An Update for Federal, State, and Private Prison Contractors     
Vol. 2, Issue 4  April 2001


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A R T I C L E S








Protest

BOP Takes Corrective Action to Avoid a Ruling on a Community Corrections Contract Protest

Our firm recently succeeded in obtaining corrective action by the Federal Bureau of Prisons ("BOP") on a community corrections solicitation.  In an effort to avoid having the General Accounting Office ("GAO") rule on a possibly defective solicitation, the BOP amended the solicitation.

The protest involved one of our community correction clients (hereinafter "CCC") who bid on a solicitation to provide residential Community Corrections Center services for federal offenders in a metropolitan area. The Request For Proposal ("RFP") required that the facility Abe located within one mile of public transportation, or that the contractor provide transportation for the residents.

The CCC, as the incumbent contractor, knew that the BOP was dissatisfied with the local public transportation system, and that bidding on the "within one mile of public transportation" option would not provide the level of service that the BOP was seeking. While the CCC was aware of this situation, other offerors, presumably, were not. Unknowledgeable offerors would be more likely to choose the less expensive option of locating the facility within one mile of public transportation, instead of the more expensive option of providing the residents with private transportation. Therefore, the CCC's proposal would be considerably higher in price than other offerors, since it would provide residents with private transportation.

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State Privatization

Georgia Legislators Consider Bill to Halt Construction of Private Prisons

On March 22nd, the Georgia Senate ended its legislative session without acting on a bill that would have prevented construction of new private prisons that house out-of-state inmates within the state. On March 6th, the Georgia House of Representatives voted 116-54 to support such a prohibition. The measure that passed the Georgia House represented a compromise between those who supported a total ban on private prisons and two rural Georgia counties that want to fill two empty private prisons with out-of-state inmates.

The Georgia House bill prohibited the construction of a private prison unless the prison owner has a contract to house Georgia inmates. Two private prisons currently operate in Georgia, and two more have recently been built in Telfair and Stewart counties. Originally, there was an understanding that these private prisons would be used by the Georgia Department of Corrections to house medium-security prisoners, but ultimately the state decided that they did not need the new beds.  Under the legislation passed in the House, these two prisons could import criminals from out-of-state to fill these empty beds. However, to insure that these situations do not occur again, the legislation required explicit contracts between Georgia and the private prison in question before a private prison is built. Additionally, the measure prohibited any future private prisons from importing out-of-state prisoners, and imposed liability on private prisons for state expenses related to an escape or riot in these prisons.

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Federal Privatization

DOJ IGAs Audit Criticizes IGAs, Recommends More Oversight and Lower Per Day Rates

A recently concluded audit by the Department of Justice's ("DOJ") Office of Inspector General ("OIG") found that both the United States Marshals Service ('USMS") and the Immigration and Naturalization Service ("INS") have been overpaying the government of Guam for detention services.  The DOJ OIG examined the costs related to the Intergovernmental Service Agreement (AIGA) between the USMS and Guam=s Department of Corrections ('DOC") between October 1, 1998 and September 30, 2000. The audit recommends changes that will lead to greater scrutiny of IGAs between DOJ and correction providers, including private prison contractors.

DOJ has recently utilizes IGA=s as a mechanism for contracting with state and local department of corrections for inmate bed space. For example, the Federal Bureau of Prisons currently has three  large IGAs, i.e. at least 1,500 beds, with the State of Texas and three IGAs with the Commonwealth of Virginia.  Generally, the state or local department of corrections can contract with a private prison facility and then enter into an IGA with the DOJ.  As a result, these IGA=s are not subject to the Federal Acquisition Regulation.

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Employment

5th Circuit Finds Private Prison Employee to be a "Public Official"

The 5th Circuit Court of Appeals recently concluded that a private prison employee could be classified as a "public official" within the meaning of a federal bribery statute. The Court upheld the conviction of a detention center guard who worked at a private prison inhabited by Immigration and Naturalization Service ("INS") detainees. In doing so, the 5th Circuit made it clear that many private prison employees will be held to the same legal standards as similarly situated individuals in federal prisons.

The case involved a prison guard who was employed by a private prison company in a Texas facility. The guard was illegally bringing in contraband cigarettes to the prison and selling the cigarettes to the INS detainees housed within the facility.  He was indicted and prosecuted under a federal bribery statute which makes it a crime for any "public official" to accept anything of value in return for violating his "official duty." The government argued that the guard was a "public official" because he occupied a position of "public trust" with "official federal responsibilities."  The guard agreed to a conditional guilty plea, reserving his right to appeal the Court's determination that he was a "public official." He was sentenced to 60 months probation and fined $2,000.

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Simplified Acquisition

DOJ Inspector General Recommends Changes to Simplified Acquisition Procedures

The Department of Justice's Office of Inspector General (DOJ-OIG) recently conducted a limited review concerning the use of credit c.rds for simplified acquisition purposes. The review stemmed from a current investigation of an United States Attorney's Office (USAO) employee who was authorized to make small purchases for her component field office via credit card. The employee allegedly used her USAO credit card to purchase numerous items for personal use, including foreign travel and cruise vacations. The OIG was asked to determine if existing safeguards should have caught these transactions, and if additional safeguards were necessary to prevent future similar activities.

The OIG did not make specific recommendations because its review was limited by the parallel criminal investigation of the USAO employee who allegedly used department funds for her personal use. However, the OIG did make suggestions to agencies that give employees access to department credit cards. The OIG found that the primary oversight responsibilities involved in preventing credit card fraud should reside within each individual department where employees have access to the department=s credit card. By allowing oversight within these individual departments, the process is made more efficient because the supervision over the cardholder is direct and there is knowledge of the circumstances behind the individual purchases. The OIG found that this direct supervision was lacking in the USAO office where the alleged credit card fraud occurred.

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Question & Answer

Rooney Appointed Acting Commissioner of INS

Q:  I recently heard that Attorney General John Ashcroft appointed Kevin Rooney to be the Acting Commissioner of the Immigration and Naturalization Service ("INS").  What do you know about Mr. Rooney and any experience he may have in the corrections field?

A:  On March 6, 2001, Attorney General Ashcroft appointed Kevin Rooney to be the Acting INS Commissioner.  Mr. Rooney, currently the Director of the Executive Office for Immigration Review ("EOIR"), will begin his new responsibilities on April 2 and will serve until a permanent INS Commissioner is appointed.

Mr. Rooney has headed the EOIR since January, 1999, and was the agency's deputy director from 1995-1997. Between those dates, he served as the Assistant Director for the Bureau of Prisons from 1997-1999.  Therefore, the Corrections Contractor expects that Mr. Rooney=s attention will be focused on INS detention related services.  He also served as the Assistant Attorney General for Administration from 1977-1984. Mr. Rooney replaces INS Acting Commissioner Mary Ann Wyrsch, who has been appointed United Nations Deputy High Commissioner for Refugees.

The Corrections Contractor will continue to monitor developments at the INS, and will report when a permanent INS Commissioner is appointed.

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