[Senate Report 118-277]
[From the U.S. Government Publishing Office]
Calendar No. 680
118th Congress} { Report
SENATE
2d Session } { 118-277
=====================================================================
ALLOWING CONTRACTORS TO CHOOSE
EMPLOYEES FOR SELECT SKILLS
(ACCESS) ACT
__________
R E P O R T
OF THE
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
TO ACCOMPANY
S. 4631
TO AMEND TITLE 41, UNITED STATES CODE, TO
PROHIBIT MINIMUM EDUCATION REQUIREMENTS FOR
PROPOSED CONTRACTOR PERSONNEL IN CERTAIN
CONTRACT SOLICITATIONS, AND FOR OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 9, 2024.--Ordered to be printed
__________
U.S. GOVERNMENT PUBLISHING OFFICE
WASHINGTON : 2025
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
GARY C. PETERS, Michigan, Chairman
THOMAS R. CARPER, Delaware RAND PAUL, Kentucky
MAGGIE HASSAN, New Hampshire RON JOHNSON, Wisconsin
KYRSTEN SINEMA, Arizona JAMES LANKFORD, Oklahoma
JACKY ROSEN, Nevada MITT ROMNEY, Utah
JON OSSOFF, Georgia RICK SCOTT, Florida
RICHARD BLUMENTHAL, Connecticut JOSH HAWLEY, Missouri
LAPHONZA R. BUTLER, California ROGER MARSHALL, Kansas
David M. Weinberg, Staff Director
Alan S. Kahn, Chief Counsel
Michelle M. Benecke, Senior Counsel
William E. Henderson III, Minority Staff Director
Christina N. Salazar, Minority Chief Counsel
Andrew J. Hopkins, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 680
118th Congress} { Report
SENATE
2d Session } { 118-277
=====================================================================
ALLOWING CONTRACTORS TO CHOOSE
EMPLOYEES FOR SELECT SKILLS
(ACCESS) ACT
_______
December 9, 2024.--Ordered to be printed
_______
Mr. Peters, from the Committee on Homeland Security and Governmental
Affairs, submitted the following
R E P O R T
[To accompany S. 4631]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (S. 4631) to amend
title 41, United States Code, to prohibit minimum education
requirements for proposed contractor personnel in certain
contract solicitations, and for other purposes; having
considered the same, reports favorably thereon with an
amendment, in the nature of a substitute, and recommends the
bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
IV. Section-by-Section Analysis of the Bill, as Reported.............3
V. Evaluation of Regulatory Impact..................................4
VI. Changes in Existing Law Made by the Bill, as Reported............4
I. Purpose and Summary
S. 4631, the Allowing Contractors to Choose Employees for
Select Skills (ACCESS) Act, would help ensure that the federal
government does not unnecessarily restrict the ability of
federal contractors to hire and retain skilled employees,
regardless of their educational attainment, to work on federal
contracts. The bill requires contracting officers to provide
specific justification for inclusion of education requirements
in contracting solicitations.
The ACCESS Act would prohibit executive agencies from
including minimum education requirements for proposed
contractor personnel as part of the agencies' eligibility
criteria for a contract award. The bill provides an exception,
if the agency contracting officer includes a written
justification explaining the need for the education
requirement. The bill requires the Director of the Office of
Management and Budget (OMB) to issue implementing guidance for
agencies that provides instructions on writing justifications
and encourages the use of alternatives to education
requirements in solicitations. It also requires the Government
Accountability Office (GAO) to submit to Congress an evaluation
of agencies' compliance with the Act. The bill repeals a
provision of law with a similar restriction on the use of
education requirements in solicitations, since that provision
applied only to information technology-related services and did
not require a written justification or explanation.\1\ This Act
supersedes that provision and would cover such services.
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\1\Floyd D. Spence National Defense Authorization Act of 2001, Pub.
L. No. 106-398, Sec. 813 (2000).
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II. Background and Need for the Legislation
Approximately 64% of working-aged adults do not hold a
four-year college degree. As the cost of college education
continues to rise, many companies find that individuals are
able to acquire and demonstrate their jobs' necessary skills
without obtaining a college degree.\2\ The diminishing need for
a college degree is particularly prevalent in the information
technology (IT) and cybersecurity fields, where a range of
alternative skills-based approaches to hiring exist.\3\ This
issue is not limited to the IT field. Workers in other fields
can learn skills through work-based learning programs such as
apprenticeships or through other means.\4\ Despite this, such
workers with requisite skills are not eligible to work on
federal contracts that require a college degree.
---------------------------------------------------------------------------
\2\The Burning Glass Institute, The Emerging Degree Reset: How the
Shift to Skills-Based Hiring Holds the Keys to Growing the U.S.
Workforce at a Time of Talent Shortage (2022) (https://www.hbs.edu/
managing-the-future-of-work/Documents/research/emerging_degree_reset_
020922.pdf); A 4-Year Degree Isn't Quite the Job Requirement It Used to
Be, The New York Times (Apr. 2022) (https://www.nytimes.com/2022/04/08/
business/hiring-without-college-degree.html).
\3\Office of the National Cyber Director, Executive Office of the
President, National Cyber Workforce and Education Strategy (July 2023)
(https://www.whitehouse.gov/wp-content/uploads/2023/07/NCWES-
2023.07.31.pdf).
\4\Supra, note 2.
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Unnecessary education requirements imposed on contractors
that apply to personnel performing their federal contracts can
reduce competition and increase costs to American taxpayers.
The federal government has taken steps in recent years to
reduce unnecessary educational mandates that can serve as
barriers to hiring federal employees with the right skills and
qualifications. A 2021 Office of Federal Procurement Policy
memorandum encouraged agencies to allow contractors the
flexibility to recruit and use personnel best suited to perform
on contract based on competencies and outcomes, rather than
degree requirements that are not needed. This helps agencies
have access to a wider pool of capable vendors, including small
businesses.\5\
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\5\Office of Federal Procurement Policy, Memorandum to Chief
Acquisition Officers and Senior Procurement Executives, Limiting Use of
Educational Requirements in Federal Service Contracts (Jan. 11, 2021).
---------------------------------------------------------------------------
The federal government has also taken steps to address
requirements for IT contracts specifically. Many leading
technology firms do not require college degrees for their
employees, even at senior and executive levels. Based on the
National Defense Authorization Act of 2001, existing
procurement rules restrict the use of education requirements in
federal solicitations for IT contracts. These rules allow an
exception if the agency determines education requirements are
necessary, but do not require a written justification when
agencies make an exception.\6\ Many federal IT contracts,
however, continue to contain educational requirements for
contract labor categories--even though the types of IT
positions within government and private sector are
comparable.\7\
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\6\Federal Acquisition Regulation 39.104.
\7\Opening up Federal Contracting Jobs for More Americans, Federal
News Network (May 2023) (https://federalnewsnetwork.com/commentary/
2023/05/opening-up-federal-contracting-jobs-for-more-americans/).
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The ACCESS Act would improve upon these past federal
measures and extend them to additional federal contracts,
prohibiting agencies from including minimum education
requirements in contracting solicitations and requiring a
written justification for any exceptions. This bill would help
ensure that the federal government does not unnecessarily
restrict the ability of federal contractors to hire and retain
skilled employees, regardless of their educational attainment.
III. Legislative History
Senator James Lankford (R-OK) introduced S. 4631, the
Allowing Contractors to Choose Employees for Select Skills
(ACCESS) Act, on July 8, 2024, with original cosponsor Senator
Gary Peters (D-MI). The bill was referred to the Committee on
Homeland Security and Governmental Affairs.
The Committee considered S. 4631 at a business meeting on
July 31, 2024. At the business meeting, Senators Lankford and
Peters offered a substitute amendment to the bill, as well as a
modification to the substitute amendment. The Lankford-Peters
substitute amendment, as modified, adjusted deadlines to allow
more time for implementation of the Act, added a definition for
the term ``education,'' and added a provision repealing the
current section of law that only applies to contractor
personnel for information technology services contracts. The
Committee adopted the modification to the Lankford-Peters
substitute amendment, and the Lankford-Peters substitute
amendment as modified, by unanimous consent, with Senators
Peters, Carper, Hassan, Sinema, Rosen, Ossoff, Blumenthal,
Butler, Paul, Lankford, and Scott present. The bill, as amended
by the Lankford-Peters substitute amendment as modified, was
ordered reported favorably by roll call vote of 10 yeas to 1
nay, with Senators Peters, Carper, Hassan, Sinema, Rosen,
Ossoff, Blumenthal, Paul, Lankford, and Scott voting in the
affirmative, and Senator Butler voting in the negative.
Senators Johnson, Romney, Hawley, and Marshall voted yea by
proxy, for the record only.
IV. Section-by-Section Analysis of the Bill, as Reported
Section 1. Short title
This section establishes the short title of the bill as the
``Allowing Contractors to Choose Employees for Select Skills
Act'' or the ``ACCESS Act.''
Section 2. Use of requirements regarding education of contractor
personnel
Subsection (a) amends chapter 33 of title 41, United States
Code to add a new section 3313 to provide for flexibility in
contractor education requirements. It prohibits agency
contracting officers from including education requirements for
contractor personnel in a solicitation unless a written
justification with explanation is provided in the solicitation.
Subsection (b) makes a technical and conforming amendment
to the table of section for chapter 33 of title 41, United
States Code.
Subsection (c) requires the Director of OMB to issue
implementing guidance for the Act that provides instructions to
agency contracting officers for the justifications required by
subsection (a) and encourages the use of alternatives to
education requirements.
Subsection (d) stipulates that the amendments made by the
section shall apply to solicitations issued on or after the
date that is 15 months after the date of enactment.
Subsection (e) repeals section 813 of the NDAA for Fiscal
Year 2001 as of the date that the guidance required by
subsection (c) becomes effective. Section 813 provides a
restriction on the use of education requirements in
solicitations, which applies only to information technology-
related services and is superseded by this Act.
Subsection (f) requires GAO to submit to Congress within 36
months of enactment an evaluation of executive agency
compliance with the Act.
Subsection (g) provides definitions of the terms
``education,'' ``education requirement'' and ``executive
agency,''
V. Evaluation of Regulatory Impact
Pursuant to the requirements of paragraph 11(b) of rule
XXVI of the Standing Rules of the Senate, the Committee has
considered the regulatory impact of this bill and determined
that the bill will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's (CBO) statement that the bill contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act (UMRA) and would impose no costs
on state, local, or tribal governments.
VI. Changes in Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
UNITED STATES CODE
* * * * * * *
TITLE 41--PUBLIC CONTRACTS
* * * * * * *
Subtitle I--Federal Procurement Policy
* * * * * * *
DIVISION C--PROCUREMENT
* * * * * * *
CHAPTER 33--PLANNING AND SOLICITATION
* * * * * * *
SEC. 3313. FLEXIBILITY IN CONTRACTOR EDUCATION REQUIREMENTS
(a) Prohibition.--A solicitation may not set forth any
minimum education requirement for proposed contractor personnel
in order for a bidder to be eligible for award of a contract
unless the contracting officer includes in the solicitation a
written justification that explains why the needs of the
executive agency cannot be met without any such requirement and
clarifies how the requirement ensures the needs are met.
(b) Executive Agency Defined.--In this section, the term
``executive agency'' has the meaning given that term in section
133.
NATIONAL DEFENSE AUTHORIZATION, FISCAL YEAR 2001
* * * * * * *
TITLE VIII--ACQUISITION POLICY, ACQUISITION MANAGEMENT, AND RELATED
MATTERS
* * * * * * *
Subtitle A--Amendments to General Contracting Authorities, Procedures,
and Limitations
* * * * * * *
[SEC. 813. APPROPRIATE USE OF REQUIREMENTS REGARDING EXPERIENCE AND
EDUCATION OF CONTRACTOR PERSONNEL IN THE
PROCUREMENT OF INFORMATION TECHNOLOGY SERVICES.
[(a) Amendment of the Federal Acquisition Regulation.--Not
later than 180 days after the date of the enactment of this
Act, the Federal Acquisition Regulation issued in accordance
with sections 6 and 25 of the Office of Federal Procurement
Policy Act (41 U.S.C. 405 and 421) shall be amended to address
the use, in the procurement of information technology services,
of requirements regarding the experience and education of
contractor personnel. (b) Executive Agency Defined.--In this
section, the term `executive agency' has the meaning given that
term in section 133.''
[(b) Content of Amendment.--The amendment issued pursuant
to subsection (a) shall, at a minimum, provide that
solicitations for the procurement of information technology
services shall not set forth any minimum experience or
educational requirement for proposed contractor personnel in
order for a bidder to be eligible for award of a contract
unless--
[(1) the contracting officer first determines that
the needs of the executive agency cannot be met without
any such requirement; or
[(2) the needs of the executive agency require the
use of a type of contract other than a performance-
based contract.
[(c) GAO Report.--Not later than one year after the date on
which the regulations required by subsection (a) are published
in the Federal Register, the Comptroller General shall submit
to Congress an evaluation of--
[(1) executive agency compliance with the
regulations; and
[(2) conformance of the regulations with existing
law, together with any recommendations that the
Comptroller General considers appropriate.
[(d) Definitions.--In this section:
[(1) The term ``executive agency'' has the meaning
given that term in section 4(1) of the Office of
Federal Procurement Policy Act (41 U.S.C. 403(1)).
[(2) The term ``information technology'' has the
meaning given that term in section 5002(3) of the
Clinger-Cohen Act of 1996 (40 U.S.C. 1401(3)).
[(3) The term ``performance-based'', with respect to
a contract, means that the contract includes the use of
performance work statements that set forth contract
requirements in clear, specific, and objective terms
with measurable outcomes.]
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