1.Short title; table of
contents
(a)This Act may be cited as the Federal Prison Industries Competition in Contracting Act
of 2011
.
(b)The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Governmentwide procurement policy relating to purchases
from Federal Prison Industries.
Sec. 3. Public participation regarding expansion proposals by
Federal Prison Industries.
Sec. 4. Transitional mandatory source authority.
Sec. 5. Authority to perform as a Federal
subcontractor.
Sec. 6. Inmate wages and deductions.
Sec. 7. Clarifying amendment relating to services.
Sec. 8. Conforming amendment.
Sec. 9. Rules of construction relating to chapter
307.
Sec. 10. Providing additional rehabilitative opportunities for
inmates.
Sec. 11. Re-entry employment preparation through work-based
training and apprenticeship.
Sec. 12. Restructuring the Board of Directors.
Sec. 13. Management matters.
Sec. 14. Transitional personnel management
authority.
Sec. 15. Federal Prison Industries report to
Congress.
Sec. 16. Definitions.
Sec. 17. Implementing regulations and procedures.
Sec. 18. Rules of construction.
Sec. 19. Effective date and applicability.
Sec. 20. Clerical amendments.
2.Governmentwide
procurement policy relating to purchases from Federal Prison
IndustriesSection 4124 of
title 18, United States Code, is amended to read as follows:
4124.Governmentwide
procurement policy relating to purchases from Federal Prison
Industries
(a)Purchases from Federal Prison Industries, Incorporated, a
wholly owned Government corporation, as referred to in section 9101(3)(E) of
title 31, may be made by a Federal department or agency only in accordance with
this section.
(b)Solicitation and
evaluation of offers and contract awards(1)(A)If a procurement
activity of a Federal department or agency has a requirement for a specific
product or service that is authorized to be offered for sale by Federal Prison
Industries, in accordance with section 4122 of this title, and is listed in the
catalog referred to in subsection (g), the procurement activity shall solicit
an offer from Federal Prison Industries, if the purchase is expected to be in
excess of the micro-purchase threshold (as defined by section 32(f) of the
Office of Federal Procurement Policy Act (41 U.S.C. 428(f))).
(B)The requirements of subparagraph (A)
shall also apply to a procurement that a Federal department or agency intends
to meet by placing an order against a contract maintained by the General
Services Administration under the Multiple Award Schedule Contracts
Program.
(C)Federal Prison Industries, upon its
request, shall be listed on any Schedule, referred to in subparagraph (B), as
offering products or services which Federal Prison Industries believes to be
comparable to those products and services being offered by commercial
contractors through the Multiple Award Schedule Contracts Program.
(2)A contract award for such product or
service shall be made using competitive procedures in accordance with the
applicable evaluation factors, unless a determination is made by the Attorney
General pursuant to paragraph (3) or an award using other than competitive
procedures is authorized pursuant to paragraph (7).
(3)The procurement activity shall
negotiate with Federal Prison Industries on a noncompetitive basis for the
award of a contract if the Attorney General determines that—
(A)Federal Prison Industries cannot
reasonably expect fair consideration to receive the contract award on a
competitive basis; and
(B)the contract award is necessary to
maintain work opportunities otherwise unavailable at the penal or correctional
facility at which the contract is to be performed to prevent circumstances that
could reasonably be expected to significantly endanger the safe and effective
administration of such facility.
(4)Except in the case of an award to be
made pursuant to paragraph (3), a contract award shall be made with Federal
Prison Industries only if the contracting officer for the procurement activity
determines that—
(A)the specific product or service to be
furnished will meet the requirements of the procurement activity (including any
applicable prequalification requirements and all specified commercial or
governmental standards pertaining to quality, testing, safety, serviceability,
and warranties);
(B)timely performance of the contract can
be reasonably expected; and
(C)the contract price does not exceed a
current market price.
(5)A determination by the Attorney
General pursuant to paragraph (3) shall be—
(A)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;
(B)supported by specific findings by
Federal Prison Industries regarding why it does not expect to win the contract
on a competitive basis; and
(C)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)).
(6)If the Attorney General has not made
the determination described in paragraph (3) within 30 days after Federal
Prison Industries has been informed of a contracting opportunity by a
procurement activity, the procurement activity may proceed to conduct a
procurement for the product or service in accordance with the procedures
generally applicable to such procurements by the procurement activity.
(7)A contract award may be made to
Federal Prison Industries using other than competitive procedures if such
product or service is only available from Federal Prison Industries and the
contract may be awarded under the authority of section 2304(c)(1) of title 10
or section 303(c) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253(c)(1)), as may be
applicable, and pursuant to the justification and approval requirements
relating to such noncompetitive procurements specified by law and the
Governmentwide Federal Acquisition Regulation.
(8)A contract award may be made to
Federal Prison Industries using other than competitive procedures by the
Federal Bureau of Prisons.
(9)A solicitation for a contract shall
first be made to Federal Prison Industries using other than competitive
procedures if the product or service to be acquired would otherwise be
furnished by a contractor performing the work outside of the United
States.
(c)Offers from
Federal Prison Industries(1)A timely offer received
from Federal Prison Industries to furnish a product or service to a Federal
department or agency shall be considered for award 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.
(2)(A)Any offer made by
Federal Prison Industries to furnish a product or service may exclude from the
offered price the following:
(i)The costs related to security of the
facilities at which the contract will be performed.
(ii)The costs of educating and training the
prison work force performing the contract.
(iii)Excess capital costs of machinery and
excess inventories used within a prison environment that are the result of the
unique environment of prison life.
(iv)Other costs of performing the contract
resulting from the unique environment of prison facilities.
(d)Performance by
Federal Prison IndustriesFederal Prison Industries shall perform
its contractual obligations under a contract awarded by a Federal department or
agency to the same extent as any other contractor.
(e)Finality of
contracting officer’s decision(1)A decision by a
contracting officer regarding the award of a contract to Federal Prison
Industries or relating to the performance of such contract shall be final,
unless reversed on appeal pursuant to paragraph (2) or (3).
(2)(A)The Chief Operating
Officer of Federal Prison Industries may protest a decision by a contracting
officer not to award a contract to Federal Prison Industries pursuant to
subsection (b)(4), in accordance with section 33.103, (Protests to the agency)
of the Federal Acquisition Regulation (48 CFR part 33.103).
(B)In the event of an adverse decision
of a protest filed pursuant to subparagraph (A), the Assistant Attorney General
for Administration may request a reconsideration of such adverse decision by
the head of the Federal agency or department, which shall be considered de novo
and the decision issued by such agency head on a non-delegable basis. Such
decision upon reconsideration by the agency head shall be final.
(3)A dispute between Federal Prison
Industries and a procurement activity regarding performance of a contract shall
be subject to—
(A)alternative means of dispute
resolution pursuant to subchapter IV of chapter 5 of title 5; or
(B)final resolution by the board of
contract appeals having jurisdiction over the procurement activity’s contract
performance disputes pursuant to the Contract Disputes Act of 1978 (41 U.S.C.
601 et seq.).
(f)Each Federal department or agency shall report
purchases from Federal Prison Industries to the Federal Procurement Data System
(as referred to in section 6(d)(4) of the Office of Federal Procurement Policy
Act (41 U.S.C. 405(d)(4))) in the same manner as it reports to such System any
acquisition in an amount in excess of the simplified acquisition threshold (as
defined by section 4(11) of the Office of Federal Procurement Policy Act (41
U.S.C. 403(11))).
(g)Federal Prison Industries shall publish and maintain a
catalog of all specific products and services that it is authorized to offer
for sale. Such catalog shall be periodically revised as products and services
are added or deleted by its board of directors (in accordance with section
4122(b) of this title).
(h)Compliance with
standardsFederal Prison Industries shall be subject to Federal
occupational, health, and safety standards with respect to the operation of its
industrial
operations.
.
3.Public
participation regarding expansion proposals by Federal Prison
IndustriesSection 4122(b) of
title 18, United States Code, is amended—
(1)by redesignating
paragraph (6) as paragraph (13); and
(2)by striking
paragraphs (4) and (5) and inserting the following new paragraphs:
(4)(A)Federal Prison
Industries is authorized to offer a new specific product or furnish a new
specific service in response to a competitive solicitation or other purchase
request issued by a Federal department or agency. No subsequent offering of
such product or service may be made by Federal Prison Industries until the
board of directors has approved the offering for sale of such new specific
product or new specific service, in conformance with the requirements of
paragraphs (5) through (9).
(B)Federal Prison Industries may produce
a product or furnish a service in excess of the authorized level of production
for such product or service, in response to an order placed pursuant to an
existing contract with a Federal department or agency, if the agency’s need for
the product or service is of such an urgency that it would justify the use of
procedures other than competitive procedures pursuant to section 2304(c)(2) of
title 10 or section 303(c)(2) of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 253(c)(2)), as may be applicable.
(5)A decision to authorize Federal
Prison Industries to offer a new specific product or specific service or to
expand the production of an existing product or service for sale to the Federal
Government shall be made by its board of directors in conformance with the
requirements of subsections (b), (c), (d), and (e) of section 553 of title 5,
and this chapter.
(6)(A)Whenever Federal Prison
Industries proposes to offer for sale a new specific product or specific
service or to expand production of a currently authorized product or service,
the Chief Operating Officer of Federal Prison Industries shall submit an
appropriate proposal to the board of directors and obtain the board’s approval
before initiating any such expansion. The proposal submitted to the board shall
include a detailed analysis of the probable impact of the proposed expansion of
sales within the Federal market by Federal Prison Industries on private sector
firms and their non-inmate workers.
(B)(i)The analysis required by
subparagraph (A) shall be performed by an interagency team on a reimbursable
basis or by a private contractor paid by Federal Prison Industries.
(ii)If the analysis is to be performed
by an interagency team, such team shall be led by the Administrator of the
Small Business Administration or the designee of such officer with
representatives of the Department of Labor, the Department of Commerce, and the
Federal Procurement Data Center.
(iii)If the analysis is to be performed
by a private contractor, the selection of the contractor and the administration
of the contract shall be conducted by one of the entities referenced in clause
(ii) as an independent executive agent for the board of directors. Maximum
consideration shall be given to any proposed statement of work furnished by the
Chief Operating Officer of Federal Prison Industries.
(C)The analysis required by subparagraph
(A) shall identify and consider—
(i)the number of vendors that currently
meet the requirements of the Federal Government for the specific product or
specific service;
(ii)the proportion of the Federal
Government market for the specific product or specific service currently
furnished by small businesses during the previous 3 fiscal years;
(iii)the share of the Federal market for
the specific product or specific service projected for Federal Prison
Industries for the fiscal year in which production or performance will commence
or expand and the subsequent 4 fiscal years;
(iv)whether the industry producing the
specific product or specific service in the private sector—
(I)has an unemployment rate higher
than the national average; or
(II)has a rate of unemployment for
workers that has consistently shown an increase during the previous 5
years;
(v)whether the specific product is an
import-sensitive product;
(vi)the requirements of the Federal
Government and the demands of entities other than the Federal Government for
the specific product or service during the previous 3 fiscal years;
(vii)the projected growth or decline in
the demand of the Federal Government for the specific product or specific
service;
(viii)the capability of the projected
demand of the Federal Government for the specific product or service to sustain
both Federal Prison Industries and private vendors; and
(ix)whether authorizing the production of
the new product or performance of a new service will provide inmates with the
maximum opportunity to acquire knowledge and skill in trades and occupations
that will provide them with a means of earning a livelihood upon
release.
(D)(i)The board of directors
may not approve a proposal to authorize the production and sale of a new
specific product or continued sale of a previously authorized product
unless—
(I)the product to be furnished is a
prison-made product; or
(II)the service to be furnished is to be
performed by inmate workers.
(ii)The board of directors may not
approve a proposal to authorize the production and sale of a new prison-made
product or to expand production of a currently authorized product if the
product is—
(I)produced in the private sector by an
industry which has reflected during the previous year an unemployment rate
above the national average; or
(II)an import-sensitive product.
(iii)The board of directors may not
approve a proposal for inmates to provide a service in which an inmate worker
has access to—
(I)personal or financial information
about individual private citizens, including information relating to such
person’s real property, however described, without giving prior notice to such
persons or class of persons to the greatest extent practicable;
(II)geographic data regarding the
location of surface and subsurface infrastructure providing communications,
water and electrical power distribution, pipelines for the distribution of
natural gas, bulk petroleum products and other commodities, and other
utilities; or
(III)data that is classified.
(iv)(I)Federal Prison
Industries is prohibited from furnishing through inmate labor construction
services, unless to be performed within a Federal correctional institution
pursuant to the participation of an inmate in an apprenticeship or other
vocational education program teaching the skills of the various building
trades.
(II)For purposes of this clause, the
term construction has the meaning given such term by section 2.101
of the Federal Acquisition Regulation (48 CFR part 2.101), as in effect on June
1, 2010, including the repair, alteration, or maintenance of real property in
being.
(7)To provide further opportunities for
participation by interested parties, the board of directors shall—
(A)give additional notice of a proposal
to authorize the production and sale of a new product or service, or expand the
production of a currently authorized product or service, in a publication
designed to most effectively provide notice to private vendors and labor unions
representing private sector workers who could reasonably be expected to be
affected by approval of the proposal, which notice shall offer to furnish
copies of the analysis required by paragraph (6) and shall solicit comment on
the analysis;
(B)solicit comments on the analysis
required by paragraph (6) from trade associations representing vendors and
labor unions representing private sector workers who could reasonably be
expected to be affected by approval of the proposal to authorize the production
and sale of a new product or service (or expand the production of a currently
authorized product or service); and
(C)afford an opportunity, on request, for
a representative of an established trade association, labor union, or other
private sector representatives to present comments on the proposal directly to
the board of directors.
(8)The board of directors shall be
provided copies of all comments received on the expansion proposal.
(9)Based on the comments received on the
initial expansion proposal, the Chief Operating Officer of Federal Prison
Industries may provide the board of directors a revised expansion proposal. If
such revised proposal provides for expansion of inmate work opportunities in an
industry different from that initially proposed, such revised proposal shall
reflect the analysis required by paragraph (6)(C) and be subject to the public
comment requirements of paragraph (7).
(10)The board of directors shall
consider a proposal to authorize the sale of a new specific product or specific
service (or to expand the volume of sales for a currently authorized product or
service) and take any action with respect to such proposal, during a meeting
that is open to the public, unless closed pursuant to section 552(b) of title
5.
(11)In conformance with the requirements
of paragraph (10) of this subsection, the board of directors may—
(A)authorize the donation of products
produced or services furnished by Federal industries and available for
sale;
(B)authorize the production of a new
specific product or the furnishing of a new specific service for donation;
or
(C)authorize a proposal to expand
production of a currently authorized specific product or specific service in an
amount in excess of a reasonable share of the market for such product or
service, if—
(i)a Federal agency or department,
purchasing such product or service, has requested that Federal Prison
Industries be authorized to furnish such product or service in amounts that are
needed by such agency or department; or
(ii)the proposal is justified for
other good cause and supported by at least two-thirds of the appointed members
of the
board.
.
4.Transitional
mandatory source authority
(a)Notwithstanding the requirements of section 4124 of title
18, United States Code (as amended by section 2 of this Act), a Federal
department or agency having a requirement for a product that is authorized for
sale by Federal Prison Industries and is listed in its catalog (referred to in
section 4124(g) of title 18, United States Code) shall first solicit an offer
from Federal Prison Industries and make purchases on a noncompetitive basis in
accordance with this section or in accordance with section 2410n of title 10,
United States Code, or section 318 of title III of the
Federal Property and Administrative Services
Act of 1949 (as added by subsection (j)).
(b)Preferential
source statusSubject to the limitations of subsection (d), a
contract award shall be made on a noncompetitive basis to Federal Prison
Industries if the contracting officer for the procurement activity determines
that—
(1)the product
offered by Federal Prison Industries will meet the requirements of the
procurement activity (including commercial or governmental standards or
specifications pertaining to design, performance, testing, safety,
serviceability, and warranties as may be imposed upon a private sector supplier
of the type being offered by Federal Prison Industries);
(2)timely performance
of the contract by Federal Prison Industries can be reasonably expected;
and
(3)the negotiated
price does not exceed a fair and reasonable price.
(c)The terms and conditions of the contract and the price to
be paid to Federal Prison Industries shall be determined by negotiation between
Federal Prison Industries and the Federal agency making the purchase. The
negotiated price shall not exceed a fair and reasonable price determined in
accordance with the procedures of the Federal Acquisition Regulation.
(d)Performance of
contractual obligations
(1)Federal Prison Industries shall perform the obligations
of the contract negotiated pursuant to subsection (c).
(2)If the head of the contracting activity and the Chief
Operating Officer of Federal Prison Industries are unable to resolve a contract
performance dispute to their mutual satisfaction, such dispute shall be
resolved pursuant to section 4124(e)(3) of title 18, United States Code (as
added by section 2 of this Act).
(e)Limitations on
use of authority
(1)As a percentage of the sales made by Federal Prison
Industries during the base period, the total dollar value of sales to the
Government made pursuant to subsection (b) and subsection (c) of this section
shall not exceed—
(A)90 percent in
fiscal year 2012;
(B)85 percent in
fiscal year 2013;
(C)70 percent in
fiscal year 2014;
(D)55 percent in
fiscal year 2015; and
(E)40 percent in
fiscal year 2016.
(2)Sales within
various business sectorsUse of the authority provided by
subsections (b) and (c) shall not result in sales by Federal Prison Industries
to the Government that are in excess of its total sales during the base year
for each business sector.
(3)Limitations
relating to specific productsUse of the authorities provided by
subsections (b) and (c) shall not result in contract awards to Federal Prison
Industries that are in excess of its total sales during the base period for
such product.
(4)Changes in
design specificationsIf a buying agency directs a change to the
design specification for a specific product, the costs associated with the
implementation of such specification change by Federal Prison Industries shall
not be considered for the purposes of computing sales by Federal Prison
Industries for the purposes of paragraphs (2) and (3).
(f)Additional
authority To sustain inmate employmentDuring the period
specified in subsection (g), the authority of section 4122(b)(11)(C)(ii) of
title 18, United States Code (as added by section 3), may be used by the Board
to sustain inmate employment.
(g)The preferential contracting authorities authorized by
subsection (b) may not be used on or after October 1, 2015, and become
effective on the effective date of the final regulations issued pursuant to
section 17.
(h)For
the purposes of this section—
(1)the term
base period means the total sales of Federal Prison Industries
during the period October 1, 2009, and September 30, 2010 (Fiscal Year
2010);
(2)the term
business sectors means the seven product/service business groups
identified in the 2004 Federal Prison Industries annual report as the Clothing
and Textiles Business Group, the Electronics Business Group, the Fleet
Management and Vehicular Components Business Group, the Industrial Products
Business Group, the Office Furniture Business Group, the Recycling Activities
Business Group, and the Services Business Group; and
(3)the term
fair and reasonable price shall be given the same meaning as, and
be determined pursuant to, part 15.8 of the Federal Acquisition Regulation (48
CFR 15.8).
(i)Finding by
Attorney General with respect to public safety(1)Not later than 60 days
prior to the end of each fiscal year specified in subsection (e)(1), the
Attorney General shall make a finding regarding the effects of the percentage
limitation imposed by such subsection for such fiscal year and the likely
effects of the limitation imposed by such subsection for the following fiscal
year.
(2)The Attorney General’s finding shall
include a determination whether such limitation has resulted or is likely to
result in a substantial reduction in inmate industrial employment and whether
such reductions, if any, present a significant risk of adverse effects on safe
prison operation or public safety.
(3)If the Attorney General finds a
significant risk of adverse effects on either safe prison management or public
safety, he shall so advise the Congress.
(4)In advising the Congress pursuant to
paragraph (3), the Attorney General shall make recommendations for additional
authorizations of appropriations to provide additional alternative inmate
rehabilitative opportunities and additional correctional staffing, as may be
appropriate.
(j)Procedural
requirements for civilian agencies relating to products of Federal Prison
IndustriesTitle III of the Federal Property and Administrative Services Act of
1949 (41 U.S.C. 251 et seq.) is amended by adding at the end the
following new section:
318.Products of
Federal Prison Industries: procedural requirements
(a)Before purchasing a product listed in the latest edition
of the Federal Prison Industries catalog under section 4124(g) of title 18,
United States Code, the head of an executive agency shall conduct market
research to determine whether the Federal Prison Industries product is
comparable to products available from the private sector that best meet the
executive agency’s needs in terms of price, quality, and time of
delivery.
(b)If the head of the executive agency determines that a
Federal Prison Industries product is not comparable in price, quality, or time
of delivery to products available from the private sector that best meet the
executive agency’s needs in terms of price, quality, and time of delivery, the
agency head shall use competitive procedures for the procurement of the product
or shall make an individual purchase under a multiple award contract. In
conducting such a competition or making such a purchase, the agency head shall
consider a timely offer from Federal Prison Industries.
(c)Implementation
by head of executive agencyThe head of an 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 agency determines that the product or service is
comparable to products or services available from the private sector that best
meet the agency’s needs in terms of price, quality, and time of delivery;
and
(2)Federal Prison
Industries performs its contractual obligations to the same extent as any other
contractor for the executive agency.
(d)Market research
determination not Subject to reviewA determination by a
contracting officer regarding whether a product or service offered by Federal
Prison Industries is comparable to products or services available from the
private sector that best meet an executive agency’s needs in terms of price,
quality, and time of delivery shall not be subject to review pursuant to
section 4124(b) of title 18.
(e)Performance as a
subcontractor(1)A contractor or
potential contractor 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 a contract of the executive agency by any
means, including means such as—
(A)a contract solicitation provision
requiring a contractor to offer to make use of products or services of Federal
Prison Industries in the performance of the contract;
(B)a contract specification requiring the
contractor to use specific 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 directing
the use of products or services of Federal Prison Industries in the performance
of the contract.
(2)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 informationThe 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;
(2)any geographic
data regarding the location of—
(A)surface and
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.
(g)In
this section:
(1)The term
competitive procedures has the meaning given such term in section
4(5) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(5)).
(2)The term
market research means obtaining specific information about the
price, quality, and time of delivery of products available in the private
sector through a variety of means, which may include—
(A)contacting
knowledgeable individuals in government and industry;
(B)interactive
communication among industry, acquisition personnel, and customers; and
(C)interchange
meetings or pre-solicitation conferences with potential
offerors.
.
5.Authority to
perform as a Federal subcontractor
(a)Federal Prison Industries is authorized to enter into a
contract with a Federal contractor (or a subcontractor of such contractor at
any tier) to produce products as a subcontractor or supplier in the performance
of a Federal procurement contract. The use of Federal Prison Industries as a
subcontractor or supplier shall be a wholly voluntary business decision by the
Federal prime contractor or subcontractor, subject to any prior approval of
subcontractors or suppliers by the contracting officer which may be imposed by
the Federal Acquisition Regulation or by the contract.
(b)Federal Prison Industries is prohibited from being a
subcontractor or supplier at any tier if—
(1)the product or
service is to be acquired by a Federal department or agency pursuant to section
3 of the Javits-Wagner-O’Day Act (41 U.S.C. 48); or
(2)the product to be
acquired by the Federal department or agency is subject to section 2533a of
title 10, United States Code.
(c)Commercial sales
prohibitedThe authority provided by subsection (a) shall not
result, either directly or indirectly, in the sale in the commercial market of
a product or service resulting from the labor of Federal inmate workers in
violation of section 1761(a) of title 18, United States Code. A Federal
contractor (or subcontractor at any tier) using Federal Prison Industries as a
subcontractor or supplier in furnishing a commercial product pursuant to a
Federal contract shall implement appropriate management procedures to prevent
introducing an inmate-produced product into the commercial market.
(d)Prohibitions on
mandating subcontracting with Federal Prison IndustriesExcept as
authorized under the Federal Acquisition Regulation, the use of Federal Prison
Industries as a subcontractor or supplier of products or provider of services
shall not be imposed upon prospective or actual Federal prime contractors or a
subcontractors at any tier by means of—
(1)a
contract solicitation provision requiring a contractor to offer to make use of
Federal Prison Industries, its products or services;
(2)specifications
requiring the contractor to use specific products or services (or classes of
products or services) offered by Federal Prison Industries in the performance
of the contract;
(3)any contract
modification directing the use of Federal Prison Industries, its products or
services; or
(4)any other
means.
6.Inmate wages and
deductionsSection 4122(b) of
title 18, United States Code (as amended by section 3 of this Act), is further
amended by adding after paragraph (11) a new paragraph (12) as follows:
(12)(A)The Board of Directors
of Federal Prison Industries shall prescribe the rates of hourly wages to be
paid inmates performing work for or through Federal Prison Industries. The
Director of the Federal Bureau of Prisons shall prescribe the rates of hourly
wages for other work assignments within the various Federal correctional
institutions. In the case of an inmate whose term of imprisonment is to expire
in not more than 2 years, wages shall be earned at an hourly rate of not less
than $2.50, but paid at the same rate and in the same manner as to any other
inmate, and any amount earned but not paid shall be held in trust and paid only
upon the actual expiration of the term of imprisonment.
(B)The various inmate wage rates shall
be reviewed and considered for increase on not less than a biannual
basis.
(C)The Board of Directors of Federal
Prison Industries shall—
(i)not later than September 30, 2012,
increase the maximum wage rate for inmates performing work for or through
Federal Prison Industries to an amount equal to 50 percent of the minimum wage
prescribed by section 6(a)(1) of the Fair Labor Standards Act of 1938 (29
U.S.C. 206(a)(1)); and
(ii)not later than September 30, 2017,
increase such maximum wage rate to an amount equal to such minimum wage.
(D)Wages earned by an inmate worker
shall be paid in the name of the inmate. Deductions, aggregating to not more
than 80 percent of gross wages, shall be taken from the wages due for—
(i)applicable taxes (Federal, State, and
local);
(ii)payment of fines and restitution
pursuant to court order;
(iii)payment of additional restitution
for victims of the inmate’s crimes (at a rate not less than 10 percent of gross
wages);
(iv)allocations for support of the
inmate’s family pursuant to statute, court order, or agreement with the
inmate;
(v)allocations to a fund in the inmate’s
name to facilitate such inmate’s assimilation back into society, payable at the
conclusion of incarceration; and
(vi)such other deductions as may be
specified by the Director of the Bureau of Prisons.
(E)Each inmate worker working for
Federal Prison Industries shall indicate in writing that such person—
(i)is participating voluntarily;
and
(ii)understands and agrees to the wages
to be paid and deductions to be taken from such
wages.
.
7.Clarifying
amendment relating to services
(a)Section 1761 of title 18, United States Code, is amended
in subsection (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 agreementsAny 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, 2010, 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, 2010, or
(2)until September
30, 2015, if the prison work program is directly furnishing the services to the
commercial market.
(c)Approval
required for long-Term operationA 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 inmatesAny private for-profit business
entity having an agreement with Federal Prison Industries in effect on the date
of 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)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.
.
8.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
.
9.Rules of
construction relating to chapter 307Chapter 307 of title 18, United States Code,
is further amended by adding at the end the following:
4130.Construction
of provisionsNothing in this
chapter shall be construed—
(1)to establish an
entitlement of any inmate to—
(A)employment in a
Federal Prison Industries facility; or
(B)any particular
wage, compensation, or benefit on demand, except as otherwise specifically
provided by law or regulation;
(2)to establish that
inmates are employees for the purposes of any law or program; or
(3)to establish any
cause of action by or on behalf of any inmate against the United States or any
officer, employee, or contractor
thereof.
.
10.Providing
additional rehabilitative opportunities for inmates
(a)Additional
educational, training, and release-Preparation opportunities
(1)There is hereby established the Enhanced In-Prison
Educational and Vocational Assessment and Training Program within the Federal
Bureau of Prisons.
(2)In addition to such other components as the Director of
the Bureau of Prisons deems appropriate to reduce inmate idleness and better
prepare inmates for a successful reentry into the community upon release, the
program shall provide—
(A)in-prison
assessments of inmates’ needs and aptitudes;
(B)a full range of
educational opportunities;
(C)vocational
training and apprenticeships; and
(D)comprehensive
release-readiness preparation.
(3)Authorization of
appropriationsFor the purposes of carrying out the program
established by paragraph (1), $75,000,000 is authorized for each fiscal year
after fiscal year 2011, to remain available until expended. It is the sense of
Congress that Federal Prison Industries should use some of its net earnings to
accomplish the purposes of the program.
(4)Schedule for
implementationAll components of the program shall be
established—
(A)in at least 25
percent of all Federal prisons not later than 2 years after the date of the
enactment of this Act;
(B)in at least 50
percent of all Federal prisons not later than 4 years after such date of
enactment;
(C)in at least 75
percent of all Federal prisons not later than 6 years after such date of
enactment; and
(D)in all Federal
prisons not later than 8 years after such date of enactment.
(b)Additional
inmate work opportunities through public service activities
(1)Chapter 307 of title 18, United States Code, is further
amended by inserting after section 4124 the following new section:
4124a.Additional
inmate work opportunities through public service activities
(a)Inmates with work assignments within Federal Prison
Industries may perform work for an eligible entity pursuant to an agreement
between such entity and the Inmate Work Training Administrator in accordance
with the requirements of this section.
(b)Definition of
eligible entitiesFor the purposes of this section, the term
eligible entity means an entity—
(1)that is an
organization described in section 501(c)(3) of the Internal Revenue Code of
1986 and exempt from taxation under section 501(a) of such Code and that has
been such an organization for a period of not less than 36 months prior to
inclusion in an agreement under this section;
(2)that is a
religious organization described in section 501(d) of such Code and exempt from
taxation under section 501(a) of such Code; or
(3)that is a unit of
local government, a school district, or another special purpose
district.
(c)Inmate work
training administratorThere is hereby established the position
of Inmate Work Training Administrator, who shall be responsible for fostering
the creation of alternative inmate work opportunities authorized by this
section. The Administrator shall be designated by the Chief Executive Officer
of Federal Prison Industries, with the approval of the Board of Directors, and
be under the supervision of the Chief Operating Officer, but may directly
report to the Board.
(d)An eligible entity seeking to enter into an agreement
pursuant to subsection (a) shall submit a detailed proposal to the Inmate Work
Training Administrator. Each such agreement shall specify—
(1)types of work to
be performed;
(2)the proposed
duration of the agreement, specified in terms of a base year and number of
option years;
(3)the number of
inmate workers expected to be employed in the specified types of work during
the various phases of the agreement;
(4)the wage rates
proposed to be paid to various classes of inmate workers; and
(5)the facilities,
services and personnel (other than correctional personnel dedicated to the
security of the inmate workers) to be furnished by Federal Prison Industries or
the Bureau of Prisons and the rates of reimbursement, if any, for such
facilities, services, and personnel.
(e)
(1)Eleemosynary
work activitiesEach proposed agreement shall be accompanied by a
written certification by the chief executive officer of the eligible entity
that—
(A)the work to be
performed by the inmate workers will be limited to the eleemosynary work of
such entity in the case of an entity described in paragraph (1) or (2) of
subsection (b);
(B)the work would not
be performed in the United States but for the availability of the inmate
workers; and
(C)the work performed
by the inmate workers will not result, either directly or indirectly, in the
production of a new product or the furnishing of a service that is to be
offered for other than resale or donation by the eligible entity or any
affiliate of the such entity.
(2)Protections for
non-Inmate workersEach proposed agreement shall also be
accompanied by a written certification by the chief executive officer of the
eligible entity that—
(A)no non-inmate
employee (including any person performing work activities for such governmental
entity pursuant to section 607 of subchapter IV of the Social Security Act (42
U.S.C. 607)) of the eligible entity (or any affiliate of the entity) working in
the United States will have his or her job abolished or work hours reduced as a
result of the entity being authorized to utilize inmate workers; and
(B)the work to be
performed by the inmate workers will not supplant work currently being
performed in the United States by a contractor of the eligible entity.
(f)Approval by
Board of Directors
(1)Each such proposed agreement shall be presented to the
Board of Directors, be subject to the same opportunities for public comment,
and be publicly considered and acted upon by the Board in a manner comparable
to that required by paragraphs (7) and (8) of section 4122(b).
(2)In determining whether to approve a proposed
agreement, the Board shall—
(A)give priority to
an agreement that provides inmate work opportunities that will provide
participating inmates with the best prospects of obtaining employment paying a
livable wage upon release;
(B)give priority to
an agreement that provides for maximum reimbursement for inmate wages and for
the costs of supplies and equipment needed to perform the types of work to be
performed;
(C)not approve an
agreement that will result in the displacement of non-inmate workers contrary
to the representations required by subsection (e)(2) as determined by the Board
or by the Secretary of Labor (pursuant to subsection (i)); and
(D)not approve an
agreement that will result, either directly or indirectly, in the production of
a new product or the furnishing of a service for other than resale by an
eligible entity described in paragraph (1) or (2) of subsection (b) or
donation.
(g)Wage rates and
deductions from inmate wages
(1)Inmate workers shall be paid wages for work under the
agreement at a basic hourly rate to be negotiated between the eligible entity
and Federal Prison Industries and specified in the agreement. The wage rates
set by the Director of the Federal Bureau of Prisons to be paid inmates for
various institutional work assignments are specifically authorized.
(2)Payment to
inmate worker and authorized deductionsWages shall be paid and
deductions taken pursuant to section 4122(b)(12)(D).
(3)Voluntary
participation by inmateEach inmate worker to be utilized by an
eligible entity shall indicate in writing that such person—
(A)is participating
voluntarily; and
(B)understands and
agrees to the wages to be paid and deductions to be taken from such
wages.
(h)Assignment to
work opportunitiesAssignment of inmates to work under an
approved agreement with an eligible entity shall be subject to the Bureau of
Prisons Program Statement Number 1040.10 (Non-Discrimination Toward Inmates),
as contained in section 551.90 of title 28 of the Code of Federal Regulations
(or any successor document).
(i)Enforcement of
protections for non-Inmate workers
(1)Prior to Board
considerationUpon request of any interested person, the
Secretary of Labor may promptly verify a certification made pursuant subsection
(e)(2) with respect to the displacement of non-inmate workers so as to make the
results of such inquiry available to the Board of Directors prior to the
Board’s consideration of the proposed agreement. The Secretary and the person
requesting the inquiry may make recommendations to the Board regarding
modifications to the proposed agreement.
(2)
(A)Whenever the Secretary deems appropriate, upon request or
otherwise, the Secretary may verify whether the actual performance of the
agreement is resulting in the displacement of non-inmate workers or the use of
inmate workers in a work activity not authorized under the approved
agreement.
(B)Whenever
the Secretary determines that performance of the agreement has resulted in the
displacement of non-inmate workers or employment of an inmate worker in an
unauthorized work activity, the Secretary may—
(i)direct the Inmate
Work Training Administrator to terminate the agreement for default, subject to
the processes and appeals available to a Federal contractor whose procurement
contract has been terminated for default; and
(ii)initiate
proceedings to impose upon the person furnishing the certification regarding
non-displacement of non-inmate workers required by subsection (d)(2)(B) any
administrative, civil, and criminal sanctions as may be
available.
.
(2)Authorization of
appropriationThere is authorized to be appropriated $5,000,000
for each of the fiscal years 2012 through 2016 for the purposes of paying the
wages of inmates and otherwise undertaking the maximum number of agreements
with eligible entities pursuant to section 4124a of title 18, United States
Code, as added by paragraph (1).
(3)For purposes of
sections 4124a and 4124b of title 18, United States Code, as added by sections
10(b) and 11, respectively, it is the sense of Congress that an inmate training
wage that is at least 50 percent of the minimum wage prescribed pursuant to
section 6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(a)(1))
will facilitate successful achievement of the goals of the work-based training
and apprenticeship program authorized under such section 4124a.
(c)Inmate work
opportunities in support of not-for-Profit entities
(1)Proposals for
donation programsThe Chief Operating Officer of Federal Prison
Industries shall develop and present to the Board of Directors of Federal
Prison Industries proposals to have Federal Prison Industries donate products
and services to eligible entities that provide goods or services to low-income
individuals who would likely otherwise have difficulty purchasing such products
or services in the commercial market.
(2)Schedule for
submission and consideration of donation programs
(A)The Chief Operating Officer shall submit the initial
group of proposals for programs of the type described in paragraph (1) within
180 days after the date of the enactment of this Act. The Board of Directors of
Federal Prison Industries shall consider such proposals from the Chief
Operating Officer not later than the date that is 270 days after the date of
the enactment of this Act.
(B)The Board of Directors of Federal Prison Industries shall
consider proposals by the Chief Operating Officer for programs of the type
described in paragraph (1) as part of the annual operating plan for Federal
Prison Industries.
(C)In addition to proposals submitted by the Chief
Operating Officer, the Board of Directors may, from time to time, consider
proposals presented by prospective eligible entities.
(3)Definition of
eligible entitiesFor the purposes of this subsection, the term
eligible entity means an entity—
(A)that is an
organization described in section 501(c)(3) of the Internal Revenue Code of
1986 and exempt from taxation under section 501(a) of such Code and that has
been such an organization for a period of not less than 36 months prior to
inclusion in a proposal of the type described in paragraph (1), or
(B)that is a
religious organization described in section 501(d) of such Code and exempt from
taxation under section 501(a) of such Code.
(4)Authorization of
appropriationsThere are authorized to be appropriated $7,000,000
for each of the fiscal years 2012 through 2016 for the purposes of paying the
wages of inmates and otherwise carrying out programs of the type described in
paragraph (1).
(d)Maximizing
inmate rehabilitative opportunities through cognitive abilities
assessments
(1)Demonstration
program authorized
(A)There is hereby established within the Federal Bureau of
Prisons a program to be known as the Cognitive Abilities Assessment
Demonstration Program
. The purpose of the demonstration program is to
determine the effectiveness of a program that assesses the cognitive abilities
and perceptual skills of Federal inmates to maximize the benefits of various
rehabilitative opportunities designed to prepare each inmate for a successful
return to society and reduce recidivism. The demonstration program shall be
undertaken by a contractor with a demonstrated record of enabling the
behavioral and academic improvement of adults through the use of research-based
systems that maximize the development of both the cognitive and perceptual
capabilities of a participating individual, including adults in a correctional
setting.
(B)Scope of
demonstration programThe demonstration program shall to the
maximum extent practicable, be—
(i)conducted during a
period of three consecutive fiscal years, commencing during fiscal year
2012;
(ii)conducted at 12
Federal correctional institutions; and
(iii)offered to 6,000
inmates, who are categorized as minimum security or less, and are within five
years of release.
(C)Report on
results of programNot later than 60 days after completion of the
demonstration program, the Director shall submit to Congress a report on the
results of the program. At a minimum, the report shall include an analysis of
employment stability, stability of residence, and rates of recidivism among
inmates who participated in the program after 18 months of release.
(2)Authorization of
appropriationsThere is authorized to be appropriated $3,000,000
in each of the three fiscal years after fiscal year 2011, to remain available
until expended, for the purposes of conducting the demonstration program
authorized by subsection (a).
(e)Prerelease
employment assistance
(1)The Director of the Federal Bureau of Prisons shall, to
the maximum extent practicable, afford to inmates opportunities to participate
in programs and activities designed to help prepare such inmates to obtain
employment upon release.
(2)Prerelease
employment placement assistanceSuch prerelease employment
placement assistance required by subsection (a) shall include—
(A)training in the
preparation of resumes and job applications;
(B)training in
interviewing skills;
(C)training and
assistance in job search techniques;
(D)conduct of job
fairs; and
(E)such other methods
deemed appropriate by the Director.
(3)Priority in program participation shall be accorded
to inmates who are participating in work opportunities afforded by Federal
Prison Industries and are within 24 months of release from
incarceration.
11.Re-entry
employment preparation through work-based training and apprenticeship
(a)Chapter 307 of title
18, United States Code, is further amended by inserting after section 4124a, as
added by section 10(b), the following new section:
4124b.Re-entry
employment preparation through work-based training and apprenticeship
(a)A private for-profit business entity shall be an
eligible entity for participation in the program authorized by section 4124a of
this title, if such participation conforms with the requirements and
limitations of this section.
(b)Requirements
relating to products and servicesA private for-profit business
entity is eligible for such participation if such business entity proposes to
train participating inmates, pursuant to subsection (c), by producing a product
or performing a service, if such product or service is of a type for which
there is no production or performance within the United States by noninmate
workers.
(c)Requirements
relating to training
(1)For purposes of this section, the training of
participating inmates shall be work-based training that provides to a
participating inmate apprenticeship training or a functionally equivalent
structured program that combines hands-on work experience with conceptual
understanding of the work being performed. Other inmates with regular work
assignments within Federal Prison Industries may be assigned to support the
program.
(2)Documentation of
program participation
(A)Each inmate who
successfully completes participation in training undertaken pursuant to this
section shall be provided a certificate or other written document memorializing
such successful completion, providing a marketable summary of the skills
learned and an overall assessment of performance.
(B)Copies of such
documents shall be furnished to perspective employers upon the request of the
participant for a period of not less than 24 months from the date of such
participant’s release from incarceration.
(3)Documents
required for employmentThe Federal Bureau of Prisons, in
cooperation with a business entity providing an inmate work-based training at
the time of his or her scheduled release, shall make every reasonable effort to
help the inmate timely obtain such documentation (including a State
government-issued photo identification card) as a person may be required to
provide to a prospective employer, after such person completes an Employment
Eligibility Verification (ICE Form I–9).
(d)
(1)Business entities
participating in the program authorized by subsection (a) shall propose wages
for inmates participating in the program at rates not less than the inmate
training wage promulgated pursuant to section 17(c) of the
Federal Prison Industries Competition in
Contracting Act of 2011.
(2)Not more than 30 days after the date of enactment of this
section, the Board of Directors of Federal Prison Industries shall request the
Secretary of Labor to promulgate an inmate training wage pursuant to section
14(a) of the Fair Labor Standards Act of 1938 (29 U.S.C. 214(a)).
(e)Support for
other release preparation programsIn addition to the matters
listed in section 4124a(d) of this title, a proposal for an agreement referred
to in such section submitted by an eligible business entity shall specify an
amount of any supplemental funding, specified as a per-capita amount for each
inmate participating pursuant to the agreement, that the business entity will
provide for the purpose of supporting remedial, vocational, and other release
preparation programs for other nonparticipating inmates.
(f)Additional
standards applicableIn considering a proposed agreement pursuant
to section 4124a(f)(1) of this title, the Board of Directors shall—
(1)give preference to
an agreement that proposes—
(A)work-based
training opportunities that provide the participating inmate the best prospects
for obtaining employment paying a livable wage upon release;
(B)the highest
per-capita amount pursuant to subsection (e) relating to providing financial
support for release preparation for other inmates; and
(C)the highest inmate
wage rates;
(2)not approve any
agreement with respect to furnishing services of the type described in section
4122(b)(6)(D)(iii) of this title;
(3)not approve any
agreement with respect to furnishing construction services described in section
4122(b)(6)(D)(iv) of this title, unless to be performed within a Federal
correctional institution;
(4)not approve an
agreement that does not meet the standards of subsection (b); and
(5)request a
determination from the Department of Commerce (and such other executive branch
entities as may be appropriate), regarding whether a product or service is of
the type being produced or performed in the United States by noninmate workers,
whenever the Board determines that such an additional assessment is warranted,
including upon a request from an interested party presenting information that
the Board deems to warrant such additional assessment prior to the Board’s
consideration of the proposed agreement.
(g)Limitations on
the use of the authority
(1)No sales by
federal prison industriesFederal Prison Industries is prohibited
from directly offering for commercial sale products produced or services
furnished by Federal inmates, including through any form of electronic
commerce.
(2)
(A)No proposed
agreement pursuant to this subsection may be approved by the Board of Directors
after September 30, 2020.
(B)Performance of all
such agreements shall be concluded prior to October 1,
2025.
.
(b)Review and
reporting by the Attorney GeneralNot less than biannually,
beginning in fiscal year 2012, the Attorney General shall meet in person
jointly with the Chairman of the Board of Directors and the Chief Executive
Officer of Federal Prison Industries to review the progress that Federal Prison
Industries is making in maximizing the use of the authority provided by
sections 4124a and 4124b of title 18, United States Code. The Attorney General
shall provide annually a written report to the Committees on the Judiciary and
Appropriations of the House of Representatives and the Senate addressing such
progress by Federal Prison Industries.
(c)GAO assessment
of work-Based training program
(1)The Comptroller General of the United States shall
undertake an on-going assessment of the authority granted by section 4124b of
title 18, United States Code, as added by subsection (a).
(2)In addition to such other matters as the Comptroller
General deems appropriate, the assessment shall include—
(A)efforts to recruit
private for-profit business entities to participate;
(B)the quality of
training provided to inmates;
(C)the amounts and
types of products and services that have been produced incident to the
work-based training programs;
(D)the types of
worksite arrangement that encourage business concerns to voluntarily enter into
such partnerships;
(E)the extent and
manner of the participation of supervisory, quality assurance, and other
management employees of the participating business entity in worksites within
correctional facilities of various levels of security;
(F)the extent of the
facilities, utilities, equipment, and personnel (other than security personnel)
provided by the host correctional agency, and extent to which such resources
are provided on a nonreimbursable basis;
(G)the rates of wages
paid to inmate workers and the effect that such wage rates have on willingness
of business entities to participate;
(H)any complaints
filed regarding the displacement of noninmate workers or of inmate workers
being paid less than required wages and the disposition of those
complaints;
(I)any sanctions
recommended relating to displacement of noninmate workers or payment of less
than the required wages, and the disposition of such proposed sanctions;
(J)the extent to
which the new authority provided additional inmate work opportunities assisting
the Bureau of Prisons in attaining its objective of providing 25 percent of the
work-eligible inmates with work opportunities within Federal Prison
Industries;
(K)measures of any
adverse impacts of implementation of the new authority on business concerns
using noninmate workers that are engaged in providing similar types of products
and services in direct competition; and
(L)a compilation of
data relating work opportunities for Federal inmates with work assignments with
Federal Prison Industries provided by—
(i)sales to Federal
agencies pursuant to the status of Federal Prison Industries as a mandatory
source of supply during the period fiscal year 1990 through fiscal year
2011;
(ii)sales to Federal
agencies of services, both through non-competitive interagency transfers and as
a result of direct competition from private-sector offerors during the period
fiscal year 1990 though fiscal year 2011;
(iii)performance as a
subcontrator to a Federal prime contractor or Federal subcontractor at a higher
tier beginning in fiscal year 1990;
(iv)introduction of
inmate-furnished services into the commercial market, beginning in the second
quarter of fiscal year 1998;
(v)alternative inmate
work opportunities, beginning in fiscal year 2012, provided by agreements
with—
(I)non-profit
organizations, pursuant to section 4124a(b)(1) of title 18, United States Code,
as added by section 10(b), and section 10(c);
(II)religious
organizations, pursuant to section 4124a(b)(2) of title 18, United States
Code;
(III)units of local
governments, school districts, or other special purpose districts, pursuant to
section 4124a(b)(3) of title 18, United States Code;
(IV)work-based
Employment Preparation Programs for Federal inmates, pursuant to section 4124b
of title 18, United States Code, as added by section 11; or
(V)other
means.
(3)Opportunity for
public commentThe Comptroller General shall provide an
opportunity for public comment on the proposed scope and methodology for the
assessment required by paragraph (1), making such modifications in response to
such comments as he deems appropriate.
(4)Reports and
recommendations
(A)The Comptroller General shall submit to the Congress in
accordance with this subsection two interim reports and a final report of the
assessment of implementation of the new authority, including such
recommendations as the Comptroller General may deem appropriate.
(B)The two interim reports shall encompass the assessment of
the implementation of the new authority—
(i)from
the effective date of the authority through the end of fiscal year 2014;
and
(ii)from the
effective date of the authority through the end of fiscal year 2017.
(C)The final report shall assess the implementation of the
new authority from the effective date of the authority through the end of
fiscal year 2018.
(D)The Comptroller General shall submit the reports
required by this paragraph within 6 months after the end of the fiscal years
referred to in subparagraphs (B) and (C).
(d)Section 1761 of title 18, United States Code, as
amended by section 7, is further amended—
(1)by redesignating
subsection (e) as subsection (f); and
(2)inserting after
subsection (d) the following new subsection:
(e)This section shall
not apply to products produced or services furnished with inmate labor
incidental to the work-based training program authorized pursuant to section
4124b of this
title.
.
12.Restructuring
the Board of Directors
(a)Section 4121 of title
18, United States Code, is amended to read as follows:
4121.Federal Prison
Industries; Board of Directors: executive management
(a)Federal Prison
Industries is a government corporation of the District of Columbia organized to
carry on such industrial operations in Federal correctional institutions as
authorized by its Board of Directors. The manner and extent to which such
industrial operations are carried on in the various Federal correctional
institutions shall be determined by the Attorney General.
(b)(1)The corporation shall be
governed by a board of 11 directors appointed by the President.
(2)In making appointments to the Board,
the President shall assure that 3 members represent the business community, 3
members represent organized labor, 1 member shall have special expertise in
inmate rehabilitation techniques, 1 member represents victims of crime, 1
member represents the interests of Federal inmate workers, and 2 additional
members whose background and expertise the President deems appropriate. The
members of the Board representing the business community shall include, to the
maximum extent practicable, representation of firms furnishing services as well
as firms producing products, especially from those industry categories from
which Federal Prison Industries derives substantial sales. The members of the
Board representing organized labor shall, to the maximum practicable, include
representation from labor unions whose members are likely to be most affected
by the sales of Federal Prison Industries.
(3)Each member shall be appointed for a
term of 5 years, except that of members first appointed—
(A)2 members representing the business
community shall be appointed for a term of 3 years;
(B)2 members representing labor shall be
appointed for a term of 3 years;
(C)2 members whose background and
expertise the President deems appropriate for a term of 3 years;
(D)1 member representing victims of crime
shall be appointed for a term of 3 years;
(E)1 member representing the interests of
Federal inmate workers shall be appointed for a term of 3 years;
(F)1 member representing the business
community shall be appointed for a term of 4 years;
(G)1 member representing the business
community shall be appointed for a term of 4 years; and
(H)the members having special expertise
in inmate rehabilitation techniques shall be appointed for a term of 5
years.
(4)The President shall designate 1
member of the Board as Chairperson. The Chairperson may designate a Vice
Chairperson.
(5)Members of the Board may be
reappointed.
(6)Any vacancy on the Board shall be
filled in the same manner as the original appointment. Any member appointed to
fill a vacancy occurring before the expiration of the term for which the
member’s predecessor was appointed shall be appointed for the remainder of that
term.
(7)The members of the Board shall serve
without compensation. The members of the Board shall be allowed travel
expenses, including per diem in lieu of subsistence, at rates authorized for
employees of agencies under subchapter I of chapter 57 of title 5, United
States Code, to attend meetings of the Board and, with the advance approval of
the Chairperson of the Board, while otherwise away from their homes or regular
places of business for purposes of duties as a member of the Board.
(8)(A)The Chairperson of the
Board may appoint and terminate any personnel that may be necessary to enable
the Board to perform its duties.
(B)Upon request of the Chairperson of
the Board, a Federal agency may detail a Federal Government employee to the
Board without reimbursement. Such detail shall be without interruption or loss
of civil service status or privilege.
(9)The Chairperson of the Board may
procure temporary and intermittent services under section 3109(b) of title 5,
United States Code.
(c)The Director of
the Bureau of Prisons shall serve as Chief Executive Officer of the
Corporation. The Director shall designate a person to serve as Chief Operating
Officer of the
Corporation.
.
(b)The members of the Board of Directors serving on the
date of enactment of this Act, and the person selected by them as Chairman,
shall continue to exercise the duties and responsibilities of the Board until
the earlier of—
(1)the date on which
the President has appointed at least 6 members of the Board and designated a
new Chairman, pursuant to section 4121 of title 18, United States Code (as
added by section 12(a) of this Act); or
(2)the date that is
365 days after the date of enactment of this Act.
13.
(a)Section
4122(b)(3) of title 18, United States Code, is amended—
(1)by striking
(3)
and inserting (3)(A)
; and
(2)by adding at the
end the following new paragraphs:
(B)Federal Prison Industries may locate
more than one workshop at a Federal correctional facility.
(C)Federal Prison Industries may operate
a workshop outside of a correctional facility if all of the inmates working in
such workshop are classified as minimum security
inmates.
.
(b)
(1)Federal
Prison Industries shall establish a cost accounting system that meets the
requirements of part 30 (Cost Accounting Standards Administration) of the
Federal Acquisition Regulation (48 CFR part 30). The compliance of the cost
accounting system with such standards shall be annually verified as part of the
independent audit of Federal Prison Industries, Inc., pursuant to section
9106(b) of title 31, United States Code.
(2)Application of
related provisionSection 4124(c)(2) of title 18, United States
Code, shall apply when Federal Prison Industries has been found to have a
complaint cost accounting system pursuant to paragraph (1).
14.Transitional
personnel management authorityAny 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 during any fiscal year specified in section 4(e)(1) shall
be—
(1)eligible for
appointment (or reappointment) in the competitive service pursuant to 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.
15.Federal Prison
Industries report to CongressSection 4127 of title 18, United States
Code, is amended to read as follows:
4127.Federal Prison
Industries report to Congress
(a)Pursuant to chapter 91 of title 31, the board of
directors of Federal Prison Industries shall submit an annual report to
Congress on the conduct of the business of the corporation during each fiscal
year and the condition of its funds during the fiscal year.
(b)In addition to the matters required by section 9106 of
title 31, and such other matters as the board considers appropriate, a report
under subsection (a) shall include—
(1)a statement of the
amount of obligations issued under section 4129(a)(1) of this title during the
fiscal year;
(2)an estimate of the
amount of obligations that will be issued in the following fiscal year;
(3)an analysis
of—
(A)the corporation’s
total sales for each specific product and type of service sold to the Federal
agencies and the commercial market;
(B)the total
purchases by each Federal agency of each specific product and type of
service;
(C)the corporation’s
share of such total Federal Government purchases by specific product and type
of service; and
(D)the number and
disposition of disputes submitted to the heads of the Federal departments and
agencies pursuant to section 4124(e) of this title;
(4)an allocation of
the profits of the corporation, both gross and net, to—
(A)educational,
training, release-preparation opportunities for inmates;
(B)opening new
factories; and
(C)improving the
productivity and competitiveness of existing factories;
(5)an analysis of the
inmate workforce that includes—
(A)the number of
inmates employed;
(B)the number of
inmates utilized to produce products or furnish services sold in the commercial
market;
(C)the number and
percentage of employed inmates by the term of their incarceration; and
(D)the various hourly
wages paid to inmates employed with respect to the production of the various
specific products and types of services authorized for production and sale to
Federal agencies and in the commercial market; and
(6)data concerning
employment obtained by former inmates upon release to determine whether the
employment provided by Federal Prison Industries during incarceration provided
such inmates with knowledge and skill in a trade or occupation that enabled
such former inmate to earn a livelihood upon release.
(c)Copies of an annual report under subsection (a)
shall be made available to the public at a price not exceeding the cost of
printing the
report.
.
16.Chapter 307 of title 18, United States Code,
is amended by adding at the end the following new section:
4131.As used in this chapter—
(1)the term
assembly means the process of uniting or combining articles or
components (including ancillary finished components or assemblies) so as to
produce a significant change in form or utility, without necessarily changing
or altering the component parts;
(2)the term
current market price means, with respect to a specific product,
the fair market price of the product within the meaning of section 15(a) of the
Small Business Act (15 U.S.C. 644(a)),
at the time that the contract is to be awarded, verified through appropriate
price analysis or cost analysis, including any costs relating to transportation
or the furnishing of any ancillary services;
(3)the term
import-sensitive product means a product which, according to
Department of Commerce data, has experienced competition from imports at an
import to domestic production ratio of 25 percent or greater;
(4)the term
labor-intensive manufacture means a manufacturing activity in
which the value of inmate labor constitutes at least 10 percent of the estimate
unit cost to produce the item by Federal Prison Industries;
(5)the term
manufacture means the process of fabricating from raw or prepared
materials, so as to impart to those materials new forms, qualities, properties,
and combinations;
(6)the term
reasonable share of the market means a share of the total
purchases by the Federal departments and agencies, as reported to the Federal
Procurement Data System for—
(A)any specific
product during the 3 preceding fiscal years, that does not exceed 20 percent of
the Federal market for the specific product; and
(B)any specific
service during the 3 preceding fiscal years, that does not exceed 5 percent of
the Federal market for the specific service; and
(7)the term
services has the meaning given the term service
contract by section 37.101 of the Federal Acquisition Regulation (48 CFR
36.102), as in effect on July 1,
2010.
.
17.Implementing
regulations and procedures
(a)Federal
Acquisition Regulation
(1)Proposed revisions to the Governmentwide Federal
Acquisition Regulation to implement the amendments made by this Act shall be
published not later than 60 days after the date of the enactment of this Act
and provide not less than 60 days for public comment.
(2)Final regulations shall be published not later than
180 days after the date of the enactment of this Act and shall be effective on
the date that is 30 days after the date of publication.
(3)The proposed regulations required by subsection (a)
and the final regulations required by subsection (b) shall afford an
opportunity for public participation in accordance with section 22 of the
Office of Federal Procurement Policy Act (41 U.S.C. 418b).
(b)
(1)The Board of Directors of Federal Prison Industries shall
issue regulations defining the terms specified in paragraph (2).
(2)The Board of Directors shall issue regulations for the
following terms:
(A)Prison-made
product.
(B)Prison-furnished
service.
(C)Specific
product.
(D)Specific
service.
(3)Schedule for
regulatory definitions
(A)Proposed
regulations relating to the matter described in subsection (b)(2) shall be
published not later than 60 days after the date of enactment of this Act and
provide not less than 60 days for public comment.
(B)Final regulations
relating to the matters described in subsection (b)(2) shall be published not
less than 180 days after the date of enactment of this Act and shall be
effective on the date that is 30 days after the date of publication.
(4)Enhanced
opportunities for public participation and scrutiny
(A)Administrative
procedure ActRegulations issued by the Board of Directors shall
be subject to notice and comment rulemaking pursuant to section 553 of title 5,
United States Code. Unless determined wholly impracticable or unnecessary by
the Board of Directors, the public shall be afforded 60 days for comment on
proposed regulations.
(B)The Board of Directors shall use means designed to most
effectively solicit public comment on proposed regulations, procedures, and
policies and to inform the affected public of final regulations, procedures,
and policies.
(C)The Board of Directors shall take all actions relating
to the adoption of regulations, operating procedures, guidelines, and any other
matter relating to the governance and operation of Federal Prison Industries
based on deliberations and a recorded vote conducted during a meeting open to
the public, unless closed pursuant to section 552(b) of title 5, United States
Code.
(c)
(1)Schedule for
Regulatory ActionUpon receipt of a request from the Federal
Prison Industries Board of Directors, pursuant to section 11(d)(2), to
establish an inmate training wage pursuant to section 14(a) of the Fair Labor
Standards Act of 1938 (29 U.S.C. 214(a)), the Secretary of Labor, in
consultation with the Attorney General, shall issue—
(A)an advanced notice
of proposed rulemaking within 60 days;
(B)an interim
regulation with concurrent request for public comments within 180 days;
and
(C)a final regulation
within 365 days.
(2)Alternative to
timely issuanceIn the event that the Secretary of Labor fails to
issue an interim inmate training wage by the date required by paragraph (1)(B),
the Federal Prison Industries Board of Directors may prescribe an interim
inmate training wage, which shall be in an amount not less than 50 percent of
the amount of the minimum wage prescribed pursuant to section 6(a)(1) of such
Act (29 U.S.C. 206(a)(1)).
(3)Continued use of
interim inmate training wage
(A)The interim inmate
training wage issued pursuant to paragraph (1)(B) or prescribed under paragraph
(2) shall remain in effect until the effective date of a final regulation,
issued pursuant to paragraph (1)(C).
(B)An eligible entity
having an approved agreement with Federal Prison Industries pursuant to section
4124b of title 18, United States Code, may continue to pay participating
inmates at the wages prescribed in the agreement for the duration of the
agreement, if those wages comply with the standards of the interim inmate
training wage issued pursuant to paragraph (1)(B) or prescribed under paragraph
(2).
(4)Existing
agreements with nonconforming wagesAny for-profit business
concern having an agreement with Federal Prison Industries in effect on the
date of enactment of this Act, under which Federal inmates are furnishing
services that are being introduced into the commercial market, may continue to
pay wages at rates specified in the agreement for the duration of the term of
such agreement.
18.
(a)Subsection (e) of section 4124 of title 18, United
States Code, as amended by section 2, is not intended to alter any rights of
any offeror other than Federal Prison Industries to file a bid protest in
accordance with other law or regulation in effect on the date of the enactment
of this Act.
(b)Nothing in this Act is intended to modify the
Javits-Wagner-O’Day Act (41 U.S.C. 46 et seq.).
19.Effective date
and applicability
(a)Except as provided in subsection (b), this Act and the
amendments made by this Act shall take effect on the date of enactment of this
Act.
(b)Section
4124 of title 18, United States Code, as amended by section 2, shall apply to
any requirement for a product or service offered by Federal Prison Industries
needed by a Federal department or agency after the effective date of the final
regulations issued pursuant to section 17(a)(2), or after September 30, 2012,
whichever is earlier.
20.The table of
sections for chapter 307 of title 18, United States Code, is amended—
(1)by amending the
item relating to section 4121 to read as follows:
4121. Federal Prison Industries; Board of
Directors: executive
management.
;
(2)by amending the
item relating to section 4124 to read as follows:
4124. Governmentwide procurement policy
relating to purchases from Federal Prison
Industries.
;
(3)by inserting after
the item relating to section 4124 the following new items:
4124a. Additional inmate work
opportunities through public service activities.
4124b. Re-entry employment preparation
through work-based training and
apprenticeship.
;
(4)by amending the
item relating to section 4127 to read as follows:
4127. Federal Prison Industries report to
Congress.
;
and(5)by adding at the
end the following new items:
4130. Construction of
provisions.
4131.
Definitions.
.