[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