[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 749 Introduced in Senate (IS)]






109th CONGRESS
  1st Session
                                  S. 749

 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

                             April 11, 2005

  Mr. Levin (for himself, Mr. Thomas, Mr. Grassley, and Ms. Stabenow) 
introduced the following bill; which was read twice and referred to the 
        Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 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. 401 et seq.) is amended by adding at the end the following:

``SEC. 42. 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, or 
any service offered to be provided by Federal Prison Industries, 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;
            ``(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); and
            ``(3) consider a timely offer from Federal Prison 
        Industries without limitation as to the dollar value of the 
        proposed purchase, unless the contract opportunity has been 
        reserved for competition exclusively among small business 
        concerns pursuant to section 15(a) of the Small Business Act 
        (15 U.S.C. 644(a)) and its implementing regulations.
    ``(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 a product or service 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) Other procedures.--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 or service, 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 or service 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.
            ``(2) Determination.--
                    ``(A) In general.--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) Nondelegation.--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) In general.--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 a product or provider of a 
        service 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 a 
                product or service of Federal Prison Industries in the 
                performance of the contract;
                    ``(B) a contract clause that requires the 
                contractor to use or specify a product or service (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 a product or service of Federal Prison 
                Industries in the performance of the contract.
            ``(2) Subcontractor or supplier.--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) Definition.--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:

``Sec. 42. 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) In general.--Section 2410n of title 10, United States 
        Code, is repealed.
            (2) Table of sections.--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) Javits-wagner-o'day act.--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) Small business act.--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''.

SEC. 3. UNLAWFUL TRANSPORTATION OR IMPORTATION OF PRODUCTS, SERVICES, 
              OR MINERALS RESULTING FROM CONVICT LABOR.

    (a) Prohibition.--Section 1761 of title 18, United States Code, is 
amended--
            (1) in subsection (a), by inserting after ``reformatory 
        institution,'' the following: ``or knowingly sells in 
        interstate commerce any services, other than disassembly and 
        scrap resale activities to achieve landfill avoidance, 
        furnished wholly or in part by convicts or prisoners, except 
        convicts or prisoners on parole, supervised release, or 
        probation, or in any penal or reformatory institution,''; and
            (2) in the matter preceding paragraph (1) in subsection 
        (c), by inserting ``, or services furnished,'' after ``or 
        mined''.
    (b) Completion of Existing Agreements.--Any prisoner work program 
operated by the Federal Government or by a State or local government 
which was providing a service for the commercial market through inmate 
labor on October 1, 2005, may continue to provide such commercial 
services until--
            (1) the expiration that was specified in the contract or 
        other agreement with a commercial partner on October 1, 2005; 
        or
            (2) until September 30, 2006, if no expiration date was 
        specified in a contract or other agreement with a commercial 
        partner.
    (c) Approval Required for Long-Term Operation of State and Local 
Programs.--Except as provided in subsection (b), a prison work program 
operated by a State or local government may provide a service for the 
commercial market through inmate labor only if such program has been 
certified pursuant to section 1761(c) of title 18, United States Code, 
and is in compliance with the requirements of such subsection and its 
implementing regulations.
    (d) Approval Required for Long-Term Operation of Federal 
Programs.--Except as provided in subsection (b), a prison work program 
operated by the Federal Government may provide a service for the 
commercial market through inmate labor only if a Federal Prison 
Industries proposal to provide such services is approved in accordance 
with the requirements of this subsection by the Secretary of Commerce, 
the Secretary of Labor, and the Administrator of the Small Business 
Administration. Such a proposal may be approved only upon a 
determination, after notice and an opportunity for public comment, 
that--
            (1) the service to be provided would be provided 
        exclusively by foreign labor in the absence of the Federal 
        Prison Industries proposal; and
            (2) the approval of the proposal will not have an adverse 
        impact on employment in any United States business.
    (e) Protection of Classified and Sensitive Information.--A prison 
work program operated by a State or local government may not provide a 
service, including a service for the commercial market through inmate 
labor pursuant to section 1761(c) of title 18, United States Code, 
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 transportation 
                infrastructure; 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.

SEC. 4. 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:

``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 a product or service 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. Any product or service 
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) In general.--Federal Prison Industries may sell or 
        donate a product or service to a charitable organization under 
        subsection (a) only pursuant to a work agreement with the 
        charitable organization receiving the product or service.
            ``(2) Terms.--Federal Prison Industries may enter a work 
        agreement relating to a product and service 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 service 
                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) Nondelegation.--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 
chapter 307 of title 18, United States Code, is amended by adding at 
the end the following:

``4130. Cooperation with charitable organizations.''.

SEC. 5. ADDITIONAL REHABILITATIVE OPPORTUNITIES FOR INMATES.

    (a) Establishment of Program.--
            (1) In general.--Chapter 303 of title 18, United States 
        Code, is amended by adding at the end the following:

``SEC. 4049. ENHANCED IN-PRISON EDUCATIONAL AND VOCATIONAL ASSESSMENT 
              AND TRAINING PROGRAM.

    ``(a) In General.--There is established the Enhanced In-Prison 
Educational and Vocational Assessment and Training Program within the 
Federal Bureau of Prisons.
    ``(b) Requirements.--The program established under this section 
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) Table of sections.--The table of sections at the 
        beginning of such chapter is amended by adding at the end the 
        following:

``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 8 years after the date of 
the enactment of this Act.

SEC. 6. 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. 7. 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 5 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. 8. EFFECTIVE DATE.

    The amendments made by this Act shall take effect 180 days after 
the date of the enactment of this Act.
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