S 1152 IS

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.

June 29, 2001

Mr. DURBIN (for himself, Mr. DASCHLE, Mrs. MURRAY, Mr. CORZINE, Ms. LANDRIEU, Mr. FEINGOLD, Mr. LIEBERMAN, Mr. KENNEDY, Mr. SARBANES, Ms. MIKULSKI, Mr. TORRICELLI, Mr. REID, Mr. SCHUMER, Ms. STABENOW, and Mr. JOHNSON) introduced the following bill; which was read twice and referred to the Committee on Governmental Affairs

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 of 2001'.

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

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

Sec. 3. Certification of compliance.

Sec. 4. Agency reporting systems and required reports.

Sec. 5. Requirement for public-private competition.

Sec. 6. Review of contractor performance.

Sec. 7. Survey of wages and benefits provided by contractors.

Sec. 8. Comptroller General reports.

Sec. 9. Applicability.

SEC. 2. DEFINITIONS.

In this Act:

(1) AGENCY- The term `agency' means any department, agency, bureau, commission, activity, or organization of the United States, that employs an employee as defined under paragraph (6).

(2) CONTRACTING- The term `contracting' means--

(A) the performance of a function by non-Federal personnel under a contract between an agency and an individual or another entity; and

(B) includes privatization, outsourcing, contracting out, and contracting in, unless otherwise specifically provided.

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

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

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

(6) EMPLOYEE- 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.

(7) FUNCTION- The term `function' means a service activity, not procurement of goods.

(8) NON-FEDERAL PERSONNEL- The term `non-Federal personnel' means employed individuals who are not employees as defined under paragraph (6).

(9) OUTSOURCING- The term `outsourcing' means the action by an agency to acquire services from external sources, either from a non-Federal source or through interservice support agreements, through a contract.

(10) PATIENT CARE- The term `patient care'--

(A) 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 particularly unique type of care or service required; and

(B) 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.

(11) PRIVATIZATION- The term `privatization' means the action by an agency to exit a business line, terminate an activity, or sell Government owned assets or operational capabilities to the non-Federal sector.

SEC. 3. CERTIFICATION OF COMPLIANCE.

(a) REQUIREMENTS FOR HEADS OF AGENCIES-

(1) CERTIFICATIONS- Not later than 180 days after the date of enactment of this Act, the head of each agency shall submit to the Director of the Office of Management and Budget a certification that--

(A) the agency has established a centralized reporting system in accordance with section 4;

(B) in the case of each function of the agency that is being performed under contracting undertaken after the date of enactment of this Act, the contracting function decision was based on a public-private competition described under section 5;

(C) the agency is not managing Federal employees by any arbitrary limitations in accordance with sections 5 and 6; and

(D) the agency is reviewing work performed by contractors, recompeting or contracting in work when appropriate, and subjecting to public-private competition an approximate number of Federal employee and contractor positions in accordance with section 6.

(2) PUBLIC AVAILABILITY- The Director of the Office of Management and Budget shall--

(A) promptly after receiving certifications under paragraph (1)(B), publish in the Federal Register notices of the availability of the certifications to the public, including the names, business addresses, and business telephone numbers of the officials from whom the certifications can be obtained; and

(B) ensure that, after the removal of proprietary information, the head of each agency makes the certifications of that agency available to the public--

(i) upon request; and

(ii) on the World Wide Web.

(b) SUSPENSION OF CONTRACTING FOR SERVICES PENDING SATISFACTION OF CERTIFICATION REQUIREMENT-

(1) INITIAL DETERMINATIONS- Beginning 180 days after the date of enactment of this Act, the head of an agency may not enter into any contract for the performance of services until the Director of the Office of Management and Budget, after reviewing the certification required under subsection (a)(1), determines that the agency is making substantial progress toward meeting the requirements under subsection (a)(1) (A), (B), (C), and (D).

(2) INAPPLICABILITY- This subsection does not apply to work performed in the non-Federal sector before the date of enactment of this Act.

(3) SUBSEQUENT DETERMINATIONS- If an agency head is prohibited from entering into a contract after a determination is made under paragraph (1), that agency head may subsequently request another determination from the Director of the Office of Management and Budget under that paragraph.

(4) PUBLIC AVAILABILITY- The Director of the Office of Management and Budget shall--

(A) promptly after making a determination as to whether an agency is making substantial progress under paragraph (1), publish that determination in the Federal Register; and

(B) make that determination available to the public--

(i) upon request; and

(ii) on the World Wide Web.

(c) WAIVER OF SUSPENSION-

(1) IN GENERAL- The Director of the Office of Management and Budget may waive the applicability of this section to a contract for services if the Director determines that it is necessary to do so in the interest of the national security, extraordinary economic harm, or patient care.

(2) NOTICE- After granting any waiver under this subsection, the Director of the Office of Management and Budget shall promptly publish a notice of that waiver in the Federal Register that--

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

(B) explains the justification for the waiver; and

(C) identifies the duration of the waiver.

(d) GAO MONITORING- While an agency is operating under a suspension of contracting authority under subsection (b), the Comptroller General shall--

(1) monitor the agency's compliance with the requirements of this Act; and

(2) submit to Congress, every 60 days, a report on the extent of the agency's compliance with such requirements.

(e) EXCEPTION-

(1) IN GENERAL- Notwithstanding subsection (b), an agency may undertake a contracting effort of a function if the function--

(A) is not performed by Federal employees at the time of the undertaking; and

(B) under the contracting would be performed by--

(i) the blind, as defined under section 5(1) of the Javits-Wagner-O'Day Act (41 U.S.C. 48b(1)); or

(ii) individuals with a disability as defined under section 7(9) of the Rehabilitation Act of 1973 (29 U.S.C. 705(9)).

(2) TERMINATION OF CONTRACT- If the Director of the Office of Management and Budget determines that the performance of the function in a contract entered into under paragraph (1) is not being performed by individuals described under clause (i) or (ii) of paragraph (1)(B), the contract shall be immediately terminated.

SEC. 4. AGENCY REPORTING SYSTEMS AND REQUIRED REPORTS.

(a) CENTRALIZED REPORTING SYSTEM- Not later than 180 days after the date of enactment of this Act, each agency shall establish a centralized reporting system in accordance with guidance promulgated by the Director of 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) INITIAL REPORTS- Not later than 180 days after the date of 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 fiscal year immediately preceding the fiscal year during which this Act is enacted. Such report shall comply with the requirements in paragraph (3).

(2) SUBSEQUENT REPORTS- 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 that fiscal year. The report for a fiscal year 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) CONTENTS- With regard to each contracting effort undertaken by the agency, the reports referred to in this subsection shall include the following information:

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

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

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

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

(E) The cost of Federal employee performance under the most efficient organization plan identified for that performance (if the work was contracted out through OMB Circular A-76).

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

(G) The current cost of contractor performance.

(H) 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.

(I) 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.

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

(c) REPORT ON CONTRACTING IN EFFORTS-

(1) IN GENERAL- 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 in efforts undertaken by the agency during that fiscal year. The report for a fiscal year 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) CONTENTS- The reports referred to in paragraph (1) shall include for each contracting in effort undertaken by the agency the following information:

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

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

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

(D) 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 each fiscal year, every agency shall submit to the Office of Management and Budget a 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 during that fiscal year.

(e) SUBMISSION OF REPORTS TO CONGRESS-

(1) IN GENERAL- The Director of the Office of Management and Budget shall compile all reports submitted under this section and submit the reports to the committees referred to under paragraph (2), not later than 120 days after the end of the applicable fiscal year.

(2) COMMITTEES- The reports compiled under this subsection 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) PUBLIC AVAILABILITY OF REPORTS-

(1) PUBLICATIONS- 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, business addresses, and business telephone numbers of the officials from whom the reports may be obtained.

(2) AVAILABILITY ON INTERNET- The reports referred to in this section shall be made available through the Internet.

(3) PROPRIETARY AND NATIONAL SECURITY INFORMATION- Proprietary information or information to which section 552(b)(1) of title 5, United States Code, applies shall be excised from information published or reports made available under this subsection.

(g) 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. 5. REQUIREMENT FOR PUBLIC-PRIVATE COMPETITION.

(a) IN GENERAL-

(1) PUBLIC-PRIVATE COMPETITION- After the date of enactment of this Act and in accordance with section 3, any decision by an agency to initiate or continue a privatization, outsourcing, contracting in,

or contracting out for the performance of a function shall be based on the results of a public-private competition process that--

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

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

(C) is conducted in consultation or through bargaining with the exclusive representative of the Federal employees performing the function, if applicable.

(2) INAPPLICABILITY- This subsection does not apply to--

(A) work performed in the non-Federal sector before the date of enactment of this Act; or

(B) contracts with values less than $1,000,000 for work not performed at the time by Federal employees, if the work is not divided, modified, or in any way changed for the purpose of not performing a public-private competition.

(b) DETERMINATION OF COSTS-

(1) IN GENERAL- An agency shall commence or continue the performance of a function by Federal employees if, under a cost comparison performed under 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) UNDERTAKING CONTRACTING EFFORT DURING SUSPENSION- During the suspension established under section 3, an agency may undertake a contracting effort made under the issuance of a waiver granted under section 3 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. 6. REVIEW OF CONTRACTOR PERFORMANCE.

(a) IN GENERAL-

(1) AGENCY ACTION AFTER REVIEW- If a report completed under section 4 indicates that, for 2 consecutive years, the actual cost of privatization, outsourcing, or contracting out of a particular function exceeds the anticipated cost of contractor performance, based on the award (referred to in section 4(b)(3)(G)), or fails to substantially meet quality control standards (referred to in section 4(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.

(2) INAPPLICABILITY- This subsection does not apply to work performed in the non-Federal sector before the date of enactment of this Act.

(b) PUBLIC-PRIVATE COMPETITION-

(1) IN GENERAL- For each fiscal year, an agency shall subject to public-private competition an approximate number of Federal employee positions and positions held by non-Federal employees under a contract between an agency and an individual or entity.

(2) PARTICULAR FUNCTIONS- In complying with this section, agencies shall, to the extent possible, subject to public-private competition those positions held by non-Federal employees under a contract between an agency and an individual or entity that is associated with functions that are or have been performed at least in part by Federal employees at any time on or after October 1, 1980.

(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. 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 enactment of this Act.

(b) REVIEW-

(1) IN GENERAL- 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) SUBMISSION- Not later than 180 days after the date of 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.

(3) PROPRIETARY AND NATIONAL SECURITY INFORMATION- Proprietary information or information to which section 552(b)(1) of title 5, United States Code, applies shall be excised from information published or reports made available under this subsection.

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

SEC. 8. 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 enactment of this Act on the compliance by agencies with the requirements of this Act.

SEC. 9. REPEAL OF CERTAIN REPORTING REQUIREMENTS.

(a) IN GENERAL- Sections 2461, 2461a, 2463, and 2467(c) of title 10, United States Code, are repealed.

(b) TECHNICAL AND CONFORMING AMENDMENTS- The table of sections for chapter 141 of title 10, United States Code, is amended by striking the items relating to sections 2461, 2461a, and 2463.

SEC. 10. APPLICABILITY.

This Act does not apply with respect to the following:

(1) The General Accounting Office.

(2) Depot-level maintenance and repair of the Department of Defense (as defined in section 2460 of title 10, United States Code).

(3) Contracts for the study, planning, surveying, design, engineering, and construction of new structures or the remodeling of or additions made to existing structures, facilities, and capital projects, except this Act shall apply to all contracts for the repair and maintenance of any structures.

(4) Financial assistance awards (including grants and cooperative agreements).

(5) Specialized scientific and technical contracts for work not performed at the time by Federal employees that are undertaken for research and development, except this Act shall apply to all contracts for work in support of research and development.

END