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

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

Library of Congress. Congressional Research Service

Maskell, Jack; Manuel, Kate

2011-05-05
Presidential Authority to Impose Requirements on Federal Contractors [June 14, 2011]

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

Library of Congress. Congressional Research Service

Burrows, Vanessa K.; Manuel, Kate

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

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

Library of Congress. Congressional Research Service

Maskell, Jack; Manuel, Kate

2011-06-08
Authority of State and Local Police to Enforce Federal Immigration Law [September 17, 2010]

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

Library of Congress. Congressional Research Service

Garcia, Michael John; Manuel, Kate

2010-09-17
Interagency Contracting: An Overview of Federal Procurement and Appropriations Law [August 30, 2010]

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

Library of Congress. Congressional Research Service

Yeh, Brian T.; Manuel, Kate

2010-08-30
State 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
Responsibility Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures [August 18, 2010]

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

Library of Congress. Congressional Research Service

Manuel, Kate

2010-08-18
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
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
Federal Contracting and Subcontracting with Small Businesses: Issues in the 112th Congress [March 7, 2012]

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

Library of Congress. Congressional Research Service

Manuel, Kate; Lunder, Erika

2012-03-07
Small Business Mentor-Protege Programs [June 4, 2012]

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

Library of Congress. Congressional Research Service

Manuel, Kate; Dilger, Robert Jay, 1954-

2012-06-04
Jurisdiction over Challenges to 'Large' Orders Under Federal Contracts [October 12, 2011]

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From the Document: "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
Authority of State and Local Police to Enforce Federal Immigration Law [September 10, 2012]

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"The power to prescribe rules as to which aliens may enter the United States and which aliens may be removed resides solely with the federal government, and primarily with Congress. Concomitant to its exclusive power to determine which aliens may enter and which may stay in the country, the federal government also has the power to proscribe activities that subvert this system. Congress has defined our nation's immigration laws in the Immigration and Nationality Act (INA), a comprehensive set of laws governing legal immigration, naturalization, work authorization, and the entry and removal of aliens. These requirements are bolstered by an enforcement regime containing both civil and criminal provisions. Deportation and associated administrative processes related to the removal of aliens are civil in nature, while certain violations of federal immigration law, such as smuggling unauthorized aliens into the country, carry criminal penalties. Congressional authority to prescribe rules on immigration does not necessarily imply exclusive authority to enforce those rules. In certain circumstances, Congress has expressly authorized states and localities to assist in enforcing federal immigration law. Moreover, there is a notion that has been articulated in some federal courts and by the executive branch that states may possess 'inherent' authority to assist in the enforcement of federal immigration law, even in the absence of clear authorization by federal statute. Nonetheless, states may be precluded from taking actions if federal law would thereby be thwarted. […] This report discusses the authority of state and local law enforcement to assist in the enforcement of federal immigration law through the investigation and arrest of persons believed to have violated such laws."

Library of Congress. Congressional Research Service

Garcia, Michael John; Manuel, Kate

2012-09-10
Arizona v. United States: A Limited Role for States in Immigration Enforcement [September 10, 2012]

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"On June 25, 2012, the Supreme Court issued its much-anticipated decision in 'Arizona v. United States,' ruling that some aspects of an Arizona statute intended to deter unlawfully present aliens from remaining in the state were preempted by federal law, but also holding that Arizona police were not facially preempted from running immigration status checks on persons stopped for state or local offenses. In reaching these conclusions, the Supreme Court made clear that opportunities for states to take independent action in the field of immigration enforcement are more constrained than some had previously believed. In recent years, several states and localities have adopted measures intended to deter the presence of unauthorized aliens within their jurisdiction. An Arizona measure enacted in 2010, commonly referred to as S.B. 1070, arguably represents the vanguard of these attempts to test the legal limits of greater state involvement in immigration enforcement. The major provisions of S.B. 1070 can be divided into two categories: (1) those provisions seeking to bolster direct enforcement of federal immigration law by Arizona law enforcement, including through the identification and apprehension of unlawfully present aliens; and (2) those provisions that criminalize conduct which may facilitate the presence of unauthorized aliens within the state."

Library of Congress. Congressional Research Service

Manuel, Kate; Garcia, Michael John

2012-09-10
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
'Rothe Development Corporation v. Department of Defense': The Constitutionality of Federal Contracting Programs for Minority-Owned and Other Small Businesses [September 23, 2011]

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"This report discusses 'Rothe Development Corporation v. Department of Defense', a case involving a constitutional challenge to a minority contracting program authorized under Section 1207 of the Department of Defense (DOD) Authorization Act of 1987. This program allowed DOD to take 10% off the price of offers submitted by 'small disadvantaged businesses' in determining which offer had the lowest price or represented the best value for the government. Section 1207 also incorporated a presumption that minorities are socially and economically disadvantaged. […] On September 9, 2011, the Obama Administration proposed amending the Federal Acquisition Regulation (FAR) in light of the decisions by the Federal Circuit and district court in 'Rothe'. Among other things, the proposed changes would delete those provisions of the FAR which govern price evaluation adjustments to bids or offers submitted by small disadvantaged businesses for defense contracts, as well as relocate and amend those provisions of the FAR regarding monetary incentives and evaluation factors for subcontracting with small disadvantaged businesses. The report examines the 'Rothe' decision in detail; describes existing contracting programs for minority-owned and women-owned small businesses; and analyzes 'Rothe's' potential effect on these programs, including the Business Development Program under Section 8(a) of the Small Business Act. These programs were not at issue in 'Rothe' and would not be substantively changed by the Obama Administration's proposed amendments to the FAR. However, as numerous commentators and the Small Business Administration (SBA) have recognized, the 'Rothe' decision could have significant implications for other federal contracting programs for small businesses."

Library of Congress. Congressional Research Service

Feder, Jody; Manuel, Kate

2011-09-23
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
Legal Protections for Subcontractors on Federal Prime Contracts [December 10, 2012]

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From the Document: "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
'8(a) Program' for Small Businesses Owned and Controlled by the Socially and Economically Disadvantaged: Legal Requirements and Issues [October 12, 2012]

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"Commonly known as the '8(a) Program,' the Minority Small Business and Capital Ownership Development Program is one of several federal contracting programs for small businesses. The 8(a) Program provides participating small businesses with training, technical assistance, and contracting opportunities in the form of set-asides and sole-source awards. A 'set-aside' is an acquisition in which only certain contractors may compete, while a sole-source award is a contract awarded, or proposed for award, without competition. [...] Eligibility for the 8(a) Program is generally limited to small businesses 'unconditionally owned and controlled by one or more socially and economically disadvantaged individuals who are of good character and citizens of the United States' that demonstrate 'potential for success.' [...] The 8(a) Program has periodically been challenged on the grounds that the presumption that members of certain racial and ethnic groups are disadvantaged violates the constitutional guarantee of equal protection. The outcomes in early challenges to the program varied, with some courts finding that plaintiffs lacked standing because they were not economically disadvantaged. Most recently, a federal district court found that the program is not unconstitutional on its face because 'breaking down barriers to minority business development created by discrimination' constituted a compelling government interest, and the government had a strong basis in evidence for concluding that race-based action was necessary to further this interest. However, the court found that the program was unconstitutional as applied in the military simulation and training industry because there was no evidence of public- or private-sector discrimination in this industry."

Library of Congress. Congressional Research Service

Manuel, Kate; Luckey, John R.

2012-10-12
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
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
Legislative Options After 'Citizens United v. FEC': Constitutional and Legal Issues [March 8, 2010]

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From the Document: "In 'Citizens United v. FEC' [Federal Election Campaign], the Supreme Court invalidated two provisions of the Federal Election Campaign Act (FECA), finding that they were unconstitutional under the First Amendment. The decision struck down the long-standing prohibition on corporations using their general treasury funds to make independent expenditures, and Section 203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), prohibiting corporations from using their general treasury funds for 'electioneering communications.' [...] In response to the Supreme Court's ruling, various proposals have been discussed and legislation has been introduced in the 111th Congress, including for example H.Con.Res. 13, H.J.Res. 13, H.J.Res. 68, H.J.Res. 74, H.R. 158, H.R. 1095, H.R. 1826, H.R. 2038, H.R. 2056, H.R. 3574, H.R. 3859, H.R. 4431, H.R. 4432, H.R. 4433, H.R. 4434, H.R. 4435, H.R. 4487, H.R. 4510, H.R. 4511, H.R. 4517, H.R. 4522, H.R. 4523, H.R. 4527, H.R. 4537, H.R. 4540, H.R. 4550, H.R. 4583, H.R. 4617, H.R. 4630, H.R. 4644, S.J.Res. 28, S. 133, S. 752, S. 2954, S. 2959, and S. 3004. This report provides an analysis of the constitutional and legal issues raised by several proposals, organized by regulatory topic: increasing disclaimer requirements, increasing disclosure for tax-exempt organizations, requiring shareholder notification and approval, restricting U.S. subsidiaries of foreign corporations, restricting political expenditures by government contractors and grantees, taxing corporate independent expenditures, and providing public financing for congressional campaigns. The report also addresses amending the Constitution."

Library of Congress. Congressional Research Service

Whitaker, L. Paige; Lunder, Erika; Manuel, Kate . . .

2010-03-08
Presidential Authority to Impose Requirements on Federal Contractors [January 10, 2012]

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

Library of Congress. Congressional Research Service

Burrows, Vanessa K.; Manuel, Kate

2012-01-10
Authority of State and Local Police to Enforce Federal Immigration Law [August 17, 2011]

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

Library of Congress. Congressional Research Service

Garcia, Michael John; Manuel, Kate

2011-08-17
Immigration Legislation and Issues in the 112th Congress [September 30, 2011]

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

Library of Congress. Congressional Research Service

Ester, Karma; Bruno, Andorra; Manuel, Kate

2011-09-30
Debarment and Suspension of Government Contractors: An Overview of the Law Including Recently Enacted and Proposed Amendments [January 6, 2012]

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

Library of Congress. Congressional Research Service

Manuel, Kate

2012-01-06
Legal Authorities Governing Federal Contracting and Subcontracting with Small Businesses [March 7, 2012]

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

Library of Congress. Congressional Research Service

Manuel, Kate; Lunder, Erika

2012-03-07
Definitions of 'Inherently Governmental Functions' in Federal Procurement Law and Guidance [January 24, 2012]

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

Library of Congress. Congressional Research Service

Manuel, Kate; Luckey, John R.

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

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

Library of Congress. Congressional Research Service

Manuel, Kate

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

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

Library of Congress. Congressional Research Service

Manuel, Kate; Schwartz, Moshe

2011-06-30

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