[Congressional Record Volume 156, Number 161 (Wednesday, December 8, 2010)]
[Senate]
[Pages S8636-S8637]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     LEGISLATIVE INTENT--H.R. 2142

  Mr. AKAKA. Mr. President, H.R. 2142, as amended, will modernize and 
refine key aspects of the Government Performance and Results Act, or 
GPRA, while keeping the statutory foundation established by the act in 
place. I was pleased to join Mr. Lieberman, Ms. Collins, and Mr. 
Voinovich in cosponsoring the substitute amendment Mr. Carper offered 
at the September 29, 2010, business meeting held by the Committee on 
Homeland Security and Governmental Affairs, and I strongly support the 
bill. I would, however, like to take this opportunity to clarify the 
intent of the legislation on a matter of great importance. Concerns 
have been raised that this legislation will prohibit Federal agencies 
from being assisted by non-Federal parties when preparing GPRA reports. 
It is my understanding that, in reporting favorably H.R. 2142, as 
amended, the committee chose not to change the language in GPRA that 
made the preparation of agency strategic plans, annual performance 
plans, or annual program performance reports an inherently governmental 
function. May I ask the Senator from Delaware, as the primary sponsor 
of the substitute amendment to H.R. 2142, to clarify the intent of the 
provisions contained in H.R. 2142, as amended, which address the issue 
of inherently governmental functions?
  Mr. CARPER. My friend is correct. This bill will not change the 
language in GPRA statutes addressing inherently governmental functions. 
It merely extends existing GPRA standards to apply to the new 
requirements established by H.R. 2142, as amended, that did not exist 
in 1993, such as the Federal Government and agency priority goals, 
along with agency performance updates. As you know, in addressing the 
issue of inherently governmental functions, the Government Performance 
and Results Act of 1993 Report of the Committee on Governmental Affairs 
states:

       The preparation of an agency's or the Postal Service's 
     strategic plan, annual performance plan, and annual program 
     performance report under this Act are declared to be 
     inherently governmental functions. In defining

[[Page S8637]]

     these activities in this manner, the Committee was guided by 
     the OMB policy letter of September 23, 1992, which 
     established Executive Branch policy relating to service 
     contracting and inherently governmental functions. This 
     policy letter defined an ``inherently governmental function'' 
     as a ``function that is so intimately related to the public 
     interest as to mandate performance by Government employees.'' 
     While this Act specifies that Government employees are solely 
     to be responsible for the final plan or report, this does not 
     limit agencies from being assisted by non-Federal parties, 
     such as contractors or grantees, in the preparation of these 
     plans and reports. This might be necessitated, for example, 
     when there is a lack of in-house expertise within an agency. 
     The assistance of non-Federal parties may include collection 
     of information, the conduct of studies, analyses, or 
     evaluations, or the providing of advice, opinions, or ideas 
     to Federal officials, or to provide training of Federal 
     employees. This assistance by non-Federal parties in the 
     performance of inherently governmental functions is also 
     consistent with the OMB policy letter. The Committee also 
     recognizes that many Federal programs are carried out by 
     States, local governments, and contractors-not by the Federal 
     Government directly. Federal agencies regularly rely on these 
     parties for performance data, and the Committee neither 
     intends nor expects existing systems, processes, and 
     requirements for measuring current or past performance, or 
     which propose or forecast future performance levels to be 
     duplicated by new parallel efforts involving only Federal 
     employees. Finally, the Committee notes that it is the 
     longstanding policy of the Federal Government that Federal 
     officials should perform the decision and/or policymaking and 
     managerial responsibilities of the government. The basic 
     principle is that accountable Federal employees should not 
     only be responsible for the ``products'' produced by their 
     agencies (whether contractors or Federal employees produced 
     the product) but also should be involved in a significant 
     manner in the ``process'' of formulating the product. Thus, 
     agencies are not fulfilling the intent of this legislation if 
     the required plans and reports are largely the products of 
     contractors. To further this need for accountability, 
     agencies should include in their plans and reports an 
     acknowledgment of the role and a description of a significant 
     contribution made by a contractor or other non-Federal entity 
     to the plan or report.

In repeating the inherently governmental functions language of GPRA in 
H.R. 2142, as amended, the intent of H.R. 2142, as amended, is exactly 
the same as the intent of the identical language in GPRA, which I 
previously quoted. My remarks reflect the views of the Homeland 
Security and Governmental Affairs Committee on the interpretation of 
this provision. This explanation will be included in the committee's 
written report on the legislation that will be filed shortly.
  Mr. AKAKA. I thank the gentleman from Delaware for his clarification.

                          ____________________