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Code · BILL · 113th Congress · H.R. 2098 (Introduced in House) — To amend title 18, United States Code, to require Federal Prison Industries to compete for its contracts minimizing i... · Sec. 4

Sec. 4. Transitional mandatory source authority

1,504 words·~7 min read·/bill/113/hr/2098/ih/section-4·

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Notwithstanding the requirements of section 4124 of title 18, United States Code, a Federal department or agency having a requirement for a product that is authorized for sale by Federal Prison Industries and is listed in its catalog (referred to in section 4124(g) of title 18, United States Code) shall first solicit an offer from Federal Prison Industries and make purchases on a noncompetitive basis in accordance with this section or in accordance with section 2410n of title 10, United States Code, or section 318 of title III of the Federal Property and Administrative Services Act of 1949 .
Subject to the limitations of subsection (d), a contract award shall be made on a noncompetitive basis to Federal Prison Industries if the contracting officer for the procurement activity determines that— the product offered by Federal Prison Industries will meet the requirements of the procurement activity (including commercial or governmental standards or specifications pertaining to design, performance, testing, safety, serviceability, and warranties as may be imposed upon a private sector supplier of the type being offered by Federal Prison Industries); timely performance of the contract by Federal Prison Industries can be reasonably expected; and the negotiated price does not exceed a fair and reasonable price.
The terms and conditions of the contract and the price to be paid to Federal Prison Industries shall be determined by negotiation between Federal Prison Industries and the Federal agency making the purchase. The negotiated price shall not exceed a fair and reasonable price determined in accordance with the procedures of the Federal Acquisition Regulation. Federal Prison Industries shall perform the obligations of the contract negotiated pursuant to subsection (c). If the head of the contracting activity and the Chief Operating Officer of Federal Prison Industries are unable to resolve a contract performance dispute to their mutual satisfaction, such dispute shall be resolved pursuant to section 4124(e)(3) of title 18, United States Code.
As a percentage of the sales made by Federal Prison Industries during the base period, the total dollar value of sales to the Government made pursuant to subsection
(b)and subsection
(c)of this section shall not exceed— 90 percent in fiscal year 2014; 85 percent in fiscal year 2015; 70 percent in fiscal year 2016; 55 percent in fiscal year 2017; and 40 percent in fiscal year 2018. Use of the authority provided by subsections
(b)and
(c)shall not result in sales by Federal Prison Industries to the Government that are in excess of its total sales during the base year for each business sector. Use of the authorities provided by subsections
(b)and
(c)shall not result in contract awards to Federal Prison Industries that are in excess of its total sales during the base period for such product. If a buying agency directs a change to the design specification for a specific product, the costs associated with the implementation of such specification change by Federal Prison Industries shall not be considered for the purposes of computing sales by Federal Prison Industries for the purposes of paragraphs
(2)and (3). During the period specified in subsection (g), the authority of section 4122(b)(11)(C)(ii) of title 18, United States Code (as amended by section 3), may be used by the Board to sustain inmate employment. The preferential contracting authorities authorized by subsection
(b)may not be used on or after October 1, 2015, and become effective on the effective date of the final regulations issued pursuant to section 17. For the purposes of this section— the term base period means the total sales of Federal Prison Industries during the period October 1, 2011, and September 30, 2012 (Fiscal Year 2012); the term business sectors means the seven product/service business groups identified in the 2004 Federal Prison Industries annual report as the Clothing and Textiles Business Group, the Electronics Business Group, the Fleet Management and Vehicular Components Business Group, the Industrial Products Business Group, the Office Furniture Business Group, the Recycling Activities Business Group, and the Services Business Group; and the term fair and reasonable price shall be given the same meaning as, and be determined pursuant to, part 15.8 of the Federal Acquisition Regulation (48 CFR 15.8). Not later than 60 days prior to the end of each fiscal year specified in subsection (e)(1), the Attorney General shall make a finding regarding the effects of the percentage limitation imposed by such subsection for such fiscal year and the likely effects of the limitation imposed by such subsection for the following fiscal year. The Attorney General’s finding shall include a determination whether such limitation has resulted or is likely to result in a substantial reduction in inmate industrial employment and whether such reductions, if any, present a significant risk of adverse effects on safe prison operation or public safety. If the Attorney General finds a significant risk of adverse effects on either safe prison management or public safety, he shall so advise the Congress. In advising the Congress pursuant to paragraph (3), the Attorney General shall make recommendations for additional authorizations of appropriations to provide additional alternative inmate rehabilitative opportunities and additional correctional staffing, as may be appropriate. Title III of the Federal Property and Administrative Services Act of 1949 ( 41 U.S.C. 251 et seq. ) is amended by adding at the end the following new section: Before purchasing a product listed in the latest edition of the Federal Prison Industries catalog under section 4124(g) of title 18, United States Code, the head of an executive agency shall conduct market research to determine whether the Federal Prison Industries product is comparable to products available from the private sector that best meet the executive agency’s needs in terms of price, quality, and time of delivery. If the head of the executive agency determines that a Federal Prison Industries product is not comparable in price, quality, or time of delivery to products available from the private sector that best meet the executive agency’s needs in terms of price, quality, and time of delivery, the agency head shall use competitive procedures for the procurement of the product or shall make an individual purchase under a multiple award contract. In conducting such a competition or making such a purchase, the agency head shall consider a timely offer from Federal Prison Industries. The head of an executive agency shall ensure that— the executive agency does not purchase a Federal Prison Industries product or service unless a contracting officer of the agency determines that the product or service is comparable to products or services available from the private sector that best meet the agency’s needs in terms of price, quality, and time of delivery; and Federal Prison Industries performs its contractual obligations to the same extent as any other contractor for the executive agency. A determination by a contracting officer regarding whether a product or service offered by Federal Prison Industries is comparable to products or services available from the private sector that best meet an executive agency’s needs in terms of price, quality, and time of delivery shall not be subject to review pursuant to section 4124(b) of title 18. A contractor or potential contractor of an executive agency may not be required to use Federal Prison Industries as a subcontractor or supplier of products or provider of services for the performance of a contract of the executive agency by any means, including means such as— a contract solicitation provision requiring a contractor to offer to make use of products or services of Federal Prison Industries in the performance of the contract; a contract specification requiring the contractor to use specific products or services (or classes of products or services) offered by Federal Prison Industries in the performance of the contract; or any contract modification directing the use of products or services of Federal Prison Industries in the performance of the contract. In this subsection, the term contractor , with respect to a contract, includes a subcontractor at any tier under the contract. The head of an executive agency may not enter into any contract with Federal Prison Industries under which an inmate worker would have access to— any data that is classified; any geographic data regarding the location of— surface and subsurface infrastructure providing communications or water or electrical power distribution; pipelines for the distribution of natural gas, bulk petroleum products, or other commodities; or other utilities; or any personal or financial information about any individual private citizen, including information relating to such person’s real property however described, without the prior consent of the individual. In this section: The term competitive procedures has the meaning given such term in section 4(5) of the Office of Federal Procurement Policy Act ( 41 U.S.C. 403(5) ). The term market research means obtaining specific information about the price, quality, and time of delivery of products available in the private sector through a variety of means, which may include— contacting knowledgeable individuals in government and industry; interactive communication among industry, acquisition personnel, and customers; and interchange meetings or pre-solicitation conferences with potential offerors. .
Connections3 off-index
3 references not yet in our index
  • 48 CFR 15.8
  • 41 USC 251
  • 41 USC 403(5)
Citation graph
cites case law
Sec. 4
Transitional mandatory source authority
Cite48 CFR 15.8
Cite41 USC 251
Cite41 USC 403(5)
Cites 3Cited by 0 across 0 sources
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