[House Report 112-536]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-536
======================================================================
KEEPING POLITICS OUT OF FEDERAL CONTRACTING ACT OF 2011
_______
June 15, 2012.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Issa, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2008]
[Including cost estimate of the Congressional Budget Office]
The Committee on Oversight and Government Reform, to whom
was referred the bill (H.R. 2008) to amend title 41, United
States Code, to prohibit inserting politics into the Federal
acquisition process by prohibiting the submission of political
contribution information as a condition of receiving a Federal
contract, having considered the same, report favorably thereon
without amendment and recommend that the bill do pass.
CONTENTS
Page
Committee Statement and Views.................................... 2
Section-by-Section............................................... 3
Explanation of Amendments........................................ 3
Committee Consideration.......................................... 3
Rollcall Votes................................................... 3
Application of Law to the Legislative Branch..................... 3
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 4
Statement of General Performance Goals and Objectives............ 4
Federal Advisory Committee Act................................... 4
Unfunded Mandate Statement....................................... 4
Committee Estimate............................................... 4
Budget Authority and Congressional Budget Office Cost Estimate... 4
Changes in Existing Law Made by the Bill as Reported............. 5
Minority Views................................................... 8
Committee Statement and Views
PURPOSE AND SUMMARY
This legislation, H.R. 2008, the ``Keeping Politics Out of
Federal Contracting Act of 2011,'' prohibits the head of an
executive agency from: (1) requiring a contractor to submit
political information as part of a soliticitation, request for
bid, request for proposal, or any other communication in
connection with the award of a contract for procurement of
property or services or during the course of the contract
performance until the completion of a contract; (2) using such
political information as a factor or consideration in the
source selection process used to award a competitive or non-
competitive contract; or (3) including such political
information in a contracting past performance database.
It defines ``political information'' as information
relating to political spending, including any payment for an
electioneering communication, by a contractor or persons
related to such contractor to a candidate for Federal office, a
political commitee, a political party, or to a third party
entity for political purposes.
BACKGROUND AND NEED FOR LEGISLATION
The acquisition and procurement laws and regulations are
designed to ensure impartiality in the selection of
contractors. These laws require that firms seeking to do
business with the government are given the opportunity to
compete on a level playing field, where the government is best
able to obtain the goods and services that it needs based
solely on best price, best quality, or the best combination
thereof. Politics should not influence what the government
purchases with taxpayer money.
This law addresses a draft Executive Order advanced by the
Obama Administration. That proposed Executive Order would
require that bidders disclose information about their political
spending. These bidders, and the government's own contracting
officials, however, would not have control over how that
information is used. Indeed, the proposed Executive Order would
require the political donation information to be made available
on a publicly available, searchable database as soon as
practicable. The disclosure of private political donations by
government contractors would improperly politicize the
government procurement process. This legislation prohibits the
implementation of the proposed Executive Order.
LEGISLATIVE HISTORY
This bill was introduced on May 26, 2011, and referred to
the House Committee on Oversight and Government Reform. On June
20, 2011, it was referred to the Subcommittee on Technology,
Information Policy, Intergovernmental Relations and Procurement
Reform. On April 26, 2012, it was submitted for Committee
consideration and the bill was ordered to be reported by voice
vote. A companion bill in the Senate, S. 1100, was introduced
on May 26, 2011, and ordered reported on May 16, 2012, by the
Senate Committee on Homeland Security and Government Affairs.
Section-by-Section
Section 1. Short title
This Act may be cited as the `Keeping Politics Out of
Federal Contracting Act of 2011'.
Section 2. Prohibition on certain uses of political information
Amends Chapter 47 of title 41, United States Code to
prohibit the head of an executive agency from:
(1) requiring a contractor to submit political
information as part of a soliticitation, request for
bid, request for proposal, or any other communiction in
connection with the award of a contract for procurement
of property or services or during the course of the
contract performance until the completion of a
contract;
(2) using such political information as a factor or
consideration in the source selection process used to
award a competitive or non-competitive contract; or
(3) including such political information in a
contracting past performance database.
Applies the prohibitions to the procurement of commercial
items, commercial off-the-shelf items, and the non-commercial
procurement of supplies, property, services, and manufactured
items, irrespective of contract vehicle, including contracts,
purchase orders, task or deliver orders under indefinite
delivery/indefinite quantity contracts, blanket purchase
agreements, and basic ordering agreements.
Defines ``political information'' as information relating
to political spending, including any payment for an
electioneering communication by a contractor or persons related
to such contractor to a candidate for Federal office, a
political commitee, a political party, or to a third party
entity for political purposes.
Explanation of Amendments
No amendments were offered.
Committee Consideration
On April 26, 2012, the Committee met in open session and
ordered reported favorably the bill, H.R. 2008, by voice vote,
a quorum being present.
Rollcall Votes
There were no votes during consideration of H.R. 2008.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch where the bill relates to the terms and conditions of
employment or access to public services and accommodations.
This bill prohibits the head of an executive agency from: (1)
requiring a contractor to submit political information as part
of a solicitation, request for bid, request for proposal, or
any other communication in connection with the award of a
contract for procurement of property or services or during the
course of the contract performance until the completion of a
contract; (2) using such political information as a factor or
consideration in the source selection process used to award a
competitive or non-competitive contract; or (3) including such
political information in a contracting past performance
database. As such this bill does not relate to employment or
access to public services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
Federal Advisory Committee Act
The Committee finds that the legislation does not establish
or authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) requires a statement as to
whether the provisions of the reported include unfunded
mandates. In compliance with this requirement the Committee has
received a letter from the Congressional Budget Office included
herein.
Earmark Identification
H.R. 2008 does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs that would be incurred in carrying out
H.R. 2008. However, clause 3(d)(3)(B) of that rule provides
that this requirement does not apply when the Committee has
included in its report a timely submitted cost estimate of the
bill prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act.
Budget Authority and Congressional Budget Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has received
the following cost estimate for H.R. 2008 from the Director of
Congressional Budget Office:
May 8, 2012.
Hon. Darrell Issa,
Chairman, Committee on Oversight and Government Reform, House of
Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2008, the Keeping
Politics Out of Federal Contracting Act of 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Matthew
Pickford.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 2008--Keeping Politics Out of Federal Contracting Act of 2011
H.R. 2008 would prohibit federal agencies from requiring
existing or potential contractors to submit information
concerning any political contributions to the government, or
from using political contributions as a factor in awarding
contracts. According to the General Services Administration,
while there is a draft executive order that would require
agencies to collect information regarding a contractor's or
potential contractor's political contributions, agencies are
not currently collecting such information. CBO estimates that
implementing H.R. 2008 would not require agencies to make a
significant change in the contracting process and thus would
not have a significant impact on the federal budget.
Enacting the bill could affect direct spending by agencies
not funded through annual appropriations; therefore, pay-as-
you-go procedures apply. CBO estimates, however, that any net
increase in spending by those agencies would be negligible.
Enacting H.R. 2008 would not affect revenues.
H.R. 2008 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Matthew
Pickford. This estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
CHAPTER 47 OF TITLE 41, UNITED STATES CODE
CHAPTER 47--MISCELLANEOUS
Sec.
4701. Determinations and decisions.
* * * * * * *
4712. Prohibition on Certain Uses of Political Information.
* * * * * * *
Sec. 4712. Prohibition on certain uses of political information
(a) Prohibition on Requiring Submission of Political
Information.--The head of an executive agency may not require a
contractor to submit political information related to the
contractor or a subcontractor at any tier, or any partner,
officer, director, or employee of the contractor or
subcontractor--
(1) as part of a solicitation, request for bid,
request for proposal, or any other form of
communication designed to solicit offers in connection
with the award of a contract for procurement of
property or services;
(2) during the course of contract performance as part
of the process associated with modifying a contract or
exercising a contract option; or
(3) any time prior to contract completion and final
contract closeout.
(b) Prohibition on Use of Political Information.--The head of
an executive agency may not use political information, whether
obtained from a contractor or prospective contractor or from an
independent public or nonpublic source, as a factor or
consideration in the source selection process used to award a
competitive or non-competitive contract at any value or in
making any decision associated with the modification of a
contract or the exercise of a contract option.
(c) Prohibition on Inclusion of Political Information in
Contracting Databases.--
(1) In general.--Except as provided under paragraph
(2), an executive agency may not include political
information in the contracting past performance
database or any database designed to provide
information to a contracting officer for purposes of
supporting the responsibility determination by such
officer.
(2) Exception for disclosure of certain violations.--
(A) Exception.--Data required as of the date
of the enactment of the Keeping Politics Out of
Federal Contracting Act of 2011 to be included
in the database maintained under section 2313
of this title are not subject to the
prohibition under paragraph (1).
(B) Rule of construction.--Notwithstanding
subparagraph (A), this paragraph shall not be
construed as authorizing the inclusion of
political information pursuant to subsection
(c)(6) of such section.
(d) Applicability.--The prohibitions under this section apply
to the procurement of commercial items, the procurement of
commercial off-the-shelf items, and the non-commercial
procurement of supplies, property, services, and manufactured
items, irrespective of contract vehicle, including contracts,
purchase orders, task or deliver orders under indefinite
delivery/indefinite quantity contracts, blanket purchase
agreements, and basic ordering agreements.
(e) Rule of Construction.--Nothing in this section shall be
construed as waiving, superseding, restricting, or limiting the
application of the Federal Election Campaign Act of 1971 (2
U.S.C. 431 et seq.) or preventing Federal regulatory or law
enforcement agencies from collecting or receiving information
authorized by law.
(f) Definitions.--In this section:
(1) Acquisition.--The term ``acquisition'' has the
meaning given the term in section 131 of this title.
(2) Contractor.--The term ``contractor'' includes
contractors, bidders, and offerors, and individuals and
legal entities who would reasonably be expected to
submit offers or bids for Federal Government contracts.
(3) Executive agency.--The term ``executive agency''
has the meaning given the term in section 133 of this
title.
(4) Political information.--The term ``political
information'' means information relating to political
spending, including any payment consisting of a
contribution, expenditure, independent expenditure, or
disbursement for an electioneering communication that
is made by the contractor, any of its partners,
officers, directors or employees, or any of its
affiliates or subsidiaries to a candidate or on behalf
of a candidate for election for Federal office, to a
political committee, to a political party, to a third-
party entity with the intention or reasonable
expectation that it would use the payment to make
independent expenditures or electioneering
communications, or that is otherwise made with respect
to any election for Federal office, party affiliation,
and voting history. Each of the terms ``contribution'',
``expenditure'', ``independent expenditure'',
``candidate'', ``election'', ``electioneering
communication'', and ``Federal office'' has the meaning
given the term in the Federal Campaign Act of 1971 (2
U.S.C. 431 et seq.).
MINORITY VIEWS
H.R. 2008, the Keeping Politics out of Federal Contracting
Act, is both unnecessary and unwise. There is a vast amount of
secret money now financing our election process. Transparency
and the disclosure of political contributions by everyone--
corporations, unions, and individuals--should be our goal.
In response to the Citizens United decision and the
emergence of Super PACs, the Administration last year
circulated a draft Executive Order that would have required
disclosures by government contractors of their political
contributions, particularly to third-party groups that seek to
influence the outcome of federal elections.
This bill, which would prohibit these types of disclosures,
seems to suggest that requiring government contractors to
disclose more information about their political donations is
bad policy because it could cause people in power to retaliate
against them for political reasons. This is a fundamentally
flawed premise. Under this logic, all campaign disclosures
would be bad, not just new ones. Government contractors already
disclose contributions and expenditures by their PACs and those
who contribute to them. Contributions by the officers and
directors of government contractors are also required to be
disclosed. Obviously, we should not eliminate these provisions.
A second argument made by proponents of this bill is that
contracting officers might review political contributions in
order to reward allies or punish foes by awarding or
withholding government contracts. But federal procurement laws
already prohibit this.
A third argument--that the draft Executive Order violates
the First Amendment--is also misplaced. In the recent Citizens
United case, eight of nine justices agreed that campaign
disclosure rules are consistent with the First Amendment
because they do not prohibit contributions and ``do not prevent
anyone from speaking.''
The draft Executive Order could have been drafted
differently. For example, under the draft Executive Order,
agency heads would have been required to collect this
information, rather than the Federal Election Commission, which
is the more appropriate body. But the arguments for this bill
have little merit. Members instead should support legislation
that would strengthen our democratic process by ending the
secret financing of elections.
Elijah E. Cummings.