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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
Presidential Authority to Impose Requirements on Federal Contractors [June 14, 2011]

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From the Summary: "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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From the Summary: "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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From the Summary: "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
State Challenges to Federal Enforcement of Immigration Law: From the Mid-1990s to the Present [August 1, 2016]

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"States and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens. Some states and localities, concerned that federal enforcement disrupts families and communities, or infringes upon human rights, have adopted 'sanctuary' policies limiting their cooperation in federal efforts. Other states and localities, in contrast, concerned about the costs of providing benefits or services to unauthorized aliens, or such aliens settling in their communities, have adopted measures to deter unauthorized aliens from entering or remaining within their jurisdiction. In some cases, such states or localities have also sued to compel federal officials to enforce the immigration laws, or to compensate them for costs associated with unauthorized migration. This report provides an overview of challenges by states to federal officials' alleged failure to enforce the INA or other provisions of immigration law. It begins by discussing (1) the lawsuits filed by six states in the mid-1990s; (2) Arizona's counterclaims to the federal government's suit to enjoin enforcement of S.B. 1070; and (3) Mississippi's challenge to the Deferred Action for Childhood Arrivals (DACA) initiative. It then describes the challenge brought by over 25 states or state officials in December 2014 to the Obama Administration's proposal to expand DACA and create a similar program for unauthorized aliens whose children are U.S. citizens or lawful permanent resident aliens (LPRs) (commonly known as DAPA)."

Library of Congress. Congressional Research Service

Manuel, Kate

2016-08-01
State Challenges to Federal Enforcement of Immigration Law: Historical Precedents and Pending Litigation [December 31, 2014]

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"States and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens. Some states and localities, concerned that federal enforcement disrupts families and communities, or infringes upon human rights, have adopted 'sanctuary' policies limiting their cooperation in federal efforts. Other states and localities, in contrast, concerned about the costs of providing benefits or services to unauthorized aliens, or such aliens settling in their communities, have adopted measures to deter unauthorized aliens from entering or remaining within their jurisdiction. In some cases, such states or localities have also sued to compel federal officials to enforce the INA and other relevant laws. In the mid-1990s, suits were filed by six states--Arizona, California, Florida, New Jersey, New York, and Texas--which were then home to over half the unauthorized aliens in the United States. Although somewhat different claims were made in each suit, the states generally asserted that federal officials' alleged failure to check unauthorized migration violated the Guarantee and Invasion Clauses of the U.S. Constitution, the Tenth Amendment, and various provisions of the INA. Concerns regarding standing--or who is a proper party to seek judicial relief from a federal court--were noted in some cases. However, even when standing was assumed, states' constitutional claims were seen to involve nonjusticiable 'political questions,' or to fail on their merits. The states' statutory claims were similarly seen to involve matters that were committed to agency discretion by law and, thus, not reviewable by the courts."

Library of Congress. Congressional Research Service

Manuel, Kate

2014-12-31
State Challenges to Federal Enforcement of Immigration Law: Historical Precedents and Pending Litigation in 'Texas v. United States' [January 27, 2016]

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From the Summary: "States and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens. Depending upon the jurisdiction's specific concerns, this interest can be expressed in various ways, from the adoption of 'sanctuary' policies limiting the jurisdiction's cooperation in federal enforcement efforts to the enactment of measures to deter unauthorized aliens from entering or remaining within the jurisdiction. In some cases, states or localities have also sued to compel federal officials to enforce the INA and other relevant laws."

Library of Congress. Congressional Research Service

Manuel, Kate

2016-01-27
State Challenges to Federal Enforcement of Immigration Law: Historical Precedents and Pending Litigation in 'Texas v. United States' [May 12, 2015]

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"States and localities can have significant interest in the manner and extent to which federal officials enforce provisions of the Immigration and Nationality Act (INA) regarding the exclusion and removal of unauthorized aliens. Depending upon the jurisdiction's specific concerns, this interest can be expressed in various ways, from the adoption of 'sanctuary' policies limiting the jurisdiction's cooperation in federal enforcement efforts to the enactment of measures to deter unauthorized aliens from entering or remaining within the jurisdiction. In some cases, states or localities have also sued to compel federal officials to enforce the INA and other relevant laws. […] Most recently, in December 2014, 27 states or their representatives filed suit challenging the Administration's expansion of DACA [Deferred Action for Childhood Arrivals] and the creation of another DACA-like program for aliens who are parents of U.S. citizens or lawful permanent residents (commonly known as DAPA). The states allege that these programs run afoul of the Take Care Clause and separation of powers principles of the Constitution, the INA, and substantive and procedural requirements of the APA. In February 2015, a federal district court found that Texas, at least, has standing to challenge DAPA and the DACA expansion, and that the challenged programs are judicially reviewable. The district court also enjoined implementation of these programs after finding that the states are likely to prevail on the merits of their argument that the memorandum establishing these initiatives constitutes a substantive rule, but was issued without compliance with the notice-and comment procedures required for substantive rules under the APA. The Administration has appealed that decision. The district court continues to hear arguments on the states' other claims."

Library of Congress. Congressional Research Service

Manuel, Kate

2015-05-12
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
Insourcing Functions Performed by Federal Contractors: An Overview of the Legal Issues [September 17, 2012]

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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 have performed on behalf of federal agencies. Among other things, the 109th through the 111th Congresses enacted 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. The Obama Administration has similarly promoted insourcing, with officials calling for consideration of insourcing in various workforce management initiatives."

Library of Congress. Congressional Research Service

Manuel, Kate; Maskell, Jack

2012-09-17
Insourcing Functions Performed by Federal Contractors: Legal Issues [February 22, 2013]

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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 generated 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

Maskell, Jack; Manuel, Kate

2013-02-22
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
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
Google Library Project: Is Digitization for Purposes of Online Indexing Fair Use Under Copyright Law? [July 6, 2009]

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"Authors and publishers sued Google Inc. in 2005, shortly after Google announced plans to digitize books in the collections of several major libraries, index them in its search engine (http://www.google.com), and allow searchers to view 'snippets' of the digitized books. Google's proposed reproduction and display of copyrighted books was not authorized by the rights holders, who alleged that the Google Library Project infringed their copyrights. Google's counterarguments--that allowing rights holders to 'opt out' of having their books digitized or indexed kept its proposed uses from being infringing, or that, if found to be infringing, its proposed uses were fair--raised important questions about reproduction and fair use under copyright law. Namely, does an entity engaged in unauthorized digitization and indexing avoid committing copyright infringement by offering rights holders the opportunity to request removal or exclusion of their content? And, assuming unauthorized indexing and display of 'snippets' are fair uses, can digitization claim to be a fair use on the grounds that apparently 'prima facie' infringing activities that facilitate legitimate uses are fair uses? The proposed settlement agreement between Google and rights holders could mean that litigation over the Library Project does not help to answer these questions. However, final court approval of the settlement is still pending, and future digitization and indexing projects may raise similar questions. This report provides background on the Library Project, legal issues raised by digitization and indexing projects, and the proposed settlement. It will be updated as developments warrant."

Library of Congress. Congressional Research Service

Manuel, Kate

2009-07-06
GAO Bid Protests: Trends and Analysis [August 9, 2013]

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"Bid protests of federal government contracts filed with the Government Accountability Office (GAO) have received congressional scrutiny due to high-profile protests of awards, including a $10 billion U.S. military contract for the distribution of food products in Afghanistan (protested by Supreme Foodservice AG), a contract to provide light air support planes to the Afghan military (protested by Beechcraft Corp.), and the Air Force's $7 billion NetCents 2 technology award (protested by 19 different companies). The increasing number of protests, and the impact protests can have in delaying contract award or performance, have raised concerns regarding the impact of protests on agency operations, especially in the Department of Defense (DOD). This report is one of two providing Congress with background on the GAO bid-protest process. It analyzes (1) trends in bid protests filed with GAO, (2) the impact bid protests have in delaying contracts, (3) why companies protest, (4) the most common grounds for GAO to sustain a protest, and (5) trends in bid protests filed against DOD."

Library of Congress. Congressional Research Service

Schwartz, Moshe; Manuel, Kate; Martinez, Lucy P.

2013-08-09
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
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
Aliens' Right to Counsel in Removal Proceedings: In Brief [June 20, 2014]

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"The scope of aliens' right to counsel in removal proceedings is a topic of recurring congressional and public interest. This topic is complicated, in part, because the term right to counsel can refer to either (1) the right to counsel of one's own choice at one's own expense, or (2) the right of indigent persons to counsel at the government's expense. A right to counsel can also arise from multiple sources, including the Fifth and Sixth Amendments to the U.S. Constitution, the Immigration and Nationality Act (INA), other federal statutes, and federal regulations. Further, in some cases, courts have declined to recognize a 'categorical' right to counsel, applicable to all aliens in removal proceedings, but have found that individual aliens could potentially have a right to counsel on a case-by-case basis because of their specific circumstances."

Library of Congress. Congressional Research Service

Manuel, Kate

2014-06-20
Obama Administration's November 2014 Immigration Initiatives: Questions and Answers [November 24, 2014]

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"On November 20, 2014, President Obama delivered a televised address wherein he broadly described the steps that his administration is taking to 'fix' what he has repeatedly described as a 'broken immigration system.' Following the President's address, executive agencies made available intra-agency memoranda and fact sheets detailing specific actions that have already been taken, or will be taken in the future. These actions generally involve either border security, the current unlawfully present population, or future legal immigration. […] The most notable of these actions, for many commentators, are the initiatives to grant 'deferred action'--one type of relief from removal--to some unlawfully present aliens who were brought to the United States as children and raised here, or who have children who are U.S. citizens or lawfully permanent resident (LPR) aliens."

Library of Congress. Congressional Research Service

Manuel, Kate

2014-11-24
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
Asylum and Gang Violence: Legal Overview [September 5, 2014]

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"The recent increase in the number of unaccompanied alien children (UACs) apprehended at the border between Mexico and the United States has raised questions about the role that gang-related violence in Central America may play in determining whether such children are eligible for refugee status and asylum. Only aliens who are 'refugees,' as that term is defined by the Immigration and Nationality Act (INA), qualify for potential refugee status or asylum (two forms of discretionary relief that could enable UACs to enter or remain in the United States). The INA's definition, in turn, generally encompasses individuals outside their home country who are unable or unwilling to return to that country because of 'persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.' However, key terms within this definition--including persecution and particular social group--are not defined by statute or regulation. Instead, they have been construed by the Board of Immigration Appeals (BIA), the highest administrative tribunal for interpreting and applying immigration law, through a process of case-by-case adjudication, with the federal courts generally deferring to the BIA's interpretation insofar as it is based on a 'permissible construction' of the INA. These cases center upon eligibility for asylum, because denials of applications for refugee status cannot be appealed. Denials of asylum by immigration judges in the course of formal removal proceedings, in contrast, may be appealed to the BIA and the federal courts of appeals."

Library of Congress. Congressional Research Service

Manuel, Kate

2014-09-05
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
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
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
Legal Protections for Subcontractors on Federal Prime Contracts [January 27, 2014]

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From the Document: "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
GAO Bid Protests: Trends and Analysis [July 21, 2015]

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"Bid protests on federal government contracts filed with the Government Accountability Office (GAO) have received congressional scrutiny due to protests of high-profile awards and reports that the number of protests is increasing. Concerns over delays in contract award or performance triggered by a GAO protest, coupled with the increasing number of GAO protests, have prompted concerns about the potential impact of protests upon government agency operations, especially in the Department of Defense (DOD). Both the House- and Senate- passed versions of the FY2016 National Defense Authorization Act call for a report on the bid protest process. There has been a significant shift in bid protest trends over the last six years. When compared to the rate of government spending, bid protests decreased from FY2001-FY2008, and increased from FY2008-FY2014. From FY2008-FY2014, total government spending, adjusted for inflation, decreased 25% while total protests increased 45%. The rate at which GAO sustains protests has also seen a significant shift in recent years. From FY2001-FY2008 GAO sustained protests in 22% of their opinions; from FY2009-FY2014 that number dropped to 17%. These numbers suggest that while companies are more likely to file a bid protest, they are somewhat less likely to win a bid protest. […] Analysts believe that protests are sometimes the result of poor communication between government and industry, poorly written requirements, and agencies not adequately debriefing losing bidders after an award. When agencies do not adequately debrief bidders, companies may file a protest to determine why they lost a competition. If poor communication results in bid protests, improving agency communication, clarity, and debriefs could result in fewer protests."

Library of Congress. Congressional Research Service

Schwartz, Moshe; Manuel, Kate

2015-07-21
Selected Legal Mechanisms Whereby the Government Can Hold Contractors Accountable for Failure to Perform or Other Misconduct [September 23, 2015]

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From the Summary: "Reports of 'waste, fraud, and abuse' in federal contracting often prompt questions about what the government can do to hold its vendors accountable for failure to perform as required under their contracts, or for legal violations or other misconduct unrelated to contract performance. Broadly speaking, the government can be seen as having two types of legal recourse available to it in such situations. The first type involves rights provided to the government as terms of its contracts, which the government may exercise without resort to judicial proceedings. The second type involves other actions, not necessarily provided for by contract. In some cases, the government may take these actions on its own behalf, without resort to judicial proceedings. In other cases, the government must seek sanctions or damages through the courts. Not all of these mechanisms involve 'penalties' as that term is generally understood. In some cases, the controlling legal authority expressly provides that the government may take certain actions only to protect the government's interest, and 'not for purposes of punishment.' However, in all cases, the government's action represents a consequence of and response to the contractor's delinquencies, and could be perceived as punitive by the contractor or other parties. The government generally has discretion as to whether to employ any of these mechanisms in particular circumstances, and could employ multiple mechanisms in a given case. In some cases, though, the government must choose between particular mechanisms."

Library of Congress. Congressional Research Service

Manuel, Kate; Perry, Rodney M.

2015-09-23
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
GAO Bid Protests: An Overview of Time Frames and Procedures [January 19, 2016]

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From the Summary: "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, as well as by agency determinations not to follow any nonbinding recommendations made by the Government Accountability Office (GAO) in deciding protests."

Library of Congress. Congressional Research Service

Manuel, Kate; Schwartz, Moshe

2016-01-19

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