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110th Congress 
 2d Session                      SENATE                          Report
                                                                110-455
_______________________________________________________________________

                                     

                                                       Calendar No. 953


    FEDERAL PROTECTIVE SERVICE GUARD CONTRACTING REFORM ACT OF 2008


                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                               H.R. 3068


TO PROHIBIT THE AWARD OF CONTRACTS TO PROVIDE GUARD SERVICES UNDER THE 
CONTRACT SECURITY GUARD PROGRAM OF THE FEDERAL PROTECTIVE SERVICE TO A 
     BUSINESS CONCERN THAT IS OWNED, CONTROLLED, OR OPERATED BY AN 
             INDIVIDUAL WHO HAS BEEN CONVICTED OF A FELONY






               September 11, 2008.--Ordered to be printed
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

               JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan                 SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii              TED STEVENS, Alaska
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas              NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana          TOM COBURN, Oklahoma
BARACK OBAMA, Illinois               PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri           JOHN WARNER, Virginia
JON TESTER, Montana                  JOHN E. SUNUNU, New Hampshire

                  Michael L. Alexander, Staff Director
                     Kevin J. Landy, Chief Counsel
              Jason M. Yanussi, Professional Staff Member
     Brandon L. Milhorn, Minority Staff Director and Chief Counsel
         Amanda Wood, Minority Director of Governmental Affairs
                  Trina Driessnack Tyrer, Chief Clerk



                            C O N T E N T S

                              ----------                              
                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................1
III. Legislative History..............................................2
 IV. Section by Section Analysis......................................3
  V. Evaluation of Regulatory Impact..................................3
 VI. Congressional Budget Office Cost Estimate........................3
VII. Changes in Existing Law Made by the Bill, as Reported............4
                                                       Calendar No. 953
110th Congress
                                 SENATE
                                                                 Report
 2d Session                                                     110-455

======================================================================



 
    FEDERAL PROTECTIVE SERVICE GUARD CONTRACTING REFORM ACT OF 2008

                                _______
                                

               September 11, 2008.--Ordered to be printed

                                _______
                                

Mr. Lieberman, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                        [To accompany H.R. 3068]

    The Committee on Homeland Security and Governmental 
Affairs, having considered H.R. 3068, a bill to prohibit the 
award of contracts to provide guard services under the contract 
security guard program of the Federal Protective Service to a 
business concern that is owned, controlled, or operated by an 
individual who has been convicted of a felony, reports 
favorably thereon with an amendment and recommends that the 
bill, as amended, do pass.

                         I. PURPOSE AND SUMMARY

    The purpose of this legislation is to prevent the Federal 
Protective Service from awarding contracts for guard services 
to companies owned, controlled or operated by individuals 
convicted of serious felonies who may present a risk to the 
security of federal employees and federal property.

              II. BACKGROUND AND NEED FOR THE LEGISLATION

    This legislation was developed in response to two oversight 
hearings of the Federal Protective Service conducted by the 
House Committee on Transportation and Infrastructure on April 
17, 2007, and June 21, 2007. While examining the role that 
contract security guards have in protecting federal personnel 
and property, the House Committee on Transportation and 
Infrastructure learned that one contract guard services company 
was operated by an individual who had been convicted of fraud 
and had failed to pay its security guard employees. As a 
result, this may have created a security risk for federal 
employees and federal buildings. Legislation subsequently 
introduced by Representative Eleanor Holmes Norton to address 
this vulnerability, H.R. 3068, was passed by the House of 
Representatives on October 2, 2007.
    The bill reported by the Senate Committee on Homeland 
Security and Governmental Affairs directs the Secretary of the 
Department of Homeland Security (DHS), acting through the 
Assistant Secretary of the U.S. Immigration and Customs 
Enforcement, to promulgate regulations prohibiting the award of 
contracts for guard services by the Federal Protective Service 
to any business owned, controlled or operated by an individual 
convicted of serious felonies. The regulations shall identify 
which serious felonies may prohibit a contractor from being 
awarded a contract, on either a permanent or interim basis, and 
shall require contractors to provide the relevant information 
when submitting bids or proposals.
    The bill also requires that the regulations provide 
guidelines for a contracting officer to assess the present 
responsibility of the contractor, any mitigating factors and 
the risk associated with the previous conviction, so that the 
contracting officer may award a contract to an affected 
business under certain circumstances. The bill also requires a 
report on establishing similar guidelines government-wide.
    The Committee is concerned that the Federal Protective 
Service's existing processes for overseeing its contracts for 
security guard services, and for evaluating the present 
responsibility of a contractor, may have created a security 
risk for federal employees and buildings. However, the 
Committee was also concerned that the legislation as passed by 
the House of Representatives may have instituted an overly 
broad prohibition. As a result, the Committee amended the 
legislation to direct DHS to develop regulations identifying 
which serious felonies may prohibit a business from being 
awarded a contract for security guard services. The legislation 
gives the Secretary flexibility to consider permanent or 
interim prohibitions, or both, as necessary. The Committee 
recognizes that such a prohibition may disproportionately 
affect small businesses, which may have a more difficult time 
changing principals in the event one or more individuals has 
previously been convicted of a felony. The Committee has 
therefore required the regulations include guidance for 
contracting officers to assess mitigating factors and other 
evidence of present responsibility, thereby allowing the 
contracting officer to award a contract under certain 
circumstances.

                        III. LEGISLATIVE HISTORY

    H.R. 3068 was introduced by Representative Eleanor Holmes 
Norton on July 17, 2007, and was referred to the House 
Committee on Transportation and Infrastructure. On July 18, 
2007, the bill was referred to the Subcommittee on Economic 
Development, Public Buildings and Emergency Management. The 
subcommittee held a markup to consider H.R. 3068 on August 1, 
2007, and favorably recommended the bill to the Committee by 
voice vote. On August 2, 2007, the Committee on Transportation 
and Infrastructure ordered the bill, as amended, reported 
favorably to the House by voice vote. The House passed H.R. 
3068 by voice vote on October 2, 2007.
    On October 3, 2007, H.R. 3068 was referred to the Senate 
Committee on Homeland Security and Governmental Affairs. On 
July 30, 2008, the Committee considered H.R. 3068. Senator 
Lieberman offered an amendment in the nature of a substitute 
which was adopted by voice vote. The bill, as amended, was 
adopted by the Committee by voice vote, and favorably reported 
to the Senate. Members present for the vote on the substitute 
amendment and the vote on the bill, as amended, were Senators 
Lieberman, Akaka, Carper, Pryor, Landrieu, Tester, Collins, 
Stevens, and Voinovich.

                    IV. SECTION-BY-SECTION ANALYSIS

Section 1. Short title

    The short title of the bill is the Federal Protective 
Service Guard Contracting Reform Act of 2008.

Section 2. Federal Protective Service contracts

    Subsection (a) requires the Secretary of Homeland Security, 
acting through the Assistant Secretary of U.S. Immigration and 
Customs Enforcement, to promulgate regulations establishing 
guidelines for the prohibition of contract awards for guard 
services by the Federal Protective Service to any businesses 
owned, controlled or operated by an individual convicted of a 
felony. The Secretary may consider permanent or interim 
prohibitions. The regulations shall identify which serious 
felonies may prohibit a contractor from being awarded a 
contract, require contractors to provide the necessary 
information, and will provide guidelines for contracting 
officers considering mitigating factors and evidence of present 
responsibility.
    Subsection (b) requires the regulations be issued not later 
than 6 months after the date of enactment of the legislation.

Section 3. Report on government-wide applicability

    This section requires the Administrator for Federal 
Procurement Policy to submit a report to the Senate Committee 
on Homeland Security and Governmental Affairs and the House 
Committee on Oversight and Government Reform on establishing 
similar guidelines government-wide, no later than 180 days 
after the date of enactment.

                   V. EVALUATION OF REGULATORY IMPACT

    Pursuant to the requirement of paragraph 11(b)(1) of rule 
XXVI of the Standing Rules of the Senate the Committee has 
considered the regulatory impact of this bill. CBO states that 
the bill contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.

                   VI. ESTIMATED COST OF LEGISLATION

                                                   August 12, 2008.
Hon. Joseph I. Lieberman,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3068, the Federal 
Protective Service Guard Contracting Reform Act of 2008.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

H.R. 3068--Federal Protective Service Guard Contracting Reform Act of 
        2008

    H.R. 3068 would direct the Department of Homeland Security 
(DHS) to issue regulations prohibiting firms owned, operated, 
or controlled by certain convicted felons from receiving 
contracts to provide guard services through the Federal 
Protective Service. The bill would allow DHS to determine which 
felonies would affect eligibility for such contracts and the 
terms and conditions under which exceptions could be granted. 
Finally, the legislation would require the Office of Federal 
Procurement Policy (OFPP) to report to the Congress on the 
merits of establishing similar guidelines governmentwide.
    Based on information from DHS and OFPP, CBO estimates that 
implementing H.R. 3068 would cost less than $500,000 over the 
2009-2010 period, subject to the availability of appropriated 
funds. Enacting the legislation would not affect direct 
spending or revenues.
    H.R. 3068 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    On August 27, 2007, CBO provided a cost estimate for H.R. 
3068 as ordered reported by the House Committee on 
Transportation and Infrastructure on August 2, 2007. The two 
bills are similar in that they both deal with the awarding of 
guard services but have different provisions regarding the 
regulations and reporting requirements. The cost estimates 
reflect those differences.
    The CBO staff contact for this estimate is Matthew 
Pickford. This estimate was approved by Peter H. Fontaine, 
Assistant Director for Budget Analysis.

      VIII. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    Because this legislation would not repeal or amend any 
provision of current law, it would make no changes in existing 
law within the meaning of clauses (a) and (b) of paragraph 12 
of rule XXVI of the Standing Rules of the Senate.