HR 721 IH

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.

February 14, 2001

Mr. WYNN (for himself, Mr. BROWN of Ohio, Mr. LANGEVIN, Ms. EDDIE BERNICE JOHNSON of Texas, Mr. DEFAZIO, Mr. MEEKS of New York, Mr. DELAHUNT, Mr. BALDACCI, Mr. FROST, Mr. WEXLER, Mr. GEORGE MILLER of California, Mr. BLAGOJEVICH, Mr. WATT of North Carolina, Mr. HOLDEN, Mr. BONIOR, Mr. GUTIERREZ, Ms. MCCARTHY of Missouri, Mr. SISISKY, Mr. SANDERS, Mr. ENGEL, Mr. MCNULTY, Mr. PAYNE, Mr. KILDEE, Mr. FILNER, Mr. CUMMINGS, Ms. WOOLSEY, Mr. SAWYER, Mr. STUPAK, Mr. KANJORSKI, Mr. MURTHA, Mr. HILLIARD, Mr. DICKS, Ms. JACKSON-LEE of Texas, Mr. OBERSTAR, Mr. DINGELL, Mr. SPRATT, Mr. KLECZKA, Mrs. MORELLA, Mr. HINCHEY, Mr. SERRANO, Mr. ABERCROMBIE, Mr. FRANK, Mr. MOORE, Mr. WAXMAN, Ms. KILPATRICK, Mrs. MALONEY of New York, Mrs. MINK of Hawaii, Mr. HOYER, Mr. ALLEN, Mrs. THURMAN, Ms. MCKINNEY, Mr. PRICE of North Carolina, Mr. FORD, Mr. STARK, Mr. PALLONE, Mr. KUCINICH, Mr. STRICKLAND, Ms. PELOSI, Mr. CONYERS, Mr. THOMPSON of Mississippi, Ms. BROWN of Florida, Ms. HOOLEY of Oregon, Mr. BACA, Mr. HALL of Ohio, Mrs. MCCARTHY of New York, Ms. BALDWIN, Mr. GREEN of Texas, and Mr. RAHALL) introduced the following bill; which was referred to the Committee on Government Reform

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.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE- This Act may be cited as the `Truthfulness, Responsibility, and Accountability in Contracting Act'.

(b) TABLE OF CONTENTS- The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings and purposes.

Sec. 3. Definitions.

Sec. 4. Temporary suspension of new contracting out, privatization, outsourcing, contracting, and other such initiatives; waiver authority.

Sec. 5. Agency reporting systems and required reports.

Sec. 6. Requirement for public-private competition.

Sec. 7. Review of contractor performance.

Sec. 8. Survey of wages and benefits provided by contractors.

Sec. 9. Comptroller General reports.

Sec. 10. Applicability.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS- The Congress finds the following:

(1) There has been a major increase in service contracting (relying on private contractors to provide services to the Federal Government) since 1993.

(2) Federal agencies have been increasing reliance on service contracting even though there are no reliable and comprehensive reporting systems in place to determine whether service contracting has achieved measurable cost savings or improved Government services for taxpayers.

(3) Federal agencies have contracted out work that either is being performed or could be performed by Federal employees without any public-private competition.

(4) Federal employees are being replaced by contractor employees without even knowing with certainty if the result is reduced costs or improved services.

(5) Federal agencies do not have systems in place to provide for work currently performed by Federal contractors to be performed by Federal employees, even after a determination that in-house performance would be more efficient and more cost effective.

(6) Arbitrary personnel ceilings, used to reduce the size of the Federal workforce, are--

(A) forcing agencies to lay off Federal employees who could perform at least some of this work effectively and at a savings to the taxpayer;

(B) preventing agencies from hiring new Federal employees who could perform this work effectively and at a savings to taxpayers; and

(C) forcing agencies to give work to private contractors without any public-private competition, often at higher costs.

(7) Public-private competition must be used equitably in order to be fair to both taxpayers and Federal employees.

(8) It would be in the best interests of taxpayers if Federal contractors faced the same level of public-private competition as that experienced by Federal employees, especially when it has been reliably determined that the Federal contractor workforce is almost twice as large as the Federal employee workforce.

(9) In order to satisfactorily address these serious problems, Federal service contracting should be temporarily suspended.

(10) This suspension should affect only new contracts, and include a waiver to allow agencies to enter into new contracts in certain circumstances in order to preclude any serious Federal Government disruption.

(b) PURPOSES- The purposes of this Act are to--

(1) improve the ability of the Federal Government to carry out its mission and perform its business in the public interest in a cost-effective manner; and

(2) temporarily suspend new Federal service contracting until agencies have--

(A) established comprehensive and reliable reporting systems to track the costs of service contracting;

(B) prevented work from being given to contractors without public-private competitions; and

(C) subjected work performed by Federal contractors to the same level of public-private competition as that experienced by Federal employees.

SEC. 3. DEFINITIONS.

As used in this Act:

(1) The term `employee' means any individual employed--

(A) as a civilian in a military department (as defined in section 102 of title 5, United States Code);

(B) in an executive agency (as defined in section 105 of title 5, United States Code), including an employee who is paid from nonappropriated funds;

(C) in those units of the legislative and judicial branches of the Federal Government having positions in the competitive service;

(D) in the Library of Congress;

(E) in the Government Printing Office; or

(F) by the Governors of the Federal Reserve System.

(2) The term `agency' means any department, agency, bureau, commission, activity, or organization of the United States, that employs an employee (as defined in paragraph (1)).

(3) The term `non-Federal personnel' means employed individuals who are not employees, as defined in paragraph (1).

(4) The term `contractor' means an individual or entity that performs a function for an agency under a contract with non-Federal personnel.

(5) The term `privatization' means the end result of the decision of an agency to exit a business line, terminate an activity, or sell Government owned assets or operational capabilities to the non-Federal sector.

(6) The term `outsourcing' means the end result of the decision of an agency to acquire services from external sources, either from a non-Federal source or through interservice support agreements, through a contract.

(7) The term `contracting out' means the conversion by an agency of the performance of a function to the performance by a non-Federal employee under a contract between an agency and an individual or other entity.

(8) The term `contracting in' is the conversion of the performance of a function by non-Federal employees under a contract between an agency and an individual or other entity to the performance by employees.

(9) The term `contracting' means the performance of a function by non-Federal employees under a contract between an agency and an individual or other entity. The term `contracting', as used throughout this Act, includes privatization, outsourcing, contracting out, and contracting, unless otherwise specifically provided.

(10)(A) Subject to subparagraph (B), the term `critical for the provision of patient care' means direct patient medical and hospital care that the Department of Veterans Affairs or other Federal hospitals or clinics are not capable of furnishing because of geographical inaccessibility, medical emergency, or the particularly unique type of care or service required.

(B) The term does not include support and administrative services for hospital and clinic operations, including food service, laundry services, grounds maintenance, transportation services, office operations, and supply processing and distribution services.

SEC. 4. TEMPORARY SUSPENSION OF NEW CONTRACTING OUT, PRIVATIZATION, OUTSOURCING, CONTRACTING, AND OTHER SUCH INITIATIVES; WAIVER AUTHORITY.

(a) SUSPENSION- (1) Beginning on the date of the enactment of this Act, no agency shall make a decision, with respect to any function performed by the agency, to privatize, outsource, contract out, or contract for the performance of such function, or to conduct a study to convert the performance of the function to the performance by a contractor. This subsection does not apply to work performed by the private sector prior to the date of enactment of this Act.

(2)(A) Notwithstanding paragraph (1), an agency may undertake a contracting effort of a function not then performed by Federal employees if the function would be performed under contract by the blind or handicapped (or both).

(B) Any contract entered into pursuant to subparagraph (A) shall be immediately terminated if it is determined that the performance of the function is not being carried out by the blind or handicapped.

(C) In this paragraph:

(i) The term `blind' has the meaning that term has in section 5(1) of the Javits-Wagner-O'Day Act (41 U.S.C. 48b(1)).

(ii) The term `handicapped' means an individual or class of individuals with a disability, as that term is defined in section 7(9) of the Rehabilitation Act of 1973 (29 U.S.C. 705(9)).

(b) WAIVER- (1) Any agency may submit to the Director of the Office of Management and Budget a request for a waiver of this section with regard to a particular function. Such a waiver request shall--

(A) identify the facilities, units, or activities affected;

(B) specify the reason a waiver is needed;

(C) identify the duration sought; and

(D) explain the justification for the waiver.

(2) The Director of the Office of Management and Budget may grant a waiver with regard to a particular function if the Director determines that a waiver--

(A) is necessary for the preservation of national security;

(B) is critical for the provision of patient care; or

(C) is necessary to prevent extraordinary economic harm.

(3) The Director of the Office of Management and Budget may not grant a waiver under this section until the Director publishes the request of the agency for a waiver in the Federal Register.

(c) EXCEPTIONS- (1) Subsection (b) shall not apply with regard to a function performed by employees within a unit with respect to which a labor organization is accorded exclusive recognition under chapter 71 of title 5, United States Code--

(A) if the waiver would violate a collective bargaining agreement (as defined in section 7103(a)(8) of title 5, United States Code) between the agency and the labor organization, unless there is another written waiver between the agency and the labor organization; or

(B) if the waiver is not covered by such a collective bargaining agreement, until there has been consultation or negotiation, as appropriate, by the agency with the labor organization.

(2) Subsection (b) shall not apply with regard to a function performed by employees within any unit with respect to which a labor organization has not been accorded exclusive recognition under chapter 71, title 5, United States Code, unless the agency has consulted with the employees in the unit regarding the waiver.

SEC. 5. AGENCY REPORTING SYSTEMS AND REQUIRED REPORTS.

(a) CENTRALIZED REPORTING SYSTEM- Not later than 180 days after the date of the enactment of this Act,

each agency shall establish a centralized reporting system in accordance with guidance promulgated by the Office of Management and Budget that allows the agency to generate periodic reports on the contracting efforts of the agency. Such centralized reporting system shall be designed to enable the agency to generate reports on efforts regarding both contracting out and contracting in.

(b) REPORTS ON CONTRACTING EFFORTS- (1) Not later than 180 days after the date of the enactment of this Act, every agency shall generate and submit to the Director of the Office of Management and Budget a report on the contracting efforts of the agency undertaken during the 2 fiscal years immediately preceding the fiscal year during which this Act is enacted. Such report shall comply with the requirements in paragraph (3).

(2) For the current fiscal year and every fiscal year thereafter, every agency shall complete and submit to the Director of the Office of Management and Budget a report on the contracting efforts undertaken by the agency during the current fiscal year. Such reports shall comply with the requirements in paragraph (3), and shall be completed and submitted not later than the end of the first fiscal quarter of the subsequent fiscal year.

(3) The reports referred to in this subsection shall include the following information with regard to each contracting effort undertaken by the agency:

(A) The contract number and the Federal supply class or service code.

(B) A statement of why the contracting effort was undertaken and an explanation of what alternatives to the contracting effort were considered and why such alternatives were ultimately rejected.

(C) The names, addresses, and telephone numbers of the officials who supervised the contracting effort.

(D) The competitive process used or the statutory or regulatory authority relied on to enter into the contract without public-private competition.

(E) The cost of Federal employee performance at the time the work was contracted out (if the work had previously been performed by Federal employees).

(F) The cost of Federal employee performance under a Most Efficient Organization plan (if the work was contracted out through OMB Circular A-76).

(G) The anticipated cost of contractor performance, based on the award.

(H) The current cost of contractor performance.

(I) The actual savings, expressed both as a dollar amount and as a percentage of the cost of performance by Federal employees, based on the current cost, and an explanation of the difference, if any.

(J) A description of the quality control process used by the agency in connection with monitoring the contracting effort, identification of the applicable quality control standards, the frequency of the preparation of quality control reports, and an assessment of whether the contractor met, exceeded, or failed to achieve the quality control standards.

(K) The number of employees performing the contracting effort under the contract and any related subcontracts.

(c) REPORT ON CONTRACTING EFFORTS- (1) For the current fiscal year and every fiscal year thereafter, every agency shall complete and submit to the Director of the Office of Management and Budget a report on the contracting efforts undertaken by the agency during the current fiscal year. Such reports shall comply with the requirements in paragraph (2), and shall be completed and submitted not later than the end of the first fiscal quarter of the subsequent fiscal year.

(2) The reports referred to in paragraph (1) shall include the following information for each contracting in effort undertaken by the agency:

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

(B) A statement of why the contracting in effort was undertaken.

(C) The names, addresses, and telephone numbers of the officials who supervised the contracting in effort.

(D) The cost of performance at the time the work was contracted in.

(E) The current cost of performance by Federal employees or military personnel.

(d) REPORT ON EMPLOYEE POSITIONS- Not later than 30 days after the end of the current fiscal year and every fiscal year thereafter, every agency shall report on the number of Federal employee positions and positions held by non-Federal employees under a contract between

the agency and an individual or entity that has been subject to public-private competition.

(e) COMMITTEES TO WHICH REPORTS MUST BE SUBMITTED- The reports referred to in this section shall be submitted to the Committee on Government Reform of the House of Representatives and to the Committee on Governmental Affairs of the Senate.

(f) PUBLICATION- The Director of the Office of Management and Budget shall promptly publish in the Federal Register notices including a description of when the reports referred to in this section are available to the public and the names, addresses, and telephone numbers of the officials from whom the reports may be obtained.

(g) AVAILABILITY ON INTERNET- After the excision of proprietary information, the reports referred to in this section shall be made available through the Internet.

(h) REVIEW- The Director of the Office of Management and Budget shall review the reports referred to in this section and consult with the head of the agency regarding the content of such reports.

SEC. 6. REQUIREMENT FOR PUBLIC-PRIVATE COMPETITION.

(a) IN GENERAL- After the date of the enactment of this Act and the expiration of the suspension authority in section 4 of this Act, any decision by an agency to privatize, outsource, contract or contract out, including the exercise of options, extensions, and renewals of any contracting efforts, for the performance of a function shall be based on the results of a public-private competition process that--

(1) formally compares the costs of Federal employee performance of the function with the costs of the performance by a contractor;

(2) employs the most efficient organization process described in OMB Circular A-76; and

(3) is conducted in consultation or through bargaining with the exclusive representative of the Federal employees performing the function, if applicable. This subsection does not apply to work performed by the private sector prior to the date of enactment of this Act.

(b) DETERMINATION OF COSTS- (1) An agency shall commence or continue the performance of a function by Federal employees if, under a cost comparison performed pursuant to a public-private competition process described in subsection (a), the agency determines that at least a 10-percent cost savings would not be achieved by performance of the function by a contractor.

(2) During the temporary suspension established in section 4 of this Act, an agency may undertake a contracting effort made pursuant to the issuance of a waiver granted under section 4 for a function that is not currently performed by Federal employees if the agency has determined the total cost to the agency of performing the function by a contractor and the total cost to the agency of having those services performed by Federal employees and that the contractor performance costs are less than the Federal employee performance costs.

(c) INAPPLICABILITY OF CERTAIN LIMITATION- Notwithstanding any limitation on the number of Federal employees established by law, regulation, or policy, an agency may continue to employ, or may hire, such Federal employees as are necessary to perform work acquired through public-private competition required by this section.

SEC. 7. REVIEW OF CONTRACTOR PERFORMANCE.

(a) IN GENERAL- If a report completed pursuant to section 5 indicates that, for 2 consecutive years, the actual cost of privatization, outsourcing, contracting, or contracting out of a particular function exceeds the anticipated cost of contractor performance, based on the award (referred to in section 5(b)(3)(G)), or fails to substantially meet quality control standards (referred to in section 5(b)(3)(J)), the agency shall either conduct a new public-private competition or convert the function to performance by Federal employees not later than the earlier of the date of the expiration of the contract or the beginning of the first fiscal year which is not more than 12 months after the initial determination that the cost of a contracting effort exceeds the anticipated cost of contractor performance or that quality standards have not been substantially met. Any resulting terminations for convenience may be undertaken without cost to the United States Government. This subsection does not apply to work performed by the private sector prior to the date of enactment of this Act.

(b) PUBLIC-PRIVATE COMPETITION- For each fiscal year, an agency shall subject to public-private competition an equivalent number of Federal employee positions and positions held by non-Federal employees under a contract between an agency and an individual or entity.

(c) INAPPLICABILITY OF CERTAIN LIMITATION- Notwithstanding any limitation on the number of Federal employees established by law, regulation, or policy, an agency may continue to employ or may hire such Federal employees as are necessary to perform work acquired through public-private competition required by this section.

SEC. 8. SURVEY OF WAGES AND BENEFITS PROVIDED BY CONTRACTORS.

(a) REQUIREMENT TO CONDUCT SURVEY- Using information provided by agencies, the Secretary of Labor shall conduct a survey of the wages and quantifiable benefits provided by contractors to non-Federal personnel working in various occupations under contracts between agencies and individuals or entities that were entered into during the 2 fiscal years immediately preceding the date of the enactment of this Act.

(b) REVIEW- (1) The Director of the Office of Personnel Management shall--

(A) review the analysis prepared by the Secretary of Labor under subsection (a) and determine the extent to which the wages and quantifiable benefits paid by contractors are comparable to the wages and quantifiable benefits earned by Federal employees; and

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

(2) Not later than 180 days after the date of the enactment of this Act, the report shall be submitted to the Committee on Government Reform of the House of Representatives and to the Committee on Governmental Affairs of the Senate, and published in the Federal Register.

(c) GUIDANCE- The Director of the Office of Management and Budget shall issue guidance to implement the provisions of this section.

SEC. 9. COMPTROLLER GENERAL REPORTS.

The Comptroller General shall report to the Committee on Government Reform of the House of Representatives and the Committee on Governmental Affairs of the Senate every 60 days after the date of the enactment of this Act on the compliance by agencies with the requirements of this Act.

SEC. 10. APPLICABILITY.

This Act--

(1) does not apply with respect to the General Accounting Office;

(2) does not apply with respect to depot-level maintenance and repair of the Department of Defense (as defined in section 2460 of title 10, United States Code); and

(3) does not apply with respect to contracts for the construction of new structures or the remodeling of or additions to existing structures, but shall apply to all contracts for the repair and maintenance of any structures.

END