Prohibits requiring a contractor to use FPI as a subcontractor or supplier.
Prohibits access to classified and sensitive information by an inmate worker.
Restricts the interstate and foreign commerce of services resulting from convict labor. Subjects knowing violators of such restrictions to fine or imprisonment, or both.
Requires Federal, State, and local prison work programs to meet specified requirements.
Allows FPI to sell or donate a product or service to tax-exempt charitable organizations which may then donate or sell any such product or service to low-income individuals.
Establishes the Enhanced In-Prison Educational and Vocational Assessment and Training Program within the FPI.
Directs FPI to increase inmate employment by producing products for the public sector that would otherwise be produced outside the United States.
Authorizes priority placement in the Bureau of Prisons for FPI employees displaced because FPI loses business following enactment.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 749 Introduced in Senate (IS)]
109th CONGRESS
1st Session
S. 749
To amend the Office of Federal Procurement Policy Act to establish a
governmentwide policy requiring competition in certain executive agency
procurements, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 11, 2005
Mr. Levin (for himself, Mr. Thomas, Mr. Grassley, and Ms. Stabenow)
introduced the following bill; which was read twice and referred to the
Committee on Homeland Security and Governmental Affairs
_______________________________________________________________________
A BILL
To amend the Office of Federal Procurement Policy Act to establish a
governmentwide policy requiring competition in certain executive agency
procurements, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. GOVERNMENTWIDE PROCUREMENT POLICY RELATING TO PURCHASES FROM
FEDERAL PRISON INDUSTRIES.
(a) Requirements.--The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.) is amended by adding at the end the following:
``SEC. 42. GOVERNMENTWIDE PROCUREMENT POLICY RELATING TO PURCHASES FROM
FEDERAL PRISON INDUSTRIES.
``(a) Competition Required.--In the procurement of any product that
is authorized to be offered for sale by Federal Prison Industries and
is listed in the catalog published and maintained by Federal Prison
Industries under section 4124(b) of title 18, United States Code, or
any service offered to be provided by Federal Prison Industries, the
head of an executive agency shall, except as provided in subsection
(d)--
``(1) use competitive procedures for entering into a
contract for the procurement of such product, in accordance
with the requirements applicable to such executive agency under
sections 2304 and 2305 of title 10, United States Code, or
sections 303 through 303C of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253 through
253c); or
``(2) make an individual purchase under a multiple award
contract in accordance with competition requirements applicable
to such purchases.
``(b) Offers From Federal Prison Industries.--In conducting a
procurement pursuant to subsection (a), the head of an executive agency
shall--
``(1) notify Federal Prison Industries of the procurement
at the same time and in the same manner as other potential
offerors are notified;
``(2) consider a timely offer from Federal Prison
Industries for award in the same manner as other offers
(regardless of whether Federal Prison Industries is a
contractor under an applicable multiple award contract); and
``(3) consider a timely offer from Federal Prison
Industries without limitation as to the dollar value of the
proposed purchase, unless the contract opportunity has been
reserved for competition exclusively among small business
concerns pursuant to section 15(a) of the Small Business Act
(15 U.S.C. 644(a)) and its implementing regulations.
``(c) Implementation by Agencies.--The head of each executive
agency shall ensure that--
``(1) the executive agency does not purchase a Federal
Prison Industries product or service unless a contracting
officer of the executive agency determines that the product or
service is comparable to a product or service available from
the private sector that best meet the executive agency's needs
in terms of price, quality, and time of delivery; and
``(2) Federal Prison Industries performs its contractual
obligations to the executive agency to the same extent as any
other contractor for the executive agency.
``(d) Exception.--
``(1) Other procedures.--The head of an executive agency
may use procedures other than competitive procedures to enter
into a contract with Federal Prison Industries only under the
following circumstances:
``(A) The Attorney General personally determines in
accordance with paragraph (2), within 30 days after
Federal Prison Industries has been informed by the head
of that executive agency of an opportunity for award of
a contract for a product or service, that--
``(i) Federal Prison Industries cannot
reasonably expect fair consideration in the
selection of an offeror for award of the
contract on a competitive basis; and
``(ii) the award of the contract to Federal
Prison Industries for performance at a penal or
correctional facility is necessary to maintain
work opportunities not otherwise available at
the penal or correctional facility that prevent
circumstances that could reasonably be expected
to significantly endanger the safe and
effective administration of such facility.
``(B) The product or service is available only from
Federal Prison Industries and the contract may be
awarded under the authority of section 2304(c)(1) of
title 10, United States Code, or section 303(c)(1) of
the Federal Property and Administrative Services Act of
1949 (41 U.S.C. 253(c)(1)), as may be applicable,
pursuant to the justification and approval requirements
relating to noncompetitive procurements specified by
law and the Federal Acquisition Regulation.
``(2) Determination.--
``(A) In general.--A determination made by the
Attorney General regarding a contract pursuant to
paragraph (1)(A) shall be--
``(i) supported by specific findings by the
warden of the penal or correctional institution
at which a Federal Prison Industries workshop
is scheduled to perform the contract;
``(ii) supported by specific findings by
Federal Prison Industries regarding the reasons
that it does not expect to be selected for
award of the contract on a competitive basis;
and
``(iii) made and reported in the same
manner as a determination made pursuant to
section 303(c)(7) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C.
253(c)(7)).
``(B) Nondelegation.--The Attorney General may not
delegate to any other official authority to make a
determination that is required under paragraph (1)(A)
to be made personally by the Attorney General.
``(e) Performance as a Subcontractor.--
``(1) In general.--A contractor or potential contractor
under a contract entered into by the head of an executive
agency may not be required to use Federal Prison Industries as
a subcontractor or supplier of a product or provider of a
service for the performance of the contract by any means,
including means such as--
``(A) a provision in a solicitation of offers that
requires a contractor to offer to use or specify a
product or service of Federal Prison Industries in the
performance of the contract;
``(B) a contract clause that requires the
contractor to use or specify a product or service (or
classes of products or services) offered by Federal
Prison Industries in the performance of the contract;
or
``(C) any contract modification that requires the
use of a product or service of Federal Prison
Industries in the performance of the contract.
``(2) Subcontractor or supplier.--A contractor using
Federal Prison Industries as a subcontractor or supplier in
furnishing a commercial product pursuant to a contract of an
executive agency shall implement appropriate management
procedures to prevent an introduction of an inmate-produced
product into the commercial market.
``(3) Definition.--In this subsection, the term
`contractor', with respect to a contract, includes a
subcontractor at any tier under the contract.
``(f) Protection of Classified and Sensitive Information.--The head
of an executive agency may not enter into any contract with Federal
Prison Industries under which an inmate worker would have access to--
``(1) any data that is classified or will become classified
after being merged with other data;
``(2) any geographic data regarding the location of--
``(A) surface or subsurface infrastructure
providing communications or water or electrical power
distribution;
``(B) pipelines for the distribution of natural
gas, bulk petroleum products, or other commodities; or
``(C) other utilities; or
``(3) any personal or financial information about any
individual private citizen, including information relating to
such person's real property however described, without the
prior consent of the individual.''.
(b) Clerical Amendment.--The table of contents in section 1(b) of
such Act is amended by adding at the end the following:
``Sec. 42. Governmentwide procurement policy relating to purchases from
Federal Prison Industries.''.
SEC. 2. CONFORMING AMENDMENTS.
(a) Repeal of Inconsistent Requirements Applicable to Department of
Defense.--
(1) In general.--Section 2410n of title 10, United States
Code, is repealed.
(2) Table of sections.--The table of sections at the
beginning of chapter 141 of such title is amended by striking
the item relating to section 2410n.
(b) Repeal of Inconsistent Requirements Applicable to Other
Agencies.--Section 4124 of title 18, United States Code, is amended--
(1) by striking subsections (a) and (b) and redesignating
subsections (c) and (d) as subsections (a) and (b),
respectively; and
(2) in subsection (a), as redesignated by paragraph (1), by
striking ``Federal department, agency, and institution subject
to the requirements of subsection (a)'' and inserting ``Federal
department and agency''.
(c) Other Laws.--
(1) Javits-wagner-o'day act.--Section 3 of the Javits-
Wagner-O'Day Act (41 U.S.C. 48) is amended by striking ``which,
under section 4124 of such title, is required'' and inserting
``which is required by law''.
(2) Small business act.--Section 31(b)(4) of the Small
Business Act (15 U.S.C. 657a(b)(4)) is amended by striking ``a
different source under section 4124 or 4125 of title 18, United
States Code, or the Javits-Wagner-O'Day Act (41 U.S.C. 46 et
seq.)'' and inserting ``a different source under the Javits-
Wagner-O'Day Act (41 U.S.C. 46 et seq.) or Federal Prison
Industries under section 40(d) of the Office of Federal
Procurement Policy Act or section 4125 of title 18, United
States Code''.
SEC. 3. UNLAWFUL TRANSPORTATION OR IMPORTATION OF PRODUCTS, SERVICES,
OR MINERALS RESULTING FROM CONVICT LABOR.
(a) Prohibition.--Section 1761 of title 18, United States Code, is
amended--
(1) in subsection (a), by inserting after ``reformatory
institution,'' the following: ``or knowingly sells in
interstate commerce any services, other than disassembly and
scrap resale activities to achieve landfill avoidance,
furnished wholly or in part by convicts or prisoners, except
convicts or prisoners on parole, supervised release, or
probation, or in any penal or reformatory institution,''; and
(2) in the matter preceding paragraph (1) in subsection
(c), by inserting ``, or services furnished,'' after ``or
mined''.
(b) Completion of Existing Agreements.--Any prisoner work program
operated by the Federal Government or by a State or local government
which was providing a service for the commercial market through inmate
labor on October 1, 2005, may continue to provide such commercial
services until--
(1) the expiration that was specified in the contract or
other agreement with a commercial partner on October 1, 2005;
or
(2) until September 30, 2006, if no expiration date was
specified in a contract or other agreement with a commercial
partner.
(c) Approval Required for Long-Term Operation of State and Local
Programs.--Except as provided in subsection (b), a prison work program
operated by a State or local government may provide a service for the
commercial market through inmate labor only if such program has been
certified pursuant to section 1761(c) of title 18, United States Code,
and is in compliance with the requirements of such subsection and its
implementing regulations.
(d) Approval Required for Long-Term Operation of Federal
Programs.--Except as provided in subsection (b), a prison work program
operated by the Federal Government may provide a service for the
commercial market through inmate labor only if a Federal Prison
Industries proposal to provide such services is approved in accordance
with the requirements of this subsection by the Secretary of Commerce,
the Secretary of Labor, and the Administrator of the Small Business
Administration. Such a proposal may be approved only upon a
determination, after notice and an opportunity for public comment,
that--
(1) the service to be provided would be provided
exclusively by foreign labor in the absence of the Federal
Prison Industries proposal; and
(2) the approval of the proposal will not have an adverse
impact on employment in any United States business.
(e) Protection of Classified and Sensitive Information.--A prison
work program operated by a State or local government may not provide a
service, including a service for the commercial market through inmate
labor pursuant to section 1761(c) of title 18, United States Code,
under which an inmate worker would have access to--
(1) any data that is classified or will become classified
after being merged with other data;
(2) any geographic data regarding the location of--
(A) surface or subsurface infrastructure providing
communications or water or electrical power
distribution;
(B) pipelines for the distribution of natural gas,
bulk petroleum products, or other commodities; or
(C) other utilities or transportation
infrastructure; or
(3) any personal or financial information about any
individual private citizen, including information relating to
such person's real property however described, without the
prior consent of the individual.
SEC. 4. ADDITIONAL INMATE WORK OPPORTUNITIES THROUGH PUBLIC SERVICE
ACTIVITIES.
(a) Cooperation With Charitable Organizations.--Chapter 307 of
title 18, United States Code, is amended by adding at the end the
following:
``SEC. 4130. COOPERATION WITH CHARITABLE ORGANIZATIONS.
``(a) Sale or Donation of Products or Services to Charitable
Entities.--Federal Prison Industries may, subject to subsection (b),
sell or donate a product or service to an organization described in
section 501(c)(3) of the Internal Revenue Code of 1986 that is exempt
from taxation under section 501(a) of such Code. Any product or service
sold or donated under this section may be donated or sold by the
charitable organization to low-income individuals who would otherwise
have difficulty purchasing such products or services.
``(b) Work Agreements With Charitable Organizations.--
``(1) In general.--Federal Prison Industries may sell or
donate a product or service to a charitable organization under
subsection (a) only pursuant to a work agreement with the
charitable organization receiving the product or service.
``(2) Terms.--Federal Prison Industries may enter a work
agreement relating to a product and service under paragraph (1)
only if--
``(A) the Attorney General determines, in
consultation with the Secretary of Labor and the
Secretary of Commerce, that the product or service
would not be available except for the availability of
inmate workers provided by Federal Prison Industries;
and
``(B) the work agreement is accompanied by a
written certification by the chief executive officer of
the charitable organization that--
``(i) no job of a noninmate employee or
volunteer of the charitable organization (or
any affiliate of the charitable organization)
will be abolished, and no such employee's or
volunteer's work hours will be reduced, as a
result of the entity being authorized to
utilize inmate workers; and
``(ii) the work to be performed by the
inmate workers will not supplant work currently
being performed by a contractor of the
charitable organization.
``(3) Nondelegation.--The Attorney General may not delegate
authority to make determinations under paragraph (2)(A) to any
person serving in a position below the lowest level of
positions that are filled by appointment by the President, by
and with the advice and consent of the Senate.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 307 of title 18, United States Code, is amended by adding at
the end the following:
``4130. Cooperation with charitable organizations.''.
SEC. 5. ADDITIONAL REHABILITATIVE OPPORTUNITIES FOR INMATES.
(a) Establishment of Program.--
(1) In general.--Chapter 303 of title 18, United States
Code, is amended by adding at the end the following:
``SEC. 4049. ENHANCED IN-PRISON EDUCATIONAL AND VOCATIONAL ASSESSMENT
AND TRAINING PROGRAM.
``(a) In General.--There is established the Enhanced In-Prison
Educational and Vocational Assessment and Training Program within the
Federal Bureau of Prisons.
``(b) Requirements.--The program established under this section
shall provide, at a minimum, a full range of educational opportunities,
vocational training and apprenticeships, and comprehensive release-
readiness preparation for inmates in Federal prisons.''.
(2) Table of sections.--The table of sections at the
beginning of such chapter is amended by adding at the end the
following:
``4049. Enhanced In-Prison Educational and Vocational Assessment and
Training Program.''.
(b) Implementation Objective.--It shall be the objective of the
Federal Bureau of Prisons to implement the program established under
section 4049 of title 18, United States Code (as added by subsection
(a)), in all Federal prisons not later than 8 years after the date of
the enactment of this Act.
SEC. 6. NEW PRODUCTS AND EXPANDED PRODUCTION OF EXISTING PRODUCTS.
Federal Prison Industries shall, to the maximum extent practicable,
increase inmate employment by producing new products or expanding the
production of existing products for the public sector that would
otherwise be produced outside the United States.
SEC. 7. TRANSITIONAL PERSONNEL MANAGEMENT AUTHORITY.
Any correctional officer or other employee of Federal Prison
Industries being paid with nonappropriated funds who would be separated
from service because of a reduction in the net income of Federal Prison
Industries before the date that is 5 years after the date of the
enactment of this Act shall be--
(1) eligible for appointment (or reappointment) in the
competitive service in accordance with subpart B or part III of
title 5, United States Code;
(2) registered on a Bureau of Prisons reemployment priority
list; and
(3) given priority for any other position within the Bureau
of Prisons for which such employee is qualified.
SEC. 8. EFFECTIVE DATE.
The amendments made by this Act shall take effect 180 days after
the date of the enactment of this Act.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S3421)
Read twice and referred to the Committee on Homeland Security and Governmental Affairs. (text of measure as introduced: CR S3421-3423)
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