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• Federal Contracting and Subcontracting with Small Businesses: Legislation in the 113th Congress [May 30, 2014]

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  "Congress has generally broad authority to impose requirements upon the federal procurement process (i.e., the process whereby agencies acquire supplies and services from other entities for the agency's direct benefit or use). One of the many ways in which Congress has exercised this authority is by enacting measures that encourage agencies to contract and subcontract with 'small businesses.' For purposes of federal procurement law, the term 'small business' generally denotes a business that (1) is independently owned and operated, (2) is not dominant in its field of operations, and (3) has fewer employees or annual receipts than the standards that the Small Business Administration (SBA) has established for the industries in which the business operates. […] This report describes, by issue area, the various small business contracting bills in the 113th Congress and, particularly, the modifications to existing law that they have made, or would make if enacted. In doing so, the report also briefly surveys current law on particular issues pertaining to small business contracting and subcontracting, including significant amendments to current law made by the 111th and 112th Congresses. […] The report will be updated as additional legislation is enacted or introduced."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2014-05-30
• Unaccompanied Alien Children-Legal Issues: Answers to Frequently Asked Questions [July 18, 2014]

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  "Recent reports about the increasing number of alien minors apprehended at the U.S. border without a parent or legal guardian have prompted numerous questions about so-called unaccompanied alien children (UACs). Some of these questions pertain to the numbers of children involved, their reasons for coming to the United States, and current and potential responses of the federal government and other entities to their arrival. Other questions concern the interpretation and interplay of various federal statutes and regulations, administrative and judicial decisions, and settlement agreements pertaining to alien minors. This report addresses the latter questions, providing general and relatively brief answers to 14 frequently asked questions regarding UACs."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Garcia, Michael John

  2014-07-18
• Unlawfully Present Aliens, Higher Education, In-State Tuition, and Financial Aid: Legal Analysis [July 21, 2014]

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  "The existence of a sizable population of 'DREAMers' in the United States has prompted questions about unlawfully present aliens' eligibility for admission to public institutions of higher education, in-state tuition, and financial aid. The term DREAMer is widely used to describe aliens who were brought to the United States as children and raised here but lack legal immigration status. As children, DREAMers are entitled to public elementary and secondary education as a result of the Supreme Court's 1982 decision in 'Plyler v. Doe.' There, the Court struck down a Texas statute that prohibited the use of state funds to provide elementary and secondary education to children who were not 'legally admitted' to the United States because the state distinguished between these children and other children without a 'substantial' goal, in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Once DREAMers complete high school, however, they may have less access to public higher education. Plyler's holding was limited to elementary and secondary education, and the Court's focus on the young age of those whom Texas denied a 'basic education' has generally been taken to mean that measures denying unlawfully present aliens access to higher education may be subject to less scrutiny than the Texas statute was. Thus, several states have adopted laws or practices barring the enrollment of unlawfully present aliens at public institutions of higher education."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2014-07-21
• State and Local Restrictions on Employing Unauthorized Aliens [May 16, 2013]

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  "This report discusses state and local restrictions upon employing unauthorized aliens in light of the May 26, 2011, decision by the Supreme Court in 'Chamber of Commerce of the United States of America v. Whiting.' The Court's decision in Whiting arose from a facial challenge to the Legal Arizona Workers Act (LAWA), a predecessor of S.B. 1070, which authorized or required the suspension or termination of the licenses of businesses that knowingly or intentionally hire unauthorized aliens, as well as required that employers in Arizona use the federal government's E-Verify database to check employees' work authorization.3 Business, labor, and civil rights organizations had asserted that LAWA's licensing provisions were expressly and impliedly preempted by federal law and that its E-Verify provision was impliedly preempted. The doctrine of preemption derives from the Supremacy Clause of the Constitution, which establishes that federal law, treaties, and the Constitution itself are 'the supreme Law of the Land.' Thus, one essential aspect of the federal structure of government is that states can be precluded from taking actions that are otherwise within their authority if federal law is thereby thwarted. An act of Congress may preempt state or local action in a given area in any one of three ways: (1) the statute expressly states preemptive intent (express preemption); (2) a court concludes that Congress intended to occupy the regulatory field, thereby implicitly precluding state or local action in that area (field preemption); or (3) state or local action directly conflicts with or otherwise frustrates the purpose of the federal scheme (conflict preemption)."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2013-05-16
• Unlawfully Present Aliens, Driver's Licenses, and Other State-Issued ID: Select Legal Issues [March 28, 2014]

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  "One aspect of the broader debate over aliens who are present in the United States in violation of federal immigration law has been their eligibility for driver's licenses and other forms of state-issued identification documents (IDs). The issuance of driver's licenses has historically been considered a state matter, and states have taken a variety of approaches. Some have barred the issuance of driver's licenses and other state-issued ID to unlawfully present aliens; others permit their issuance; and yet others instead grant unlawfully present aliens Certificates for Driving (CFDs) or Driving Privilege Cards (DPCs). CFDs or DPCs expressly state, on their face, that they are valid for driving, but not for other purposes. The federal government has generally not intruded on state control over the issuance of driver's licenses, although the REAL ID Act of 2005 (P.L. 109-13, Div. B) will, when implemented, bar federal agencies from accepting, 'for any official purpose,' licenses or ID cards issued by states that do not meet specific requirements. Regardless of whether they would deny or grant driver's licenses and other state-issued ID to unlawfully present aliens, such state measures have been challenged on various grounds. While these grounds can vary depending upon the specific statute or practice in question, the grounds most commonly asserted appear to be violations of the Equal Protection and Supremacy Clauses of the U.S. Constitution."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Garcia, Michael John

  2014-03-28
• Unlawfully Present Aliens, Higher Education, In-State Tuition, and Financial Aid: Legal Analysis [March 28, 2014]

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  "The existence of a sizable population of 'DREAMers' in the United States has prompted questions about unlawfully present aliens' eligibility for admission to public institutions of higher education, in-state tuition, and financial aid. The term DREAMer is widely used to describe aliens who were brought to the United States as children and raised here but lack legal immigration status. As children, DREAMers are entitled to public elementary and secondary education as a result of the Supreme Court's 1982 decision in 'Plyler v. Doe.' There, the Court struck down a Texas statute that prohibited the use of state funds to provide elementary and secondary education to children who were not 'legally admitted' to the United States because the state distinguished between these children and other children without a 'substantial' goal, in violation of the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Once DREAMers complete high school, however, they may have less access to public higher education. Plyler's holding was limited to elementary and secondary education, and the Court's focus on the young age of those whom Texas denied a 'basic education' has generally been taken to mean that measures denying unlawfully present aliens access to higher education may be subject to less scrutiny than the Texas statute was. Thus, several states have adopted laws or practices barring the enrollment of unlawfully present aliens at public institutions of higher education."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2014-03-28
• State and Local 'Sanctuary' Policies Limiting Participation in Immigration Enforcement [March 28, 2014]

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  "This report discusses legal issues related to state and local measures that limit law enforcement cooperation with federal immigration authorities. The report begins by providing a brief overview of the constitutional principles informing the relationship between federal immigration authorities and state and local jurisdictions, including the federal government's power to preempt state and local activities under the Supremacy Clause, and the Tenth Amendment's proscription against Congress directly 'commandeering' the states to administer a federally enacted regulatory scheme. The report then discusses various types of measures adopted or considered by states and localities to limit their participation in federal immigration enforcement efforts, including (1) limiting police investigations into the immigration status of persons with whom they come in contact; (2) declining to honor federal immigration authorities' requests that certain aliens be held until those authorities may assume custody; (3) shielding certain unlawfully present aliens from detection by federal immigration authorities; and (4) amending or applying state criminal laws so as to reduce or eliminate the immigration consequences that might result from an alien's criminal conviction."

  Library of Congress. Congressional Research Service

  Garcia, Michael John; Manuel, Kate

  2014-03-28
• Unaccompanied Alien Children-Legal Issues: Answers to Frequently Asked Questions [June 27, 2014]

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  "Recent reports about the increasing number of alien minors apprehended at the U.S. border without a parent or legal guardian have prompted numerous questions about so-called unaccompanied alien children (UACs). Some of these questions pertain to the numbers of children involved, their reasons for coming to the United States, and current and potential responses of the federal government and other entities to their arrival. Other questions concern the interpretation and interplay of various federal statutes and regulations, administrative and judicial decisions, and settlement agreements pertaining to alien minors. This report addresses the latter questions, providing general and relatively brief answers to 14 frequently asked questions regarding UACs."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2014-06-27
• Buy American Act in Brief: Preferences for 'Domestic' Supplies and Construction Materials in Federal Procurements [February 26, 2014]

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  "The Buy American Act of 1933 is the earliest and arguably the best known of various statutes regarding federal procurement of domestic products. Essentially, the act attempts to protect U.S. businesses and labor by restricting the acquisition and use of end products or construction materials that are not 'domestic.' For purposes of the act, domestic end products and domestic construction materials include (1) unmanufactured end products or construction materials mined or produced in the United States, as well as (2) end products or construction materials manufactured in the United States, provided that (a) the cost of the components mined, produced, or manufactured in the United States exceeds 50% of the cost of all components, or (b) the product is a commercially available off-the-shelf item. End products or construction materials that do not qualify as domestic under these definitions are generally treated as foreign, and offers that supply foreign end products or construction materials are foreign offers, regardless of the offeror's nationality. Purchases of services are generally not subject to the Buy American Act."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2014-02-26
• Domestic Content Restrictions: The Buy American Act and Complementary Provisions of Federal Law [January 6, 2014]

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  "Broadly understood, 'domestic content restrictions' are provisions which require that items purchased using specific funds appropriated by Congress be produced or manufactured in the United States. Federal law contains a number of such restrictions, each of which applies to different entities and supplies, and imposes somewhat different requirements. Some of these restrictions have, however, been waived pursuant to the Trade Agreements Act (TAA). The Buy American Act of 1933 is the earliest and arguably the best known of the major domestic content restrictions. […] The Berry Amendment, as currently codified in 10 U.S.C. §2533a, requires that food, clothing, tents, certain textile fabrics and fibers, and hand or measuring tools purchased by the Department of Defense (DOD) using appropriated or other funds be entirely grown, reprocessed, reused, or produced within the United States, with certain exceptions (e.g., procurements by vessels in foreign waters). […] The Buy America Act is the name commonly given to domestic content restrictions imposed on states, localities, and other non-federal entities as a condition of receiving certain grant funds administered by the Department of Transportation. The nature of the restrictions can vary depending upon the funds involved."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Dolan, Alissa M.; Murrill, Brandon J. . . .

  2014-01-06
• Legal Protections for Subcontractors on Federal Prime Contracts [January 27, 2014]

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  "Payment and other protections for subcontractors on federal contracts are of perennial interest to Members and committees of Congress, in part, because many subcontractors are small businesses, and it is the 'declared policy of the Congress that the Government should aid, counsel, assist, and protect, insofar as is possible, the interests of small business concerns.' Subcontractors on federal contracts are not in privity of contract, or direct contractual relationship, between the government and the subcontractors. As such, subcontractors would generally lack the payment and other protections that federal prime contractors enjoy. However, Congress has enacted several measures that give small business and other subcontractors certain protections. Key among these are the Miller Act, the 1988 amendments to the Prompt Payment Act, and Section 8(d) of the Small Business Act. The Miller Act of 1935, as amended, authorizes subcontractors who furnished labor or materials used in carrying out federal construction projects valued in excess of $150,000 to bring a civil action against prime contractors' payment bonds to obtain payments due. Congress enacted the Miller Act to compensate for the difficulties that subcontractors would otherwise have in obtaining payment from federal construction contractors, given that they cannot place a mechanic's lien on the work because the government has sovereign immunity. The doctrine of sovereign immunity protects the government from being sued without its consent, and the Contract Disputes Act waives the government's sovereign immunity only as to suits involving contracts to which the government is a party, not subcontracts under these contracts. Relatedly, because there is no privity of contract between the government and the subcontractor, the subcontractor generally cannot sue to enforce the payment or other terms of the subcontract against the government."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2014-01-27
• Contractors and HealthCare.gov: Answers to Frequently Asked Questions [January 24, 2014]

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  "The widely reported problems with the rollout of the HealthCare.gov website--the federal online health insurance portal called for by the Patient Protection and Affordable Care Act (ACA) (P.L. [Public Law] 111-148, as amended)--have prompted interest in the role that contractors played in developing this site. The Centers for Medicare and Medicaid Services (CMS) relied upon the services of over 50 vendors to build the site, which was reportedly largely unusable when it first became available to the public on October 1, 2013, and has been the subject of ongoing work since then. Given HealthCare.gov's problematic debut, questions have arisen about how CMS selected vendors to work on HealthCare.gov, and the terms of the vendors' contractual relationships with the government. […] The questions in this report are those that happen to have been frequently asked of the Congressional Research Service by congressional staffers. The inclusion of a particular question, or the exclusion of another question, should not be taken to indicate that particular factors did--or did not--contribute to HealthCare.gov's problematic debut. In addition, answers to these questions must often be provided in general terms, in part, because specific language in the parties' contracts may be subject to multiple interpretations and has not been construed by any court. […] The authors of this report rely upon third-party investigations of the facts and circumstances surrounding HealthCare.gov, and additional information may emerge regarding topics discussed herein. There is also a video, CRS [Congressional Research Service] WVB00013, 'Contractors and HealthCare.gov: Background in Brief', by L. Elaine Halchin and Kate M. Manuel, that addresses certain of these questions."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Murrill, Brandon J.; Perry, Rodney M.

  2014-01-24
• Immigration Detainers: Legal Issues [April 24, 2014]

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  "An 'immigration detainer' is a document by which U.S. Immigration and Customs Enforcement (ICE) advises other law enforcement agencies that it seeks custody of individual aliens whom these agencies are detaining. ICE and its predecessor, the Immigration and Naturalization Service (INS), have used detainers as one means of obtaining custody of aliens for removal proceedings since at least 1950. However, implementation of the Secure Communities program has recently prompted numerous questions about detainers. This program relies upon information sharing between various levels and agencies of government to identify potentially removable aliens. Prior to 1986, the Immigration and Nationality Act (INA) did not explicitly address detainers, and the INS appears to have issued detainers pursuant to its 'general authority' to guard U.S. borders and boundaries against the illegal entry of aliens, among other things. However, in 1986, Congress amended the INA to address the issuance of detainers for aliens arrested for controlled substance offenses. After the 1986 amendments, INS promulgated two regulations, one addressing the issuance of detainers for controlled substance offenses and the other addressing detainers for other offenses. These regulations were merged in 1997 and currently address various topics, including who may issue detainers and the temporary detention of aliens by other law enforcement agencies. There is also a standard detainer form (Form I-247) that allows ICE to indicate that it has taken actions that could lead to the alien's removal, and request that another agency take actions that could facilitate removal (e.g., notify ICE prior to releasing the alien)."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2014-04-24
• Immigration Detainers: Legal Issues [October 6, 2014]

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  "An 'immigration detainer' is a document by which U.S. Immigration and Customs Enforcement (ICE) advises other law enforcement agencies of its interest in individual aliens whom these agencies are detaining. ICE and its predecessor, the Immigration and Naturalization Service (INS), have used detainers as one means of obtaining custody of aliens for removal proceedings since at least 1950. However, the nationwide implementation of the Secure Communities program between 2008 and 2013 has prompted numerous questions about detainers. This program relies upon information sharing between various levels and agencies of government to identify potentially removable aliens. Detainers may then be issued for these aliens. Prior to 1986, the Immigration and Nationality Act (INA) did not explicitly address detainers, and the INS appears to have issued detainers pursuant to its 'general authority' to guard U.S. borders and boundaries against the illegal entry of aliens, among other things. However, in 1986, Congress amended the INA to address the issuance of detainers for aliens arrested for controlled substance offenses. After the 1986 amendments, INS promulgated two regulations, one addressing the issuance of detainers for controlled substance offenses and the other addressing detainers for other offenses. These regulations were merged in 1997 and currently address various topics, including who may issue detainers and the temporary detention of aliens by other law enforcement agencies. There is also a standard detainer form (Form I-247) that allows ICE to indicate that it has taken actions that could lead to the alien's removal, and request that another agency take actions that could facilitate such removal (e.g., notify ICE before the alien's release)."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2014-10-06
• GAO Bid Protests: An Overview of Time Frames and Procedures

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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

  Schwartz, Moshe; Manuel, Kate

  2014-10-03
• Insourcing Functions Performed by Federal Contractors: An Overview of the Legal Issues [November 15, 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. […] These include (1) contract law, under which agencies could be found to have constructively terminated certain requirements contracts by augmenting their in-house capacity to perform services provided for in the contract; (2) civil service law, which would generally limit 'direct hires' of contractor employees; and (3) ethics law, which could limit the involvement of former contractor employees in certain agency actions. 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

  Manuel, Kate; Maskell, Jack

  2011-11-15
• GAO Bid Protests: Trends, Analysis, and Options for Congress [August 5, 2011]

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  "Bid protests on federal government contracts 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 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 potential impact of protests upon government agency operations, especially in the Department of Defense. GAO is one of three forums with authority to hear general bid protests against the government. The GAO's bid-protest process includes some unique features--most notably, the automatic stay of contract award or performance during a GAO protest--that make GAO a desirable forum for many disappointed bidders and offerors. […] The number of bid protests filed against the Department of Defense (DOD) consistently increased, from approximately 600 in FY2001 to over 1,225 in FY2010, an increase of more than 100%. During the same period, on average, 60% of all bid protests involved DOD contracts even though DOD accounted for an average of 68% of all federal spending. From FY2001 to FY2010, the number of protests sustained against DOD has remained the same whereas the percentage of protests sustained against DOD has dropped from almost 7% in FY2001 to less than 4% in FY2010. According to data provided by GAO, protests against DOD were generally sustained at a lower rate than the rest of government (4.5% vs. 5.9%, respectively). This report contains options for Congress related to minimizing the number of protests filed with GAO and the delay of award/execution often associated with protests being sustained."

  Library of Congress. Congressional Research Service

  Schwartz, Moshe; Manuel, Kate

  2011-08-05
• Federal Acquisition Regulation (FAR): Answers to Frequently Asked Questions [November 16, 2012]

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  "The federal government is the largest buyer of goods and services in the world, and executive branch agencies--particularly the Department of Defense--make most of these purchases. Many (although not all) acquisitions by executive branch agencies are subject to the Federal Acquisition Regulation (FAR), which can make the FAR a topic of interest to Members and committees of Congress and their staff. In particular, Members, committees, and staff may find themselves (1) considering or drafting legislation that would amend the FAR to save money, promote transparency, or further other public policies; (2) conducting oversight of executive agencies' performance in procuring goods and services; and (3) responding to questions from constituents regarding executive branch procurement activities. In addition, certain commentators have recently suggested that some or all FAR provisions should be withdrawn."

  Library of Congress. Congressional Research Service

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

  2012-11-16
• Jurisdiction over Challenges to 'Large' Orders Under Federal Contracts [October 12, 2011]

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  "This report provides an overview and discussion of two recent decisions by the Government Accountability Office (GAO) and the U.S. Court of Federal Claims finding that they have jurisdiction over protests challenging the issuance of task and delivery orders of any size under civilian agency contracts, even if these orders do not increase the scope, period, or maximum value of the underlying contract. Prior to these decisions, executive branch agencies and many commentators had construed the Federal Acquisition Streamlining Act (FASA) of 1994, as amended by the National Defense Authorization Act (NDAA) for FY2008, as authorizing only protests concerning the issuance of orders under civilian agency contracts that (1) increase the scope, period, or maximum value of the underlying contract or (2) are valued in excess of $10 million, as well as granting GAO temporary exclusive jurisdiction over protests involving the latter. However, GAO and the court rejected this interpretation, finding that what expired on May 27, 2011, were limitations on their jurisdiction imposed by FASA, as amended by the NDAA for FY2008. Thus, they concluded that they and, potentially, procuring agencies have jurisdiction over protests of orders of any size issued under the contracts of civilian agencies, regardless of whether these orders increase the scope, period, or maximum value of the underlying contract. These decisions arguably will result in protests of orders under civilian agency contracts being treated differently from protests of similar orders under defense contracts, and also could increase the number of bid protests. In addition, the Federal Acquisition Regulation was amended on July 5, 2011, in a manner that could prompt questions, on the basis that it could be construed to mean that no protests of orders under civilian agency contracts are authorized after May 27, 2011."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Lunder, Erika

  2011-10-12
• Performance of Inherently Governmental and Critical Functions: The Obama Administration's Final Policy Letter [October 5, 2011]

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  "On September 12, 2011, the Office of Federal Procurement Policy (OFPP) within the Office of Management and Budget (OMB) issued its final policy letter on Performance of Inherently Governmental and Critical Functions. The policy letter is to guide executive branch agencies in (1) identifying inherently governmental and critical functions; (2) ensuring that only federal employees perform inherently governmental functions or work that 'otherwise needs to be reserved to the public sector;' and (3) managing functions that are closely associated with inherently governmental functions and critical functions. The policy letter defines an 'inherently governmental function,' in accordance with the Federal Activities Inventory Reform (FAIR) Act (P.L. 105-270), as 'one that is so intimately related to the public interest as to require performance by Federal Government employees.' […] In support of this policy, the letter directs agencies to (1) ensure that work which should be performed by federal employees is properly reserved for government performance; (2) take steps to employ and train an adequate number of government personnel to administer contracts when work is contracted out; and (3) as part of strategic human capital planning, dedicate a sufficient amount of work to performance by federal employees in order to build competencies, provide for continuity of operations, and retain institutional knowledge of operations. The policy letter establishes two tests for identifying inherently governmental functions, the 'nature of the function' test and the 'exercise of discretion' test, as well as lists examples of inherently governmental functions. These include certain security functions, but not routine building security. The policy letter also directs that, when agencies review outsourced work for potential insourcing, they should place a lower priority on reviewing certain work performed by small businesses, as well as give small businesses preference when determining who performs work that will remain in the private sector after related functions are insourced."

  Library of Congress. Congressional Research Service

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

  2011-10-05
• Evaluating the 'Past Performance' of Federal Contractors: Legal Requirements and Issues [February 4, 2013]

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  "Poor performance under a federal contract can have immediate consequences for contractors, who could be denied award or incentive fees, required to pay liquidated damages, or terminated for default. In addition, it could affect their ability to obtain future contracts because various provisions of federal law require agencies to evaluate contractors' 'past performance' and consider past performance information when making source selection decisions in negotiated procurements and when determining whether prospective contractors are 'responsible.' 'Past performance' refers to contractors' performance on 'active and physically completed contracts.' Currently, federal law requires agencies to evaluate and document contractor performance on all contracts whose value exceeds $150,000. The evaluation must address the contractor's performance vis-à-vis any required subcontracting plan and may address its conformity to contract requirements, adherence to contract schedules, and related factors. The evaluation and any contractor response comprise the past performance information that is stored in government databases (e.g., Past Performance Information Retrieval System (PPIRS), Federal Awardee Performance and Integrity Information System (FAPIIS)) and may be used in future source selection decisions. Federal law also requires agencies to consider contractors' past performance when making source selection decisions in negotiated procurements whose value exceeds $150,000. 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. However, other factors may be considered, and the factors can carry various weights."

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2013-02-04
• Prosecutorial Discretion in Immigration Enforcement: Legal Issues [January 17, 2013]

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  "The term 'prosecutorial discretion' is commonly used to describe the wide latitude that prosecutors have in determining when, whom, how, and even whether to prosecute apparent violations of the law. The Immigration and Naturalization Service (INS) and, later, the Department of Homeland Security (DHS) and its components have historically described themselves as exercising prosecutorial discretion in immigration enforcement. Some commentators have recently challenged this characterization on the grounds that DHS enforces primarily civil violations, and some of its components cannot be said to engage in 'law enforcement,' as that term is conventionally understood. However, even agencies that do not prosecute or engage in law enforcement have been recognized as having discretion (sometimes referred to as 'enforcement discretion') in determining whether to enforce particular violations. Federal regulation of immigration is commonly said to arise from various powers enumerated in the Constitution (e.g., naturalization, commerce), as well as the federal government's inherent power to control and conduct foreign relations. Some, although not all, of these powers belong exclusively to Congress, and courts have sometimes described Congress as having 'plenary power' over immigration. However, few courts or commentators have addressed the separation of powers between Congress and the President in the field of immigration, and the executive has sometimes been said to share plenary power over immigration with Congress as one of the 'political branches.' Moreover, the authority to exercise prosecutorial or enforcement discretion has traditionally been understood to arise from the Constitution, not from any congressional delegation of power."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Garvey, Todd

  2013-01-17
• Environmental Considerations in Federal Procurement: An Overview of the Legal Authorities and Their Implementation [January 7, 2013]

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  "Coupled with increasing concerns about the environment, the magnitude of federal spending on contracts has prompted numerous questions from Members of Congress and the public about the role of environmental considerations in federal procurement. These include: to what extent do agencies consider environmental factors when procuring goods or services? What legal authorities presently require or allow agencies to take environmental factors into account when acquiring goods or services? How are existing provisions authorizing agencies to consider environmental factors implemented? This report provides an overview, answering these and related questions. It does not address green building initiatives, energy-savings performance contracts, policy documents, agency-specific laws, or environmental laws of general applicability that effectively shape the products available for purchase."

  Library of Congress. Congressional Research Service

  Manuel, Kate; Halchin, L. Elaine

  2013-01-07
• Legal Protections for Subcontractors on Federal Prime Contracts [December 10, 2012]

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  "This report provides an overview of the payment and other protections for subcontractors on certain federal prime contracts under the Miller Act, the 1988 amendments to the Prompt Payment Act, and the Small Business Act. Congress enacted these statutes to give subcontractors rights and remedies they would not otherwise have because of legal doctrines relating to sovereign immunity, privity of contract, and freedom to contract. Payment and other protections for subcontractors on federal contracts are of perennial interest to Members and committees of Congress, in part, because many subcontractors are small businesses, and it is the 'declared policy of the Congress that the Government should aid, counsel, assist, and protect, insofar as is possible, the interests of small business concerns.'"

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2012-12-10
• Responsibility Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures [January 4, 2013]

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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-priced (or best-value) 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.'"

  Library of Congress. Congressional Research Service

  Manuel, Kate

  2013-01-04
• 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
• 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