II

106TH CONGRESS

2D SESSION S. 2841

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

JULY 10, 2000

Mr. ROBB (for himself, Mr. DURBIN, Mr. SARBANES, Ms. MIKULSKI, Mr.

AKAKA, Mr. WELLSTONE, Mr. FEINGOLD, Mr. SCHUMER, and Mr. KENNEDY) 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 2000’’.

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 As used in this Act:

9 (1) The term ‘‘employee’’ means any individual

10 employed—

11 (A) as a civilian in a military department

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

13 States Code);

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

15 section 105 of title 5, United States Code), in16 cluding an employee who is paid from non17 appropriated funds;

18 (C) in those units of the legislative and ju19 dicial branches of the Federal Government hav20 ing positions in the competitive service;

21 (D) in the Library of Congress;
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1 (E) in the Government Printing Office; or

2 (F) by the Governors of the Federal Re3 serve System.

4 (2) The term ‘‘agency’’ means any department,

5 agency, bureau, commission, activity, or organization

6 of the United States, that employs an employee (as

7 defined in paragraph (1)).

8 (3) The term ‘‘non-Federal personnel’’ means

9 employed individuals who are not employees, as de10 fined in paragraph (1).

11 (4) The term ‘‘contractor’’ means an individual

12 or entity that performs a function for an agency

13 under a contract with non-Federal personnel.

14 (5) The term ‘‘privatization’’ means the action

15 by an agency to exit a business line, terminate an

16 activity, or sell Government owned assets or oper17 ational capabilities to the non-Federal sector.

18 (6) The term ‘‘outsourcing’’ means the action

19 by an agency to acquire services from external

20 sources, either from a non-Federal source or through

21 interservice support agreements, through a contract.

22 (7) The term ‘‘contracting out’’ means the con23 version by an agency of the performance of a func24 tion to performance by non-Federal personnel under
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1 a contract between an agency and an individual or

2 other entity.

3 (8) The term ‘‘contracting in’’ is the conversion

4 of the performance of a function by non-Federal per5 sonnel under a contract between an agency and an

6 individual or other entity to the performance by em7 ployees.

8 (9) The term ‘‘contracting’’ means—

9 (A) the performance of a function by non10 Federal personnel under a contract between an

11 agency and an individual or another entity; and

12 (B) includes privatization, outsourcing,

13 contracting out, and contracting in, unless oth14 erwise specifically provided.

15 SEC. 3. CERTIFICATION OF COMPLIANCE.

16 (a) REQUIREMENTS FOR HEADS OF AGENCIES.—(1)

17 The head of each agency shall, not later than 180 days

18 after the date of the enactment of this Act, submit to the

19 Director of the Office of Management and Budget a cer20 tification that—

21 (A) the agency has established a centralized re22 porting system in accordance with section 4;

23 (B) in the case of each function of the agency

24 that is being performed under contracting, the con-
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1 tracting function decision was based on a public-pri2 vate competition described under section 5;

3 (C) the agency is not managing Federal em4 ployees by any arbitrary limitations in accordance

5 with sections 5 and 6; and

6 (D) the agency is reviewing work performed by

7 contractors, recompeting or contracting in work

8 when appropriate, and subjecting to public-private

9 competition an equivalent number of Federal em10 ployee and contractor positions in accordance with

11 section 6.

12 (2) The Director of the Office of Management and

13 Budget shall—

14 (A) promptly after receiving certifications under

15 paragraph (1)(B), publish in the Federal Register

16 notices of the availability of the certifications to the

17 public, including the names, addresses, and tele18 phone numbers of the officials from whom the cer19 tifications can be obtained; and

20 (B) ensure that, after the removal of propri21 etary information, the head of each agency makes

22 the certifications of that agency available to the

23 public—

24 (i) upon request; and

25 (ii) on the World Wide Web.
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1 (b) SUSPENSION OF CONTRACTING FOR SERVICES

2 PENDING SATISFACTION OF CERTIFICATION REQUIRE3 MENT.—(1) Beginning 180 days after the date of the en4 actment of this Act, the head of an agency may not enter

5 into any contract for the performance of services until the

6 Director of the Office of Management and Budget, after

7 reviewing the certification required under subsection

8 (a)(1), determines that the agency is making substantial

9 progress toward meeting the requirements under sub10 section (a)(1) (A), (B), (C), and (D).

11 (2) If an agency head is prohibited from entering into

12 a contract after a determination is made under paragraph

13 (1), that agency head may subsequently request another

14 determination from the Director of the Office of Manage15 ment and Budget under that paragraph.

16 (3) The Director of the Office of Management and

17 Budget shall—

18 (A) promptly after making a determination as

19 to whether an agency is making substantial progress

20 under paragraph (1), publish that determination in

21 the Federal Register; and

22 (B) make that determination available to the

23 public—

24 (i) upon request; and

25 (ii) on the World Wide Web.
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1 (c) WAIVER OF SUSPENSION.—(1) The Director of

2 the Office of Management and Budget may waive the ap3 plicability of this section to a contract for services if the

4 Director determines that it is necessary to do so in the

5 interest of the national security, extraordinary economic

6 harm, or patient care.

7 (2) After granting any waiver under this subsection,

8 the Director of the Office of Management and Budget

9 shall promptly publish a notice of that waiver in the Fed10 eral Register that—

11 (A) identifies the facilities, units, or activities

12 affected;

13 (B) explains the justification for the waiver;

14 and

15 (C) identifies the duration of the waiver.

16 (d) GAO MONITORING.—While an agency is oper17 ating under a suspension of contracting authority under

18 subsection (b), the Comptroller General shall—

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

20 requirements of this Act; and

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

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

23 requirements.
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1 SEC. 4. AGENCY REPORTING SYSTEMS AND REQUIRED RE2 PORTS.

3 (a) CENTRALIZED REPORTING SYSTEM.—Not later

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

5 each agency shall establish a centralized reporting system

6 in accordance with guidance promulgated by the Office of

7 Management and Budget that allows the agency to gen8 erate periodic reports on the contracting efforts of the

9 agency. Such centralized reporting system shall be de10 signed to enable the agency to generate reports on efforts

11 regarding both contracting out and contracting in.

12 (b) REPORTS ON CONTRACTING EFFORTS.—(1) Not

13 later than 180 days after the date of the enactment of

14 this Act, every agency shall generate and submit to the

15 Director of the Office of Management and Budget a report

16 on the contracting efforts of the agency undertaken during

17 the 2 fiscal years immediately preceding the fiscal year

18 during which this Act is enacted. Such report shall comply

19 with the requirements in paragraph (3).

20 (2) For the current fiscal year and every fiscal year

21 thereafter, every agency shall complete and submit to the

22 Director of the Office of Management and Budget a report

23 on the contracting efforts undertaken by the agency dur24 ing that fiscal year. The report for a fiscal year shall com25 ply with the requirements in paragraph (3), and shall be
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1 completed and submitted not later than the end of the first

2 fiscal quarter of the subsequent fiscal year.

3 (3) The reports referred to in this subsection shall

4 include the following information with regard to each con5 tracting effort undertaken by the agency:

6 (A) The contract number and the Federal sup7 ply class or service code.

8 (B) A statement of why the contracting effort

9 was undertaken and an explanation of what alter10 natives to the contracting effort were considered and

11 why such alternatives were ultimately rejected.

12 (C) The names, addresses, and telephone num13 bers of the officials who supervised the contracting

14 effort.

15 (D) The competitive process used or the statu16 tory or regulatory authority relied on to enter into

17 the contract without public-private competition.

18 (E) The cost of Federal employee performance

19 at the time the work was contracted out (if the work

20 had previously been performed by Federal employ21 ees).

22 (F) The cost of Federal employee performance

23 under the most efficient organization plan identified

24 for that performance (if the work was contracted out

25 through OMB Circular A–76).
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1 (G) The anticipated cost of contractor perform2 ance, based on the award.

3 (H) The current cost of contractor perform4 ance.

5 (I) The actual savings, expressed both as a dol6 lar amount and as a percentage of the cost of per7 formance by Federal employees, based on the cur8 rent cost, and an explanation of the difference, if

9 any.

10 (J) A description of the quality control process

11 used by the agency in connection with monitoring

12 the contracting effort, identification of the applicable

13 quality control standards, the frequency of the prep14 aration of quality control reports, and an assessment

15 of whether the contractor met, exceeded, or failed to

16 achieve the quality control standards.

17 (K) The number of employees performing the

18 contracting effort under the contract and any re19 lated subcontracts.

20 (c) REPORT ON CONTRACTING IN EFFORTS.—(1)

21 For the current fiscal year and every fiscal year thereafter,

22 every agency shall complete and submit to the Director

23 of the Office of Management and Budget a report on the

24 contracting in efforts undertaken by the agency during

25 that fiscal year. The report for a fiscal year shall comply
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1 with the requirements in paragraph (2), and shall be com2 pleted and submitted not later than the end of the first

3 fiscal quarter of the subsequent fiscal year.

4 (2) The reports referred to in paragraph (1) shall in5 clude the following information for each contracting in ef6 fort undertaken by the agency:

7 (A) A description of the type of work involved.

8 (B) A statement of why the contracting in ef9 fort was undertaken.

10 (C) The names, addresses, and telephone num11 bers of the officials who supervised the contracting

12 in effort.

13 (D) The cost of performance at the time the

14 work was contracted in.

15 (E) The current cost of performance by Federal

16 employees or military personnel.

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

18 than 30 days after the end of each fiscal year, every agen19 cy shall submit to the Office of Management and Budget

20 a report on the number of Federal employee positions and

21 positions held by non-Federal employees under a contract

22 between the agency and an individual or entity that has

23 been subject to public-private competition during that fis24 cal year.
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1 (e) SUBMISSION OF REPORTS TO CONGRESS.—(1)

2 The Office of Management and Budget shall compile all

3 reports submitted under this section and submit the re4 ports to the committees referred to under paragraph (2),

5 not later than 120 days after the end of the applicable

6 fiscal year.

7 (2) The reports compiled under this subsection shall

8 be submitted to the Committee on Government Reform of

9 the House of Representatives and to the Committee on

10 Governmental Affairs of the Senate.

11 (f) PUBLICATION.—The Director of the Office of

12 Management and Budget shall promptly publish in the

13 Federal Register notices including a description of when

14 the reports referred to in this section are available to the

15 public and the names, addresses, and telephone numbers

16 of the officials from whom the reports may be obtained.

17 (g) AVAILABILITY ON INTERNET.—After the excision

18 of proprietary information, the reports referred to in this

19 section shall be made available through the Internet.

20 (h) REVIEW.—The Director of the Office of Manage21 ment and Budget shall review the reports referred to in

22 this section and consult with the head of the agency re23 garding the content of such reports.
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1 SEC. 5. REQUIREMENT FOR PUBLIC-PRIVATE COMPETI2 TION.

3 (a) IN GENERAL.—(1) After the date of the enact4 ment of this Act and in accordance with section 3, any

5 decision by an agency to initiate or continue a privatiza6 tion, outsourcing, contracting in, or contracting out (in7 cluding any continuation by the exercise of an option, ex8 tension, or renewal) for the performance of a function

9 shall be based on the results of a public-private competi10 tion process that—

11 (A) formally compares the costs of Federal em12 ployee performance of the function with the costs of

13 the performance by a contractor;

14 (B) employs the most efficient organization

15 process described in OMB Circular A–76; and

16 (C) is conducted in consultation or through bar17 gaining with the exclusive representative of the Fed18 eral employees performing the function, if applicable.

19 (2) This subsection applies only to contracting efforts

20 undertaken on or after the date of the enactment of this

21 Act.

22 (b) DETERMINATION OF COSTS.—(1) An agency shall

23 commence or continue the performance of a function by

24 Federal employees if, under a cost comparison performed

25 under a public-private competition process described in

26 subsection (a), the agency determines that at least a 10-
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1 percent cost savings would not be achieved by performance

2 of the function by a contractor.

3 (2) During the suspension established in section 3 of

4 this Act, an agency may undertake a contracting effort

5 made under the issuance of a waiver granted under section

6 3 for a function that is not currently performed by Federal

7 employees if the agency has determined the total cost to

8 the agency of performing the function by a contractor and

9 the total cost to the agency of having those services per10 formed by Federal employees and that the contractor per11 formance costs are less than the Federal employee per12 formance costs.

13 (c) INAPPLICABILITY OF CERTAIN LIMITATION.—

14 Notwithstanding any limitation on the number of Federal

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

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

17 employees as are necessary to perform work acquired

18 through public-private competition required by this sec19 tion.

20 SEC. 6. REVIEW OF CONTRACTOR PERFORMANCE.

21 (a) IN GENERAL.—If a report completed under sec22 tion 4 indicates that, for 2 consecutive years, the actual

23 cost of privatization, outsourcing, contracting in, or con24 tracting out of a particular function exceeds the antici25 pated cost of contractor performance, based on the award
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1 (referred to in section 4(b)(3)(G)), or fails to substantially

2 meet quality control standards (referred to in section

3 4(b)(3)(J)), the agency shall either conduct a new public4 private competition or convert the function to performance

5 by Federal employees not later than the earlier of the date

6 of the expiration of the contract or the beginning of the

7 first fiscal year which is not more than 12 months after

8 the initial determination that the cost of a contracting ef9 fort exceeds the anticipated cost of contractor performance

10 or that quality standards have not been substantially met.

11 Any resulting terminations for convenience may be under12 taken without cost to the United States Government. This

13 subsection applies only to contracting efforts undertaken

14 on or after the date of the enactment of this Act.

15 (b) PUBLIC-PRIVATE COMPETITION.—For each fiscal

16 year, an agency shall subject to public-private competition

17 an equivalent number of Federal employee positions and

18 positions held by non-Federal employees under a contract

19 between an agency and an individual or entity.

20 (c) INAPPLICABILITY OF CERTAIN LIMITATION.—

21 Notwithstanding any limitation on the number of Federal

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

23 agency may continue to employ or may hire such Federal

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

3 SEC. 7. SURVEY OF WAGES AND BENEFITS PROVIDED BY

4 CONTRACTORS.

5 (a) REQUIREMENT TO CONDUCT SURVEY.—Using

6 information provided by agencies, the Secretary of Labor

7 shall conduct a survey of the wages and quantifiable bene8 fits provided by contractors to non-Federal personnel

9 working in various occupations under contracts between

10 agencies and individuals or entities that were entered into

11 during the 2 fiscal years immediately preceding the date

12 of the enactment of this Act.

13 (b) REVIEW.—(1) The Director of the Office of Per14 sonnel Management shall—

15 (A) review the analysis prepared by the Sec16 retary of Labor under subsection (a) and determine

17 the extent to which the wages and quantifiable bene18 fits paid by contractors are comparable to the wages

19 and quantifiable benefits earned by Federal employ20 ees; and

21 (B) issue a report on the findings of the review.

22 (2) Not later than 180 days after the date of the en23 actment of this Act, the report shall be submitted to the

24 Committee on Government Reform of the House of Rep-
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1 resentatives and to the Committee on Governmental Af2 fairs of the Senate, and published in the Federal Register.

3 (c) GUIDANCE.—The Director of the Office of Man4 agement and Budget shall issue guidance to implement

5 this section.

6 SEC. 8. COMPTROLLER GENERAL REPORTS.

7 The Comptroller General shall report to the Com8 mittee on Government Reform of the House of Represent9 atives and the Committee on Governmental Affairs of the

10 Senate every 60 days after the date of the enactment of

11 this Act on the compliance by agencies with the require12 ments of this Act.

13 SEC. 9. APPLICABILITY.

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

15 (1) The General Accounting Office.

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

17 Department of Defense (as defined in section 2460

18 of title 10, United States Code).

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