II 

109TH CONGRESS 

1ST SESSION S. 749

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 

APRIL 11, 2005

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

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. 401 et seq.) is amended by 

8 adding at the end the following: 
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1 ‘‘SEC. 42. 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, or 

9 any service offered to be provided by Federal Prison In10 dustries, the head of an executive agency shall, except as 

11 provided in subsection (d)—

12 ‘‘(1) use competitive procedures for entering 

13 into a contract for the procurement of such product, 

14 in accordance with the requirements applicable to 

15 such executive agency under sections 2304 and 2305 

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

17 through 303C of the Federal Property and Adminis18 trative Services Act of 1949 (41 U.S.C. 253 through 

19 253c); or 

20 ‘‘(2) make an individual purchase under a mul21 tiple award contract in accordance with competition 

22 requirements applicable to such purchases. 

23 ‘‘(b) OFFERS FROM FEDERAL PRISON INDUS24 TRIES.—In conducting a procurement pursuant to sub25 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; 

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); and 

9 ‘‘(3) consider a timely offer from Federal Pris10 on Industries without limitation as to the dollar 

11 value of the proposed purchase, unless the contract 

12 opportunity has been reserved for competition exclu13 sively among small business concerns pursuant to 

14 section 15(a) of the Small Business Act (15 U.S.C. 

15 644(a)) and its implementing regulations. 

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

17 each executive agency shall ensure that—

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

19 Federal Prison Industries product or service unless 

20 a contracting officer of the executive agency deter21 mines that the product or service is comparable to 

22 a product or service available from the private sector 

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

24 of price, quality, and time of delivery; and 
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1 ‘‘(2) Federal Prison Industries performs its 

2 contractual obligations to the executive agency to the 

3 same extent as any other contractor for the execu4 tive agency. 

5 ‘‘(d) EXCEPTION.—

6 ‘‘(1) OTHER PROCEDURES.—The head of an ex7 ecutive agency may use procedures other than com8 petitive procedures to enter into a contract with 

9 Federal Prison Industries only under the following 

10 circumstances: 

11 ‘‘(A) The Attorney General personally de12 termines in accordance with paragraph (2), 

13 within 30 days after Federal Prison Industries 

14 has been informed by the head of that executive 

15 agency of an opportunity for award of a con16 tract for a product or service, that—

17 ‘‘(i) Federal Prison Industries cannot 

18 reasonably expect fair consideration in the 

19 selection of an offeror for award of the 

20 contract on a competitive basis; and 

21 ‘‘(ii) the award of the contract to Fed22 eral Prison Industries for performance at a 

23 penal or correctional facility is necessary to 

24 maintain work opportunities not otherwise 

25 available at the penal or correctional facil-
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1 ity that prevent circumstances that could 

2 reasonably be expected to significantly en3 danger the safe and effective administra4 tion of such facility. 

5 ‘‘(B) The product or service is available 

6 only from Federal Prison Industries and the 

7 contract may be awarded under the authority of 

8 section 2304(c)(1) of title 10, United States 

9 Code, or section 303(c)(1) of the Federal Prop10 erty and Administrative Services Act of 1949 

11 (41 U.S.C. 253(c)(1)), as may be applicable, 

12 pursuant to the justification and approval re13 quirements relating to noncompetitive procure14 ments specified by law and the Federal Acquisi15 tion Regulation. 

16 ‘‘(2) DETERMINATION.—

17 ‘‘(A) IN GENERAL.—A determination made 

18 by the Attorney General regarding a contract 

19 pursuant to paragraph (1)(A) shall be—

20 ‘‘(i) supported by specific findings by 

21 the warden of the penal or correctional in22 stitution at which a Federal Prison Indus23 tries workshop is scheduled to perform the 

24 contract; 
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1 ‘‘(ii) supported by specific findings by 

2 Federal Prison Industries regarding the 

3 reasons that it does not expect to be se4 lected for award of the contract on a com5 petitive basis; and 

6 ‘‘(iii) made and reported in the same 

7 manner as a determination made pursuant 

8 to section 303(c)(7) of the Federal Prop9 erty and Administrative Services Act of 

10 1949 (41 U.S.C. 253(c)(7)). 

11 ‘‘(B) NONDELEGATION.—The Attorney 

12 General may not delegate to any other official 

13 authority to make a determination that is re14 quired under paragraph (1)(A) to be made per15 sonally by the Attorney General. 

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

17 ‘‘(1) IN GENERAL.—A contractor or potential 

18 contractor under a contract entered into by the head 

19 of an executive agency may not be required to use 

20 Federal Prison Industries as a subcontractor or sup21 plier of a product or provider of a service for the 

22 performance of the contract by any means, including 

23 means such as—

24 ‘‘(A) a provision in a solicitation of offers 

25 that requires a contractor to offer to use or 
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1 specify a product or service of Federal Prison 

2 Industries in the performance of the contract; 

3 ‘‘(B) a contract clause that requires the 

4 contractor to use or specify a product or service 

5 (or classes of products or services) offered by 

6 Federal Prison Industries in the performance of 

7 the contract; or 

8 ‘‘(C) any contract modification that re9 quires the use of a product or service of Federal 

10 Prison Industries in the performance of the 

11 contract. 

12 ‘‘(2) SUBCONTRACTOR OR SUPPLIER.—A con13 tractor using Federal Prison Industries as a subcon14 tractor or supplier in furnishing a commercial prod15 uct pursuant to a contract of an executive agency 

16 shall implement appropriate management procedures 

17 to prevent an introduction of an inmate-produced 

18 product into the commercial market. 

19 ‘‘(3) DEFINITION.—In this subsection, the term 

20 ‘contractor’, with respect to a contract, includes a 

21 subcontractor at any tier under the contract. 

22 ‘‘(f) PROTECTION OF CLASSIFIED AND SENSITIVE

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

24 enter into any contract with Federal Prison Industries 

25 under which an inmate worker would have access to—
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1 ‘‘(1) any data that is classified or will become 

2 classified after being merged with other data; 

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

4 of—

5 ‘‘(A) surface or subsurface infrastructure 

6 providing communications or water or electrical 

7 power distribution; 

8 ‘‘(B) pipelines for the distribution of nat9 ural gas, bulk petroleum products, or other 

10 commodities; or 

11 ‘‘(C) other utilities; or 

12 ‘‘(3) any personal or financial information 

13 about any individual private citizen, including infor14 mation relating to such person’s real property how15 ever described, without the prior consent of the indi16 vidual.’’. 

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

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

19 end the following:

‘‘Sec. 42. Governmentwide procurement policy relating to purchases from Federal Prison Industries.’’.

20 SEC. 2. CONFORMING AMENDMENTS. 

21 (a) REPEAL OF INCONSISTENT REQUIREMENTS AP22 PLICABLE TO DEPARTMENT OF DEFENSE.—

23 (1) IN GENERAL.—Section 2410n of title 10, 

24 United States Code, is repealed. 
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1 (2) TABLE OF SECTIONS.—The table of sections 

2 at the beginning of chapter 141 of such title is 

3 amended by striking the item relating to section 

4 2410n. 

5 (b) REPEAL OF INCONSISTENT REQUIREMENTS AP6 PLICABLE TO OTHER AGENCIES.—Section 4124 of title 

7 18, United States Code, is amended—

8 (1) by striking subsections (a) and (b) and re9 designating subsections (c) and (d) as subsections 

10 (a) and (b), respectively; and 

11 (2) in subsection (a), as redesignated by para12 graph (1), by striking ‘‘Federal department, agency, 

13 and institution subject to the requirements of sub14 section (a)’’ and inserting ‘‘Federal department and 

15 agency’’. 

16 (c) OTHER LAWS.—

17 (1) JAVITS-WAGNER-O’DAY ACT.—Section 3 of 

18 the Javits-Wagner-O’Day Act (41 U.S.C. 48) is 

19 amended by striking ‘‘which, under section 4124 of 

20 such title, is required’’ and inserting ‘‘which is re21 quired by law’’. 

22 (2) SMALL BUSINESS ACT.—Section 31(b)(4) of 

23 the Small Business Act (15 U.S.C. 657a(b)(4)) is 

24 amended by striking ‘‘a different source under sec25 tion 4124 or 4125 of title 18, United States Code, 
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1 or the Javits-Wagner-O’Day Act (41 U.S.C. 46 et 

2 seq.)’’ and inserting ‘‘a different source under the 

3 Javits-Wagner-O’Day Act (41 U.S.C. 46 et seq.) or 

4 Federal Prison Industries under section 40(d) of the 

5 Office of Federal Procurement Policy Act or section 

6 4125 of title 18, United States Code’’. 

7 SEC. 3. UNLAWFUL TRANSPORTATION OR IMPORTATION OF 

8 PRODUCTS, SERVICES, OR MINERALS RE9 SULTING FROM CONVICT LABOR. 

10 (a) PROHIBITION.—Section 1761 of title 18, United 

11 States Code, is amended—

12 (1) in subsection (a), by inserting after ‘‘re13 formatory institution,’’ the following: ‘‘or knowingly 

14 sells in interstate commerce any services, other than 

15 disassembly and scrap resale activities to achieve 

16 landfill avoidance, furnished wholly or in part by 

17 convicts or prisoners, except convicts or prisoners on 

18 parole, supervised release, or probation, or in any 

19 penal or reformatory institution,’’; and 

20 (2) in the matter preceding paragraph (1) in 

21 subsection (c), by inserting ‘‘, or services furnished,’’ 

22 after ‘‘or mined’’. 

23 (b) COMPLETION OF EXISTING AGREEMENTS.—Any 

24 prisoner work program operated by the Federal Govern25 ment or by a State or local government which was pro-
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1 viding a service for the commercial market through inmate 

2 labor on October 1, 2005, may continue to provide such 

3 commercial services until—

4 (1) the expiration that was specified in the con5 tract or other agreement with a commercial partner 

6 on October 1, 2005; or 

7 (2) until September 30, 2006, if no expiration 

8 date was specified in a contract or other agreement 

9 with a commercial partner. 

10 (c) APPROVAL REQUIRED FOR LONG-TERM OPER11 ATION OF STATE AND LOCAL PROGRAMS.—Except as pro12 vided in subsection (b), a prison work program operated 

13 by a State or local government may provide a service for 

14 the commercial market through inmate labor only if such 

15 program has been certified pursuant to section 1761(c) 

16 of title 18, United States Code, and is in compliance with 

17 the requirements of such subsection and its implementing 

18 regulations. 

19 (d) APPROVAL REQUIRED FOR LONG-TERM OPER20 ATION OF FEDERAL PROGRAMS.—Except as provided in 

21 subsection (b), a prison work program operated by the 

22 Federal Government may provide a service for the com23 mercial market through inmate labor only if a Federal 

24 Prison Industries proposal to provide such services is ap25 proved in accordance with the requirements of this sub-
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1 section by the Secretary of Commerce, the Secretary of 

2 Labor, and the Administrator of the Small Business Ad3 ministration. Such a proposal may be approved only upon 

4 a determination, after notice and an opportunity for public 

5 comment, that—

6 (1) the service to be provided would be provided 

7 exclusively by foreign labor in the absence of the 

8 Federal Prison Industries proposal; and 

9 (2) the approval of the proposal will not have 

10 an adverse impact on employment in any United 

11 States business. 

12 (e) PROTECTION OF CLASSIFIED AND SENSITIVE IN13 FORMATION.—A prison work program operated by a State 

14 or local government may not provide a service, including 

15 a service for the commercial market through inmate labor 

16 pursuant to section 1761(c) of title 18, United States 

17 Code, under which an inmate worker would have access 

18 to—

19 (1) any data that is classified or will become 

20 classified after being merged with other data; 

21 (2) any geographic data regarding the location 

22 of—

23 (A) surface or subsurface infrastructure 

24 providing communications or water or electrical 

25 power distribution; 
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1 (B) pipelines for the distribution of natural 

2 gas, bulk petroleum products, or other commod3 ities; or 

4 (C) other utilities or transportation infra5 structure; or 

6 (3) any personal or financial information about 

7 any individual private citizen, including information 

8 relating to such person’s real property however de9 scribed, without the prior consent of the individual. 

10 SEC. 4. ADDITIONAL INMATE WORK OPPORTUNITIES 

11 THROUGH PUBLIC SERVICE ACTIVITIES. 

12 (a) COOPERATION WITH CHARITABLE ORGANIZA13 TIONS.—Chapter 307 of title 18, United States Code, is 

14 amended by adding at the end the following: 

15 ‘‘SEC. 4130. COOPERATION WITH CHARITABLE ORGANIZA16 TIONS. 

17 ‘‘(a) SALE OR DONATION OF PRODUCTS OR SERV18 ICES TO CHARITABLE ENTITIES.—Federal Prison Indus19 tries may, subject to subsection (b), sell or donate a prod20 uct or service to an organization described in section 

21 501(c)(3) of the Internal Revenue Code of 1986 that is 

22 exempt from taxation under section 501(a) of such Code. 

23 Any product or service sold or donated under this section 

24 may be donated or sold by the charitable organization to 
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1 low-income individuals who would otherwise have difficulty 

2 purchasing such products or services. 

3 ‘‘(b) WORK AGREEMENTS WITH CHARITABLE ORGA4 NIZATIONS.—

5 ‘‘(1) IN GENERAL.—Federal Prison Industries 

6 may sell or donate a product or service to a chari7 table organization under subsection (a) only pursu8 ant to a work agreement with the charitable organi9 zation receiving the product or service. 

10 ‘‘(2) TERMS.—Federal Prison Industries may 

11 enter a work agreement relating to a product and 

12 service under paragraph (1) only if—

13 ‘‘(A) the Attorney General determines, in 

14 consultation with the Secretary of Labor and 

15 the Secretary of Commerce, that the product or 

16 service would not be available except for the 

17 availability of inmate workers provided by Fed18 eral Prison Industries; and 

19 ‘‘(B) the work agreement is accompanied 

20 by a written certification by the chief executive 

21 officer of the charitable organization that—

22 ‘‘(i) no job of a noninmate employee 

23 or volunteer of the charitable organization 

24 (or any affiliate of the charitable organiza25 tion) will be abolished, and no such em-
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1 ployee’s or volunteer’s work hours will be 

2 reduced, as a result of the entity being au3 thorized to utilize inmate workers; and 

4 ‘‘(ii) the work to be performed by the 

5 inmate workers will not supplant work cur6 rently being performed by a contractor of 

7 the charitable organization. 

8 ‘‘(3) NONDELEGATION.—The Attorney General 

9 may not delegate authority to make determinations 

10 under paragraph (2)(A) to any person serving in a 

11 position below the lowest level of positions that are 

12 filled by appointment by the President, by and with 

13 the advice and consent of the Senate.’’. 

14 (b) CLERICAL AMENDMENT.—The table of sections 

15 at the beginning of chapter 307 of title 18, United States 

16 Code, is amended by adding at the end the following:

‘‘4130. Cooperation with charitable organizations.’’.

17 SEC. 5. ADDITIONAL REHABILITATIVE OPPORTUNITIES 

18 FOR INMATES. 

19 (a) ESTABLISHMENT OF PROGRAM.—

20 (1) IN GENERAL.—Chapter 303 of title 18, 

21 United States Code, is amended by adding at the 

22 end the following: 
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1 ‘‘SEC. 4049. ENHANCED IN-PRISON EDUCATIONAL AND VO2 CATIONAL ASSESSMENT AND TRAINING PRO3 GRAM. 

4 ‘‘(a) IN GENERAL.—There is established the En5 hanced In-Prison Educational and Vocational Assessment 

6 and Training Program within the Federal Bureau of Pris7 ons. 

8 ‘‘(b) REQUIREMENTS.—The program established 

9 under this section shall provide, at a minimum, a full 

10 range of educational opportunities, vocational training and 

11 apprenticeships, and comprehensive release-readiness 

12 preparation for inmates in Federal prisons.’’. 

13 (2) TABLE OF SECTIONS.—The table of sections 

14 at the beginning of such chapter is amended by add15 ing at the end the following:

‘‘4049. Enhanced In-Prison Educational and Vocational Assessment and Training Program.’’.

16 (b) IMPLEMENTATION OBJECTIVE.—It shall be the 

17 objective of the Federal Bureau of Prisons to implement 

18 the program established under section 4049 of title 18, 

19 United States Code (as added by subsection (a)), in all 

20 Federal prisons not later than 8 years after the date of 

21 the enactment of this Act. 
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1 SEC. 6. NEW PRODUCTS AND EXPANDED PRODUCTION OF 

2 EXISTING PRODUCTS. 

3 Federal Prison Industries shall, to the maximum ex4 tent practicable, increase inmate employment by pro5 ducing new products or expanding the production of exist6 ing products for the public sector that would otherwise be 

7 produced outside the United States. 

8 SEC. 7. TRANSITIONAL PERSONNEL MANAGEMENT AU9 THORITY. 

10 Any correctional officer or other employee of Federal 

11 Prison Industries being paid with nonappropriated funds 

12 who would be separated from service because of a reduc13 tion in the net income of Federal Prison Industries before 

14 the date that is 5 years after the date of the enactment 

15 of this Act shall be—

16 (1) eligible for appointment (or reappointment) 

17 in the competitive service in accordance with subpart 

18 B or part III of title 5, United States Code; 

19 (2) registered on a Bureau of Prisons reemploy20 ment priority list; and 

21 (3) given priority for any other position within 

22 the Bureau of Prisons for which such employee is 

23 qualified. 
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1 SEC. 8. EFFECTIVE DATE. 

2 The amendments made by this Act shall take effect 

3 180 days after the date of the enactment of this Act.

Æ