II 

110TH CONGRESS 

1ST SESSION S. 705 

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 

FEBRUARY 28, 2007 

Mr. LEVIN (for himself, Mr. THOMAS, Ms. STABENOW, Mr. GRASSLEY, and 

Mr. HARKIN) 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. GOVERNMENTWIDE PROCUREMENT POLICY 

4 RELATING TO PURCHASES FROM FEDERAL 

5 PRISON INDUSTRIES. 

6 (a) REQUIREMENTS.—The Office of Federal Procure7 ment Policy Act (41 U.S.C. 403 et seq.) is amended by 

8 adding at the end the following new section: 

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1 ‘‘SEC. 43. GOVERNMENTWIDE PROCUREMENT POLICY RE2 LATING TO PURCHASES FROM FEDERAL 

3 PRISON INDUSTRIES. 

4 ‘‘(a) COMPETITION REQUIRED.—In the procurement 

5 of any product that is authorized to be offered for sale 

6 by Federal Prison Industries and is listed in the catalog 

7 published and maintained by Federal Prison Industries 

8 under section 4124(b) of title 18, United States Code, the 

9 head of an executive agency shall, except as provided in 

10 subsection (d)— 

11 ‘‘(1) use competitive procedures for entering 

12 into a contract for the procurement of such product, 

13 in accordance with the requirements applicable to 

14 such executive agency under sections 2304 and 2305 

15 of title 10, United States Code, or sections 303 

16 through 303C of the Federal Property and Adminis17 trative Services Act of 1949 (41 U.S.C. 253 through 

18 253c); or 

19 ‘‘(2) make an individual purchase under a mul20 tiple award contract in accordance with competition 

21 requirements applicable to such purchases. 

22 ‘‘(b) OFFERS FROM FEDERAL PRISON INDUS23 TRIES.—In conducting a procurement pursuant to sub24 section (a), the head of an executive agency shall— 

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1 ‘‘(1) notify Federal Prison Industries of the 

2 procurement at the same time and in the same man3 ner as other potential offerors are notified; and 

4 ‘‘(2) consider a timely offer from Federal Pris5 on Industries for award in the same manner as 

6 other offers (regardless of whether Federal Prison 

7 Industries is a contractor under an applicable mul8 tiple award contract). 

9 ‘‘(c) IMPLEMENTATION BY AGENCIES.—The head of 

10 each executive agency shall ensure that— 

11 ‘‘(1) the executive agency does not purchase a 

12 Federal Prison Industries product or service unless 

13 a contracting officer of the executive agency deter14 mines that the product or service is comparable to 

15 products or services available from the private sector 

16 that best meet the executive agency’s needs in terms 

17 of price, quality, and time of delivery; and 

18 ‘‘(2) Federal Prison Industries performs its 

19 contractual obligations to the executive agency to the 

20 same extent as any other contractor for the execu21 tive agency. 

22 ‘‘(d) EXCEPTION.—(1) The head of an executive 

23 agency may use procedures other than competitive proce24 dures to enter into a contract with Federal Prison Indus25 tries only under the following circumstances: 

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1 ‘‘(A) The Attorney General personally deter2 mines in accordance with paragraph (2), within 30 

3 days after Federal Prison Industries has been in4 formed by the head of that executive agency of an 

5 opportunity for award of a contract for a product, 

6 that— 

7 ‘‘(i) Federal Prison Industries cannot rea8 sonably expect fair consideration in the selec9 tion of an offeror for award of the contract on 

10 a competitive basis; and 

11 ‘‘(ii) the award of the contract to Federal 

12 Prison Industries for performance at a penal or 

13 correctional facility is necessary to maintain 

14 work opportunities not otherwise available at 

15 the penal or correctional facility that prevent 

16 circumstances that could reasonably be expected 

17 to significantly endanger the safe and effective 

18 administration of such facility. 

19 ‘‘(B) The product is available only from Federal 

20 Prison Industries and the contract may be awarded 

21 under the authority of section 2304(c)(1) of title 10, 

22 United States Code, or section 303(c)(1) of the Fed23 eral Property and Administrative Services Act of 

24 1949 (41 U.S.C. 253(c)(1)), as may be applicable, 

25 pursuant to the justification and approval requiremstockstill on PROD1PC66 with BILLS

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1 ments relating to noncompetitive procurements spec2 ified by law and the Federal Acquisition Regulation. 

3 ‘‘(C) The head of the executive agency deter4 mines that the product that would otherwise be fur5 nished is to be produced, in whole or in significant 

6 part, by prison labor outside the United States. 

7 ‘‘(2)(A) A determination made by the Attorney Gen8 eral regarding a contract pursuant to paragraph (1)(A) 

9 shall be— 

10 ‘‘(i) supported by specific findings by the war11 den of the penal or correctional institution at which 

12 a Federal Prison Industries workshop is scheduled 

13 to perform the contract; 

14 ‘‘(ii) supported by specific findings by Federal 

15 Prison Industries regarding the reasons that it does 

16 not expect to be selected for award of the contract 

17 on a competitive basis; and 

18 ‘‘(iii) made and reported in the same manner as 

19 a determination made pursuant to section 303(c)(7) 

20 of the Federal Property and Administrative Services 

21 Act of 1949 (41 U.S.C. 253(c)(7)). 

22 ‘‘(B) The Attorney General may not delegate to any 

23 other official authority to make a determination that is 

24 required under paragraph (1)(A) to be made personally 

25 by the Attorney General. 

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1 ‘‘(e) PERFORMANCE AS A SUBCONTRACTOR.—(1) A 

2 contractor or potential contractor under a contract en3 tered into by the head of an executive agency may not 

4 be required to use Federal Prison Industries as a subcon5 tractor or supplier of products or provider of services for 

6 the performance of the contract by any means, including 

7 means such as— 

8 ‘‘(A) a provision in a solicitation of offers that 

9 requires a contractor to offer to use or specify prod10 ucts or services of Federal Prison Industries in the 

11 performance of the contract; 

12 ‘‘(B) a contract clause that requires the con13 tractor to use or specify products or services (or 

14 classes of products or services) offered by Federal 

15 Prison Industries in the performance of the contract; 

16 or 

17 ‘‘(C) any contract modification that requires the 

18 use of products or services of Federal Prison Indus19 tries in the performance of the contract. 

20 ‘‘(2) A contractor using Federal Prison Industries as 

21 a subcontractor or supplier in furnishing a commercial 

22 product pursuant to a contract of an executive agency 

23 shall implement appropriate management procedures to 

24 prevent an introduction of an inmate-produced product 

25 into the commercial market. 

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1 ‘‘(3) In this subsection, the term ‘contractor’, with 

2 respect to a contract, includes a subcontractor at any tier 

3 under the contract. 

4 ‘‘(f) PROTECTION OF CLASSIFIED AND SENSITIVE

5 INFORMATION.—The head of an executive agency may not 

6 enter into any contract with Federal Prison Industries 

7 under which an inmate worker would have access to— 

8 ‘‘(1) any data that is classified or will become 

9 classified after being merged with other data; 

10 ‘‘(2) any geographic data regarding the location 

11 of— 

12 ‘‘(A) surface or subsurface infrastructure 

13 providing communications or water or electrical 

14 power distribution; 

15 ‘‘(B) pipelines for the distribution of nat16 ural gas, bulk petroleum products, or other 

17 commodities; or 

18 ‘‘(C) other utilities; or 

19 ‘‘(3) any personal or financial information 

20 about any individual private citizen, including infor21 mation relating to such person’s real property how22 ever described, without the prior consent of the indi23 vidual.’’. 

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1 (b) CLERICAL AMENDMENT.—The table of contents 

2 in section 1(b) of such Act is amended by adding at the 

3 end the following new item: 

‘‘Sec. 43. Governmentwide procurement policy relating to purchases from Federal Prison Industries.’’. 

4 SEC. 2. CONFORMING AMENDMENTS. 

5 (a) REPEAL OF INCONSISTENT REQUIREMENTS AP6 PLICABLE TO DEPARTMENT OF DEFENSE.— 

7 (1) REPEAL.—Section 2410n of title 10, United 

8 States Code, is repealed. 

9 (2) CLERICAL AMENDMENT.—The table of sec10 tions at the beginning of chapter 141 of such title 

11 is amended by striking the item relating to section 

12 2410n. 

13 (b) REPEAL OF INCONSISTENT REQUIREMENTS AP14 PLICABLE TO OTHER AGENCIES.—Section 4124 of title 

15 18, United States Code, is amended— 

16 (1) by striking subsections (a) and (b); 

17 (2) by redesignating subsections (c) and (d) as 

18 subsections (a) and (b), respectively; and 

19 (3) in subsection (a), as redesignated by para20 graph (2), by striking ‘‘Federal department, agency, 

21 and institution subject to the requirements of sub22 section (a)’’ and inserting ‘‘Federal department and 

23 agency’’. 

24 (c) OTHER LAWS.— 

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1 (1) Section 3 of the Javits-Wagner-O’Day Act 

2 (41 U.S.C. 48) is amended by striking ‘‘which, 

3 under section 4124 of such title, is required’’ and in4 serting ‘‘which is required by law’’. 

5 (2) Section 31(b)(4) of the Small Business Act 

6 (15 U.S.C. 657a(b)(4)) is amended by striking ‘‘a 

7 different source under section 4124 or 4125 of title 

8 18, United States Code, or the Javits-Wagner-O’Day 

9 Act (41 U.S.C. 46 et seq.)’’ and inserting ‘‘a dif10 ferent source under the Javits-Wagner-O’Day Act 

11 (41 U.S.C. 46 et seq.) or Federal Prison Industries 

12 under section 40(d) of the Office of Federal Pro13 curement Policy Act or section 4125 of title 18, 

14 United States Code’’. 

15 SEC. 3. CLARIFYING AMENDMENT RELATING TO SERVICES. 

16 (a) IN GENERAL.—Section 1761 of title 18, United 

17 States Code, is amended in subsections (a) and (c) by 

18 striking ‘‘goods, wares, or merchandise manufactured, 

19 produced, or mined’’ each place it appears and inserting 

20 ‘‘products manufactured, services furnished, or minerals 

21 mined’’. 

22 (b) COMPLETION OF EXISTING AGREEMENTS.—Any 

23 prisoner work program operated by a prison or jail of a 

24 State or local jurisdiction of a State which is providing 

25 services for the commercial market through inmate labor 

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1 on October 1, 2007, may continue to provide such com2 mercial services until— 

3 (1) the expiration date specified in the contract 

4 or other agreement with a commercial partner on 

5 October 1, 2007; or 

6 (2) until September 30, 2011, if the prison 

7 work program is directly furnishing the services to 

8 the commercial market. 

9 (c) APPROVAL REQUIRED FOR LONG-TERM OPER10 ATION.—A prison work program operated by a correc11 tional institution operated by a State or local jurisdiction 

12 of a State may continue to provide inmate labor to furnish 

13 services for sale in the commercial market after the dates 

14 specified in subsection (b) if such program has been cer15 tified pursuant to section 1761(c)(1) of title 18, United 

16 States Code, and is in compliance with the requirements 

17 of such subsection and its implementing regulations. 

18 (d) EXISTING WORK OPPORTUNITIES FOR FEDERAL

19 INMATES.—Any private for-profit business entity having 

20 an agreement with Federal Prison Industries in effect on 

21 the date of the enactment of this Act, under which Federal 

22 inmates are furnishing services that are being introduced 

23 into the commercial market, may continue to furnish such 

24 services for the duration of the term of such agreement. 

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1 (e) ADDITIONAL AMENDMENT.—Section 1761 of title 

2 18, United States Code, is further amended— 

3 (1) by redesignating subsection (d) as sub4 section (e); and 

5 (2) by inserting after subsection (c) the fol6 lowing new subsection: 

7 ‘‘(d) This section shall not apply to services per8 formed as part of an inmate work program conducted by 

9 a State or local government to disassemble, scrap, and re10 cycle products, other than electronic products, that would 

11 otherwise be disposed of in a landfill. Recovered scrap 

12 from such program may be sold.’’. 

13 (f) CONFORMING AMENDMENT.—Section 4122(a) of 

14 title 18, United States Code, is amended by striking ‘‘pro15 duction of commodities’’ and inserting ‘‘production of 

16 products or furnishing of services’’. 

17 SEC. 4. EFFECTIVE DATE. 

18 (a) IN GENERAL.—Except as provided in subsection 

19 (b), this Act and the amendments made by this Act shall 

20 take effect 180 days after the date of the enactment of 

21 this Act. 

22 (b) EXCEPTION.—Subsections (b), (c), and (d) of sec23 tion 3 shall take effect on the date of the enactment of 

24 this Act. 

Æ 

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