[Congressional Record Volume 141, Number 118 (Thursday, July 20, 1995)]
[Senate]
[Pages S10404-S10405]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




         LEGISLATIVE BRANCH APPROPRIATIONS FOR FISCAL YEAR 1996

  The Senate continued with the consideration of the bill.
  Mr. GRAMM. Mr. President, I think we are talking about unanimous-
consent requests here that will allow both of these amendments to be 
voted on. So let me go ahead and talk about my amendment, which is the 
amendment that is trying to eliminate set-asides in the Federal 
procurement process--in the context of this bill as a beginning. And 
then let me explain why the Murray amendment is a sham amendment that 
does not deal with the problem but that simply gives cover to those who 
want to allow set-asides in the funding for the legislative branch.
  Let me begin with my amendment. My amendment is the amendment that we 
have worked on with outside legal groups. It has been endorsed by the 
leadership in the House, it is being offered by Congressman Gary 
Franks, and it is basically an effort to focus in on one particular 
problem.
  This is a precise, surgical amendment, and what it says is this: The 
bill before us is the legislative branch appropriations and this 
amendment deals with nothing except legislative branch appropriations. 
I plan to offer a similar amendment on other appropriations bills that 
come to the floor of the Senate this year.
  What this amendment says is that in the letting of contracts, in 
spending money, none of the money will be spent in such a way that 
requires or encourages the awarding of any contract or subcontract if 
such an award is based, in whole or in part, on the race, color, 
national origin, or gender of the contractor or subcontractor.
  So what this amendment says in its first part is that when we spend 
money through the congressional branch of Government, we have to engage 
in competitive bidding, and that when someone submits the low bid who 
is qualified, that person will get the contract, and that in no 
circumstance can the low bidder, who is at least equally qualified, be 
denied the contract to give it to someone else based on a preference 
that flows from race, color, national origin, or gender.
  That is part 1 of my amendment.
  Part 2 of my amendment has to do with outreach and recruitment 
activities. And part 2 of the amendment makes it very clear that 
nothing in this amendment would prevent any effort to help people bid 
on contracts, to hold seminars on bidding, provide assistance to people 
who want to bid on contracts, or go out and inform people of the 
existence of those contracts.
  In short, we can expend money. We can exercise tremendous effort to 
try to help people get on the playing field and to compete. But once 
contract offers have been submitted, then the selection process must be 
based on merit--and on merit alone.
  The next provision of the bill makes it clear that we are not seeking 
here to override contracting that is done with schools designated as 
historically black colleges and universities.
  The next provision of the bill makes it clear that this is all 
prospective. We are not going to go back and undo any existing 
contracts. In addition, we are not going to override any existing court 
orders. If a court acts in the future and finds that a remedy for 
discrimination is the establishment of a set-aside, we are making it 
very clear that would stand.
  Now, basically, that is what my amendment does. And if my amendment 
is adopted, what it will do is end set-asides in contracting for the 
legislative branch of Government. If this amendment is adopted and it 
becomes law, what it means is that none of the money appropriated in 
this bill can be used for the purpose of letting a contract where 
anybody is given a contract based on race, color, national origin or 
gender.
  Now, let me talk a minute about the Murray amendment, because what we 
have in the Murray amendment is the same convoluted language that the 
President used yesterday. This is more of the same effort to try to use 
words to confuse. Let me just read it to you, and I think that if you 
think about it a minute it jumps out at you as to what this amendment 
is trying to do. Let me read you the language:

       None of the funds made available in this act may be used 
     for any program for the selection of Federal Government 
     contracts when such program results in the award of Federal 
     contracts to unqualified persons.

  Mr. President, no one is saying that people who get contracts because 
of race or color or national origin or gender are necessarily 
unqualified. That is not the point. In fact, it seems as though the 
whole purpose of this language is to confuse. What we are saying is 
they are not necessarily the best qualified. They very well may be 
qualified, but the point is somebody else might have been better 
qualified or have submitted a lower bid. If all we are doing is saying 
that you cannot grant contracts to people who are unqualified, as the 
Murray amendment says, then we are not doing anything unless I can come 
in and say: Well, look, I bid a contract to build a sidewalk here at 
the Capitol and I bid the contract at $55,000. Someone who was given 
preference bid the contract at $155,000, and they got the contract. But 
under the Murray amendment, the only way that I could get any relief, 
if I was the contractor who bid it at $55,000, would be if I could 
prove that the contractor who got the bid for $155,000 was unqualified.
  Now, they may be qualified; they may be unqualified, but the point is 
the Federal Government should not be paying $155,000 for work that it 
can get for $55,000. Nor should it be letting contracts in America 
where somebody is given a special advantage over somebody else.
  We listened yesterday as the President gave a very passionate speech, 
but when you got down to the specific language of the details of the 
proposal, it was more doubletalk. And the doubletalk basically is the 
implication that this is an issue about whether a privileged contractor 
is qualified. It is an issue of whether they are the best qualified.
  The second issue has to do with the fact that you cannot give 
somebody preference over somebody else without discriminating against 
the person who is not receiving the preference.
  In the final analysis, something that the President clearly is clever 
enough to understand but was hoping we were not clever enough to 
understand is that whenever you give somebody a special advantage on 
the basis of race or color or national origin or gender, that means 
someone else is discriminated against because they do not get that 
benefit. I believe that what we have got to do is to end set-asides in 
contracting and what better place to start than in the legislative 
branch of Government.
  So we have before us two amendments. One amendment is a serious, real 
amendment which says that none of the funds contained in this bill will 
be used for contracts where someone is given a special privilege so 
that they get a contract that on the basis of merit they would not have 
gotten. The other amendment says that none of the funds will be used to 
award a contract if doing so results in the award of Federal contracts 
to unqualified persons.
  Mr. President, that is not the issue here. The issue here is not 
whether the contractor who got advantage based on race or color or 
national origin or gender was qualified. The question is were they the 
best qualified.
  The amendment then goes on to use many terms which are very 
difficult, if not impossible, to define. For example, ``In reverse 
discrimination.'' Well, by definition, if the most qualified contractor 
with the lowest price did not get the contract, I think any reasonable 
person would call that reverse discrimination. 

[[Page S10405]]

  Now, Mr. President, here is the point, and then I will yield the 
floor because I understand that an agreement may have been worked out. 
If you are for set-asides, I think you ought to have courage enough to 
stand up and say it. If you believe that in America we ought to 
legislate unfairness for some reason, that we ought to reject merit, 
and that we ought to give people contracts based on their race, their 
color, their national origin, or their gender, it seems to me that you 
ought to do something that President Clinton did not have courage 
enough to do yesterday. That is, you ought to stand up and say it, and 
you ought to vote against my amendment.
  It seems quite another thing to offer an amendment which basically 
says that you cannot give a contract to an unqualified person. The 
point is that many people--in fact, I would guess in almost every case 
the loser of competitive bidding every day in America in public 
contracting is qualified. It is not the point that they are not 
qualified. The point is they are not the best qualified. They did not 
offer the best bid. They did not offer the lowest price. Therefore, 
they should not have gotten the contract.
  So if you vote for the Murray amendment, in my humble opinion, what 
you are doing is simply seeking political cover because you do not want 
to tell people you are for set-asides. I am opposed to set-asides. 
There is only one fair way in America to decide who gets a job; there 
is only one fair way to decide who gets promoted; there is only one 
fair way to decide who gets a contract, and that is merit.
  And if you do it any other way than merit, it is inherently unfair, 
it is inherently divisive, and it ultimately pits people against each 
other based on their group. The genius of America is competition based 
on individual decision making and individual qualities. What makes 
America work is that in America we are not part of groups; we are 
individuals, and we have an opportunity to be judged as individuals 
based on our merit.
  While some will say that trying to stop unfairness written into the 
law of the land, because for 25 years we have had unfairness written 
into the law of the land in set-asides and quotas, and people in 
America know it and they resent it and they want it changed, what we 
are doing when we eliminate set-asides is we are going back to the 
unifying principle of America. And that principle is merit.
  What we are saying is that if any contractor in America wants to bid 
for a Government job, they have as good a chance to get that contract 
as anybody else. They have a chance to be judged on their merit on 
their bid. To do it any other way is totally and absolutely unfair. And 
I believe it should be rejected.

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