[Congressional Record Volume 144, Number 105 (Thursday, July 30, 1998)]
[Senate]
[Pages S9504-S9506]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL ACTIVITIES INVENTORY REFORM ACT OF 1998
Mr. JEFFORDS. Mr. President, I ask unanimous consent that the Senate
now proceed to the consideration of Calendar No. 502, S. 314.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
A bill (S. 314) to require that the Federal Government
procure from the private sector the goods and services
necessary for the operations and management of certain
Government agencies, and for other purposes.
[[Page S9505]]
The PRESIDING OFFICER. Is there objection to the immediate
consideration of the bill?
There being no objection, the Senate proceeded to consider the bill,
which had been reported from the Committee on Governmental Affairs,
with an amendment to strike all after the enacting clause and insert in
lieu there of the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Activities Inventory
Reform Act of 1998''.
SEC. 2. ANNUAL LISTS OF GOVERNMENT ACTIVITIES NOT INHERENTLY
GOVERNMENTAL IN NATURE.
(a) Lists Required.--Not later than the end of the third
quarter of each fiscal year, the head of each executive
agency shall submit to the Director of the Office of
Management and Budget a list of activities performed by
Federal Government sources for the executive agency that, in
the judgment of the head of the executive agency, are not
inherently governmental functions. The entry for an activity
on the list shall include the following:
(1) The fiscal year for which the activity first appeared
on a list prepared under this section.
(2) The number of full-time employees (or its equivalent)
that are necessary for the performance of the activity by a
Federal Government source.
(3) The name of a Federal Government employee responsible
for the activity from whom additional information about the
activity may be obtained.
(b) OMB Review and Consultation.--The Director of the
Office of Management and Budget shall review the executive
agency's list for a fiscal year and consult with the head of
the executive agency regarding the content of the final list
for that fiscal year.
(c) Public Availability of Lists.--
(1) Publication.--Upon the completion of the review and
consultation regarding a list of an executive agency--
(A) the head of the executive agency shall promptly
transmit a copy of the list to Congress and make the list
available to the public; and
(B) the Director of the Office of Management and Budget
shall promptly publish in the Federal Register a notice that
the list is available to the public.
(2) Changes.--If the list changes after the publication of
the notice as a result of the resolution of a challenge under
section 3, the head of the executive agency shall promptly--
(A) make each such change available to the public and
transmit a copy of the change to Congress; and
(B) publish in the Federal Register a notice that the
change is available to the public.
(d) Competition Required.--Within a reasonable time after
the date on which a notice of the public availability of a
list is published under subsection (c), the head of the
executive agency concerned shall review the activities on the
list. Each time that the head of the executive agency
considers contracting with a private sector source for
the performance of such an activity, the head of the
executive agency shall use a competitive process to select
the source (except as may otherwise be provided in a law
other than this Act, an Executive order, regulations, or
any Executive branch circular setting forth requirements
or guidance that is issued by competent executive
authority). The Director of the Office of Management and
Budget shall issue guidance for the administration of this
subsection.
(e) Realistic and Fair Cost Comparisons.--For the purpose
of determining whether to contract with a source in the
private sector for the performance of an executive agency
activity on the list on the basis of a comparison of the
costs of procuring services from such a source with the costs
of performing that activity by the executive agency, the head
of the executive agency shall ensure that all costs
(including the costs of quality assurance, technical
monitoring of the performance of such function, liability
insurance, employee retirement and disability benefits, and
all other overhead costs) are considered and that the costs
considered are realistic and fair.
SEC. 3. CHALLENGES TO THE LIST.
(a) Challenge Authorized.--An interested party may submit
to an executive agency a challenge of an omission of a
particular activity from, or an inclusion of a particular
activity on, a list for which a notice of public availability
has been published under section 2.
(b) Interested Party Defined.--For the purposes of this
section, the term ``interested party'', with respect to an
activity referred to in subsection (a), means the following:
(1) A private sector source that--
(A) is an actual or prospective offeror for any contract,
or other form of agreement, to perform the activity; and
(B) has a direct economic interest in performing the
activity that would be adversely affected by a determination
not to procure the performance of the activity from a private
sector source.
(2) A representative of any business or professional
association that includes within its membership private
sector sources referred to in paragraph (1).
(3) An officer or employee of an organization within an
executive agency that is an actual or prospective offeror to
perform the activity.
(4) The head of any labor organization referred to in
section 7103(a)(4) of title 5, United States Code, that
includes within its membership officers or employees of an
organization referred to in paragraph (3).
(c) Time for Submission.--A challenge to a list shall be
submitted to the executive agency concerned within 30 days
after the publication of the notice of the public
availability of the list under section 2.
(d) Initial Decision.--Within 28 days after an executive
agency receives a challenge, an official designated by the
head of the executive agency shall--
(1) decide the challenge; and
(2) transmit to the party submitting the challenge a
written notification of the decision together with a
discussion of the rationale for the decision and an
explanation of the party's right to appeal under subsection
(e).
(e) Appeal.--
(1) Authorization of appeal.--An interested party may
appeal an adverse decision of the official to the head of the
executive agency within 10 days after receiving a
notification of the decision under subsection (d).
(2) Decision on appeal.--Within 10 days after the head of
an executive agency receives an appeal of a decision under
paragraph (1), the head of the executive agency shall decide
the appeal and transmit to the party submitting the appeal a
written notification of the decision together with a
discussion of the rationale for the decision.
SEC. 4. APPLICABILITY.
(a) Executive Agencies Covered.--Except as provided in
subsection (b), this Act applies to the following executive
agencies:
(1) Executive department.--An executive department named in
section 101 of title 5, United States Code.
(2) Military department.--A military department named in
section 102 of title 5, United States Code.
(3) Independent establishment.--An independent
establishment, as defined in section 104 of title 5, United
States Code.
(b) Exceptions.--This Act does not apply to or with respect
to the following:
(1) General accounting office.--The General Accounting
Office.
(2) Government corporation.--A Government corporation or a
Government controlled corporation, as those terms are defined
in section 103 of title 5, United States Code.
(3) Nonappropriated funds instrumentality.--A part of a
department or agency if all of the employees of that part of
the department or agency are employees referred to in section
2105(c) of title 5, United States Code.
(4) Certain depot-level maintenance and repair.--Depot-
level maintenance and repair of the Department of Defense (as
defined in section 2460 of title 10, United States Code).
SEC. 5. DEFINITIONS.
In this Act:
(1) Federal government source.--The term ``Federal
Government source'', with respect to performance of an
activity, means any organization within an executive agency
that uses Federal Government employees to perform the
activity.
(2) Inherently governmental function.--
(A) Definition.--The term ``inherently governmental
function'' means a function that is so intimately related to
the public interest as to require performance by Federal
Government employees.
(B) Functions included.--The term includes activities that
require either the exercise of discretion in applying Federal
Government authority or the making of value judgments in
making decisions for the Federal Government, including
judgments relating to monetary transactions and entitlements.
An inherently governmental function involves, among other
things, the interpretation and execution of the laws of the
United States so as--
(i) to bind the United States to take or not to take some
action by contract, policy, regulation, authorization, order,
or otherwise;
(ii) to determine, protect, and advance United States
economic, political, territorial, property, or other
interests by military or diplomatic action, civil or criminal
judicial proceedings, contract management, or otherwise;
(iii) to significantly affect the life, liberty, or
property of private persons;
(iv) to commission, appoint, direct, or control officers or
employees of the United States; or
(v) to exert ultimate control over the acquisition, use, or
disposition of the property, real or personal, tangible or
intangible, of the United States, including the collection,
control, or disbursement of appropriated and other Federal
funds.
(C) Functions excluded.--The term does not normally
include--
(i) gathering information for or providing advice,
opinions, recommendations, or ideas to Federal Government
officials; or
(ii) any function that is primarily ministerial and
internal in nature (such as building security, mail
operations, operation of cafeterias, housekeeping, facilities
operations and maintenance, warehouse operations, motor
vehicle fleet management operations, or other routine
electrical or mechanical services).
SEC. 6. EFFECTIVE DATE.
This Act shall take effect on October 1, 1998.
Mr. THOMPSON. Mr. President, S. 314, originally sponsored by Senators
Thomas, among others, and Congressman Duncan in the House, was ordered
reported by the Governmental Affairs Committee on July 15, 1998. The
original S. 314 has had long and contentious past. The bill reported by
our Committee represents months of drafting and redrafting to create
language which truly represents a consensus.
I commend the original sponsors of this bill for their dedication to
this issue and their willingness to accommodate the Governmental
Affairs Committee's changes in order to develop legislation which could
be supported by all sides. Interested industry groups
[[Page S9506]]
have expressed their support of this legislation. And the
Administration and the Federal employee unions, although opposed to the
original S. 314, all have indicated they will not object to this
legislation.
S. 314 would require Federal agencies prepare a list of activities
that are not inherently governmental functions that are being performed
by Federal employees, submit that list to OMB for review, and make the
list publicly available. It also would establish an ``appeals'' process
within each agency to challenge what is on the list or what is not
included on the list. S. 314 also would create a statutory definition--
identical to current regulation--for what is an ``inherently
governmental function'' that must be performed by the government and
not the private sector.
S. 314 adheres to the seven principles the Administration outlined in
its testimony to this Committee. It reflects recommendations made by
the General Accounting Office in testimony to this and other
committees. And it provides a statutory basis for longstanding
administrative policy.
Mr. JEFFORDS. Mr. President, I ask unanimous consent that the
committee amendment be agreed to.
The PRESIDING OFFICER. Without objection, it is so ordered.
The committee amendment was agreed to.
Mr. JEFFORDS. Mr. President, I ask unanimous consent that the bill be
considered read a third time and passed, as amended; that the motion to
reconsider be laid upon the table; that the title amendment be agreed
to; and that any statements relating to the bill appear at the
appropriate place in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The bill (S. 314) was considered read the third time and passed.
The title was amended so as to read:
``A bill to provide a process for identifying the functions
of the Federal Government that are not inherently
governmental functions, and for other purposes.''.
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