[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 346 Reported in Senate (RS)]
Calendar No. 807
108th CONGRESS
2d Session
S. 346
[Report No. 108-415]
To amend the Office of Federal Procurement Policy Act to establish a
governmentwide policy requiring competition in certain executive agency
procurements, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 11, 2003
Mr. Levin (for himself, Mr. Thomas, Mr. Burns, Mr. Lugar, Mr. Grassley,
Mr. Shelby, Mrs. Dole, Ms. Stabenow, and Mr. Chambliss) introduced the
following bill; which was read twice and referred to the Committee on
Governmental Affairs
November 18, 2004
Reported by Ms. Collins, with an amendment
[Omit the part struck through and insert the part printed in italic]
_______________________________________________________________________
A BILL
To amend the Office of Federal Procurement Policy Act to establish a
governmentwide policy requiring competition in certain executive agency
procurements, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. GOVERNMENTWIDE PROCUREMENT POLICY RELATING TO PURCHASES FROM
FEDERAL PRISON INDUSTRIES.
(a) Requirements.--The Office of Federal Procurement Policy Act (41
U.S.C. 403 et seq.) is amended by adding at the end the following new
section:
``SEC. 40. GOVERNMENTWIDE PROCUREMENT POLICY RELATING TO PURCHASES FROM
FEDERAL PRISON INDUSTRIES.
``(a) Competition Required.--In the procurement of any product that
is authorized to be offered for sale by Federal Prison Industries and
is listed in the catalog published and maintained by Federal Prison
Industries under section 4124(b) of title 18, United States Code, the
head of an executive agency shall, except as provided in subsection
(d)--
``(1) use competitive procedures for entering into a
contract for the procurement of such product, in accordance
with the requirements applicable to such executive agency under
sections 2304 and 2305 of title 10, United States Code, or
sections 303 through 303C of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253 through
253c); or
``(2) make an individual purchase under a multiple award
contract in accordance with competition requirements applicable
to such purchases.
``(b) Offers From Federal Prison Industries.--In conducting a
procurement pursuant to subsection (a), the head of an executive agency
shall--
``(1) notify Federal Prison Industries of the procurement
at the same time and in the same manner as other potential
offerors are notified; and
``(2) consider a timely offer from Federal Prison
Industries for award in the same manner as other offers
(regardless of whether Federal Prison Industries is a
contractor under an applicable multiple award contract).
``(c) Implementation by Agencies.--The head of each executive
agency shall ensure that--
``(1) the executive agency does not purchase a Federal
Prison Industries product or service unless a contracting
officer of the executive agency determines that the product or
service is comparable to products or services available from
the private sector that best meet the executive agency's needs
in terms of price, quality, and time of delivery; and
``(2) Federal Prison Industries performs its contractual
obligations to the executive agency to the same extent as any
other contractor for the executive agency.
``(d) Exception.--(1) The head of an executive agency may use
procedures other than competitive procedures to enter into a contract
with Federal Prison Industries only under the following circumstances:
``(A) The Attorney General personally determines in
accordance with paragraph (2), within 30 days after Federal
Prison Industries has been informed by the head of that
executive agency of an opportunity for award of a contract for
a product, that--
``(i) Federal Prison Industries cannot reasonably
expect fair consideration in the selection of an
offeror for award of the contract on a competitive
basis; and
``(ii) the award of the contract to Federal Prison
Industries for performance at a penal or correctional
facility is necessary to maintain work opportunities
not otherwise available at the penal or correctional
facility that prevent circumstances that could
reasonably be expected to significantly endanger the
safe and effective administration of such facility.
``(B) The product is available only from Federal Prison
Industries and the contract may be awarded under the authority
of section 2304(c)(1) of title 10, United States Code, or
section 303(c)(1) of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 253(c)(1)), as may be
applicable, pursuant to the justification and approval
requirements relating to noncompetitive procurements specified
by law and the Federal Acquisition Regulation.
``(C) The head of the executive agency determines that the
product that would otherwise be furnished is to be produced, in
whole or in significant part, by prison labor outside the
United States.
``(2)(A) A determination made by the Attorney General regarding a
contract pursuant to paragraph (1)(A) shall be--
``(i) supported by specific findings by the warden of the
penal or correctional institution at which a Federal Prison
Industries workshop is scheduled to perform the contract;
``(ii) supported by specific findings by Federal Prison
Industries regarding the reasons that it does not expect to be
selected for award of the contract on a competitive basis; and
``(iii) made and reported in the same manner as a
determination made pursuant to section 303(c)(7) of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C.
253(c)(7)).
``(B) The Attorney General may not delegate to any other official
authority to make a determination that is required under paragraph
(1)(A) to be made personally by the Attorney General.
``(e) Performance as a Subcontractor.--(1) A contractor or
potential contractor under a contract entered into by the head of an
executive agency may not be required to use Federal Prison Industries
as a subcontractor or supplier of products or provider of services for
the performance of the contract by any means, including means such as--
``(A) a provision in a solicitation of offers that requires
a contractor to offer to use or specify products or services of
Federal Prison Industries in the performance of the contract;
``(B) a contract clause that requires the contractor to use
or specify products or services (or classes of products or
services) offered by Federal Prison Industries in the
performance of the contract; or
``(C) any contract modification that requires the use of
products or services of Federal Prison Industries in the
performance of the contract.
``(2) A contractor using Federal Prison Industries as a
subcontractor or supplier in furnishing a commercial product pursuant
to a contract of an executive agency shall implement appropriate
management procedures to prevent an introduction of an inmate-produced
product into the commercial market.
``(3) In this subsection, the term `contractor', with respect to a
contract, includes a subcontractor at any tier under the contract.
``(f) Protection of Classified and Sensitive Information.--The head
of an executive agency may not enter into any contract with Federal
Prison Industries under which an inmate worker would have access to--
``(1) any data that is classified or will become classified
after being merged with other data;
``(2) any geographic data regarding the location of--
``(A) surface or subsurface infrastructure
providing communications or water or electrical power
distribution;
``(B) pipelines for the distribution of natural
gas, bulk petroleum products, or other commodities; or
``(C) other utilities; or
``(3) any personal or financial information about any
individual private citizen, including information relating to
such person's real property however described, without the
prior consent of the individual.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of
such Act is amended by adding at the end the following new item:
``Sec. 40. Governmentwide procurement policy relating to purchases from
Federal Prison Industries.''.
SEC. 2. CONFORMING AMENDMENTS.
(a) Repeal of Inconsistent Requirements Applicable to Department of
Defense.--(1) Section 2410n of title 10, United States Code, is
repealed.
(2) The table of sections at the beginning of chapter 141 of such
title is amended by striking the item relating to section 2410n.
(b) Repeal of Inconsistent Requirements Applicable to Other
Agencies.--Section 4124 of title 18, United States Code, is amended--
(1) by striking subsections (a) and (b) and redesignating
subsections (c) and (d) as subsections (a) and (b),
respectively; and
(2) in subsection (a), as redesignated by paragraph (1), by
striking ``Federal department, agency, and institution subject
to the requirements of subsection (a)'' and inserting ``Federal
department and agency''.
(c) Other Laws.--(1) Section 3 of the Javits-Wagner-O'Day Act (41
U.S.C. 48) is amended by striking ``which, under section 4124 of such
title, is required'' and inserting ``which is required by law''.
(2) Section 31(b)(4) of the Small Business Act (15 U.S.C.
657a(b)(4)) is amended by striking ``a different source under section
4124 or 4125 of title 18, United States Code, or the Javits-Wagner-
O'Day Act (41 U.S.C. 46 et seq.)'' and inserting ``a different source
under the Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.) or Federal
Prison Industries under section 40(d) of the Office of Federal
Procurement Policy Act or section 4125 of title 18, United States
Code''.
<DELETED>SEC. 3. UNLAWFUL TRANSPORTATION OR IMPORTATION OF PRODUCTS,
SERVICES, OR MINERALS RESULTING FROM CONVICT
LABOR.</DELETED>
<DELETED> Section 1761 of title 18, United States Code, is amended--
</DELETED>
<DELETED> (1) in subsection (a), by inserting after ``any
goods, wares, or merchandise manufactured, produced, or mined,
wholly or in part by convicts or prisoners,'' the following:
``or sells in interstate commerce any services furnished wholly
or in part by convicts or prisoners,''; and</DELETED>
<DELETED> (2) in subsection (c), by inserting ``, or
services furnished,'' after ``or mined'' in the matter
preceding paragraph (1).</DELETED>
SEC. 3. ADDITIONAL INMATE WORK OPPORTUNITIES THROUGH PUBLIC SERVICE
ACTIVITIES.
(a) Cooperation With Charitable Organizations.--Chapter 307 of
title 18, United States Code, is amended by adding at the end the
following new section:
``Sec. 4130. Cooperation with charitable organizations
``(a) Sale or Donation of Products or Services to Charitable
Entities.--Federal Prison Industries may, subject to subsection (b),
sell or donate products or services to an organization described in
section 501(c)(3) of the Internal Revenue Code of 1986 that is exempt
from taxation under section 501(a) of such Code. Products or services
sold or donated under this section may be donated or sold by the
charitable organization to low-income individuals who would otherwise
have difficulty purchasing such products or services.
``(b) Work Agreements With Charitable Organizations.--(1) Federal
Prison Industries may sell or donate products or services to a
charitable organization under subsection (a) only pursuant to a work
agreement with the charitable organization receiving such products or
services.
``(2) Federal Prison Industries may enter a work agreement relating
to products and services under paragraph (1) only if--
``(A) the Attorney General determines, in consultation with
the Secretary of Labor and the Secretary of Commerce, that the
product or services would not be available except for the
availability of inmate workers provided by Federal Prison
Industries; and
``(B) the work agreement is accompanied by a written
certification by the chief executive officer of the charitable
organization that--
``(i) no job of a noninmate employee or volunteer
of the charitable organization (or any affiliate of the
charitable organization) will be abolished, and no such
employee's or volunteer's work hours will be reduced,
as a result of the entity being authorized to utilize
inmate workers; and
``(ii) the work to be performed by the inmate
workers will not supplant work currently being
performed by a contractor of the charitable
organization.
``(3) The Attorney General may not delegate authority to make
determinations under paragraph (2)(A) to any person serving in a
position below the lowest level of positions that are filled by
appointment by the President, by and with the advice and consent of the
Senate.''.
(b) Clerical Amendment.--The table of sections at the beginning of
such chapter is amended by adding at the end the following new item:
``4130. Cooperation with charitable organizations.''.
SEC. 4. ADDITIONAL REHABILITATIVE OPPORTUNITIES FOR INMATES.
(a) Establishment of Program.--(1) Chapter 303 of title 18, United
States Code, is amended by adding at the end the following new section.
``Sec. 4049. Enhanced In-Prison Educational and Vocational Assessment
and Training Program
``There is hereby established the Enhanced In-Prison Educational
and Vocational Assessment and Training Program within the Federal
Bureau of Prisons. The program shall provide, at a minimum, a full
range of educational opportunities, vocational training and
apprenticeships, and comprehensive release-readiness preparation for
inmates in Federal prisons.''.
(2) The table of sections at the beginning of such chapter is
amended by adding at the end of the following new item:
``4049. Enhanced In-Prison Educational and Vocational Assessment and
Training Program.''.
(b) Implementation Objective.--It shall be the objective of the
Federal Bureau of Prisons to implement the program established under
section 4049 of title 18, United States Code (as added by subsection
(a)), in all Federal prisons not later than eight years after the date
of the enactment of this Act.
SEC. 5. NEW PRODUCTS AND EXPANDED PRODUCTION OF EXISTING PRODUCTS.
Federal Prison Industries shall, to the maximum extent practicable,
increase inmate employment by producing new products or expanding the
production of existing products for the public sector that would
otherwise be produced outside the United States.
SEC. 6. TRANSITIONAL PERSONNEL MANAGEMENT AUTHORITY.
Any correctional officer or other employee of Federal Prison
Industries being paid with nonappropriated funds who would be separated
from service because of a reduction in the net income of Federal Prison
Industries before the date that is five years after the date of the
enactment of this Act shall be--
(1) eligible for appointment (or reappointment) in the
competitive service in accordance with subpart B or part III of
title 5, United States Code;
(2) registered on a Bureau of Prisons reemployment priority
list; and
(3) given priority for any other position within the Bureau
of Prisons for which such employee is qualified.
SEC. <DELETED>4.</DELETED> 7. EFFECTIVE DATE.
The amendments made by this Act shall take effect 180 days after
the date of the enactment of this Act.
Calendar No. 807
108th CONGRESS
2d Session
S. 346
[Report No. 108-415]
_______________________________________________________________________
A BILL
To amend the Office of Federal Procurement Policy Act to establish a
governmentwide policy requiring competition in certain executive agency
procurements, and for other purposes.
_______________________________________________________________________
November 18, 2004
Reported with an amendment