I

104TH CONGRESS

2D SESSION H. R. 3745

To amend title 18, United States Code, to minimize unfair competition

for Federal contracting opportunities between Federal Prison Industries

and private firms, especially small business concerns, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

JUNE 27, 1996

Mrs. MEYERS of Kansas (for herself, Mr. HOEKSTRA, Mr. CHRYSLER, Mr.

MANZULLO, Mr. HILLEARY, Mr. BARCIA, Mr. HEFLEY, Mr. BARTLETT

of Maryland, Mr. COLLINS of Georgia, Mr. OXLEY, Mr. EHLERS, Mr.

TAYLOR of North Carolina, Mr. BALLENGER, Mr. UPTON, Mr. ENGLISH

of Pennsylvania, Mr. COBLE, Mr. KNOLLENBERG, Mr. CALVERT, Mr.

CHAMBLISS, Mr. CRAMER, Mr. BARR of Georgia, Mr. DEAL of Georgia,

Mr. LINDER, Mr. EVERETT, Mr. SALMON, Mr. STUMP, Mr. BAKER of

Louisiana, Mr. FLANAGAN, and Mr. QUILLEN) introduced the following

bill; which was referred to the Committee on the Judiciary

A BILL

To amend title 18, United States Code, to minimize unfair

competition for Federal contracting opportunities between Federal Prison Industries and private firms, especially small business concerns, 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.

2 This Act may be cited as the ‘‘Federal Prison Indus3 tries Competition in Contracting Corrections Act of

4 1996’’.

5 SEC. 2. PURCHASE OF PRISON-MADE PRODUCTS BY FED6 ERAL AGENCIES.

7 Section 4124 of title 18, United States Code, is

8 amended to read as follows:

9 ‘‘§ 4124. Purchase of prison-made products by Federal

10 departments and agencies

11 ‘‘(a) PURCHASE OF PRISON-MADE PRODUCTS.—

12 Each Federal department and agency shall offer to pur13 chase prison-made products in accordance with this sec14 tion.

15 ‘‘(b) REQUIREMENTS FOR PRISON-MADE PROD16 UCTS.—(1) When a procurement activity of a Federal de17 partment or agency has a requirement for a specific prod18 uct that is authorized to be offered for sale by Federal

19 Prison Industries (in accordance with section 4122 of this

20 title) and is listed in the catalog referred to in subsection

21 (f), the procurement activity shall solicit an offer from

22 Federal Prison Industries.

23 ‘‘(2) A contract award for such product shall be made

24 using competitive procedures in accordance with the speci25 fications and evaluation factors specified in the solicita26 tion.
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1 ‘‘(3) A contract award for such product may be made

2 to Federal Prison Industries if the contracting officer for

3 the procurement activity determines that—

4 ‘‘(A) the prison-made product to be furnished

5 will meet the requirements of the procurement activ6 ity (including any applicable prequalification require7 ments and all specified commercial or governmental

8 standards pertaining to quality, testing, safety, serv9 iceability, and warranties);

10 ‘‘(B) timely performance of the contract can be

11 reasonably expected; and

12 ‘‘(C) the contract price does not exceed a cur13 rent market price as established by the competition.

14 ‘‘(c) PERFORMANCE BY FEDERAL PRISON INDUS15 TRIES.—Federal Prison Industries shall be required to

16 perform its contractual obligations under a contract

17 awarded by a Federal department or agency to the same

18 extent as any other contractor under such a contract.

19 ‘‘(d) FINALITY OF CONTRACTING OFFICER’S DECI20 SION.—(1) A decision by a contracting officer regarding

21 the award of a contract to Federal Prison Industries or

22 relating to the performance of such contract shall be final,

23 unless reversed on appeal pursuant to paragraph (2) or

24 (3).
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1 ‘‘(2) The Director of Federal Prison Industries may

2 appeal to the head of a Federal department or agency a

3 decision by a contracting officer not to award a contract

4 to Federal Prison Industries pursuant to subsection

5 (b)(3). The decision of the head of a Federal department

6 or agency on appeal shall be final.

7 ‘‘(3) A dispute between Federal Prison Industries

8 and a procurement activity regarding performance of a

9 contract shall be subject to a final resolution by the board

10 of contract appeals having jurisdiction over the procure11 ment activity’s contract performance disputes pursuant to

12 the Contract Disputes Act of 1978 (41 U.S.C. 601 et

13 seq.).

14 ‘‘(e) REPORTING OF PURCHASES.—Each Federal de15 partment or agency shall report purchases from Federal

16 Prison Industries to the Federal Procurement Data Sys17 tem (as referred to in section 6(d)(4) of the Office of Fed18 eral Procurement Policy Act (41 U.S.C. 405(d)(4))) in the

19 same manner as it reports to such System any acquisition

20 in an amount in excess of the simplified acquisition thresh21 old (as defined by section 4(11) of the Office of Federal

22 Procurement Policy Act (41 U.S.C. 403(11))).

23 ‘‘(f) CATALOG OF PRODUCTS.—Federal Prison In24 dustries shall publish and maintain a catalog of all specific

25 products and services that it is authorized to offer for sale.
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1 Such catalog shall be periodically revised as products and

2 services are added or deleted by its Board of Directors

3 (in accordance with section 4122(b) of this title).’’.

4 SEC. 3. DEFINITIONS.

5 Chapter 307 of title 18, United States Code, is

6 amended by adding at the end thereof the following new

7 section:

8 ‘‘§ 4130. Definitions

9 ‘‘As used in the chapter:

10 ‘‘(1) The term ‘reasonable share of the market’

11 means a share of the total purchases by the Federal

12 departments and agencies, as reported to the Fed13 eral Procurement Data System for any specific prod14 uct during the 3 preceding fiscal years, that does not

15 exceed 20 percent of the Federal market for the spe16 cific product.

17 ‘‘(2) The term ‘specific product’ means a prod18 uct that is designed and manufactured to meet re19 quirements distinct in function and predominant ma20 terial of manufacture from another product, as de21 scribed by—

22 ‘‘(A) the 7-digit classification for the prod23 uct in the Standard Industrial Classification

24 (SIC) Code published by the Office of Manage25 ment and Budget (or if there is no 7-digit code
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1 classification for a product, the 5-digit code

2 classification); and

3 ‘‘(B) the 13-digit National Stock Number

4 assigned to such product under the Federal

5 Stock Classification System (including group,

6 part number, and section), as determined by

7 the General Services Administration.’’.

8 SEC. 4. IMPLEMENTATION IN THE FEDERAL ACQUISITION

9 REGULATION.

10 (a) PROPOSED REVISIONS.—Proposed revisions to

11 the government-wide Federal Acquisition Regulation to

12 implement the amendments made by this Act shall be pub13 lished not later than 60 days after the date of the enact14 ment of this Act and provide not less than 60 days for

15 public comment.

16 (b) FINAL REGULATIONS.—Final regulations shall be

17 published not later than 180 days after the date of the

18 enactment of this Act and shall be effective on the date

19 that is 30 days after the date of publication.

20 (c) PUBLIC PARTICIPATION.—The proposed regula21 tions required by subsection (a) and the final regulations

22 required by subsection (b) shall afford an opportunity for

23 public participation in accordance with section 22 of the

24 Office of Federal Procurement Policy Act (41 U.S.C.

25 418b).
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1 SEC. 5. RULE OF CONSTRUCTION.

2 Subsection (d) of section 4124 of title 18, United

3 States Code, as amended by section 2, is not intended to

4 alter any rights of any offeror other than Federal Prison

5 Industries to file a bid protest in accordance with other

6 law or regulation in effect on the date of the enactment

7 of this Act.

8 SEC. 6. EFFECTIVE DATE AND APPLICABILITY.

9 (a) EFFECTIVE DATE.—Except as provided in sub10 section (b), this Act and the amendments made by this

11 Act shall take effect on the date of enactment of this Act.

12 (b) APPLICABILITY.—Section 4124 of title 18, United

13 States Code, as amended by section 2, shall apply to any

14 requirement for a product offered by Federal Prison In15 dustries needed by a Federal department or agency after

16 the effective date of the final regulations issued pursuant

17 to section 3(b), or after March 31, 1997, whichever is ear18 lier.

Æ