Location-Based Preferences in Federal and Federally Funded Contracting: An Overview of the Law

John R. Luckey
Legislative Attorney

Kate M. Manuel
Legislative Attorney

The recession of 2007-2009 and subsequent economic conditions have prompted increased interest among some Members of Congress and their constituents in legal authorities that could require or allow federal agencies to prefer contractors in one state or locality over those in other states or localities. Federal spending on procurement contracts has remained high, totaling $511.1 billion in FY2010, at a time when many other businesses have scaled back their purchases of goods and services. However, this spending has historically been localized in three to five states, which receive nearly half of all federal procurement dollars, prompting concerns about whether other states receive their “fair share.”

The federal government generally awards contracts to the lowest qualified responsible offeror, regardless of the offeror’s location. However, some provisions of federal law require or allow contracting agencies to favor vendors in certain localities. The main government-wide preferences are for (1) “local contractors” in areas affected by presidentially declared disasters or emergencies; (2) businesses in “labor surplus areas,” or areas with particularly high unemployment; and (3) small businesses in Historically Underutilized Business Zones (HUBZones), or census tracks, nonmetropolitan counties, or other areas with low household income or high unemployment. Federal agencies may conduct set-asides for, or grant evaluation preferences to, local contractors; use firms’ status as labor surplus area concerns, or willingness to locate facilities in labor surplus areas, as a tie-breaker in sealed bid procurements or an evaluation factor in certain negotiated procurements; and make special sole-source awards to, conduct setasides for, or grant price evaluation preferences to HUBZone small businesses. Other agencyspecific preferences also exist, such as those for “local private, nonprofit, or cooperative entities” under the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010 (P.L. 111-88).

There generally must be statutory authority for any geographic preference involving federal contracts or federally funded contracts. Such statutory preferences do not themselves deprive vendors outside the targeted area of equal protection in violation of the U.S. Constitution because classifications based on geography are subject to “rational basis review” and need only have a rational relationship to a legitimate government interest. However, absent congressional authorization, attempts by state or local governments to create location-based preferences for federally funded procurement contracts would violate the constitutional prohibition on state or local legislation that burdens or discriminates against interstate commerce. Similar attempts by federal agencies to prefer vendors in certain locations without congressional authorization would violate procurement integrity regulations and the Competition in Contracting Act (CICA) of 1984.


Date of Report: December 14, 2011
Number of Pages: 21
Order Number: R41115
Price: $29.95

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The U.S. Postal Service’s Financial Condition: Overview and Issues for Congress

Kevin R. Kosar
Analyst in American National Government

This report provides an overview of the U.S. Postal Service’s (USPS’s) financial condition, legislation enacted to alleviate the USPS’s financial challenges, and possible issues for the 112th Congress.

Since 1971, the USPS has been a self-supporting government agency that covers its operating costs with revenues generated through the sales of postage and related products and services.

In recent years, the USPS has experienced significant financial challenges. After running modest profits from FY2004 through FY2006, the USPS lost $25.4 billion between FY2007 and FY2011. Were it not for congressional action, the USPS would have lost an additional $9.5 billion.

A number of ideas have been advanced that would attempt to improve the USPS’s financial condition in the short term so that it might continue as a self-funding government agency. All of these reforms would require Congress to amend current postal law. The ideas include (1) increasing the USPS’s revenues by altering postage rates and increasing its offering of nonpostal rates and services; and (2) reducing the USPS’s expenses by a number of means, such as recalculating the USPS’s retiree health care and pension obligations and payments, closing postal facilities, and reducing mail delivery to less than six days per week.

This report will be updated after the USPS releases its quarterly financial results in early February 2012, and in the interim should there be any significant developments.


Date of Report: December 16, 2011
Number of Pages: 18
Order Number: R41024
Price: $29.95

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Procedures for Contested Election Cases in the House of Representatives

Jack Maskell
Legislative Attorney

L. Paige Whitaker
Legislative Attorney

Under the U.S. Constitution, each House of Congress has the express authority to be the judge of the “elections and returns” of its own Members (Article I, Section 5, clause 1). Although initial challenges and recounts for House elections are conducted at the state level under the state’s authority to administer federal elections (Article I, Section 4, cl. 1), continuing contests may be presented to the House, which may make a conclusive determination of a claim to the seat.

In modern practice, the primary way for an election challenge to be heard by the House is by a candidate-initiated contest under the Federal Contested Elections Act, (FCEA, codified at 2 U.S.C. §§381-396). Under the FCEA, the candidate challenging an election (the “contestant”), must file a notice of an intention to contest within 30 days of state certification of the election results, stating “with particularity” the grounds for contesting the election. The contestee then has 30 days after service of the notice to answer, admitting or denying the allegations, and setting forth any affirmative defenses. Before answering a notice, the contestee may make a motion to the Committee on House Administration for a “more definite statement,” pointing out the “defects” and the “details desired.” If this motion is granted by the committee, the contestant would have 10 days to comply. Under the FCEA, the “burden of proof” is on the contestant, who must overcome the presumption of the regularity of an election, and its results, evidenced by the certificate of election presented by the contestee. The FCEA’s contested election procedure is directed at the question of who won the most votes and is “duly elected.” It is not the proper vehicle to challenge the qualifications or eligibility of a Member-elect. Indeed, an election contest brought under the FCEA challenging a Member-elect’s qualifications would likely be subject to a motion to dismiss based on the failure of the contestant “to state grounds sufficient to change result of election,” or a failure of contestant “to claim a right to contestee’s seat.” In the FCEA’s adversarial proceeding, either party may take sworn depositions, seek subpoenas for the attendance of witnesses and production of documents, and file briefs to include any material they wish to put on the record. The FCEA specifies that the actual election contest “case” is heard by the committee, “on the papers, depositions and exhibits” filed by the parties, which “shall constitute the record of the case.”

On less frequent occasions, the House may refer the question of the right to a House seat to the committee for it to investigate and report to the full House for disposition. In lieu of a record created by opposing parties, the committee may conduct its own investigation, take depositions, and issue subpoenas for witnesses and documents. Jurisdiction may be obtained in this manner from a challenge to the taking of the oath of office by a Member-elect, when the question of the final right to the seat is referred to the committee. In the past, committees investigating such questions have employed several investigative procedures, including impounding election records and ballots, conducting a recount, performing a physical examination of disputed ballots and registration documents, and interviewing and examining various election personnel in the state and locality.

Under either procedure, the committee will generally issue a report and file a resolution concerning the disposition of the case, to be approved by the full House. Specifically, the committee may recommend—and the House may approve by a simple majority vote—to affirm the right of the contestee to the seat, to seat the contestant, or to find that neither is entitled to be seated and declare a vacancy. For an overview of the 107 election contests considered by the House since 1933, see CRS Report 98-194, Contested Election Cases in the House of Representatives: 1933 to 2009, by L. Paige Whitaker.


Date of Report: December 23, 2011
Number of Pages: 23
Order Number: RL33780
Price: $29.95

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Omnibus Appropriations Acts: Overview of Recent Practices

Jessica Tollestrup
Analyst on Congress and the Legislative Process

Omnibus appropriations acts have become a significant feature of the legislative process in recent years as Congress and the President have used them more frequently to bring action on the regular appropriations cycle to a close. Following a discussion of pertinent background information, this report reviews the recent enactment of such measures and briefly addresses several issues raised by their use.

For nearly two centuries, regular appropriations acts were considered by the House and Senate as individual measures and enacted into law as freestanding laws. In 1950, the House and Senate undertook a one-time experiment in improving legislative efficiency by considering all of the regular appropriations acts for FY1951 in a single bill, the Omnibus Appropriations Act of 1950. The following year, the House and Senate returned to the practice of considering the regular appropriations acts individually.

During the 26-year period covering FY1986-FY2011, a total of 310 regular appropriations bills were considered and enacted into law. Of these measures, 191 (62.6%) were enacted as freestanding measures and 119 (38.4%) were enacted in omnibus legislation. On average, each year over seven (7.3) regular appropriations acts were enacted into law as freestanding measures and nearly five (4.9) were enacted into law in omnibus legislation.

During this period, 16 different omnibus measures were enacted into law for 14 different fiscal years (two separate omnibus appropriations acts were enacted for both FY2001 and FY2009). Each of the measures funded between 2 and 13 regular appropriations acts, on average funding over 7 (7.3) of them.

Twelve of the omnibus measures were bills or joint resolutions carrying the designation “omnibus,” “consolidated,” or “omnibus consolidated” appropriations in the title; four were continuing appropriations acts (FY1986, FY1987, FY1988, and FY2009); and one was the VAHUD Appropriations Act for FY2001, which also included the Energy and Water Development Appropriations Act for FY2001.

In addition to the customary concern—of sacrificing the opportunity for debate and amendment for greater legislative efficiency—that arises whenever complex legislation is considered under time constraints, the use of omnibus appropriations acts has generated controversy for other reasons. These include whether adequate consideration was given to regular appropriations acts prior to their incorporation into omnibus appropriations legislation, the use of across-the-board spending cuts, and the inclusion of significant legislative (rather than funding) provisions.


Date of Report: December 13, 2011
Number of Pages: 15
Order Number: RL32473
Price: $29.95

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Continuing Resolutions: Latest Action and Brief Overview of Recent Practices

Sandy Streeter
Analyst on Congress and the Legislative Process

Most routine operations of federal departments and agencies are funded each year through the enactment of 12 regular appropriations acts. Because these bills are annual, expiring at the end of the fiscal year (September 30), regular appropriations bills for the subsequent fiscal year must be enacted by October 1. Final action on most regular appropriations bills, however, is frequently delayed beyond the start of the fiscal year. When this occurs, the affected departments and agencies are generally funded under temporary continuing appropriations acts until the final funding decisions become law. Because continuing appropriations acts are generally enacted in the form of joint resolutions, such acts are referred to as continuing resolutions (or CRs).

CRs may be divided into two categories based on duration—those that provide interim (or temporary) funding and those that provide funds through the end of the fiscal year. Interim continuing resolutions provide funding until a specific date or until the enactment of the applicable regular appropriations acts, if earlier. Full-year continuing resolutions provide funding in lieu of one or more regular appropriations bills through the end of the fiscal year.

Over the past 35 years, the nature, scope, and duration of continuing resolutions gradually expanded. From the early 1970s through 1987, CRs gradually expanded from being used to provide interim funding measures of comparatively brief duration and length to measures providing funding through the end of the fiscal year. The full-year measures included, in some cases, the full text of one or more regular appropriations bills and contained substantive legislation (i.e., provisions under the jurisdiction of committees other than the House and Senate Appropriations Committees). Since 1988, continuing resolutions have primarily been interim funding measures, and included major legislation less frequently.

In certain years, delay in the enactment of regular appropriations measures and CRs has led to periods during which appropriations authority has lapsed. Such periods generally are referred to as funding gaps.

Congress did not enact any of the 12 FY2012 regular appropriations acts by the start of the fiscal year and has, therefore, enacted three temporary FY2012 continuing resolutions (P.L. 112-33, P.L. 112-36, and P.L. 112-55) that have sequentially extended funding from October 1, 2011, through December 16, 2011.

On December 16, 2011, the House adopted, by unanimous consent, two additional CRs. H.J.Res. 94 (112th Congress) would extend funding for one day through December 17, 2011; H.J.Res. 95 (112th Congress) would continue spending an additional week, through December 23, 2011.


Date of Report: December 16, 2011
Number of Pages: 21
Order Number: RL30343
Price: $29.95

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