Freedom from Government Competition Act of 2019

II 116TH CONGRESS 1ST SESSION S. 2990 To require that the Federal Government procure from the private sector the goods and services necessary for the operations and management of certain Government agencies, and for other purposes. IN THE SENATE OF THE UNITED STATES DECEMBER 5, 2019 Mr. THUNE introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To require that the Federal Government procure from the private sector the goods and services necessary for the operations and management of certain Government agen- cies, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Freedom from Govern- 4 ment Competition Act of 2019’’. 5 SEC. 2. FINDINGS. 6 Congress makes the following findings: 7 VerDate Sep 11 2014 22:11 Dec 11, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2990.IS S2990 kjohnson on DSK79L0C42 with BILLS 2 •S 2990 IS (1) Private sector business concerns, which are 1 free to respond to the private or public demands of 2 the marketplace, constitute the strength of the 3 United States economic system. 4 (2) Competitive private enterprises are the most 5 productive, efficient, and effective sources of goods 6 and services. 7 (3) Unfair Government competition with the 8 private sector of the economy is detrimental to the 9 United States economic system. 10 (4) Unfair Government competition with the 11 private sector of the economy is at an unacceptably 12 high level, both in scope and in dollar volume. 13 (5) Current law and policy have failed to ad- 14 dress adequately the problem of unfair Government 15 competition with the private sector of the economy. 16 (6) It is in the public interest that the Federal 17 Government establish a consistent policy to rely on 18 the private sector of the economy to provide goods 19 and services necessary for or beneficial to the oper- 20 ation and management of Federal agencies and to 21 avoid unfair Government competition with the pri- 22 vate sector of the economy. 23 SEC. 3. DEFINITIONS. 24 In this Act, the term ‘‘agency’’ means— 25 VerDate Sep 11 2014 22:11 Dec 11, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2990.IS S2990 kjohnson on DSK79L0C42 with BILLS 3 •S 2990 IS (1) an executive department as defined by sec- 1 tion 101 of title 5, United States Code; 2 (2) a military department as defined by section 3 102 of such title; and 4 (3) an independent establishment as defined by 5 section 104(l) of such title. 6 SEC. 4. PROCUREMENT FROM PRIVATE SOURCES. 7 (a) POLICY.—In the process of governing, the Fed- 8 eral Government should not compete with its citizens. The 9 competitive enterprise system, characterized by individual 10 freedom and initiative, is the primary source of national 11 economic strength. In recognition of this principle, it has 12 been and continues to be the general policy of the Federal 13 Government— 14 (1) to rely on commercial sources to supply the 15 products and services the Government needs; 16 (2) to refrain from providing a product or serv- 17 ice if the product or service can be procured more 18 economically from a commercial source; and 19 (3) to utilize Federal employees to perform in- 20 herently governmental functions (as that term is de- 21 fined in section 5 of the Federal Activities Inventory 22 Reform Act of 1998 (Public Law 105–270; 112 23 Stat. 2384)). 24 VerDate Sep 11 2014 22:11 Dec 11, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2990.IS S2990 kjohnson on DSK79L0C42 with BILLS 4 •S 2990 IS (b) GENERAL RULE.—Except as provided in sub- 1 section (c) and notwithstanding any other provision of law, 2 each agency shall obtain all goods and services necessary 3 for or beneficial to the accomplishment of its authorized 4 functions by procurement from private sources. 5 (c) EXEMPTIONS.—Subsection (b) shall not apply to 6 an agency with respect to goods or services if— 7 (1) the goods or services are required by law to 8 be produced or performed, respectively, by the agen- 9 cy; or 10 (2) the head of the agency determines and cer- 11 tifies to Congress in accordance with regulations 12 promulgated by the Director of the Office of Man- 13 agement and Budget that— 14 (A) Federal Government production, man- 15 ufacture, or provision of a good or service is 16 necessary for the national defense or homeland 17 security; 18 (B) a good or service is so critical to the 19 mission of the agency or so inherently govern- 20 mental in nature that it is in the public interest 21 to require production or performance, respec- 22 tively, by Government employees; or 23 (C) there is no private source capable of 24 providing the good or service. 25 VerDate Sep 11 2014 22:11 Dec 11, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2990.IS S2990 kjohnson on DSK79L0C42 with BILLS 5 •S 2990 IS (d) METHOD OF PROCUREMENT.—The provision of 1 goods and services not exempt under subsection (c) shall 2 be performed by an entity in the private sector through— 3 (1) the divestiture of Federal involvement in the 4 provision of a good or service; 5 (2) the award of a contract to an entity in the 6 private sector, using competitive procedures, as de- 7 fined in section 152 of title 41, United States Code, 8 and section 2302 of title 10, United States Code; or 9 (3) conducting a public-private competitive 10 sourcing analysis in accordance with the procedures 11 established by the Office of Management and Budg- 12 et and determining that using the assets, facilities, 13 and performance of the private sector is in the best 14 interest of the United States and that production or 15 performance, respectively, by the private sector pro- 16 vides the best value to the taxpayer. 17 (e) CONTRACTED ACTIVITIES.—The head of an agen- 18 cy may utilize Federal employees to provide goods or serv- 19 ices previously provided by an entity in the private sector 20 upon completion of a public-private competitive sourcing 21 analysis described in subsection (d)(3), and after making 22 a determination that the provision of such goods or serv- 23 ices by Federal employees provides the best value to the 24 taxpayer. 25 VerDate Sep 11 2014 22:11 Dec 11, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2990.IS S2990 kjohnson on DSK79L0C42 with BILLS 6 •S 2990 IS (f) REGULATIONS.—The Director of the Office of 1 Management and Budget shall promulgate such regula- 2 tions as the Director considers necessary to carry out this 3 section. In promulgating such regulations, the Director 4 shall assure that any State or territory, or political sub- 5 division of a State or territory, complies with the policy 6 and implements the requirements of this section when ex- 7 pending Federal funds. 8 SEC. 5. STUDY AND REPORT. 9 The Director of the Office of Management and Budg- 10 et, after consultation with the Comptroller General of the 11 United States, shall carry out a study to evaluate the ac- 12 tivities carried out in each agency, including those identi- 13 fied as commercial and inherently governmental in nature 14 in the inventory prepared pursuant to the Federal Activi- 15 ties Inventory Reform Act of 1998 (Public Law 105–270; 16 31 U.S.C. 501 note) and shall transmit a report to the 17 Congress prior to June 30 of each year. The report shall 18 include— 19 (1) an evaluation of the justification for ex- 20 empting activities pursuant to section 4(c); and 21 (2) a schedule for the transfer of commercial 22 activities to the private sector, pursuant to section 23 VerDate Sep 11 2014 22:11 Dec 11, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2990.IS S2990 kjohnson on DSK79L0C42 with BILLS 7 •S 2990 IS 4(d), to be completed within 5 years after the date 1 on which such report is transmitted to the Congress. 2 Æ VerDate Sep 11 2014 22:11 Dec 11, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\S2990.IS S2990 kjohnson on DSK79L0C42 with BILLS