II 

111TH CONGRESS 

1ST SESSION S. 1167 

To require that the Federal Government procure from the private sector 

the goods and services necessary for the operations and management 

of certain Government agencies, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 3, 2009 

Mr. THUNE (for himself, Mr. VITTER, Mr. BROWNBACK, Mr. ROBERTS, and 

Mr. INHOFE) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs 

A BILL 

To require that the Federal Government procure from the 

private sector the goods and services necessary for the 

operations and management of certain Government agencies, 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. SHORT TITLE. 

4 This Act may be cited as the ‘‘Freedom from Govern5 ment Competition Act of 2009’’. 

6 SEC. 2. FINDINGS. 

7 Congress makes the following findings: 


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1 (1) Private sector business concerns, which are 

2 free to respond to the private or public demands of 

3 the marketplace, constitute the strength of the 

4 United States economic system. 

5 (2) Competitive private enterprises are the most 

6 productive, efficient, and effective sources of goods 

7 and services. 

8 (3) Unfair Government competition with the 

9 private sector of the economy is detrimental to the 

10 United States economic system. 

11 (4) Unfair Government competition with the 

12 private sector of the economy is at an unacceptably 

13 high level, both in scope and in dollar volume. 

14 (5) Current law and policy have failed to ad15 dress adequately the problem of unfair Government 

16 competition with the private sector of the economy. 

17 (6) It is in the public interest that the Federal 

18 Government establish a consistent policy to rely on 

19 the private sector of the economy to provide goods 

20 and services necessary for or beneficial to the oper21 ation and management of Federal agencies and to 

22 avoid unfair Government competition with the pri23 vate sector of the economy. 

24 SEC. 3. DEFINITIONS. 

25 In this Act, the term ‘‘agency’’ means— 


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1 (1) an executive department as defined by sec2 tion 101 of title 5, United States Code; 

3 (2) a military department as defined by section 

4 102 of such title; and 

5 (3) an independent establishment as defined by 

6 section 104(l) of such title. 

7 SEC. 4. PROCUREMENT FROM PRIVATE SOURCES. 

8 (a) POLICY.—In the process of governing, the Fed9 eral Government should not compete with its citizens. The 

10 competitive enterprise system, characterized by individual 

11 freedom and initiative, is the primary source of national 

12 economic strength. In recognition of this principle, it has 

13 been and continues to be the general policy of the Federal 

14 Government— 

15 (1) to rely on commercial sources to supply the 

16 products and services the Government needs; 

17 (2) to refrain from providing a product or serv18 ice if the product or service can be procured more 

19 economically from a commercial source; and 

20 (3) to utilize Federal employees to perform in21 herently governmental functions (as that term is de22 fined in section 5 of the Federal Activities Inventory 

23 Reform Act of 1998 (Public Law 105–270; 112 

24 Stat. 2384)). 


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1 (b) GENERAL RULE.—Except as provided in sub2 section (c) and notwithstanding any other provision of law, 

3 each agency shall obtain all goods and services necessary 

4 for or beneficial to the accomplishment of its authorized 

5 functions by procurement from private sources. 

6 (c) EXEMPTIONS.—Subsection (b) shall not apply to 

7 an agency with respect to goods or services if— 

8 (1) the goods or services are required by law to 

9 be produced or performed, respectively, by the agen10 cy; or 

11 (2) the head of the agency determines and cer12 tifies to Congress in accordance with regulations 

13 promulgated by the Director of the Office of Man14 agement and Budget that— 

15 (A) Federal Government production, man16 ufacture, or provision of a good or service is 

17 necessary for the national defense or homeland 

18 security; 

19 (B) a good or service is so inherently gov20 ernmental in nature that it is in the public in21 terest to require production or performance, re22 spectively, by Government employees; or 

23 (C) there is no private source capable of 

24 providing the good or service. 


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1 (d) METHOD OF PROCUREMENT.—The provision of 

2 goods and services not exempt by subsection (c)(1) or 

3 (c)(2) shall be performed by an entity in the private sector 

4 through— 

5 (1) the divestiture of Federal involvement in the 

6 provision of a good or service; 

7 (2) the award of a contract to an entity in the 

8 private sector, using competitive procedures, as de9 fined in section 309 of the Federal Property and Ad10 ministrative Services Act of 1949 (41 U.S.C. 259) 

11 and section 2302 of title 10, United States Code; 

12 (3) converting an activity to performance by a 

13 qualified firm under at least 51 percent ownership 

14 by an Indian tribe, as defined in section 4(e) of the 

15 Indian Self-Determination and Education Assistance 

16 Act (25 U.S.C. 450b(e)), or a Native Hawaiian Or17 ganization, as defined in section 8(a)(15) of the 

18 Small Business Act (15 U.S.C. 637(a)(15)); or 

19 (4) conducting a public-private competitive 

20 sourcing analysis in accordance with the procedures 

21 established by the Office of Management and Budg22 et and determining that using the assets, facilities, 

23 and performance of the private sector is in the best 

24 interest of the United States and that production or 


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1 performance, respectively, by the private sector pro2 vides the best value to the taxpayer. 

3 (e) CONTRACTED ACTIVITIES.—The head of an agen4 cy may utilize Federal employees to provide goods or serv5 ices previously provided by an entity in the private sector 

6 upon completion of a public-private competitive sourcing 

7 analysis described in subsection (d)(4), and after making 

8 a determination that the provision of such goods or serv9 ices by Federal employees provides the best value to the 

10 taxpayer. 

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

12 Management and Budget shall promulgate such regula13 tions as the Director considers necessary to carry out this 

14 section. In promulgating such regulations, the Director 

15 shall assure that any State or territory, or political sub16 division of a State or territory, complies with the policy 

17 and implements the requirements of this section when ex18 pending Federal funds. 

19 SEC. 5. STUDY AND REPORT. 

20 The Director of the Office of Management and Budg21 et, in conjunction with the Comptroller General of the 

22 United States, shall carry out a study to evaluate the ac23 tivities carried out in each agency, including those identi24 fied as commercial and inherently governmental in nature 

25 in the inventory prepared pursuant to the Federal ActiviVerDate Nov 24 2008 02:16 Jun 04, 2009 Jkt 079200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1167.IS S1167

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1 ties Inventory Reform Act (Public Law 105–270; 31 

2 U.S.C. 501 note) and shall transmit a report to the Con3 gress prior to June 30 of each year. The report shall in4 clude— 

5 (1) an evaluation of the justification for ex6 empting activities pursuant to section 4(c); and 

7 (2) a schedule for the transfer of commercial 

8 activities to the private sector, pursuant to section 

9 4(d), to be completed within 5 years after the date 

10 on which such report is transmitted to the Congress. 

Æ 


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