a reference to the applicable provision of law or regulation of the District of Columbia, including the applicable provisions of the District of Columbia Government Comprehensive Merit Personnel Act of 1978 (sec. 1–601.01 et seq., D.C. Official Code) and section 601 of the District of Columbia Campaign Finance Reform and Conflict of Interest Act (sec. 1–1106.01, D.C. Official Code).

(c) Definition.—For purposes of this section, the term "Office of the Chief Technology Officer" means the office established in the executive branch of the government of the District of Columbia under the Office of the Chief Technology Officer Establishment Act of 1998 (sec. 1–1401 et seq., D.C. Official Code).

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2929.)

Editorial Notes

References in Text

The District of Columbia Government Comprehensive Merit Personnel Act of 1978, referred to in subsec. (b), is an act of the District of Columbia and is not classified to the Code.

The District of Columbia Campaign Finance Reform and Conflict of Interest Act, referred to in subsec. (b), is Pub. L. 93–376, Aug. 14, 1974, 88 Stat. 447, which is not classified to the Code.

The Office of the Chief Technology Officer Establishment Act of 1998, referred to in subsec. (c), is an act of the District of Columbia and is not classified to the Code.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

§3706. Reporting requirement

(a) In General.—The Office of Personnel Management shall, not later than April 30 and October 31 of each year, prepare and submit to the Committee on Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate a semiannual report summarizing the operation of this chapter during the immediately preceding 6-month period ending on March 31 and September 30, respectively.

(b) Content.—Each report shall include, with respect to the 6-month period to which such report relates—

(1) the total number of individuals assigned to, and the total number of individuals assigned from, each agency during such period;

(2) a brief description of each assignment included under paragraph (1), including—

(A) the name of the assigned individual, as well as the private sector organization and the agency (including the specific bureau or other agency component) to or from which such individual was assigned;

(B) the respective positions to and from which the individual was assigned, including the duties and responsibilities and the pay grade or level associated with each; and

(3) such other information as the Office considers appropriate.

(1) shall be published in the Federal Register; and

(2) shall be made publicly available on the Internet.

(d) Agency Cooperation.—On request of the Office, agencies shall furnish such information and reports as the Office may require in order to carry out this section.

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2929.)

Statutory Notes and Related Subsidiaries

Change of Name

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.

§3707. Regulations

The Director of the Office of Personnel Management shall prescribe regulations for the administration of this chapter.

(Added Pub. L. 107–347, title II, §209(c)(1), Dec. 17, 2002, 116 Stat. 2930.)

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 120 days after Dec. 17, 2002, see section 402(a) of Pub. L. 107–347, set out as a note under section 3601 of Title 44, Public Printing and Documents.