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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.
