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• State and Local Restrictions on Employing, Renting Property to, or Providing Services for Unauthorized Aliens: Legal Issues and Recent Judicial Developments [December 20, 2010]

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  "An estimated 37 million foreign-born persons currently reside in the United States, almost a third of whom may be present without legal authorization. The reaction of state and local jurisdictions to unauthorized immigration has varied. In some cases, states and localities have adopted measures intended to deter unlawfully present aliens from arriving and settling within their jurisdictions, including by restricting such aliens' access to work, housing, and benefits. Typically, such measures have sought to (1) limit the hiring and employment of unauthorized aliens, including through the denial of permits to persons that employ unauthorized aliens and the regulation of day labor centers; (2) restrict the ability of unlawfully present aliens to rent or occupy dwellings within the state or locality; and/or (3) deny unlawfully present aliens access to state or local services or benefits."

  Library of Congress. Congressional Research Service

  Feder, Jody; Smith, Alison M., 1962-; Manuel, Kate

  2010-12-20
• State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona's S.B. 1070 [September 14, 2010]

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  "On April 23, 2010, Arizona enacted S.B. 1070, which is designed to discourage and deter the entry or presence of aliens who lack lawful status under federal immigration law. [...] The enactment of S.B. 1070 has sparked significant legal and policy debate. Supporters argue that federal enforcement of immigration law has not adequately deterred the migration of unauthorized aliens into Arizona, and that state action is both necessary and appropriate to combat the negative effects of unauthorized immigration. Opponents argue, among other things, that S.B. 1070 will be expensive and disruptive, will be susceptible to uneven application, and can undermine community policing by discouraging cooperation with state and local law enforcement. In part to respond to these concerns, the Arizona State Legislature modified S.B. 1070 on April 30, 2010, through the approval of H.B. 2162. [...] S.B. 1070, as amended, was scheduled to go into effect on July 29, 2010. However, the U.S. Department of Justice filed suit seeking to preliminarily enjoin the enforcement of certain sections of S.B. 1070 on the grounds that they are preempted. On July 28, 2010, a federal district court enjoined Arizona from enforcing those provisions of S.B. 1070 pertaining to immigration status determinations during lawful stops, detentions, or arrests; failure to apply for or carry alien registration papers; the solicitation or performance of work by unauthorized aliens; and warrantless arrests for certain public offenses. Enforcement of other provisions of S.B. 1070 was not enjoined. Arizona has appealed the district court's decision."

  Library of Congress. Congressional Research Service

  Eig, Larry M.; Garcia, Michael John; Manuel, Kate

  2010-09-14
• Authority of State and Local Police to Enforce Federal Immigration Law [September 17, 2010]

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  "The power to prescribe rules as to which aliens may enter the United States and which aliens may be removed resides solely with the federal government, and in particular with Congress. Concomitant to its exclusive power to establish rules which determine which aliens may enter and which may stay in the country, the federal government also has the power to sanction activities that subvert this system. Congress has defined our nation's immigration laws in the Immigration and Nationality Act (INA), a comprehensive set of rules for legal immigration, naturalization, work authorization, and the entry and removal of aliens. These requirements are bolstered by an enforcement regime containing both civil and criminal provisions. Deportation and associated administrative processes related to the removal of aliens are civil in nature, while certain violations of federal immigration law, such as smuggling unauthorized aliens into the country, carry criminal penalties."

  Library of Congress. Congressional Research Service

  Garcia, Michael John; Manuel, Kate

  2010-09-17
• Responsibility Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures [August 18, 2010]

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  "This report discusses the standards and procedures that federal agencies use in making responsibility determinations under the Federal Acquisition Regulation (FAR). As a general rule, government agencies contract with the lowest qualified responsible bidder or offeror. Responsibility is an attribute of the contractor, while price and qualifications are attributes of the bid or offer. Under the FAR, '[n]o purchase or award shall be made unless the contracting officer makes an affirmative determination of responsibility.' To be determined responsible, prospective contractors must meet general standards, which include so-called 'collateral requirements.' These standards apply to all procurement contracts, even if they are not incorporated into the solicitation. They include the following seven criteria related to contractors' capabilities and conduct: (1) adequate financial resources; (2) ability to comply with the delivery or performance schedule; (3) satisfactory performance record; (4) satisfactory record of integrity and business ethics; (5) necessary organization and experience; (6) necessary equipment and facilities; and (7) otherwise qualified and eligible. The seventh criterion encompasses collateral requirements, or other provisions of law specifying when contractors are disqualified from or ineligible for awards. Under current collateral requirements, contractors must be found nonresponsible when, among other things, they (1) do not comply with federal equal employment opportunity requirements; (2) fail to agree to an acceptable plan for subcontracting with small businesses; (3) are known government employees; (4) are quasi-military armed forces; or (5) have unavoidable and unmitigated organizational conflicts of interest. Unlike performance standards, which assess whether prospective contractors can be expected to complete the contract work in a timely and satisfactory manner, collateral requirements ensure that the government's dealings with contractors promote socioeconomic goals."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2010-08-18
• Interagency Contracting: An Overview of Federal Procurement and Appropriations Law [August 30, 2010]

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  "This report provides an overview of the federal procurement and appropriations laws governing interagency contracting. 'Interagency contracting' is the term used to describe several procurement relationships between government agencies. The first is one of buyer and seller, where agency A directly purchases goods or services from agency B. Second is that of copurchasers, where agency A joins with agency B to contract for goods or services to obtain economies of scale or some other benefit. Third, agency A might hire agency B to negotiate and/or manage agency A's contracts in toto or in a specific area. Interagency contracting is a marked departure from the traditional model of government contracting, wherein agencies have their own contracts with vendors and rely upon the services of their own contracting officers in drafting and managing these contracts. Interagency contracting can occur under several different statutory authorities, including (1) the Economy Act of 1932; (2) the Information Technology Management Reform Act of 1996, also known as the Clinger-Cohen Act, authorizing government-wide acquisition contracts (GWACs); (3) the Federal Property and Administrative Services Act of 1949, as amended by the Office of Federal Procurement Policy Act of 1974, underlying the Federal Supply Schedules (FSS), also known as the General Services Administration (GSA) Schedules or Multiple Award Schedules (MAS); and (4) the Government Management Reform Act of 1994 and other authorities creating franchise funds and interagency assisting entities. Unlike multi-agency contracts, GWACs and the FSS, franchise funds and interagency assisting entities are not themselves contracting vehicles, but they play a prominent role in interagency contracting."

  Library of Congress. Congressional Research Service

  Yeh, Brian T.; Manuel, Kate

  2010-08-30
• State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona's S.B. 1070 [June 7, 2011]

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  "On April 23, 2010, Arizona enacted S.B. 1070, which is designed to discourage and deter the entry or presence of aliens who lack lawful status under federal immigration law. Potentially sweeping in effect, the measure requires state and local law enforcement officials to facilitate the detection of unauthorized aliens in their daily enforcement activities. The measure also establishes criminal penalties under state law, in addition to those already imposed under federal law, for alien smuggling offenses and failure to carry or complete alien registration documents. Further, it makes it a crime under Arizona law for an unauthorized alien to apply for or perform work in the state, either as an employee or an independent contractor. […] S.B. 1070, as amended, was scheduled to go into effect on July 29, 2010. However, the U.S. Department of Justice filed suit seeking to preliminarily enjoin the enforcement of certain sections of S.B. 1070 on the grounds that they are preempted. On July 28, 2010, a federal district court enjoined Arizona from enforcing those provisions of S.B. 1070 pertaining to immigration status verifications, among other things. Arizona appealed this decision, and on April 11, 2011, the U.S. Court of Appeals for the Ninth Circuit issued an opinion affirming the district court's decision. Arizona's governor has reportedly expressed a desire to appeal this decision, and the district court has yet to issue a final ruling as to the merits of the government's challenge."

  Library of Congress. Congressional Research Service

  Eig, Larry M.; Garcia, Michael John; Manuel, Kate

  2011-06-07
• Presidential Authority to Impose Requirements on Federal Contractors [June 14, 2011]

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  "Executive orders requiring agencies to impose certain conditions on federal contractors as terms of their contracts have raised questions about presidential authority to issue such orders. Recently, the Obama Administration circulated, but did not issue, a draft executive order directing 'every contracting department and agency' to require contractors to 'disclose certain political contributions and expenditures.' The draft order cites the President's constitutional authority, as well as his authority pursuant to the Federal Property and Administrative Services Act of 1949 (FPASA), which authorizes the President to prescribe any policies or directives that he considers necessary to promote 'economy' or 'efficiency' in federal procurement. The draft executive order refers to FPASA's goals in that it directs actions 'to ensure the integrity of the federal contracting system in order to produce the most economical and efficient results for the American people.' The draft order has been characterized by some as an 'abuse of executive branch authority' because it resembles the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act that the 111th Congress considered, but did not pass. If issued, the draft order may face legal challenge. […] In the event that Congress seeks to enlarge or cabin presidential exercises of authority over federal contractors, Congress could amend FPASA to clarify congressional intent to grant the President broader authority over procurement, or limit presidential authority to more narrow 'housekeeping' aspects of procurement. Congress also could pass legislation directed at particular requirements of contracting executive orders."

  Library of Congress. Congressional Research Service

  Burrows, Vanessa K.; Manuel, Kate

  2011-06-14
• Insourcing Functions Performed by Federal Contractors: An Overview of the Legal Issues [June 8, 2011]

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  "Recent Congresses and the Obama Administration have taken numerous actions to promote 'insourcing,' or the use of government personnel to perform functions that contractors previously performed on behalf of federal agencies. Among other things, the 109th through the 111th Congresses enacted several statutes requiring the development of policies and guidelines to ensure that agencies 'consider' using government employees to perform functions previously performed by contractors, as well as any new functions. These statutes also require that 'special consideration' be given to using government personnel to perform certain functions, including those functions (1) performed by government employees in the recent past, (2) closely associated with the performance of inherently governmental functions, (3) performed pursuant to a contract awarded on a non-competitive basis, or (4) performed poorly by a contractor because of excessive costs or inferior quality. The Obama Administration has similarly promoted insourcing. Among other things, on July 29, 2009, the Office of Management and Budget directed federal agencies to conduct pilot human capital analyses of programs where the agency has concerns about its reliance on contractors, as a prelude to potentially insourcing functions performed by contractors. […] The 112th Congress is considering legislation that could constrain insourcing initiatives by requiring agencies to conduct a public-private competition and determine that provision of goods or services by federal employees provides 'best value' prior to insourcing (H.R. 1474, S. 785). A provision of the House-passed National Defense Authorization Act for FY2012 (H.R. 1540, § 939) could also limit agencies' ability to insource functions."

  Library of Congress. Congressional Research Service

  Maskell, Jack; Manuel, Kate

  2011-06-08
• Insourcing Functions Performed by Federal Contractors: An Overview of the Legal Issues [May 5, 2011]

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  "Recent Congresses and the Obama Administration have taken numerous actions to promote 'insourcing,' or the use of government personnel to perform functions that contractors previously performed on behalf of federal agencies. Among other things, the 109th through the 111th Congresses enacted several statutes requiring the development of policies and guidelines to ensure that agencies 'consider' using government employees to perform functions previously performed by contractors, as well as any new functions. These statutes also require that 'special consideration' be given to using government personnel to perform certain functions, including those functions (1) performed by government employees in the recent past, (2) closely associated with the performance of inherently governmental functions, (3) performed pursuant to a contract awarded on a non-competitive basis, or (4) performed poorly by a contractor because of excessive costs or inferior quality. The Obama Administration has similarly promoted insourcing. Among other things, on July 29, 2009, the Office of Management and Budget directed federal agencies to conduct a pilot human capital analysis of one program where the agency has concerns about its reliance on contractors, as a prelude to potentially insourcing functions performed by contractors. [...] The 112th Congress is considering legislation that could constrain insourcing initiatives by requiring agencies to conduct a public-private competition and determine that provision of goods or services by federal employees provides 'best value' prior to insourcing (H.R. 1474, S. 785)."

  Library of Congress. Congressional Research Service

  Maskell, Jack; Manuel, Kate

  2011-05-05
• Debarment and Suspension of Government Contractors: An Overview of the Law Including Recently Enacted and Proposed Amendments [January 6, 2012]

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  "As a general rule, government agencies contract with the lowest-priced (or best-value) qualified responsible bidder or offeror. Debarment and suspension are among the techniques that government agencies use to ensure that they contract with only 'responsible' bidders or offerors. Debarred contractors are ineligible for government contracts for a fixed period of time, which can vary depending upon the authority under which the contractor is debarred and the seriousness of the conduct underlying the debarment; while suspended contractors are ineligible for the duration of any investigation into or litigation involving their conduct. Persons may be debarred or suspended (i.e., excluded) from federal contracting on procurement or nonprocurement grounds. This report focuses upon exclusions on procurement grounds. It surveys the authorities requiring or allowing federal agencies to debar or suspend contractors, due process and other protections for contractors, and recently enacted and proposed amendments to the laws governing exclusion."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2012-01-06
• Presidential Authority to Impose Requirements on Federal Contractors [January 10, 2012]

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  "Executive orders requiring agencies to impose certain conditions on federal contractors as terms of their contracts have raised questions about presidential authority to issue such orders. Recently, the Obama Administration circulated, but did not issue, a draft executive order directing 'every contracting department and agency' to require contractors to 'disclose certain political contributions and expenditures.' The draft order cites the President's constitutional authority, as well as his authority pursuant to the Federal Property and Administrative Services Act of 1949 (FPASA), which authorizes the President to prescribe any policies or directives that he considers necessary to promote 'economy' or 'efficiency' in federal procurement. The draft executive order refers to FPASA's goals in that it directs actions 'to ensure the integrity of the federal contracting system in order to produce the most economical and efficient results for the American people.' The draft order has been characterized by some as an 'abuse of executive branch authority' because it resembles the Democracy is Strengthened by Casting Light on Spending in Elections (DISCLOSE) Act that the 111th Congress considered, but did not pass. If issued, the draft order may face legal challenge. […] In the event that Congress seeks to enlarge or cabin presidential exercises of authority over federal contractors, Congress could amend FPASA to clarify congressional intent to grant the President broader authority over procurement, or limit presidential authority to more narrow 'housekeeping' aspects of procurement. Congress also could pass legislation directed at particular requirements of contracting executive orders."

  Library of Congress. Congressional Research Service

  Burrows, Vanessa K.; Manuel, Kate

  2012-01-10
• Insourcing Functions Performed by Federal Contractors: An Overview of the Legal Issues [May 7, 2012]

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  "While agencies are prohibited by federal law and policy from contracting out functions that are 'inherently governmental,' other functions could potentially be contracted out. There has long been debate over both general government policies promoting the use of the private sector to perform 'commercial functions' and whether specific functions should be performed by government personnel or contractors. However, since 2008, the insourcing initiatives of recent Congresses and the Obama Administration have caused particular controversy. Several lawsuits have been filed challenging agencies' determinations to insource particular functions, and broader questions have been raised as to whether agencies' implementation of insourcing runs afoul of civil service, ethics, or small business laws. This report provides a brief overview of key legal issues related to recent insourcing initiatives. It will be updated as developments occur."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Maskell, Jack

  2012-05-07
• Legal Authorities Governing Federal Contracting and Subcontracting with Small Businesses [March 7, 2012]

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  "Congress has generally broad authority to impose requirements upon the federal procurement process, or the process whereby agencies obtain goods and services from the private sector. One of the many ways in which Congress has exercised this authority is by enacting measures intended to promote contracting and subcontracting with 'small businesses' by federal agencies. Among other things, these measures (1) declare a congressional policy of ensuring that a 'fair proportion' of federal contract and subcontract dollars are awarded to small businesses; (2) establish government-wide and agency-specific goals for the percentage of contract and/or subcontract dollars awarded to small businesses; (3) require or authorize agencies to conduct competitions in which only small businesses may compete (i.e., set-asides), or make noncompetitive awards to them in circumstances when such awards could not be made to other businesses; and (4) task the Small Business Administration (SBA) and officers of the procuring agencies with reviewing and helping to restructure proposed procurements so as to maximize opportunities for small business participation."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Lunder, Erika

  2012-03-07
• Federal Contracting and Subcontracting with Small Businesses: Issues in the 112th Congress [March 7, 2012]

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  "Congress has generally broad authority to impose requirements upon the federal procurement process, or the process whereby agencies obtain goods and services from the private sector. One of the many ways in which Congress has exercised this authority is by enacting measures intended to promote contracting and subcontracting with 'small businesses' by federal agencies. Among other things, these measures (1) declare a congressional policy of ensuring that a 'fair proportion' of federal contract and subcontract dollars are awarded to small businesses; (2) establish government-wide and agency-specific goals for the percentage of contract and/or subcontract dollars awarded to small businesses; (3) require or authorize agencies to conduct competitions in which only small businesses may compete (i.e., set-asides), or make noncompetitive awards to them in circumstances when such awards could not be made to other businesses; and (4) task the Small Business Administration (SBA) and officers of the procuring agencies with reviewing and helping to restructure proposed procurements so as to maximize opportunities for small business participation. A companion report, CRS [Congressional Research Service] Report R42391, Legal Authorities Governing Federal Contracting and Subcontracting with Small Businesses, by Kate M. Manuel and Erika K. Lunder, provides an overview of these statutes, the regulations implementing them, and the various judicial and other tribunals that construe them. [...] The report will be updated regularly, as additional legislation is introduced, while the 112th Congress is in session."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Lunder, Erika

  2012-03-07
• Government Procurement in Times of Fiscal Uncertainty [April 6, 2012]

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  "When confronted with actual or potential funding gaps, funding shortfalls, or budget cuts, the federal government has a number of options as to prospective and existing procurement contracts. Many of these options arise from contract law and, in particular, certain standard clauses included in federal procurement contracts. Among other things, these clauses allow the government to (1) unilaterally change certain terms of the contract, such as the specifications or the method and manner of performing the work; (2) delay, suspend, or 'stop work' on the contract; and (3) terminate the contract for the government's convenience. However, courts have also found that the government has certain rights because it is the government, regardless of whether the contract provides for these rights. Such rights are commonly described as 'inherent rights,' and include the right to terminate the contract for convenience and, according to one tribunal, the right to suspend work. [...]Congressional and public interest in this issue has persisted over the past year due to recent events. The prospect of a funding gap and government shutdown in April 2011 was followed by debate over whether to raise the debt limit in July and August 2011. More recently, there have been budget cuts and the possibility of sequestration under the Budget Control Act (BCA) of 2011 (P.L. 112-25). In particular, the BCA calls for mandatory cuts in federal spending, effective January 2, 2013, if legislation cutting the deficit is not enacted by January 15, 2012. Such legislation was not enacted, and although Congress could act to prevent sequestration, the prospect of mandatory cuts in FY2013 though FY2021 has raised questions about how the government might go about reducing spending on procurement contracts."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Lunder, Erika

  2012-04-06
• Small Business Mentor-Protege Programs [June 4, 2012]

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  "Mentor-protégé programs typically seek to pair new businesses with more experienced businesses in mutually beneficial relationships. Protégés may receive financial, technical, or management assistance from mentors in obtaining and performing federal contracts or subcontracts, or serving as suppliers under such contracts or subcontracts. Mentors may receive credit toward subcontracting goals, reimbursement of certain expenses, or other incentives. The federal government currently has several mentor-protégé programs that seek to aid small businesses in various ways. For example, the 8(a) Mentor-Protégé Program is a government-wide program designed to assist small businesses 'owned and controlled by socially and economically disadvantaged individuals' that are participating in the Small Business Administration's (SBA's) Minority Small Business and Capital Ownership Development Program (commonly known as the 8(a) program) in obtaining and performing federal contracts. Toward that end, mentors may (1) form joint ventures with protégés that are eligible to perform federal contracts set aside for small businesses; (2) make certain equity investments in protégé firms; (3) lend or subcontract to protégé firms; and (4) provide technical or management assistance to their protégés. The Department of Defense (DOD) Mentor-Protégé Program, in contrast, is agency-specific. It is designed to assist various types of small businesses and other entities in obtaining and performing DOD subcontracts and serving as suppliers on DOD contracts. Mentors may (1) make advance or progress payments to their protégés that DOD reimburses; (2) award subcontracts to their protégés on a noncompetitive basis when they would not otherwise be able to do so; (3) lend money to or make investments in protégé firms; and (4) provide or arrange for other assistance."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Dilger, Robert Jay, 1954-

  2012-06-04
• Definitions of 'Inherently Governmental Functions' in Federal Procurement Law and Guidance [January 24, 2012]

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  "There has recently been significant congressional interest in 'inherently governmental functions,' or functions that, as a matter of federal law and policy, must be performed by government employees and cannot be contracted out because they are 'intimately related to the public interest. Differences of opinion as to whether particular functions are inherently governmental arguably constitute part of the broader debate about the proper roles of the public and private sectors, and Members of the 112th Congress have introduced legislation representing various sides of this debate. For example, some would generally require agencies to rely on the private sector to perform functions that are not inherently governmental, whereas others would generally prohibit agencies from contracting out functions that, while not inherently governmental, are closely associated with inherently governmental functions or are mission essential. Yet others would provide that particular functions are inherently governmental. […] Partly in response to this charge, OMB, through the Office of Federal Procurement Policy (OFPP), issued Policy Letter 11-01 on September 12, 2011. In addition to adopting the definition of inherently governmental function given in the Federal Activities Inventory Reform (FAIR) Act of 1998, Policy Letter 11-01 establishes two tests for identifying inherently governmental functions, as well as defines a 'critical function' as one 'that is necessary to the agency being able to effectively perform and maintain control of its mission and operations.' This report situates contemporary debates over which functions are inherently governmental within the context of the broader debate about the proper roles of the public and private sectors, and surveys existing definitions of inherently governmental functions within federal law and policy. Its primary focus is upon government-wide statutes, regulations, and policy documents, not agency-specific ones. It supersedes an earlier report, CRS [Congressional Research Service] Report R40641, Inherently Governmental Functions and Department of Defense Operations: Background, Issues, and Options for Congress, by John R. Luckey, Valerie Bailey Grasso, and Kate M. Manuel, which focused on inherently governmental functions and Department of Defense (DOD) operations in light of interest in earlier Congresses in redefining inherently governmental functions."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Luckey, John R.

  2012-01-24
• Competition in Federal Contracting: An Overview of the Legal Requirements [June 30, 2011]

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  "Competition in federal procurement contracting has become a topic of increased congressional and public interest, in part because of alleged misconduct involving noncompetitive contracts and reports that the number of noncompetitive contract actions has increased. President Obama also emphasized competition in his March 4, 2009, memorandum on government contracting. Additionally, prominent officials within the Department of Defense (DOD), which accounts for some 70% of federal procurement spending per year, have expressed their commitment to reducing DOD's use of noncompetitive contracts. […] Issuance of orders under task order and delivery order (TO/DO) contracts is not subject to CICA, although award of TO/DO contracts is. However, the Federal Acquisition Streamlining Act (FASA) of 1994 established a preference for multiple-award TO/DO contracts; required that agencies provide contractors 'a fair opportunity' to compete for orders in excess of $3,000 under multiple-award contracts; and authorized the Government Accountability Office (GAO) to hear protests challenging the issuance of task or delivery orders that increase the scope, period, or maximum value of the underlying contract. The National Defense Authorization Act (NDAA) for FY2008 further limited the use of single-award TO/DO contracts. It also specified what constitutes a 'fair opportunity to be considered' for orders in excess of $5.5 million under multiple-award contracts and granted GAO jurisdiction to hear protests of orders valued in excess of $10 million."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2011-06-30
• GAO Bid Protests: An Overview of Time Frames and Procedures [June 30, 2011]

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  "Bid protests, especially bid protests filed with the Government Accountability Office (GAO), have recently received increased congressional scrutiny due to protests of high-profile awards and reports that the number of protests is increasing. The potential delay of contract award or performance triggered by a GAO protest, coupled with the increasing number of GAO protests, has also prompted concerns about the impact of protests upon agency operations, especially in the Department of Defense. Additionally, questions have recently arisen about GAO's jurisdiction over protests challenging the issuance of task and delivery orders valued in excess of $10 million. The 111th Congress enacted legislation (P.L. 111-383) extending certain provisions governing GAO's jurisdiction over orders issued by defense agencies that otherwise would have sunset in May 2011. The 112th Congress considered, but did not enact, similar legislation regarding the orders of civilian agencies (H.R. 899, S. 498). However, on June 14, 2011, GAO found that Congress's failure to extend the sun-setting provisions means that it has jurisdiction over orders of any value issued by civilian agencies, not that it lacks jurisdiction over orders valued in excess of $10 million issued by civilian agencies. […] However, the agency is to notify GAO if it does not fully implement GAO's recommendations. GAO is, then, to inform Congress of agency noncompliance. Agencies comply with GAO recommendations in most protests. Protesters disappointed with GAO's decision can seek reconsideration from GAO. They can also 'appeal' GAO's decision by filing a bid protest with the Court of Federal Claims."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Schwartz, Moshe

  2011-06-30
• Immigration Legislation and Issues in the 112th Congress [September 30, 2011]

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  "Despite President Obama's calls for a national conversation on immigration reform, immigration has not been a front-burner issue for the 112th Congress. The 112th Congress, however, has taken legislative action on some measures containing provisions on a range of immigration-related topics. The Department of Defense and Full-Year Continuing Appropriations Act, 2011 (P.L. 112- 10) includes a provision terminating a special refugee provision known as the Lautenberg amendment. The Department of Homeland Security (DHS) Appropriations Act, 2012 (H.R. 2017), as passed by the House and reported by the Senate Appropriations Committee, contains border security-related provisions on staffing at ports of entry and enforcement activities between ports of entry. The House has passed legislation to reauthorize the H-1C temporary worker category for nurses coming to work in medically underserved areas in the United States (H.R. 1933). It also has passed legislation concerning military service-based immigration benefits (H.R. 398). [...] This report discusses these and other immigration-related issues that have received legislative action or are of significant congressional interest in the 112th Congress. DHS appropriations are addressed in CRS Report R41982, Homeland Security Department: FY2012 Appropriations, and, for the most part, are not covered here."

  Library of Congress. Congressional Research Service

  Ester, Karma; Bruno, Andorra; Manuel, Kate

  2011-09-30
• State Efforts to Deter Unauthorized Aliens: Legal Analysis of Arizona's S.B. 1070 [December 23, 2011]

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  "On April 23, 2010, Arizona enacted S.B. 1070, which is designed to discourage and deter the entry or presence of aliens who lack lawful status under federal immigration law. Potentially sweeping in effect, the measure requires state and local law enforcement officials to facilitate the detection of unauthorized aliens in their daily enforcement activities. The measure also establishes criminal penalties under state law, in addition to those already imposed under federal law, for alien smuggling offenses and failure to carry or complete alien registration documents. Further, it makes it a crime under Arizona law for an unauthorized alien to apply for or perform work in the state, either as an employee or an independent contractor. The enactment of S.B. 1070 has sparked significant legal and policy debate. Supporters argue that federal enforcement of immigration law has not adequately deterred the migration of unauthorized aliens into Arizona, and that state action is both necessary and appropriate to combat the negative effects of unauthorized immigration. Opponents argue, among other things, that S.B. 1070 will be expensive and disruptive, will be susceptible to uneven application, and can undermine community policing by discouraging cooperation with state and local law enforcement. In part to respond to these concerns, the Arizona State Legislature modified S.B. 1070 on April 30, 2010, through the approval of H.B. 2162. […] This report discusses S.B. 1070 and notable preemption issues raised by some of its provisions. It examines rulings made by the reviewing district and appellate court concerning the federal government's legal challenge. It also discusses other preemption issues potentially raised by S.B. 1070 or similar legislation, including some issues that have yet to be addressed by the reviewing courts."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Garcia, Michael John; Eig, Larry M.

  2011-12-23
• Authority of State and Local Police to Enforce Federal Immigration Law [August 17, 2011]

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  "The power to prescribe rules as to which aliens may enter the United States and which aliens may be removed resides solely with the federal government, and in particular with Congress. Concomitant to its exclusive power to determine which aliens may enter and which may stay in the country, the federal government also has the power to sanction activities that subvert this system. Congress has defined our nation's immigration laws in the Immigration and Nationality Act (INA), a comprehensive set of laws governing legal immigration, naturalization, work authorization, and the entry and removal of aliens. These requirements are bolstered by an enforcement regime containing both civil and criminal provisions. Deportation and associated administrative processes related to the removal of aliens are civil in nature, while certain violations of federal immigration law, such as smuggling unauthorized aliens into the country, carry criminal penalties. Congressional authority to prescribe rules on immigration does not necessarily imply exclusive authority to enforce those rules. [...] This report discusses the authority of state and local law enforcement to assist in the enforcement of federal immigration law through the investigation and arrest of persons believed to have violated such laws. It describes federal statutes that expressly permit state and local police to enforce immigration law directly, analyzes major cases concerning the ability of states and localities to assist in immigration enforcement, and briefly examines opinions on the issue by the DOJ's [Department of Justice] Office of Legal Counsel."

  Library of Congress. Congressional Research Service

  Garcia, Michael John; Manuel, Kate

  2011-08-17
• State and Local Restrictions on Employing Unauthorized Aliens [September 9, 2011]

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  "In May 2011, the Supreme Court ruled in 'Chamber of Commerce of the United States of America v. Whiting' that federal immigration law did not preempt an Arizona statute that authorized or required the suspension or termination of the licenses of businesses that knowingly or intentionally hire unauthorized aliens, and also required that employers within Arizona use the federal government's E-Verify database to check employees' work authorization. [...] Prior to the Supreme Court's decision in Whiting, the federal courts of appeals had disagreed as to whether IRCA [Immigration Reform and Control Act] and IIRIRA [Illegal Immigration Reform and Immigrant Responsibility Act], preempted state and local measures like the Arizona statute. Some courts found that state licensing measures were within IRCA's 'savings clause' even when the state independently determined whether an employer employed unauthorized aliens, and that IIRIRA did not prohibit states from requiring use of E-Verify. Others found that such measures were preempted because the licensing provisions disrupted the balance struck by Congress between deterring illegal immigration, minimizing burdens on employers, and preventing discrimination, and Congress did not want use of E-Verify to be mandatory. In reaching its decision, the majority in 'Whiting' relied primarily upon the 'plain meaning' of IRCA and IIRIRA, while two dissents relied more heavily upon the legislative history and overall purpose of IRCA, in particular. The majority's decision apparently opens the door to additional state and local restrictions upon employing unauthorized aliens. However, it is unclear how closely such measures must parallel federal law to avoid being found to be preempted because they conflict with federal law, or how courts may apply the Whiting decision when reviewing other state and local immigration measures, such as those restricting access to housing or benefits."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2011-09-09
• Contract 'Bundling' Under the Small Business Act: Existing Law and Proposed Amendments [June 11, 2012]

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  "'Bundling' refers to the consolidation of two or more requirements for goods or services previously provided or performed under separate smaller contracts into a solicitation for a single contract that is likely to be unsuitable for award to a small business because of its size or scope. Although bundling can potentially reduce costs or improve performance for federal agencies, it can also limit opportunities for small businesses to receive federal prime contracts. For this reason, Congress amended the Small Business Act in 1997 to require that procuring activities comply with certain procedures before issuing a bundled solicitation. Specifically, the 1997 amendments require that procuring activities (1) conduct market research to justify acquisition strategies that could lead to bundled contracts, (2) provide advance notice of bundled solicitations to the Small Business Administration (SBA) and incumbent small business contractors, and (3) implement certain procurement strategies when solicitations involve 'substantial bundling.' These steps are intended to ensure that any bundling is 'necessary and justified.' Only 'unnecessary and unjustified' bundling is prohibited under the 1997 and subsequent amendments. [...] This report provides an overview of the existing law regarding bundling and consolidation of requirements under the Small Business Act, as well as proposed amendments thereto. It does not address limitations that the Competition in Contracting Act (CICA) of 1984 or other legislation imposes on 'consolidation' of requirements. Agency actions that constitute improper bundling under the Small Business Act can constitute improper consolidation under CICA or other provisions of law."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2012-06-11
• GAO Bid Protests: An Overview of Time Frames and Procedures [December 2, 2014]

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  "For purposes of federal law, a 'bid protest' involves a written objection to the conduct of government agencies in acquiring supplies and services for their direct use or benefit. Such conduct can include (1) soliciting or otherwise requesting offers; (2) cancelling such solicitations or requests; (3) awarding or proposing to award a contract; (4) terminating or cancelling a contract due to improprieties involving its award; or (5) converting functions performed by government employees to private sector performance. Bid protests are of perennial interest to Congress, in part, because of the effects of protests on agency missions and operations. Congressional interest can also be prompted by notable protests (e.g., SpaceX's recent protest of contracts for launch services), as well as by agency determinations not to follow any nonbinding recommendations made by the Government Accountability Office (GAO) in deciding protests. GAO is not the only forum with authority to hear bid protests involving federal acquisitions. The procuring agency and the U.S. Court of Federal Claims can also hear bid protests. However, GAO hears more protests than the Court of Federal Claims, the only other forum for which data are readily available. Thus, its protest procedures--which can differ somewhat from those of the procuring agencies and the Court of Federal Claims--are the focus of this report."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Schwartz, Moshe

  2014-12-02
• Contract Types: Legal Overview [December 29, 2014]

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  "Federal procurement contracts are commonly divided into two main types--fixed-price and cost reimbursement-- that primarily differ as to whether the government or the contractor assumes the risk of increases in the costs of performance (e.g., wages, materials). With a 'fixed-price contract', the contractor assumes this risk by agreeing to provide supplies or services to the government for a specified price established at the time of contracting. If the costs of performance exceed this price, the contractor generally cannot, absent some provision for price adjustment in the contract, recover more money from the government. Rather, it must perform the contract at a loss, or default on the contract. In contrast, with a 'cost-reimbursement contract', the government assumes the risk of increases in the costs of performance by agreeing to repay the contractor for all 'allowable,' 'reasonable,' and 'allocable' costs of performing specified work, up to a total cost provided for in the contract. Additionally, under certain types of cost-reimbursement contracts, the contractor may be entitled to profit in the form of fixed fees, or incentive or award fees. Other types of contracts are also recognized. For example, the various types of 'incentive contracts'--fixed-price incentive contracts, cost-plus-incentive-fee contracts, cost-plus-award-fee contracts--are often characterized as occupying a middle ground between fixed-price and cost reimbursement contracts because the parties share the risk by basing the contractor's profits, in part, on the cost or quality of its performance. In addition, there are (1) 'time-and-materials' and 'labor-hour contracts', wherein the government pays the contractor hourly rates for labor and/or the costs of materials; (2) 'indefinite-delivery contracts', wherein the contractor agrees to deliver supplies or services at future dates unspecified at the time of contracting; (3) 'letter contracts', which are used prior to the execution of a formal (i.e., definitized) contract; and (4) 'basic agreements and basic ordering agreements', which are generally not themselves contracts, but contain terms applicable to future contracts or orders between the parties."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2014-12-29
• Contracting with Inverted Domestic Corporations: Answers to Frequently Asked Questions [February 6, 2015]

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  "Recent reports that certain entities continued to receive federal government contracts after reincorporating overseas have prompted questions about current and proposed restrictions on contracting with 'inverted domestic corporations.' These questions are shaped, in part, by the broader debate over whether such corporations are to be seen as 'deserters,' who change their corporate citizenship to avoid paying U.S. taxes, or as evidencing systemic problems in the U.S. tax code. However, they also reflect a long-standing debate over whether and to what degree the federal procurement process should be used to promote particular socioeconomic goals which some assert are tangential to the primary purpose of the procurement process (i.e., acquiring the supplies and services that best meet the government's needs at the lowest price). […] Thus, some Members of the 113th Congress proposed legislation to reduce or remove opportunities for inverted domestic corporations to receive government contracts. Similar legislation may be introduced in the 114th Congress if concerns about contracting with inverted domestic corporations persist. There have also been calls by Members of both the 113th and 114th Congresses for the executive to take action to further restrict agencies' ability to contract with inverted domestic corporations. This report provides the answers to 14 frequently asked questions regarding the current restrictions on contracting with inverted domestic corporations; certain amendments thereto proposed, but not enacted, in the 113th Congress; and the relationship between the prohibitions upon contracting with inverted domestic corporations and other provisions of law that restrict dealings with 'foreign' contractors."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Lunder, Erika

  2015-02-06
• Evaluating the 'Past Performance' of Federal Contractors: Legal Requirements and Issues [February 5, 2015]

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  "Federal law generally requires agencies to evaluate and document contractor performance on contracts or orders whose value exceeds the simplified acquisition threshold (generally $150,000). The evaluation must generally address the quality of the product or service supplied by the contractor, its efforts to control costs, its timeliness and compliance with schedules, its conduct of management or business relations, its performance in subcontracting with small businesses, and other applicable factors (e.g., tax delinquency). […] Federal law also generally requires agencies to consider contractors' past performance when making source selection decisions in negotiated procurements whose value exceeds the simplified acquisition threshold. In a negotiated procurement, the contract is awarded to the offeror whose proposal represents the 'best value' for the government based on various factors identified in the solicitation. These factors typically must include price and past performance. […] Agencies generally cannot award a contract without determining that the contractor is 'responsible.' While agencies are generally prohibited from repeatedly finding a contractor nonresponsible based upon the same deficient past performance, they may debar or suspend contractors for willful failure to perform under a contract or contracts, or for a history of failure to perform or of unsatisfactory performance of a contract or contracts. Reports alleging that contractors received new contracts or orders despite poor performance under prior ones have recently prompted interest in the role that evaluations of past performance play in contracting, as well as attempts by some Members of Congress and the Obama Administration to strengthen requirements pertaining to performance evaluations."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2015-02-05
• Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions [February 3, 2015]

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  "The FAR is a regulation, codified in Parts 1 through 53 of Title 48 of the 'Code of Federal Regulations,' which generally governs acquisitions of goods and services by executive branch agencies. It addresses various aspects of the acquisition process, from acquisition planning to contract formation, to contract management. Depending upon the topic, the FAR may provide contracting officers with (1) the government's basic policy (e.g., small businesses are to be given the 'maximum practicable opportunity' to participate in acquisitions); (2) any requirements agencies must meet (e.g., obtain full and open competition through the use of competitive procedures); (3) any exceptions to the requirements (e.g., when and how agencies may waive a contractor's exclusion); and (4) any required or optional clauses to be included, or incorporated by reference, in the solicitation or contract (e.g., termination for convenience). The FAR also articulates the guiding principles for the federal acquisition system, which include satisfying the customer in terms of cost, quality, and timeliness of the delivered goods and services; minimizing operating costs; conducting business with integrity, fairness, and openness; and fulfilling public policy objectives. In addition, the FAR identifies members and roles of the 'acquisition team.'"

  Library of Congress. Congressional Research Service

  Manuel, Kate; Halchin, L. Elaine; Lunder, Erika . . .

  2015-02-03
• Terminating Contracts for the Government's Convenience: Answers to Frequently Asked Questions [February 3, 2015]

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  "'Termination for convenience' refers to the exercise of the government's right to bring to an end the performance of all or part of the work provided for under a contract prior to the expiration of the contract 'when it is in the Government's interest' to do so. […] Where termination for convenience is concerned, the 'Government's interest' is broadly construed. Federal courts and agency boards of contract appeals have recognized the government's interest in terminating a contract when (1) the government no longer needs the supplies or services covered by the contract; (2) the contractor refuses to accept a modification of the contract; (3) questions have arisen regarding the propriety of the award or continued performance of the contract; (4) the contractor ceases to be eligible for the contract awarded; (5) the business relationship between the agency and the contractor has deteriorated; or (6) the agency has decided to restructure its contractual arrangements or perform work in-house. Terminations in other circumstances could also be found to be in the 'Government's interest.' […] As a rule, the government cannot be held liable for breach when it exercises its right to terminate contracts for convenience because it has the contractual and/or inherent right to do so. This means that contractors generally cannot recover anticipatory profits or consequential damages when the government terminates a contract for convenience. The contractor is, however, entitled to a termination settlement, which, in part, represents the government's consideration for its right to terminate. The composition of any termination settlement can vary depending upon which of the 'standard' Termination for Convenience clauses is incorporated into the contract, among other factors."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Lunder, Erika; Liu, Edward C.

  2015-02-03