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[House Report 112-536]
[From the U.S. Government Publishing Office]

112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-536

======================================================================

 
        KEEPING POLITICS OUT OF FEDERAL CONTRACTING ACT OF 2011

                                _______
                                

 June 15, 2012.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Issa, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 2008]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 2008) to amend title 41, United 
States Code, to prohibit inserting politics into the Federal 
acquisition process by prohibiting the submission of political 
contribution information as a condition of receiving a Federal 
contract, having considered the same, report favorably thereon 
without amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     2
Section-by-Section...............................................     3
Explanation of Amendments........................................     3
Committee Consideration..........................................     3
Rollcall Votes...................................................     3
Application of Law to the Legislative Branch.....................     3
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     4
Statement of General Performance Goals and Objectives............     4
Federal Advisory Committee Act...................................     4
Unfunded Mandate Statement.......................................     4
Committee Estimate...............................................     4
Budget Authority and Congressional Budget Office Cost Estimate...     4
Changes in Existing Law Made by the Bill as Reported.............     5
Minority Views...................................................     8

                     Committee Statement and Views

                          PURPOSE AND SUMMARY

    This legislation, H.R. 2008, the ``Keeping Politics Out of 
Federal Contracting Act of 2011,'' prohibits the head of an 
executive agency from: (1) requiring a contractor to submit 
political information as part of a soliticitation, request for 
bid, request for proposal, or any other communication in 
connection with the award of a contract for procurement of 
property or services or during the course of the contract 
performance until the completion of a contract; (2) using such 
political information as a factor or consideration in the 
source selection process used to award a competitive or non-
competitive contract; or (3) including such political 
information in a contracting past performance database.
    It defines ``political information'' as information 
relating to political spending, including any payment for an 
electioneering communication, by a contractor or persons 
related to such contractor to a candidate for Federal office, a 
political commitee, a political party, or to a third party 
entity for political purposes.

                  BACKGROUND AND NEED FOR LEGISLATION

    The acquisition and procurement laws and regulations are 
designed to ensure impartiality in the selection of 
contractors. These laws require that firms seeking to do 
business with the government are given the opportunity to 
compete on a level playing field, where the government is best 
able to obtain the goods and services that it needs based 
solely on best price, best quality, or the best combination 
thereof. Politics should not influence what the government 
purchases with taxpayer money.
    This law addresses a draft Executive Order advanced by the 
Obama Administration. That proposed Executive Order would 
require that bidders disclose information about their political 
spending. These bidders, and the government's own contracting 
officials, however, would not have control over how that 
information is used. Indeed, the proposed Executive Order would 
require the political donation information to be made available 
on a publicly available, searchable database as soon as 
practicable. The disclosure of private political donations by 
government contractors would improperly politicize the 
government procurement process. This legislation prohibits the 
implementation of the proposed Executive Order.

                          LEGISLATIVE HISTORY

    This bill was introduced on May 26, 2011, and referred to 
the House Committee on Oversight and Government Reform. On June 
20, 2011, it was referred to the Subcommittee on Technology, 
Information Policy, Intergovernmental Relations and Procurement 
Reform. On April 26, 2012, it was submitted for Committee 
consideration and the bill was ordered to be reported by voice 
vote. A companion bill in the Senate, S. 1100, was introduced 
on May 26, 2011, and ordered reported on May 16, 2012, by the 
Senate Committee on Homeland Security and Government Affairs.

                           Section-by-Section

Section 1. Short title

    This Act may be cited as the `Keeping Politics Out of 
Federal Contracting Act of 2011'.

Section 2. Prohibition on certain uses of political information

    Amends Chapter 47 of title 41, United States Code to 
prohibit the head of an executive agency from:
          (1) requiring a contractor to submit political 
        information as part of a soliticitation, request for 
        bid, request for proposal, or any other communiction in 
        connection with the award of a contract for procurement 
        of property or services or during the course of the 
        contract performance until the completion of a 
        contract;
          (2) using such political information as a factor or 
        consideration in the source selection process used to 
        award a competitive or non-competitive contract; or
          (3) including such political information in a 
        contracting past performance database.
    Applies the prohibitions to the procurement of commercial 
items, commercial off-the-shelf items, and the non-commercial 
procurement of supplies, property, services, and manufactured 
items, irrespective of contract vehicle, including contracts, 
purchase orders, task or deliver orders under indefinite 
delivery/indefinite quantity contracts, blanket purchase 
agreements, and basic ordering agreements.
    Defines ``political information'' as information relating 
to political spending, including any payment for an 
electioneering communication by a contractor or persons related 
to such contractor to a candidate for Federal office, a 
political commitee, a political party, or to a third party 
entity for political purposes.

                       Explanation of Amendments

    No amendments were offered.

                        Committee Consideration

    On April 26, 2012, the Committee met in open session and 
ordered reported favorably the bill, H.R. 2008, by voice vote, 
a quorum being present.

                             Rollcall Votes

    There were no votes during consideration of H.R. 2008.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. 
This bill prohibits the head of an executive agency from: (1) 
requiring a contractor to submit political information as part 
of a solicitation, request for bid, request for proposal, or 
any other communication in connection with the award of a 
contract for procurement of property or services or during the 
course of the contract performance until the completion of a 
contract; (2) using such political information as a factor or 
consideration in the source selection process used to award a 
competitive or non-competitive contract; or (3) including such 
political information in a contracting past performance 
database. As such this bill does not relate to employment or 
access to public services and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., Section 5(b).

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandate Reform Act, P.L. 104-4) requires a statement as to 
whether the provisions of the reported include unfunded 
mandates. In compliance with this requirement the Committee has 
received a letter from the Congressional Budget Office included 
herein.

                         Earmark Identification

    H.R. 2008 does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 2008. However, clause 3(d)(3)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 2008 from the Director of 
Congressional Budget Office:

                                                       May 8, 2012.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform, House of 
        Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2008, the Keeping 
Politics Out of Federal Contracting Act of 2011.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 2008--Keeping Politics Out of Federal Contracting Act of 2011

    H.R. 2008 would prohibit federal agencies from requiring 
existing or potential contractors to submit information 
concerning any political contributions to the government, or 
from using political contributions as a factor in awarding 
contracts. According to the General Services Administration, 
while there is a draft executive order that would require 
agencies to collect information regarding a contractor's or 
potential contractor's political contributions, agencies are 
not currently collecting such information. CBO estimates that 
implementing H.R. 2008 would not require agencies to make a 
significant change in the contracting process and thus would 
not have a significant impact on the federal budget.
    Enacting the bill could affect direct spending by agencies 
not funded through annual appropriations; therefore, pay-as-
you-go procedures apply. CBO estimates, however, that any net 
increase in spending by those agencies would be negligible. 
Enacting H.R. 2008 would not affect revenues.
    H.R. 2008 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

               CHAPTER 47 OF TITLE 41, UNITED STATES CODE

                       CHAPTER 47--MISCELLANEOUS

Sec.
4701.  Determinations and decisions.
     * * * * * * *
4712.  Prohibition on Certain Uses of Political Information.

           *       *       *       *       *       *       *

Sec. 4712. Prohibition on certain uses of political information

  (a) Prohibition on Requiring Submission of Political 
Information.--The head of an executive agency may not require a 
contractor to submit political information related to the 
contractor or a subcontractor at any tier, or any partner, 
officer, director, or employee of the contractor or 
subcontractor--
          (1) as part of a solicitation, request for bid, 
        request for proposal, or any other form of 
        communication designed to solicit offers in connection 
        with the award of a contract for procurement of 
        property or services;
          (2) during the course of contract performance as part 
        of the process associated with modifying a contract or 
        exercising a contract option; or
          (3) any time prior to contract completion and final 
        contract closeout.
  (b) Prohibition on Use of Political Information.--The head of 
an executive agency may not use political information, whether 
obtained from a contractor or prospective contractor or from an 
independent public or nonpublic source, as a factor or 
consideration in the source selection process used to award a 
competitive or non-competitive contract at any value or in 
making any decision associated with the modification of a 
contract or the exercise of a contract option.
  (c) Prohibition on Inclusion of Political Information in 
Contracting Databases.--
          (1) In general.--Except as provided under paragraph 
        (2), an executive agency may not include political 
        information in the contracting past performance 
        database or any database designed to provide 
        information to a contracting officer for purposes of 
        supporting the responsibility determination by such 
        officer.
          (2) Exception for disclosure of certain violations.--
                  (A) Exception.--Data required as of the date 
                of the enactment of the Keeping Politics Out of 
                Federal Contracting Act of 2011 to be included 
                in the database maintained under section 2313 
                of this title are not subject to the 
                prohibition under paragraph (1).
                  (B) Rule of construction.--Notwithstanding 
                subparagraph (A), this paragraph shall not be 
                construed as authorizing the inclusion of 
                political information pursuant to subsection 
                (c)(6) of such section.
  (d) Applicability.--The prohibitions under this section apply 
to the procurement of commercial items, the procurement of 
commercial off-the-shelf items, and the non-commercial 
procurement of supplies, property, services, and manufactured 
items, irrespective of contract vehicle, including contracts, 
purchase orders, task or deliver orders under indefinite 
delivery/indefinite quantity contracts, blanket purchase 
agreements, and basic ordering agreements.
  (e) Rule of Construction.--Nothing in this section shall be 
construed as waiving, superseding, restricting, or limiting the 
application of the Federal Election Campaign Act of 1971 (2 
U.S.C. 431 et seq.) or preventing Federal regulatory or law 
enforcement agencies from collecting or receiving information 
authorized by law.
  (f) Definitions.--In this section:
          (1) Acquisition.--The term ``acquisition'' has the 
        meaning given the term in section 131 of this title.
          (2) Contractor.--The term ``contractor'' includes 
        contractors, bidders, and offerors, and individuals and 
        legal entities who would reasonably be expected to 
        submit offers or bids for Federal Government contracts.
          (3) Executive agency.--The term ``executive agency'' 
        has the meaning given the term in section 133 of this 
        title.
          (4) Political information.--The term ``political 
        information'' means information relating to political 
        spending, including any payment consisting of a 
        contribution, expenditure, independent expenditure, or 
        disbursement for an electioneering communication that 
        is made by the contractor, any of its partners, 
        officers, directors or employees, or any of its 
        affiliates or subsidiaries to a candidate or on behalf 
        of a candidate for election for Federal office, to a 
        political committee, to a political party, to a third-
        party entity with the intention or reasonable 
        expectation that it would use the payment to make 
        independent expenditures or electioneering 
        communications, or that is otherwise made with respect 
        to any election for Federal office, party affiliation, 
        and voting history. Each of the terms ``contribution'', 
        ``expenditure'', ``independent expenditure'', 
        ``candidate'', ``election'', ``electioneering 
        communication'', and ``Federal office'' has the meaning 
        given the term in the Federal Campaign Act of 1971 (2 
        U.S.C. 431 et seq.).

                             MINORITY VIEWS

    H.R. 2008, the Keeping Politics out of Federal Contracting 
Act, is both unnecessary and unwise. There is a vast amount of 
secret money now financing our election process. Transparency 
and the disclosure of political contributions by everyone--
corporations, unions, and individuals--should be our goal.
    In response to the Citizens United decision and the 
emergence of Super PACs, the Administration last year 
circulated a draft Executive Order that would have required 
disclosures by government contractors of their political 
contributions, particularly to third-party groups that seek to 
influence the outcome of federal elections.
    This bill, which would prohibit these types of disclosures, 
seems to suggest that requiring government contractors to 
disclose more information about their political donations is 
bad policy because it could cause people in power to retaliate 
against them for political reasons. This is a fundamentally 
flawed premise. Under this logic, all campaign disclosures 
would be bad, not just new ones. Government contractors already 
disclose contributions and expenditures by their PACs and those 
who contribute to them. Contributions by the officers and 
directors of government contractors are also required to be 
disclosed. Obviously, we should not eliminate these provisions.
    A second argument made by proponents of this bill is that 
contracting officers might review political contributions in 
order to reward allies or punish foes by awarding or 
withholding government contracts. But federal procurement laws 
already prohibit this.
    A third argument--that the draft Executive Order violates 
the First Amendment--is also misplaced. In the recent Citizens 
United case, eight of nine justices agreed that campaign 
disclosure rules are consistent with the First Amendment 
because they do not prohibit contributions and ``do not prevent 
anyone from speaking.''
    The draft Executive Order could have been drafted 
differently. For example, under the draft Executive Order, 
agency heads would have been required to collect this 
information, rather than the Federal Election Commission, which 
is the more appropriate body. But the arguments for this bill 
have little merit. Members instead should support legislation 
that would strengthen our democratic process by ending the 
secret financing of elections.

                                                Elijah E. Cummings.

                                  
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