[Congressional Record (Bound Edition), Volume 156 (2010), Part 13]
[Senate]
[Pages 19163-19164]
[From the U.S. 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 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

[[Page 19164]]

     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.

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