[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 705 Introduced in Senate (IS)]







110th CONGRESS
  1st Session
                                 S. 705

 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 28, 2007

Mr. Levin (for himself, Mr. Thomas, Ms. Stabenow, Mr. Grassley, and Mr. 
    Harkin) 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. 403 et seq.) is amended by adding at the end the following new 
section:

``SEC. 43. 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. 43. 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) Repeal.--Section 2410n of title 10, United States Code, 
        is repealed.
            (2) Clerical amendment.--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);
            (2) by redesignating subsections (c) and (d) as subsections 
        (a) and (b), respectively; and
            (3) in subsection (a), as redesignated by paragraph (2), 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''.

SEC. 3. CLARIFYING AMENDMENT RELATING TO SERVICES.

    (a) In General.--Section 1761 of title 18, United States Code, is 
amended in subsections (a) and (c) by striking ``goods, wares, or 
merchandise manufactured, produced, or mined'' each place it appears 
and inserting ``products manufactured, services furnished, or minerals 
mined''.
    (b) Completion of Existing Agreements.--Any prisoner work program 
operated by a prison or jail of a State or local jurisdiction of a 
State which is providing services for the commercial market through 
inmate labor on October 1, 2007, may continue to provide such 
commercial services until--
            (1) the expiration date specified in the contract or other 
        agreement with a commercial partner on October 1, 2007; or
            (2) until September 30, 2011, if the prison work program is 
        directly furnishing the services to the commercial market.
    (c) Approval Required for Long-Term Operation.--A prison work 
program operated by a correctional institution operated by a State or 
local jurisdiction of a State may continue to provide inmate labor to 
furnish services for sale in the commercial market after the dates 
specified in subsection (b) if such program has been certified pursuant 
to section 1761(c)(1) of title 18, United States Code, and is in 
compliance with the requirements of such subsection and its 
implementing regulations.
    (d) Existing Work Opportunities for Federal Inmates.--Any private 
for-profit business entity having an agreement with Federal Prison 
Industries in effect on the date of the enactment of this Act, under 
which Federal inmates are furnishing services that are being introduced 
into the commercial market, may continue to furnish such services for 
the duration of the term of such agreement.
    (e) Additional Amendment.--Section 1761 of title 18, United States 
Code, is further amended--
            (1) by redesignating subsection (d) as subsection (e); and
            (2) by inserting after subsection (c) the following new 
        subsection:
    ``(d) This section shall not apply to services performed as part of 
an inmate work program conducted by a State or local government to 
disassemble, scrap, and recycle products, other than electronic 
products, that would otherwise be disposed of in a landfill. Recovered 
scrap from such program may be sold.''.
    (f) Conforming Amendment.--Section 4122(a) of title 18, United 
States Code, is amended by striking ``production of commodities'' and 
inserting ``production of products or furnishing of services''.

SEC. 4. EFFECTIVE DATE.

    (a) In General.--Except as provided in subsection (b), this Act and 
the amendments made by this Act shall take effect 180 days after the 
date of the enactment of this Act.
    (b) Exception.--Subsections (b), (c), and (d) of section 3 shall 
take effect on the date of the enactment of this Act.
                                 <all>