II

107TH CONGRESS

1ST SESSION S. 1152

To ensure that the business of the Federal Government is conducted in

the public interest and in a manner that provides for public accountability, efficient delivery of services, reasonable cost savings, and prevention of unwarranted Government expenses, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 29, 2001

Mr. DURBIN (for himself, Mr. DASCHLE, Mrs. MURRAY, Mr. CORZINE, Ms.

LANDRIEU, Mr. FEINGOLD, Mr. LIEBERMAN, Mr. KENNEDY, Mr. SARBANES, Ms. MIKULSKI, Mr. TORRICELLI, Mr. REID, Mr. SCHUMER, Ms.

STABENOW, and Mr. JOHNSON) introduced the following bill; which was

read twice and referred to the Committee on Governmental Affairs

A BILL

To ensure that the business of the Federal Government

is conducted in the public interest and in a manner

that provides for public accountability, efficient delivery

of services, reasonable cost savings, and prevention of

unwarranted Government expenses, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

2 (a) SHORT TITLE.—This Act may be cited as the

3 ‘‘Truthfulness, Responsibility, and Accountability in Con4 tracting Act of 2001’’.

5 (b) TABLE OF CONTENTS.—The table of contents of

6 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

Sec. 3. Certification of compliance.

Sec. 4. Agency reporting systems and required reports.

Sec. 5. Requirement for public-private competition.

Sec. 6. Review of contractor performance.

Sec. 7. Survey of wages and benefits provided by contractors.

Sec. 8. Comptroller General reports.

Sec. 9. Applicability.

7 SEC. 2. DEFINITIONS.

8 In this Act:

9 (1) AGENCY.—The term ‘‘agency’’ means any

10 department, agency, bureau, commission, activity, or

11 organization of the United States, that employs an

12 employee as defined under paragraph (6).

13 (2) CONTRACTING.—The term ‘‘contracting’’

14 means—

15 (A) the performance of a function by non16 Federal personnel under a contract between an

17 agency and an individual or another entity; and

18 (B) includes privatization, outsourcing,

19 contracting out, and contracting in, unless oth20 erwise specifically provided.
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1 (3) CONTRACTING IN.—The term ‘‘contracting

2 in’’ is the conversion of the performance of a func3 tion by non-Federal personnel under a contract be4 tween an agency and an individual or other entity to

5 the performance by employees.

6 (4) CONTRACTING OUT.—The term ‘‘con7 tracting out’’ means the conversion by an agency of

8 the performance of a function to performance by

9 non-Federal personnel under a contract between an

10 agency and an individual or other entity.

11 (5) CONTRACTOR.—The term ‘‘contractor’’

12 means an individual or entity that performs a func13 tion for an agency under a contract with non-Fed14 eral personnel.

15 (6) EMPLOYEE.—The term ‘‘employee’’ means

16 any individual employed—

17 (A) as a civilian in a military department

18 (as defined in section 102 of title 5, United

19 States Code);

20 (B) in an Executive agency (as defined in

21 section 105 of title 5, United States Code), in22 cluding an employee who is paid from non23 appropriated funds;
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1 (C) in those units of the legislative and ju2 dicial branches of the Federal Government hav3 ing positions in the competitive service;

4 (D) in the Library of Congress;

5 (E) in the Government Printing Office; or

6 (F) by the Governors of the Federal Re7 serve System.

8 (7) FUNCTION.—The term ‘‘function’’ means a

9 service activity, not procurement of goods.

10 (8) NON-FEDERAL PERSONNEL.—The term

11 ‘‘non-Federal personnel’’ means employed individ12 uals who are not employees as defined under para13 graph (6).

14 (9) OUTSOURCING.—The term ‘‘outsourcing’’

15 means the action by an agency to acquire services

16 from external sources, either from a non-Federal

17 source or through interservice support agreements,

18 through a contract.

19 (10) PATIENT CARE.—The term ‘‘patient

20 care’’—

21 (A) means direct patient medical and hos22 pital care that the Department of Veterans Af23 fairs or other Federal hospitals or clinics are

24 not capable of furnishing because of geo25 graphical inaccessibility, medical emergency, or
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1 particularly unique type of care or service re2 quired; and

3 (B) does not include support and adminis4 trative services for hospital and clinic oper5 ations, including food service, laundry services,

6 grounds maintenance, transportation services,

7 office operations, and supply processing and

8 distribution services.

9 (11) PRIVATIZATION.—The term ‘‘privatiza10 tion’’ means the action by an agency to exit a busi11 ness line, terminate an activity, or sell Government

12 owned assets or operational capabilities to the non13 Federal sector.

14 SEC. 3. CERTIFICATION OF COMPLIANCE.

15 (a) REQUIREMENTS FOR HEADS OF AGENCIES.—

16 (1) CERTIFICATIONS.—Not later than 180 days

17 after the date of enactment of this Act, the head of

18 each agency shall submit to the Director of the Of19 fice of Management and Budget a certification

20 that—

21 (A) the agency has established a central22 ized reporting system in accordance with sec23 tion 4;

24 (B) in the case of each function of the

25 agency that is being performed under con-
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1 tracting undertaken after the date of enactment

2 of this Act, the contracting function decision

3 was based on a public-private competition de4 scribed under section 5;

5 (C) the agency is not managing Federal

6 employees by any arbitrary limitations in ac7 cordance with sections 5 and 6; and

8 (D) the agency is reviewing work per9 formed by contractors, recompeting or con10 tracting in work when appropriate, and sub11 jecting to public-private competition an approxi12 mate number of Federal employee and con13 tractor positions in accordance with section 6.

14 (2) PUBLIC AVAILABILITY.—The Director of

15 the Office of Management and Budget shall—

16 (A) promptly after receiving certifications

17 under paragraph (1)(B), publish in the Federal

18 Register notices of the availability of the certifi19 cations to the public, including the names, busi20 ness addresses, and business telephone numbers

21 of the officials from whom the certifications can

22 be obtained; and

23 (B) ensure that, after the removal of pro24 prietary information, the head of each agency
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1 makes the certifications of that agency available

2 to the public—

3 (i) upon request; and

4 (ii) on the World Wide Web.

5 (b) SUSPENSION OF CONTRACTING FOR SERVICES

6 PENDING SATISFACTION OF CERTIFICATION REQUIRE7 MENT.—

8 (1) INITIAL DETERMINATIONS.—Beginning 180

9 days after the date of enactment of this Act, the

10 head of an agency may not enter into any contract

11 for the performance of services until the Director of

12 the Office of Management and Budget, after review13 ing the certification required under subsection

14 (a)(1), determines that the agency is making sub15 stantial progress toward meeting the requirements

16 under subsection (a)(1) (A), (B), (C), and (D).

17 (2) INAPPLICABILITY.—This subsection does

18 not apply to work performed in the non-Federal sec19 tor before the date of enactment of this Act.

20 (3) SUBSEQUENT DETERMINATIONS.—If an

21 agency head is prohibited from entering into a con22 tract after a determination is made under paragraph

23 (1), that agency head may subsequently request an24 other determination from the Director of the Office

25 of Management and Budget under that paragraph.
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1 (4) PUBLIC AVAILABILITY.—The Director of

2 the Office of Management and Budget shall—

3 (A) promptly after making a determination

4 as to whether an agency is making substantial

5 progress under paragraph (1), publish that de6 termination in the Federal Register; and

7 (B) make that determination available to

8 the public—

9 (i) upon request; and

10 (ii) on the World Wide Web.

11 (c) WAIVER OF SUSPENSION.—

12 (1) IN GENERAL.—The Director of the Office of

13 Management and Budget may waive the applicability

14 of this section to a contract for services if the Direc15 tor determines that it is necessary to do so in the

16 interest of the national security, extraordinary eco17 nomic harm, or patient care.

18 (2) NOTICE.—After granting any waiver under

19 this subsection, the Director of the Office of Man20 agement and Budget shall promptly publish a notice

21 of that waiver in the Federal Register that—

22 (A) identifies the facilities, units, or activi23 ties affected;

24 (B) explains the justification for the waiv25 er; and
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1 (C) identifies the duration of the waiver.

2 (d) GAO MONITORING.—While an agency is oper3 ating under a suspension of contracting authority under

4 subsection (b), the Comptroller General shall—

5 (1) monitor the agency’s compliance with the

6 requirements of this Act; and

7 (2) submit to Congress, every 60 days, a report

8 on the extent of the agency’s compliance with such

9 requirements.

10 (e) EXCEPTION.—

11 (1) IN GENERAL.—Notwithstanding subsection

12 (b), an agency may undertake a contracting effort of

13 a function if the function—

14 (A) is not performed by Federal employees

15 at the time of the undertaking; and

16 (B) under the contracting would be per17 formed by—

18 (i) the blind, as defined under section

19 5(1) of the Javits-Wagner-O’Day Act (41

20 U.S.C. 48b(1)); or

21 (ii) individuals with a disability as de22 fined under section 7(9) of the Rehabilita23 tion Act of 1973 (29 U.S.C. 705(9)).

24 (2) TERMINATION OF CONTRACT.—If the Direc25 tor of the Office of Management and Budget deter-
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1 mines that the performance of the function in a con2 tract entered into under paragraph (1) is not being

3 performed by individuals described under clause (i)

4 or (ii) of paragraph (1)(B), the contract shall be im5 mediately terminated.

6 SEC. 4. AGENCY REPORTING SYSTEMS AND REQUIRED RE7 PORTS.

8 (a) CENTRALIZED REPORTING SYSTEM.—Not later

9 than 180 days after the date of enactment of this Act,

10 each agency shall establish a centralized reporting system

11 in accordance with guidance promulgated by the Director

12 of the Office of Management and Budget that allows the

13 agency to generate periodic reports on the contracting ef14 forts of the agency. Such centralized reporting system

15 shall be designed to enable the agency to generate reports

16 on efforts regarding both contracting out and contracting

17 in.

18 (b) REPORTS ON CONTRACTING EFFORTS.—

19 (1) INITIAL REPORTS.—Not later than 180

20 days after the date of enactment of this Act, every

21 agency shall generate and submit to the Director of

22 the Office of Management and Budget a report on

23 the contracting efforts of the agency undertaken

24 during the fiscal year immediately preceding the fis25 cal year during which this Act is enacted. Such re-
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1 port shall comply with the requirements in para2 graph (3).

3 (2) SUBSEQUENT REPORTS.—For the current

4 fiscal year and every fiscal year thereafter, every

5 agency shall complete and submit to the Director of

6 the Office of Management and Budget a report on

7 the contracting efforts undertaken by the agency

8 during that fiscal year. The report for a fiscal year

9 shall comply with the requirements in paragraph (3),

10 and shall be completed and submitted not later than

11 the end of the first fiscal quarter of the subsequent

12 fiscal year.

13 (3) CONTENTS.—With regard to each con14 tracting effort undertaken by the agency, the reports

15 referred to in this subsection shall include the fol16 lowing information:

17 (A) The contract number and the Federal

18 supply class or service code.

19 (B) The names, business addresses, and

20 business telephone numbers of the officials who

21 supervised the contracting effort.

22 (C) The competitive process used or the

23 statutory or regulatory authority relied on to

24 enter into the contract without public-private

25 competition.
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1 (D) The cost of Federal employee perform2 ance at the time the work was contracted out

3 (if the work had previously been performed by

4 Federal employees).

5 (E) The cost of Federal employee perform6 ance under the most efficient organization plan

7 identified for that performance (if the work was

8 contracted out through OMB Circular A–76).

9 (F) The anticipated cost of contractor per10 formance, based on the award.

11 (G) The current cost of contractor per12 formance.

13 (H) The actual savings, expressed both as

14 a dollar amount and as a percentage of the cost

15 of performance by Federal employees, based on

16 the current cost, and an explanation of the dif17 ference, if any.

18 (I) A description of the quality control

19 process used by the agency in connection with

20 monitoring the contracting effort, identification

21 of the applicable quality control standards, the

22 frequency of the preparation of quality control

23 reports, and an assessment of whether the con24 tractor met, exceeded, or failed to achieve the

25 quality control standards.
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1 (J) The number of employees performing

2 the contracting effort under the contract and

3 any related subcontracts.

4 (c) REPORT ON CONTRACTING IN EFFORTS.—

5 (1) IN GENERAL.—For the current fiscal year

6 and every fiscal year thereafter, every agency shall

7 complete and submit to the Director of the Office of

8 Management and Budget a report on the contracting

9 in efforts undertaken by the agency during that fis10 cal year. The report for a fiscal year shall comply

11 with the requirements in paragraph (2), and shall be

12 completed and submitted not later than the end of

13 the first fiscal quarter of the subsequent fiscal year.

14 (2) CONTENTS.—The reports referred to in

15 paragraph (1) shall include for each contracting in

16 effort undertaken by the agency the following infor17 mation:

18 (A) A description of the type of work in19 volved.

20 (B) The names, business addresses, and

21 business telephone numbers of the officials who

22 supervised the contracting in effort.

23 (C) The cost of performance at the time

24 the work was contracted in.
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1 (D) The current cost of performance by

2 Federal employees or military personnel.

3 (d) REPORT ON EMPLOYEE POSITIONS.—Not later

4 than 30 days after the end of each fiscal year, every agen5 cy shall submit to the Office of Management and Budget

6 a report on the number of Federal employee positions and

7 positions held by non-Federal employees under a contract

8 between the agency and an individual or entity that has

9 been subject to public-private competition during that fis10 cal year.

11 (e) SUBMISSION OF REPORTS TO CONGRESS.—

12 (1) IN GENERAL.—The Director of the Office of

13 Management and Budget shall compile all reports

14 submitted under this section and submit the reports

15 to the committees referred to under paragraph (2),

16 not later than 120 days after the end of the applica17 ble fiscal year.

18 (2) COMMITTEES.—The reports compiled under

19 this subsection shall be submitted to the Committee

20 on Government Reform of the House of Representa21 tives and to the Committee on Governmental Affairs

22 of the Senate.

23 (f) PUBLIC AVAILABILITY OF REPORTS.—

24 (1) PUBLICATIONS.—The Director of the Office

25 of Management and Budget shall promptly publish
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1 in the Federal Register notices including a descrip2 tion of when the reports referred to in this section

3 are available to the public and the names, business

4 addresses, and business telephone numbers of the of5 ficials from whom the reports may be obtained.

6 (2) AVAILABILITY ON INTERNET.—The reports

7 referred to in this section shall be made available

8 through the Internet.

9 (3) PROPRIETARY AND NATIONAL SECURITY IN10 FORMATION.—Proprietary information or informa11 tion to which section 552(b)(1) of title 5, United

12 States Code, applies shall be excised from informa13 tion published or reports made available under this

14 subsection.

15 (g) REVIEW.—The Director of the Office of Manage16 ment and Budget shall review the reports referred to in

17 this section and consult with the head of the agency re18 garding the content of such reports.

19 SEC. 5. REQUIREMENT FOR PUBLIC-PRIVATE COMPETI20 TION.

21 (a) IN GENERAL.—

22 (1) PUBLIC-PRIVATE COMPETITION.—After the

23 date of enactment of this Act and in accordance with

24 section 3, any decision by an agency to initiate or

25 continue a privatization, outsourcing, contracting in,
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1 or contracting out for the performance of a function

2 shall be based on the results of a public-private com3 petition process that—

4 (A) formally compares the costs of Federal

5 employee performance of the function with the

6 costs of the performance by a contractor;

7 (B) employs the most efficient organization

8 process described in OMB Circular A–76; and

9 (C) is conducted in consultation or through

10 bargaining with the exclusive representative of

11 the Federal employees performing the function,

12 if applicable.

13 (2) INAPPLICABILITY.—This subsection does

14 not apply to—

15 (A) work performed in the non-Federal

16 sector before the date of enactment of this Act;

17 or

18 (B) contracts with values less than

19 $1,000,000 for work not performed at the time

20 by Federal employees, if the work is not di21 vided, modified, or in any way changed for the

22 purpose of not performing a public-private com23 petition.

24 (b) DETERMINATION OF COSTS.—
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1 (1) IN GENERAL.—An agency shall commence

2 or continue the performance of a function by Fed3 eral employees if, under a cost comparison per4 formed under a public-private competition process

5 described in subsection (a), the agency determines

6 that at least a 10-percent cost savings would not be

7 achieved by performance of the function by a con8 tractor.

9 (2) UNDERTAKING CONTRACTING EFFORT DUR10 ING SUSPENSION.—During the suspension estab11 lished under section 3, an agency may undertake a

12 contracting effort made under the issuance of a

13 waiver granted under section 3 for a function that

14 is not currently performed by Federal employees if

15 the agency has determined the total cost to the

16 agency of performing the function by a contractor

17 and the total cost to the agency of having those

18 services performed by Federal employees and that

19 the contractor performance costs are less than the

20 Federal employee performance costs.

21 (c) INAPPLICABILITY OF CERTAIN LIMITATION.—

22 Notwithstanding any limitation on the number of Federal

23 employees established by law, regulation, or policy, an

24 agency may continue to employ, or may hire, such Federal

25 employees as are necessary to perform work acquired
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1 through public-private competition required by this sec2 tion.

3 SEC. 6. REVIEW OF CONTRACTOR PERFORMANCE.

4 (a) IN GENERAL.—

5 (1) AGENCY ACTION AFTER REVIEW.—If a re6 port completed under section 4 indicates that, for 2

7 consecutive years, the actual cost of privatization,

8 outsourcing, or contracting out of a particular func9 tion exceeds the anticipated cost of contractor per10 formance, based on the award (referred to in section

11 4(b)(3)(G)), or fails to substantially meet quality

12 control standards (referred to in section 4(b)(3)(J)),

13 the agency shall either conduct a new public-private

14 competition or convert the function to performance

15 by Federal employees not later than the earlier of

16 the date of the expiration of the contract or the be17 ginning of the first fiscal year which is not more

18 than 12 months after the initial determination that

19 the cost of a contracting effort exceeds the antici20 pated cost of contractor performance or that quality

21 standards have not been substantially met. Any re22 sulting terminations for convenience may be under23 taken without cost to the United States Government.
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1 (2) INAPPLICABILITY.—This subsection does

2 not apply to work performed in the non-Federal sec3 tor before the date of enactment of this Act.

4 (b) PUBLIC-PRIVATE COMPETITION.—

5 (1) IN GENERAL.—For each fiscal year, an

6 agency shall subject to public-private competition an

7 approximate number of Federal employee positions

8 and positions held by non-Federal employees under

9 a contract between an agency and an individual or

10 entity.

11 (2) PARTICULAR FUNCTIONS.—In complying

12 with this section, agencies shall, to the extent pos13 sible, subject to public-private competition those po14 sitions held by non-Federal employees under a con15 tract between an agency and an individual or entity

16 that is associated with functions that are or have

17 been performed at least in part by Federal employ18 ees at any time on or after October 1, 1980.

19 (c) INAPPLICABILITY OF CERTAIN LIMITATION.—

20 Notwithstanding any limitation on the number of Federal

21 employees established by law, regulation, or policy, an

22 agency may continue to employ or may hire such Federal

23 employees as are necessary to perform work acquired

24 through public-private competition required by this sec25 tion.
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1 SEC. 7. SURVEY OF WAGES AND BENEFITS PROVIDED BY

2 CONTRACTORS.

3 (a) REQUIREMENT TO CONDUCT SURVEY.—Using

4 information provided by agencies, the Secretary of Labor

5 shall conduct a survey of the wages and quantifiable bene6 fits provided by contractors to non-Federal personnel

7 working in various occupations under contracts between

8 agencies and individuals or entities that were entered into

9 during the 2 fiscal years immediately preceding the date

10 of enactment of this Act.

11 (b) REVIEW.—

12 (1) IN GENERAL.—The Director of the Office of

13 Personnel Management shall—

14 (A) review the analysis prepared by the

15 Secretary of Labor under subsection (a) and

16 determine the extent to which the wages and

17 quantifiable benefits paid by contractors are

18 comparable to the wages and quantifiable bene19 fits earned by Federal employees; and

20 (B) issue a report on the findings of the

21 review.

22 (2) SUBMISSION.—Not later than 180 days

23 after the date of enactment of this Act, the report

24 shall be submitted to the Committee on Government

25 Reform of the House of Representatives and to the
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1 Committee on Governmental Affairs of the Senate,

2 and published in the Federal Register.

3 (3) PROPRIETARY AND NATIONAL SECURITY IN4 FORMATION.—Proprietary information or informa5 tion to which section 552(b)(1) of title 5, United

6 States Code, applies shall be excised from informa7 tion published or reports made available under this

8 subsection.

9 (c) GUIDANCE.—The Director of the Office of Man10 agement and Budget shall issue guidance to implement

11 this section.

12 SEC. 8. COMPTROLLER GENERAL REPORTS.

13 The Comptroller General shall report to the Com14 mittee on Government Reform of the House of Represent15 atives and the Committee on Governmental Affairs of the

16 Senate every 60 days after the date of enactment of this

17 Act on the compliance by agencies with the requirements

18 of this Act.

19 SEC. 9. REPEAL OF CERTAIN REPORTING REQUIREMENTS.

20 (a) IN GENERAL.—Sections 2461, 2461a, 2463, and

21 2467(c) of title 10, United States Code, are repealed.

22 (b) TECHNICAL AND CONFORMING AMENDMENTS.—

23 The table of sections for chapter 141 of title 10, United

24 States Code, is amended by striking the items relating to

25 sections 2461, 2461a, and 2463.
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1 SEC. 10. APPLICABILITY.

2 This Act does not apply with respect to the following:

3 (1) The General Accounting Office.

4 (2) Depot-level maintenance and repair of the

5 Department of Defense (as defined in section 2460

6 of title 10, United States Code).

7 (3) Contracts for the study, planning, sur8 veying, design, engineering, and construction of new

9 structures or the remodeling of or additions made to

10 existing structures, facilities, and capital projects,

11 except this Act shall apply to all contracts for the

12 repair and maintenance of any structures.

13 (4) Financial assistance awards (including

14 grants and cooperative agreements).

15 (5) Specialized scientific and technical contracts

16 for work not performed at the time by Federal em17 ployees that are undertaken for research and devel18 opment, except this Act shall apply to all contracts

19 for work in support of research and development.

Æ