Statutory Authority to Contract With the
                          Private Sector for Secure Facilities


T h e F ederal B ureau o f Prisons has statutory authority to contract with the private se cto r for
     secure facilities.
                                                                                                  March 25, 1992

                           M e m o r a n d u m O p in io n f o r t h e D ir e c t o r
                                   F e d e r a l B u r e a u o f P r is o n s


   This memorandum responds to your request for our opinion whether the
Federal Bureau of Prisons (“BOP”) has statutory authority to contract with
the private sector for secure facilities.1 The General Accounting Office
(“GAO”) has concluded that BOP lacks such authority;2 BOP has taken the
opposite view.3 For the reasons explained below, we conclude that BOP has
statutory authority to contract with the private sector for secure facilities.

                                                            I.

   BOP was established in the Department of Justice in 1930 to provide a
central federal organization responsible for the care and treatment of federal
prisoners. H.R. Rep. No. 106, 71st Cong., 2d Sess. 1 (1930). BOP has the
authority and responsibility under 18 U.S.C. § 3621(b) to “designate the
place of . . . imprisonment” for prisoners who have been sentenced to a term
of imprisonment under relevant federal statutes. BOP “may designate any
available penal or correctional facility that meets minimum standards of
health and habitability established by the Bureau [of Prisons], whether main­
tained by the Federal Government or otherwise.” 18 U.S.C. § 3621(b).4
 1 S e e Memorandum for J. Michael Luttig, Assistant Attorney General, Office of Legal Counsel, from J.
M ichael Quinlan, Director, Federal Bureau of Prisons (Apr. 26,1991) (“Opinion Request” ).
 2GAO, P rivate P risons, C o st S a vin g s a n d BO P 's S ta tu to ry A u th o rity N e e d to b e R esolved: R e p o rt to
the C hairm an, Subcom m . on Regulation, B usiness O pportunities a n d Energy, H ouse C om m , on S m a ll
B u sin ess (Feb. 1991) (“GAO Report”).
  3S e e Opinion Request at 1; Memorandum for J. Michael Quinlan, Director, from Clair A. Cripe, G en­
eral Counsel, Federal Bureau of Prisons at 4 (Oct. 14, 1988) (“ 1988 M emorandum” ); Memorandum for
Norman A. Carlson, Director, from Clair A. Cripe, General Counsel, Federal Bureau o f Prisons (June 10,
1983), rep rin ted in P riva tiza tio n o f C orrections: H earings B efore the Subcom m . on Courts, C ivil L ib e r ­
ties, a n d the A d m in istra tio n o f Ju stice o f the H ouse Com m , on the Ju d icia ry, 99th Cong., 1st & 2d Sess.
150 (1985-86) (“Privatization Hearing”).
   ‘ Section 3621(b) is applicable to those convicted of offenses committed on or after November 1, 1987.
                                                            Continued

                                                           65
   BOP has consistently taken the position that the language of section
3621(b) — especially as it refers to facilities “whether maintained by the
Federal Government or otherwise” — allows it to place federal prisoners in
facilities operated by the private sector as well as those run by federal, state,
or local authorities. See Opinion Request at 1; 1988 Memorandum at 4;
Privatization Hearing at 150. It has relied for this conclusion on the plain
language of the statute and on general principles of federal procurement law
under which executive agencies may enter into contracts with the private
sector. See Opinion Request at 1; 1988 Memorandum at 2-3; Privatization
Hearing at 149-50; Bureau o f Prisons and the U.S. Parole Commission: Over­
sight Hearing Before the Subcomm. on Courts, Civil Liberties, and the
Administration o f Justice o f the House Comm, on the Judiciary, 99th Cong.,
1st Sess. 16-17 (1985) (“1985 Hearing”); see also Privatization Toward More
Effective Government: Report of the President’s Commission on Privatization
147 (Mar. 1988) (“President’s Commission”).5
   GAO, however, has concluded that, at least as to secure facilities, the
statute’s reference to facilities “maintained by the Federal Government or
otherwise” includes only federal, state, and local facilities, but not facilities
operated by the private sector. See GAO Report at 45-50. GAO argues that
there is no evidence that Congress contemplated private incarceration of
federal prisoners except in limited circumstances involving residential com­
munity treatment centers such as halfway houses. 

GAO
contends that the authority in section 3621(b) to place prisoners in any facil­
ity “whether maintained by the Federal Government or otherwise” is

  ‘ (....continued)
S e e 18 U.S.C. § 3621 note. It is based on former 18 U.S.C. § 4082(b), reprinted in 18 U.S.C. § 4082 note,
which governs as to offenses committed before November 1, 1987. Former section 4082(b) provided in
part that “ [t]he Attorney General may designate as a place o f confinement any available, suitable, and
appropriate institution or facility, whether maintained by the Federal Government or otherwise." Refer­
ences to section 4082 in this memorandum should be understood to refer to former section 4082. Our
analysis in this m em orandum applies to the authority to designate the place o f incarceration under both
section 3621(b) and form er section 4082(b). References in this memorandum to the history of section
3621(b) should be understood to include its predecessor statutes.
   5O ne writer has claimed that BOP’s former director, Norman A. Carlson, testified to the contrary in a
1985 H earing. S e e Ira P. Robbins, T h e Legal D im en sio n s o f P rivate Incarceration 399 n.940 (1988)
(“ Robbins”). However, Robbins quotes only a portion of Carlson’s remarks. In context, it is plain that
Carlson stated that he was unsure, without the benefit of advice of counsel, whether BOP could privatize
“one o f the existin g 45 institutions.” 1985 Hearing at 17 (em phasis added). He stated unequivocally his
view that BOP has “statutory authority in [its] enabling legislation in title 18 to contract with State,
local or private agencies for the care and custody of offenders. I think the enabling legislation gives us
that authority.” 

Carlson further clarified his position in a 1986 hearing:
       Although I raised some question [regarding the legal authority to contract for an entire facil­
       ity] when I testified before this subcommittee in March o f 1985, our General Counsel advises
       me that we currently have the necessary authority to contract for the management of an entire
       facility under 18 U.S.C. § 4082. This law allows the Attorney General to designate as a place
       o f confinem ent “any available, suitable, and appropriate institution or facility, whether main­
       tained by the Federal Government or otherwise.”
Privatization Hearing at 141.
  6 A residential com m unity treatment center is a pre-release facility to which a prisoner may be trans­
ferred in order to be assisted in becoming re-established in the community. S. Rep. No. 613, 89th
Cong., 1st Sess. 7 (1965) (“S. Rep. No. 613”). Such facilities are contrasted with secure facilities used
to house prisoners who “remain a distinct threat to the community." 

                                                    66
circumscribed by 18 U.S.C. § 4002 (authorizing the Attorney General to
contract for the incarceration of federal prisoners with states and localities)
and 18 U.S.C. § 4003 (permitting the Attorney General to cause new federal
facilities to be erected), which in GAO’s view outline the only two options
available to BOP for obtaining incarceration facilities. GAO Report at 46-48.7

                                                      II.

   We begin our analysis with the language of the statute. As the Supreme
Court has recently said, in construing a statute the one “cardinal canon be­
fore all others,” is that we must “presume that a legislature says in a statute
what it means and means in a statute what it says there.” Connecticut N at’l
Bank v. Germain, 

, 253-54 (1992). “When the words of a statute
are unambiguous, then, this first canon is also the last: ‘[the] inquiry is com­
plete.’” 

(quoting Rubin v. United States, 

, 430 (1981)).
    The plain language of section 3621(b) gives BOP open-ended authority to
place federal prisoners in “any available penal or correctional facility” that
meets minimum standards of health and habitability without regard to what
entity operates the prison. As if to emphasize the breadth of BOP’s author­
ity to use “any available facility,” Congress expressly noted that such facilities
could be those “maintained by the Federal Government or otherwise.” The
words “or otherwise” are not qualified or defined. They are most obviously
read to include (as the statute has already described) any penal or correc­
tional facility — without regard to whether it is maintained by a state, local,
or private entity — as long as it meets “minimum standards of health and
habitability established by the Bureau.” In short, there is nothing in the
language of section 3621(b) that limits BOP’s placement authority to those
facilities operated by the federal government, states, or localities. Based on
the well-recognized canon of statutory construction referred to above, we
believe that the plain language of section 3621(b) is dispositive as to BOP’s
authority to place prisoners in facilities operated by the private sector.
    Although GAO concedes that the plain language of section 3621(b) does
not limit BOP’s choice of prison operators, GAO Report at 48, GAO asserts
that section 3621(b)’s legislative history establishes that Congress did not
authorize placing federal prisoners in private secure facilities such as are at
issue here. It contends that


  7 Section 4002 o f title 18 provides in part:
      For the purpose of providing suitable quarters for the safekeeping, care, and subsistence of all
      persons held under authority of any enactment o f Congress, the Attorney General may con­
      tract, for a period not exceeding three years, with the proper authorities of any State, Terri­
      tory, or political subdivision thereof, for the imprisonment, subsistence, care, and proper em ­
      ployment o f such persons.
Section 4003 provides that if the authorities of a state, territory, or political subdivision thereof are unable
or unwilling to enter into such contracts or “if there are no suitable or sufficient facilities available at
reasonable cost, the Attorney General may select a site . . . and cause [an appropriate facility] to be
erected "

                                                      67
            [njothing in the legislative history of this provision suggests
            that Congress ever contemplated having private parties oper­
            ate adult secure facilities. Rather, it appears that Congress’
            intention in enacting the provision concerning places of con­
            finement was simply to clarify that the Attorney General would
            have the power to choose the places prisoners would be con­
            fined, which at that time were limited to federal or state and
            local institutions.

   GAO Report at 48.

     In light of the plain language of section 3621(b), we think GAO’s conclu­
  sion that BOP lacks the authority to designate private secure facilities —
  bised on the absence of comment on that issue in the legislative record — is
  an incorrect reading of the statute.8 Moreover, even if we were to rely on
  tie legislative history of section 3621(b) to determine BOP’s authority to
 place prisoners in privately operated facilities, we find nothing in the legis­
 lative history of section 3621(b) to indicate that Congress intended to preclude
 the use of such facilities to incarcerate federal prisoners. The language now
 contained in section 3621(b) originated in the Act of May 14, 1930, Pub. L.
 No. 71-218, 46 Stat. 325 (“1930 Act”), and was adopted to resolve an ambi­
guity as to who had the power to designate the place of confinement of
federal prisoners. S. Rep. No. 533, 71st Cong., 2d Sess. 2 (1930) (“S. Rep.
No. 533”) (statement of the Attorney General). It authorized the Attorney
General to “designate any available, suitable, and appropriate institutions,
whether maintained by the Federal Government or otherwise.”9 The lan­
guage enacted in 1930 has remained substantially unchanged through its
present codification in 18 U.S.C. § 3621(b).10 During the various reenact­
ments of the provision, there was never any indication that the power to
designate the place of confinement was limited to designation of federal,
state, or local facilities. See, e.g., S. Rep. No. 225, 98th Cong., 1st Sess. 141


    8 We note that while GAO reports are often persuasive in resolving legal issues, they, like opinions of
 the C om ptroller General, are not binding on the executive branch. S e e Memorandum for Donald B.
 Ayer, D eputy Attorney G eneral, from J. M ichael Luttig, Principal Deputy Assistant Attorney General,
 Office o f Legal Counsel at 8 (Dec. 18, 1989) (“This Office has never regarded the legal opinions o f the
C om ptroller General as binding upon the Executive.’’); R e im b u rse m e n t fo r D eta il o f J u d g e A d v o c a te
 G e n e ra l C o rp s P e r so n n e l to a U nited S ta te s A tto rn e y 's O ffice, 

, 189 n.2 (1989)
(“The C om ptroller General is an officer o f the legislative branch, see B ow sher v. S yn a r, 

,
727-32 (1986), and historically, the executive branch has not considered itself bound by the C om ptrol­
ler G eneral’s legal opinions if they conflict with the legal opinions o f the Attorney General and the
Office o f Legal Counsel.” ).
   ’ This language, contained in section 7 o f the 1930 Act, was originally codified at 18 U.S.C. § 753f, see
 18 U.S.C. § 4082 note, and was later reenacted in modified form and codified at form er 18 U.S.C. §
4082(b). S e e su p ra note 4.
   10 Form er section 4082(b) authorized the Attorney General to designate the place o f incarceration for
federal prisoners. Section 3621(b) gives that authority to BOP, a component o f the Justice Department.
The change w as not intended to affect the authority with regard to place of confinement, but rather only
to sim plify the adm inistration o f the prison system. S. Rep. No. 225, 98th Cong., 1st Sess. 141 (1983).

                                                         68
(1983) (“The designated penal or correctional facility need not be . . . main­
tained’ by the Federal Government.”).
   On the contrary, there is evidence in the legislative history of section
3621(b) that at least after a 1965 amendment Congress specifically antici­
pated that BOP would designate privately operated facilities as places of
incarceration. In 1965 Congress amended the designation provision to allow
designation of a “facility” as well as an “institution.” Act of Sept. 10, 1965,
Pub. L. No. 89-176, 79 Stat. 674 (former § 4082(b), reprinted in 18 U.S.C. §
4082 note). The word “facility” was defined to “include a residential com­
munity treatment center.” 

(former § 4082(g), reprinted in 18
U.S.C. § 4082 note).11 The legislative history of former section 4082(g)
indicates that by enacting that definition Congress intended that “facility”
would include community treatment centers such as those already being
used to place juvenile offenders. See S. Rep. No. 613 at 3-4. As GAO
concedes, GAO Report at 23, at least one of those juvenile facilities was
being operated by contract with a nongovernmental entity:

          The residential community treatment centers, to which the bill
          authorizes the Attorney General to commit and transfer pris­
          oners, are similar to the so-called halfway houses now operated
          by the Department of Justice for juvenile and youthful offend­
          ers. . . .

           . . . The halfway houses are operated under different plans. . . .
           The New York City center is operated under contract by Spring­
          field University.

S. Rep. No. 613 at 3-4 (emphasis added). According to the Senate Report,
Congress envisioned that “under the bill’s authority to use community cen­
ters for older types of prisoners a similar variety o f organizational plans
will be adopted.” 

(emphasis added).
   Accordingly, for many years BOP has, “with the knowledge of Congress,”
contracted “for the placement of lower security inmates in private facilities,
particularly contract Community Treatment Centers.” 1985 Hearing at 22-
23 (Testimony of Norman A. Carlson, Director, BOP). See also 

(“Today we have . . . nearly 2,500 [federal] inmates who are in halfway
houses. . . . We contract with State, local and private agencies for this


   11The definition of "facility" in former section 4082(g) did not lim it application o f the term to residen­
tial community treatment centers. S e e 2A Norman J. Singer, S u th e rla n d S ta tu to ry C o n stru c tio n §
47.07, at 152 (3d ed. 1992 rev.) ("Sutherland”) (“ [T]he word ‘includes’ . . . conveys the conclusion that
there are other items includable, though not specifically enumerated.”). In any event, Congress deleted
the definition o f “facility” when it substantially reenacted section 4082(b) in section 3621(b). Thus,
particularly as it appears in section 3621(b), “facility” is not limited to residential com munity treatm ent
centers. We reject the suggestion to the contrary in Robbins at 412-13.

                                                     69
service.”). As Director Carlson testified in 1986, “[s]ince 1981, the Bureau
of Prisons has relied solely on the private sector to provide prerelease hous­
ing through its community treatment center programs.” Privatization Hearing
at 132. In 1986, BOP “contracted] with 330 Community Treatment Centers
[“CTCs”], 234 of which [were] privately run. Over 3,000 Federal inmates [were]
in these CTCs. . . . In 1984, approximately 80 percent of offenders who were
serving sentences of over six months and who were released to the community
were released through contract CTCs.” 

(BOP staff position paper).
   GAO apparently does not dispute BOP’s authority to enter into private
contracts for residential community facilities. See generally GAO Report at
48-49; see also Robbins at 412. GAO does not believe, however, that the
text and legislative history of the 1965 amendment support the conclusion
that Congress anticipated use of private secure facilities. It reasons that the
Attorney General had specific statutory authority to contract for juvenile
residential community treatment centers. See 18 U.S.C. § 5040.12 Thus, in
GAO’s view, the 1965 amendment does not demonstrate Congress’s view
that the Attorney General already had authority to contract for private incar­
ceration facilities, and, at most, it provided that authority for adult residential
community facilities. See also Robbins at 400 (“[T]he meaning of the phrase
‘or otherwise’ has changed, but only to the rather limited extent of permit­
ting [BOP] to contract with private corporations for the confinement of federal
prisoners in certain special facilities, such as residential community-treat-
ment centers.”).13
   GAO’s response misses the point and ignores the statute’s plain language.
Former section 4082(b), as amended in 1965, gave the Attorney General the

   12Section 5040 provides in part that “ [t]he Attorney General may contract with any public or pri­
v ate agency o r in d ividual and such com m unity-based facilities as halfway houses and foster hom es
fo r the . . . custody and care of juveniles in his custody.” Provisions authorizing such private contracts
have been in effect since 1938. See Juvenile Justice and Delinquency Act of 1974, Pub. L. No. 93-415, §
510, 88 Stat. 1109, 1138 (1974); Act o f June 16, 1938, ch. 486, § 6, 52 Stat. 764,766.
   ‘’ Robbins contends that because the precursors of section 3621(b) and sections 4002 and 4003 were
enacted together, s e e 1930 Act §§ 3 ,4 , & 7, the “or otherwise” language of section 3621(b) can only be
interpreted as referring to institutions that were authorized by the precursors of sections 4002 and 4003,
i.e., federal, state, local, or other public institutions. Robbins at 405-06. He then reasons that the 1965
am endm ent only broadened the authority now contained in section 3621 (b) to include the power to con­
tract for residential com m unity treatment centers:
       Thus, although section 4082(b) w as expanded to allow the Attorney General to confine adult
        federal prisoners in privately run facilities, Congress contemplated such action only with
       respect to qualified pre-release prisoners in residential community-treatment centers. Con­
       gress did not intend the amendment to be a broad grant of authority to place adult federal
       prisoners in all types o f privately run facilities.

12-13 (footnote omitted).
   Robbins places great w eight on the fact that the precursors o f section 3621(b) and sections 4002 and
4003 w ere initially enacted in the sam e public law. S e e 

However, these sections subse­
quently have been reenacted, amended, and recodified in separate locations in the United States Code.
S ectio n 3621(b) is codified in subchapter C (Im prisonm ent) o f chapter 229 o f title 18, entitled
“P ostsentence Adm inistration." Sections 4002 and 4003 are codified in chapter 301 o f title 18, entitled
“G eneral Provisions,” which includes a number o f loosely-related provisions. See, e.g ., § 4001 (Lim i­
tation on detention; control o f prisons); § 4004 (Oaths and acknowledgments); § 4005 (Medical relief;
expenses). The m ere fact that these sections were initially enacted together, without more, does not
require that they should be construed in a like manner.

                                                    70
authority to place a federal prisoner in a “facility” including, but not limited
to, a residential community treatment center. The Senate Report indicates
that Congress expected the Attorney General to use the same kinds of ar­
rangements for the adult residential facilities contemplated by the 1965
amendment as already existed in connection with similar facilities for juve­
nile offenders, at least one of which involved a contract with a
nongovernmental entity. S. Rep. No. 613 at 3-4 (under the “authority to use
community centers for older types of prisoners a similar variety of organiza­
tional plans will be adopted”). Yet Congress apparently saw no need to
provide additional authority beyond that inherent in the designation provi­
sion itself to allow the Attorney General to enter into contracts with the
private sector for adult facilities. This indicates that Congress believed the
Attorney General had the authority under former section 4082(b) to enter
into such contracts.
    There is, moreover, no statutory basis ih section 3621(b) for distinguish­
ing between residential community facilities and secure facilities. Because
the plain language of section 3621(b) allows BOP to designate “any avail­
able penal or correctional facility,” we are unwilling to find a limitation on
that designation authority based on legislative history. Moreover, the subse­
quent deletion of the definition of “facility” further undermines the argument
that Congress intended to distinguish between residential community facili­
ties and other kinds of facilities. See supra note l l . 14

                                                      III.

    GAO also contends that the language of section 3621(b) can only be
understood in conjunction with 18 U.S.C. § 4002, which explicitly autho­
rizes the Attorney General to contract with states and localities for the
“imprisonment, subsistence, care, and proper employment” of federal pris­
oners, and 18 U.S.C. § 4003, which permits the Attorney General to cause
appropriate facilities to be erected. See supra note 7. These statutes do not
mention contracts with the private sector. GAO argues that sections 4002
and 4003 detail the only two courses of action the Attorney General and, by
inference, BOP may take to provide incarceration facilities, and thus provide
a statutory limit on the otherwise broad language of section 3621(b). GAO
Report at 47-48 & n.8. GAO invokes the maxim of expressio urtius est exclusio
alterius15 to conclude that because Congress addressed “two courses of action
the federal government may use in order to obtain incarceration facilities” in
   14We also note that GAO’s construction of the 1965 amendment would mean that the phrase “m ain­
tained by the federal government or otherwise” would have two different meanings at the same time: it
would mean federal, state, or local government “institutions," but federal, state, local, o r p r iv a te “facili­
ties."
   15 E xpressio u nius est exclusio alteriu s means “the expression of one thing is the exclusion o f another.”
B la c k ’s Law D ictio n a ry 581 (6th ed. 1990). Under the maxim o f expressio unius, where a “form o f
conduct, the manner o f its performance and operation, and the persons and things to which it refers are
designated, there is an inference that all omissions should be understood as exclusions.” Sutherland §
47.23, at 216 (footnotes omitted).

                                                       71
some detail, the “clear inference is that Congress intended to preclude any ar­
rangement not expressly authorized” by those sections. 

7.
     As an initial matter, we question whether application of the expressio
unius maxim is appropriate in these circumstances. The statutes at issue
here are both affirmative grants of authority. The premise of the maxim —
that the expression of one thing is the exclusion of another — simply does
not apply where the expressions of limitation are set up against an addi­
tional affirmative grant of authority. The maxim, it seems to us, is more
properly reserved for those circumstances in which the issue is whether the
enumeration of items is exhaustive of the authority provided in the absence
of other grants of authority. It is quite something else to apply the maxim,
as GAO would have us do, to conclude that limitations on a particular grant
of authority should also limit a separate grant of authority.
     We also note that the maxim of expressio unius is not a rule of substan­
tive law, but a rule of statutory cbnstruction based on ‘“ logic and common
 sense.” ’ Sutherland § 47.24, at 228 (quoting Herbert Broom, A Selection o f
 Legal Maxims 453 (10th ed. 1939)). It embodies a “presumption that . . .
 Congress intended to deny all powers not expressly enumerated” and it
 “should be invoked only when other aids to interpretation suggest that the
 language at issue was meant to be exclusive.” Bailey v. Federal Intermedi­
 ate Credit Bank, 

, 500 (8th Cir.) cert, denied, 

 (1986). Application of the presumption generally occurs where ‘“ there [is]
 some evidence the legislature intended [the presumption’s] . . . application
 lest it [should] prevail as a rule o f construction despite the reason for and
 the spirit of the enactment.’” Sutherland § 47.25, at 234 (alteration in origi­
 nal) (quoting Columbia Hospital A ss’n. v. City o f Milwaukee, 

, 754 (1967)). See also National R.R. Passenger Corp. v. National Ass’n
 o f R.R. Passengers, 

, 458 (1974) (expressio unius maxim “must
 yield to clear contrary evidence of legislative intent.”).16
     Here, the presumption suggested by the expressio unius maxim is under­
 mined by the fact that nothing in the text or legislative history of sections
 4002 and 4003 confirms the negative inference that Congress intended by
 the grants of contracting authority to limit BOP’s unqualified section 3621 (b)
 power to designate the place of incarceration of federal prisoners. Sections
 4002 and 4003, by their terms, are permissive rather than exclusive. Section
 4002 provides that the Attorney General “may contract .. . with the proper
  authorities of any State, Territory, or political subdivision thereof’ in order
  to “provid[e] suitable quarters for the safekeeping, care, and subsistence” of

  “ T his Office has noted on numerous occasions that “[i]n attempting to assess congressional intent, the
e x p re ssio u n iu s m axim m ay serve as a guide to that intent, but it is inconclusive. Other factors, including
. . . the nature o f the legislation, and the legislative history, must also be considered in the effort to discern
congressional intent.” A pplicability o f C erta in C ross-C utting S tatutes to B lock G rants U nder the O m n i­
b u s B u d g e t R e c o n c ilia tio n A c t o f 1981 , 6 Op. O.L.C. 83,105 (1982)(footnote omitted). See a lso P aper­
w o rk R e d u c tio n A c t o f 1 9 8 0 , 6 Op. O .L .C . 388, 407 (1982) (“The application o f the [expressio u n iu s]
m axim is m ore persuasive when the language of the statute, its legislative history, and other factors point
to the sam e result.” ).

                                                          72
federal prisoners. 

Alternatively, under section 4003
the Attorney General “may . . . cause to be erected” a suitable federal facil­
ity. 

Nothing in these sections or anywhere else in
BOP’s enabling legislation could be said to prohibit contracting with the
private sector or to establish statutory requirements that would be at vari­
ance with such private contracts.
     The legislative history of sections 4002 and 4003 indicates that these
provisions were enacted specifically to address particular problems in con­
nection with the incarceration of federal prisoners in state and local facilities.
Sections 4002 and 4003 were enacted in response to a shortage of prison
space for federal prisoners and the lack of a central administrative organiza­
tion to oversee the disposition of such prisoners. See S. Rep. No. 533 at 2
(statement of the Attorney General). Although the federal government was
already relying heavily on state and local facilities for the incarceration of
federal prisoners, it was “powerless to remedy the deplorable conditions of
filth, contamination, and idleness which [were] present in most of the anti­
quated jails of the country” and was “obliged to pay the States the rates they
charge[d] for boarding Federal prisoners, even though they may be exorbi­
tant.” 

section 3 of the 1930 Act, the precursor to section 4002,
placed specific limitations and requirements on contracts with states and
local governments. Section 4 of the 1930 Act, now substantially contained
in section 4003, was enacted because emergency conditions and the large
number of federal prisoners in certain districts made it desirable for the
Department of Justice to have the authority to provide prisons of its own.
See S. Rep. No. 533 at 3. Because these provisions were enacted to address
specific circumstances involving the incarceration of federal prisoners in
federal, state, and local facilities, Congress’s failure to address contracts
with the private sector is not surprising, and does not reflect an intention to
prohibit such contracts.17
    The expressio unius argument is further undermined because BOP does
not, as a general matter of federal contracting law, need specific statutory
authorization to contract with the private sector. The general rule is that an
agency may use contracts with the private sector to carry out its statutory
mission as long as the contract is not “specifically prohibited by statute” or
“at variance with required statutory provisions or procedures.” 1 Ralph C.
Nash, Jr. & John Cibinic, Jr., Federal Procurement Law 5, 10 (1977) (“Nash
& Cibinic”). As these commentators have explained:
   ’’ The argument that the Bureau’s 3621(b) designation power is limited by the options spelled out in
sections 4002 and 4003 is also undermined by several provisions in BO P’s enabling legislation that
authorize other permissible places of prisoner incarceration. Section 4125(b) of title 18 authorizes the
Attorney General to “establish, equip, and maintain [work] camps upon sites selected by him . . . and
designate such cam ps as places for confinement of persons convicted o f ’ federal offenses. In addition,
the Attorney General may use inactive Department of Defense facilities as prisons. Department of
Justice Appropriation Authorization Act, Fiscal Year 1979, Pub. L. No. 95-624, § 9, 92 Stat. 3459,
3463 (1978), rep rin ted in 18 U.S C. § 4001 note. Thus, sections 4002 and 4003 do not in fact contain
all the options available to the Attorney General in designating places of incarceration.

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           The authority of the executive to use contracts in carrying out
           authorized programs is . . . generally assumed in the absence
           of express statutory prohibitions or limitations. Some statutes
           contain specific authorization to use contracts, others are si­
           lent on the matter and, in some very rare cases, statutes require
           the use of contracts. However, the executive agencies nor­
           mally have the discretion to decide whether to accomplish
           their objectives by contract or through the use of Government
           employees.

The courts have recognized that government agencies have broad
discretionary powers in carrying out their functions, including the authority
to contract for services when it is determined to be in the agency’s interest.
See, e.g.. Local 2017, AFGE v. Brown, 

(11th Cir. 1982) cert,
denied, 

(1983); Local 2855, AFGE v. United States, 

(3d Cir. 1979). Thus, the power of an agency to contract for services is
not dependent on specific authority to enter into such contracts. See Memo­
randum for Clair A. Cripe, General Counsel, Federal Bureau of Prisons,
from Ralph Tarr, Deputy Assistant Attorney General, Office of Legal Coun­
sel (Dec. 30, 1982).18
    It is well established that BOP has authority to contract with the private
sector for various services in connection with incarceration facilities. See
Opinion Request (citing 40 U.S.C. § 471; 41 U.S.C. § 252(a); 48 C.F.R. §§
1.101, 2.101); Privatization Hearing at 132-33, 170-72. For example, BOP
has entered into private contracts for food service and medical, educational,
and psychological services, and for consulting and other services in connec­
tion with Federal Prison Industries. Privatization Hearing at 132-33, 170-72.
See also President’s Commission at 147 (“Contracting for services and
nonsecure facilities is a common practice in the field of corrections. Virtu­
ally all the individual components of corrections (such as food services,
medical services and counseling, educational and vocational training, recre­
ation, maintenance, transportation, security and industrial programs) have
been provided by private contractors.”).
   GAO claims that it does not dispute BOP’s authority generally to contract
with the private sector for goods and services. See GAO Report at 50 (“As a
general proposition, an agency may use contracts to carry out any activity


   18 We do not suggest that there are no limitations on the authority of a governmental entity to contract
for goods or services. For example, a governmental entity may not enter into a contract that is specifi­
cally prohibited by statute or that is at variance with statutory provisions or procedures. S e e 1 Nash &
C ibinic at 10. In addition, some functions are considered to be inherently governmental in nature and
m ay not be delegated to nongovernmental entities. S e e OMB Circular A-76 (Aug. 4, 1983). This
m em orandum also does not address possible constitutional limitations on contracting. S e e gen era lly
C o n stitu tio n a l L im n s on "C ontracting O u t" D ep a rtm en t o f Ju stice F unctions U nder O M B C ircular A-
76, 

(1990). We are, o f course, available to consult with you or your staff as to consti­
tutional issues that might arise in connection with contracts with the private sector for prison facilities.


                                                         74
that the agency is authorized to perform under its enabling legislation or
other statutory provision without a specific grant of contracting authority”).
Rather, GAO contends that contracting with the private sector for incarcera­
tion facilities would be “inconsistent with the statutory scheme,” which
“describes with specificity the courses of action the government may use to
obtain incarceration facilities.” 

1 Nash & Cibinic at 10
(governmental entity may not enter into a “contract which is specifically
prohibited by statute, or at variance with required statutory provisions or
procedures”). GAO’s argument proves too much. Section 4002 states that
“the Attorney General may contract . . . with the proper authorities of any
State, Territory, or political subdivision thereof, for imprisonment, subsis­
tence, care, and proper employment of such persons." 

To the extent GAO believes that contracting for private incarceration facili­
ties would be inconsistent with section 4002, private contracting for other
items involving the subsistence and care of prisoners would call into ques­
tion BOP’s well-established authority, apparently not questioned by Congress,
to enter into contracts with the private sector for food service, clothing, and
other goods and services.
    More fundamentally, we disagree with GAO’s assertion that private con­
tracts for incarceration of federal prisoners would be “inconsistent with the
statutory scheme.” GAO Report at 50. As we have previously explained,
see supra pp. 67-70, 72-73, nothing in the text or legislative history of sec­
tion 3621(b) or sections 4002 and 4003 indicates that Congress intended to
prohibit such contracts. Given the broad and unlimited designation authority
contained in section 3621(b), we cannot conclude that private contracts would
“conflict with the statutory scheme” based on the grants of authority con­
tained in sections 4002 and 4003 and Congress’ purported silence concerning
private contracts.19




   19 We also reject GAO's contention that our interpretation of section 3621(b) is undercut by certain
other statutes that explicitly authorize the use of private facilities for confinement. GAO Report at 49-
50 (citing 18 U.S.C. §§ 4013(a)(3) and 5040). The weakness of the argument can be seen by applying
it consistently to 18 U.S.C. § 4013.
   Section 4013(a) authorizes the Attorney General to make payments from appropriated funds:
         [in] support of United States prisoners [in non-Federal institutions] for —
              (1) necessary clothing;
              (2) medical care and necessary guard hire;
              (3) the housing, care, and security o f persons held in custody of a United States m ar­
           shal . . . under agreements with State or local units o f government or con tra cts w ith
           p riva te e n titie s ;
(emphasis added). GAO argues that section 4013(a)(3)’s reference to private contracts for prisoner incar­
ceration indicates that when Congress intended to allow private contracting it did so explicitly. Again,
GA O’s argument proves too much. It would preclude private contracting for clothing, medical care, and
security because subsections (a)(1) and (a)(2) do not explicitly permit private contracts as com pared to
subsection (a)(3). That would again call into question the Bureau’s well-established authority to contract
with the private sector for such items. See supra p. 74.

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                                 Conclusion

   For the foregoing reasons, we conclude that the Bureau of Prisons has the
statutory authority to contract with the private sector for secure facilities.

                                              TIMOTHY E. FLANIGAN
                                          Acting Assistant Attorney General
                                               Office o f Legal Counsel




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