[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1152 Introduced in Senate (IS)]







107th CONGRESS
  1st Session
                                S. 1152

 To ensure that the business of the Federal Government is conducted in 
     the public interest and in a manner that provides for public 
    accountability, efficient delivery of services, reasonable cost 
  savings, and prevention of unwarranted Government expenses, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 29, 2001

  Mr. Durbin (for himself, Mr. Daschle, Mrs. Murray, Mr. Corzine, Ms. 
 Landrieu, Mr. Feingold, Mr. Lieberman, Mr. Kennedy, Mr. Sarbanes, Ms. 
Mikulski, Mr. Torricelli, Mr. Reid, Mr. Schumer, Ms. Stabenow, and Mr. 
   Johnson) introduced the following bill; which was read twice and 
           referred to the Committee on Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
 To ensure that the business of the Federal Government is conducted in 
     the public interest and in a manner that provides for public 
    accountability, efficient delivery of services, reasonable cost 
  savings, and prevention of unwarranted Government expenses, 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. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Truthfulness, 
Responsibility, and Accountability in Contracting Act of 2001''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Certification of compliance.
Sec. 4. Agency reporting systems and required reports.
Sec. 5. Requirement for public-private competition.
Sec. 6. Review of contractor performance.
Sec. 7. Survey of wages and benefits provided by contractors.
Sec. 8. Comptroller General reports.
Sec. 9. Applicability.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Agency.--The term ``agency'' means any department, 
        agency, bureau, commission, activity, or organization of the 
        United States, that employs an employee as defined under 
        paragraph (6).
            (2) Contracting.--The term ``contracting'' means--
                    (A) the performance of a function by non-Federal 
                personnel under a contract between an agency and an 
                individual or another entity; and
                    (B) includes privatization, outsourcing, 
                contracting out, and contracting in, unless otherwise 
                specifically provided.
            (3) Contracting in.--The term ``contracting in'' is the 
        conversion of the performance of a function by non-Federal 
        personnel under a contract between an agency and an individual 
        or other entity to the performance by employees.
            (4) Contracting out.--The term ``contracting out'' means 
        the conversion by an agency of the performance of a function to 
        performance by non-Federal personnel under a contract between 
        an agency and an individual or other entity.
            (5) Contractor.--The term ``contractor'' means an 
        individual or entity that performs a function for an agency 
        under a contract with non-Federal personnel.
            (6) Employee.--The term ``employee'' means any individual 
        employed--
                    (A) as a civilian in a military department (as 
                defined in section 102 of title 5, United States Code);
                    (B) in an Executive agency (as defined in section 
                105 of title 5, United States Code), including an 
                employee who is paid from nonappropriated funds;
                    (C) in those units of the legislative and judicial 
                branches of the Federal Government having positions in 
                the competitive service;
                    (D) in the Library of Congress;
                    (E) in the Government Printing Office; or
                    (F) by the Governors of the Federal Reserve System.
            (7) Function.--The term ``function'' means a service 
        activity, not procurement of goods.
            (8) Non-federal personnel.--The term ``non-Federal 
        personnel'' means employed individuals who are not employees as 
        defined under paragraph (6).
            (9) Outsourcing.--The term ``outsourcing'' means the action 
        by an agency to acquire services from external sources, either 
        from a non-Federal source or through interservice support 
        agreements, through a contract.
            (10) Patient care.--The term ``patient care''--
                    (A) means direct patient medical and hospital care 
                that the Department of Veterans Affairs or other 
                Federal hospitals or clinics are not capable of 
                furnishing because of geographical inaccessibility, 
                medical emergency, or particularly unique type of care 
                or service required; and
                    (B) does not include support and administrative 
                services for hospital and clinic operations, including 
                food service, laundry services, grounds maintenance, 
                transportation services, office operations, and supply 
                processing and distribution services.
            (11) Privatization.--The term ``privatization'' means the 
        action by an agency to exit a business line, terminate an 
        activity, or sell Government owned assets or operational 
        capabilities to the non-Federal sector.

SEC. 3. CERTIFICATION OF COMPLIANCE.

    (a) Requirements for Heads of Agencies.--
            (1) Certifications.--Not later than 180 days after the date 
        of enactment of this Act, the head of each agency shall submit 
        to the Director of the Office of Management and Budget a 
        certification that--
                    (A) the agency has established a centralized 
                reporting system in accordance with section 4;
                    (B) in the case of each function of the agency that 
                is being performed under contracting undertaken after 
                the date of enactment of this Act, the contracting 
                function decision was based on a public-private 
                competition described under section 5;
                    (C) the agency is not managing Federal employees by 
                any arbitrary limitations in accordance with sections 5 
                and 6; and
                    (D) the agency is reviewing work performed by 
                contractors, recompeting or contracting in work when 
                appropriate, and subjecting to public-private 
                competition an approximate number of Federal employee 
                and contractor positions in accordance with section 6.
            (2) Public availability.--The Director of the Office of 
        Management and Budget shall--
                    (A) promptly after receiving certifications under 
                paragraph (1)(B), publish in the Federal Register 
                notices of the availability of the certifications to 
                the public, including the names, business addresses, 
                and business telephone numbers of the officials from 
                whom the certifications can be obtained; and
                    (B) ensure that, after the removal of proprietary 
                information, the head of each agency makes the 
                certifications of that agency available to the public--
                            (i) upon request; and
                            (ii) on the World Wide Web.
    (b) Suspension of Contracting for Services Pending Satisfaction of 
Certification Requirement.--
            (1) Initial determinations.--Beginning 180 days after the 
        date of enactment of this Act, the head of an agency may not 
        enter into any contract for the performance of services until 
        the Director of the Office of Management and Budget, after 
        reviewing the certification required under subsection (a)(1), 
        determines that the agency is making substantial progress 
        toward meeting the requirements under subsection (a)(1) (A), 
        (B), (C), and (D).
            (2) Inapplicability.--This subsection does not apply to 
        work performed in the non-Federal sector before the date of 
        enactment of this Act.
            (3) Subsequent determinations.--If an agency head is 
        prohibited from entering into a contract after a determination 
        is made under paragraph (1), that agency head may subsequently 
        request another determination from the Director of the Office 
        of Management and Budget under that paragraph.
            (4) Public availability.--The Director of the Office of 
        Management and Budget shall--
                    (A) promptly after making a determination as to 
                whether an agency is making substantial progress under 
                paragraph (1), publish that determination in the 
                Federal Register; and
                    (B) make that determination available to the 
                public--
                            (i) upon request; and
                            (ii) on the World Wide Web.
    (c) Waiver of Suspension.--
            (1) In general.--The Director of the Office of Management 
        and Budget may waive the applicability of this section to a 
        contract for services if the Director determines that it is 
        necessary to do so in the interest of the national security, 
        extraordinary economic harm, or patient care.
            (2) Notice.--After granting any waiver under this 
        subsection, the Director of the Office of Management and Budget 
        shall promptly publish a notice of that waiver in the Federal 
        Register that--
                    (A) identifies the facilities, units, or activities 
                affected;
                    (B) explains the justification for the waiver; and
                    (C) identifies the duration of the waiver.
    (d) GAO Monitoring.--While an agency is operating under a 
suspension of contracting authority under subsection (b), the 
Comptroller General shall--
            (1) monitor the agency's compliance with the requirements 
        of this Act; and
            (2) submit to Congress, every 60 days, a report on the 
        extent of the agency's compliance with such requirements.
    (e) Exception.--
            (1) In general.--Notwithstanding subsection (b), an agency 
        may undertake a contracting effort of a function if the 
        function--
                    (A) is not performed by Federal employees at the 
                time of the undertaking; and
                    (B) under the contracting would be performed by--
                            (i) the blind, as defined under section 
                        5(1) of the Javits-Wagner-O'Day Act (41 U.S.C. 
                        48b(1)); or
                            (ii) individuals with a disability as 
                        defined under section 7(9) of the 
                        Rehabilitation Act of 1973 (29 U.S.C. 705(9)).
            (2) Termination of contract.--If the Director of the Office 
        of Management and Budget determines that the performance of the 
        function in a contract entered into under paragraph (1) is not 
        being performed by individuals described under clause (i) or 
        (ii) of paragraph (1)(B), the contract shall be immediately 
        terminated.

SEC. 4. AGENCY REPORTING SYSTEMS AND REQUIRED REPORTS.

    (a) Centralized Reporting System.--Not later than 180 days after 
the date of enactment of this Act, each agency shall establish a 
centralized reporting system in accordance with guidance promulgated by 
the Director of the Office of Management and Budget that allows the 
agency to generate periodic reports on the contracting efforts of the 
agency. Such centralized reporting system shall be designed to enable 
the agency to generate reports on efforts regarding both contracting 
out and contracting in.
    (b) Reports on Contracting Efforts.--
            (1) Initial reports.--Not later than 180 days after the 
        date of enactment of this Act, every agency shall generate and 
        submit to the Director of the Office of Management and Budget a 
        report on the contracting efforts of the agency undertaken 
        during the fiscal year immediately preceding the fiscal year 
        during which this Act is enacted. Such report shall comply with 
        the requirements in paragraph (3).
            (2) Subsequent reports.--For the current fiscal year and 
        every fiscal year thereafter, every agency shall complete and 
        submit to the Director of the Office of Management and Budget a 
        report on the contracting efforts undertaken by the agency 
        during that fiscal year. The report for a fiscal year shall 
        comply with the requirements in paragraph (3), and shall be 
        completed and submitted not later than the end of the first 
        fiscal quarter of the subsequent fiscal year.
            (3) Contents.--With regard to each contracting effort 
        undertaken by the agency, the reports referred to in this 
        subsection shall include the following information:
                    (A) The contract number and the Federal supply 
                class or service code.
                    (B) The names, business addresses, and business 
                telephone numbers of the officials who supervised the 
                contracting effort.
                    (C) The competitive process used or the statutory 
                or regulatory authority relied on to enter into the 
                contract without public-private competition.
                    (D) The cost of Federal employee performance at the 
                time the work was contracted out (if the work had 
                previously been performed by Federal employees).
                    (E) The cost of Federal employee performance under 
                the most efficient organization plan identified for 
                that performance (if the work was contracted out 
                through OMB Circular A-76).
                    (F) The anticipated cost of contractor performance, 
                based on the award.
                    (G) The current cost of contractor performance.
                    (H) The actual savings, expressed both as a dollar 
                amount and as a percentage of the cost of performance 
                by Federal employees, based on the current cost, and an 
                explanation of the difference, if any.
                    (I) A description of the quality control process 
                used by the agency in connection with monitoring the 
                contracting effort, identification of the applicable 
                quality control standards, the frequency of the 
                preparation of quality control reports, and an 
                assessment of whether the contractor met, exceeded, or 
                failed to achieve the quality control standards.
                    (J) The number of employees performing the 
                contracting effort under the contract and any related 
                subcontracts.
    (c) Report on Contracting in Efforts.--
            (1) In general.--For the current fiscal year and every 
        fiscal year thereafter, every agency shall complete and submit 
        to the Director of the Office of Management and Budget a report 
        on the contracting in efforts undertaken by the agency during 
        that fiscal year. The report for a fiscal year shall comply 
        with the requirements in paragraph (2), and shall be completed 
        and submitted not later than the end of the first fiscal 
        quarter of the subsequent fiscal year.
            (2) Contents.--The reports referred to in paragraph (1) 
        shall include for each contracting in effort undertaken by the 
        agency the following information:
                    (A) A description of the type of work involved.
                    (B) The names, business addresses, and business 
                telephone numbers of the officials who supervised the 
                contracting in effort.
                    (C) The cost of performance at the time the work 
                was contracted in.
                    (D) The current cost of performance by Federal 
                employees or military personnel.
    (d) Report on Employee Positions.--Not later than 30 days after the 
end of each fiscal year, every agency shall submit to the Office of 
Management and Budget a report on the number of Federal employee 
positions and positions held by non-Federal employees under a contract 
between the agency and an individual or entity that has been subject to 
public-private competition during that fiscal year.
    (e) Submission of Reports to Congress.--
            (1) In general.--The Director of the Office of Management 
        and Budget shall compile all reports submitted under this 
        section and submit the reports to the committees referred to 
        under paragraph (2), not later than 120 days after the end of 
        the applicable fiscal year.
            (2) Committees.--The reports compiled under this subsection 
        shall be submitted to the Committee on Government Reform of the 
        House of Representatives and to the Committee on Governmental 
        Affairs of the Senate.
    (f) Public Availability of Reports.--
            (1) Publications.--The Director of the Office of Management 
        and Budget shall promptly publish in the Federal Register 
        notices including a description of when the reports referred to 
        in this section are available to the public and the names, 
        business addresses, and business telephone numbers of the 
        officials from whom the reports may be obtained.
            (2) Availability on internet.--The reports referred to in 
        this section shall be made available through the Internet.
            (3) Proprietary and national security information.--
        Proprietary information or information to which section 
        552(b)(1) of title 5, United States Code, applies shall be 
        excised from information published or reports made available 
        under this subsection.
    (g) Review.--The Director of the Office of Management and Budget 
shall review the reports referred to in this section and consult with 
the head of the agency regarding the content of such reports.

SEC. 5. REQUIREMENT FOR PUBLIC-PRIVATE COMPETITION.

    (a) In General.--
            (1) Public-private competition.--After the date of 
        enactment of this Act and in accordance with section 3, any 
        decision by an agency to initiate or continue a privatization, 
        outsourcing, contracting in, or contracting out for the 
performance of a function shall be based on the results of a public-
private competition process that--
                    (A) formally compares the costs of Federal employee 
                performance of the function with the costs of the 
                performance by a contractor;
                    (B) employs the most efficient organization process 
                described in OMB Circular A-76; and
                    (C) is conducted in consultation or through 
                bargaining with the exclusive representative of the 
                Federal employees performing the function, if 
                applicable.
            (2) Inapplicability.--This subsection does not apply to--
                    (A) work performed in the non-Federal sector before 
                the date of enactment of this Act; or
                    (B) contracts with values less than $1,000,000 for 
                work not performed at the time by Federal employees, if 
                the work is not divided, modified, or in any way 
                changed for the purpose of not performing a public-
                private competition.
    (b) Determination of Costs.--
            (1) In general.--An agency shall commence or continue the 
        performance of a function by Federal employees if, under a cost 
        comparison performed under a public-private competition process 
        described in subsection (a), the agency determines that at 
        least a 10-percent cost savings would not be achieved by 
        performance of the function by a contractor.
            (2) Undertaking contracting effort during suspension.--
        During the suspension established under section 3, an agency 
        may undertake a contracting effort made under the issuance of a 
        waiver granted under section 3 for a function that is not 
        currently performed by Federal employees if the agency has 
        determined the total cost to the agency of performing the 
        function by a contractor and the total cost to the agency of 
        having those services performed by Federal employees and that 
        the contractor performance costs are less than the Federal 
        employee performance costs.
    (c) Inapplicability of Certain Limitation.--Notwithstanding any 
limitation on the number of Federal employees established by law, 
regulation, or policy, an agency may continue to employ, or may hire, 
such Federal employees as are necessary to perform work acquired 
through public-private competition required by this section.

SEC. 6. REVIEW OF CONTRACTOR PERFORMANCE.

    (a) In General.--
            (1) Agency action after review.--If a report completed 
        under section 4 indicates that, for 2 consecutive years, the 
        actual cost of privatization, outsourcing, or contracting out 
        of a particular function exceeds the anticipated cost of 
        contractor performance, based on the award (referred to in 
        section 4(b)(3)(G)), or fails to substantially meet quality 
        control standards (referred to in section 4(b)(3)(J)), the 
        agency shall either conduct a new public-private competition or 
        convert the function to performance by Federal employees not 
        later than the earlier of the date of the expiration of the 
        contract or the beginning of the first fiscal year which is not 
        more than 12 months after the initial determination that the 
        cost of a contracting effort exceeds the anticipated cost of 
        contractor performance or that quality standards have not been 
        substantially met. Any resulting terminations for convenience 
        may be undertaken without cost to the United States Government.
            (2) Inapplicability.--This subsection does not apply to 
        work performed in the non-Federal sector before the date of 
        enactment of this Act.
    (b) Public-Private Competition.--
            (1) In general.--For each fiscal year, an agency shall 
        subject to public-private competition an approximate number of 
        Federal employee positions and positions held by non-Federal 
        employees under a contract between an agency and an individual 
        or entity.
            (2) Particular functions.--In complying with this section, 
        agencies shall, to the extent possible, subject to public-
        private competition those positions held by non-Federal 
        employees under a contract between an agency and an individual 
        or entity that is associated with functions that are or have 
        been performed at least in part by Federal employees at any 
        time on or after October 1, 1980.
    (c) Inapplicability of Certain Limitation.--Notwithstanding any 
limitation on the number of Federal employees established by law, 
regulation, or policy, an agency may continue to employ or may hire 
such Federal employees as are necessary to perform work acquired 
through public-private competition required by this section.

SEC. 7. SURVEY OF WAGES AND BENEFITS PROVIDED BY CONTRACTORS.

    (a) Requirement To Conduct Survey.--Using information provided by 
agencies, the Secretary of Labor shall conduct a survey of the wages 
and quantifiable benefits provided by contractors to non-Federal 
personnel working in various occupations under contracts between 
agencies and individuals or entities that were entered into during the 
2 fiscal years immediately preceding the date of enactment of this Act.
    (b) Review.--
            (1) In general.--The Director of the Office of Personnel 
        Management shall--
                    (A) review the analysis prepared by the Secretary 
                of Labor under subsection (a) and determine the extent 
                to which the wages and quantifiable benefits paid by 
                contractors are comparable to the wages and 
                quantifiable benefits earned by Federal employees; and
                    (B) issue a report on the findings of the review.
            (2) Submission.--Not later than 180 days after the date of 
        enactment of this Act, the report shall be submitted to the 
        Committee on Government Reform of the House of Representatives 
        and to the Committee on Governmental Affairs of the Senate, and 
        published in the Federal Register.
            (3) Proprietary and national security information.--
        Proprietary information or information to which section 
        552(b)(1) of title 5, United States Code, applies shall be 
        excised from information published or reports made available 
        under this subsection.
    (c) Guidance.--The Director of the Office of Management and Budget 
shall issue guidance to implement this section.

SEC. 8. COMPTROLLER GENERAL REPORTS.

    The Comptroller General shall report to the Committee on Government 
Reform of the House of Representatives and the Committee on 
Governmental Affairs of the Senate every 60 days after the date of 
enactment of this Act on the compliance by agencies with the 
requirements of this Act.

SEC. 9. REPEAL OF CERTAIN REPORTING REQUIREMENTS.

    (a) In General.--Sections 2461, 2461a, 2463, and 2467(c) of title 
10, United States Code, are repealed.
    (b) Technical and Conforming Amendments.--The table of sections for 
chapter 141 of title 10, United States Code, is amended by striking the 
items relating to sections 2461, 2461a, and 2463.

SEC. 10. APPLICABILITY.

    This Act does not apply with respect to the following:
            (1) The General Accounting Office.
            (2) Depot-level maintenance and repair of the Department of 
        Defense (as defined in section 2460 of title 10, United States 
        Code).
            (3) Contracts for the study, planning, surveying, design, 
        engineering, and construction of new structures or the 
        remodeling of or additions made to existing structures, 
        facilities, and capital projects, except this Act shall apply 
        to all contracts for the repair and maintenance of any 
        structures.
            (4) Financial assistance awards (including grants and 
        cooperative agreements).
            (5) Specialized scientific and technical contracts for work 
        not performed at the time by Federal employees that are 
        undertaken for research and development, except this Act shall 
        apply to all contracts for work in support of research and 
        development.
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