[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4328 Introduced in House (IH)]
103d CONGRESS
2d Session
H. R. 4328
To amend the Office of Federal Procurement Policy Act to reform the
Federal acquisition process, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 3, 1994
Mr. Conyers (for himself and Mr. Clinger) introduced the following
bill; which was referred to the Committee on Government Operations
_______________________________________________________________________
A BILL
To amend the Office of Federal Procurement Policy Act to reform the
Federal acquisition process, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Acquisition Reform Act of
1994''.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--CONTRACT FORMATION
Subtitle A--Competition Statutes
Part I--Competition Requirements
Sec. 1051. Competition requirements.
Part II--Planning, Solicitation, Evaluation, and Award
Sec. 1061. Solicitation, evaluation, and award.
Sec. 1062. Solicitation provision regarding evaluation of purchase
options.
Sec. 1063. Prompt notice of award.
Sec. 1064. Post-award debriefings.
Sec. 1065. Protest file.
Sec. 1066. Award of costs and fees in agency settlement of protests.
Sec. 1067. Award of multiple contracts.
Part III--Kinds of Contracts
Sec. 1071. Agency head determination regarding use of cost type or
incentive contract.
Sec. 1072. Multiyear contracting authority.
Sec. 1073. Severable services contracts crossing fiscal years.
Sec. 1074. Economy Act purchases.
Part IV--Miscellaneous
Sec. 1091. Policy regarding consideration of contractor past
performance.
Sec. 1092. Repeal of requirement for annual report on competition.
Sec. 1093. Discouragement of nonstandard contract clauses.
Sec. 1094. Repeal of obsolete provision.
Subtitle B--Truth in Negotiations
Sec. 1251. Provisions to ensure uniform treatment of cost or pricing
data.
Subtitle C--Procurement Protests
Part I--Protests to the Comptroller General
Sec. 1401. Protest defined.
Sec. 1402. Review of protests and effect on contracts pending decision.
Sec. 1403. Decisions on protests.
Sec. 1404. Regulations.
Part II--Protests in Procurements of Automatic Data Processing
Sec. 1431. Revocation of delegations of procurement authority.
Sec. 1432. Authority of the General Services Administration Board of
Contract Appeals.
Sec. 1433. Periods for certain actions.
Sec. 1434. Dismissals of protests.
Sec. 1435. Award of costs.
Sec. 1436. Dismissal agreements.
Sec. 1437. Matters to be covered in regulations.
Sec. 1438. Definitions.
Sec. 1439. Oversight of acquisition of automatic data processing
equipment by Federal agencies.
Subtitle D--Definitions and Other Matters
Sec. 1551. Definitions.
Sec. 1552. Delegation of procurement functions.
Sec. 1553. Determinations and decisions.
Sec. 1554. Research, development, and production costs.
Sec. 1555. Repeals.
Sec. 1556. Cooperative purchasing.
TITLE II--CONTRACT ADMINISTRATION
Subtitle A--Contract Payment
Sec. 2051. Contract financing.
Subtitle B--Cost Principles
Sec. 2151. Allowable contract costs.
Sec. 2152. Travel expenses of Government contractors.
Subtitle C--Audit and Access to Records
Sec. 2251. Authority to examine records of contractors.
Subtitle D--Cost Accounting Standards
Sec. 2301. Repeal of obsolete deadline regarding procedural regulations
for the Cost Accounting Standards Board.
TITLE III--SIMPLIFIED ACQUISITION THRESHOLD AND SOCIOECONOMIC, SMALL
BUSINESS, AND MISCELLANEOUS LAWS
Subtitle A--Simplified Acquisition Threshold
Part I--Establishment of Threshold
Sec. 3001. Establishment of simplified acquisition threshold.
Sec. 3002. Federal acquisition computer network.
Sec. 3003. Implementation in executive agencies.
Part II--Simplification of Procedures
Sec. 3011. Simplified acquisition procedures.
Sec. 3012. Small business provisions.
Sec. 3013. Procedures for purchases below micro-purchase threshold.
Sec. 3014. Procurement notice.
Sec. 3015. Small business reservation.
Sec. 3016. GAO test and report on performance of simplified acquisition
threshold.
Part III--Inapplicability of Laws To, and Waiver of Laws For,
Acquisitions Not in Excess of Simplified Acquisition Threshold
Sec. 3021. Inapplicability of future enacted procurement laws to
contracts not exceeding the simplified
acquisition threshold.
Sec. 3022. Authority to waive procurement laws for contracts not
exceeding the simplified acquisition
threshold.
Part IV--Revision of Regulations
Sec. 3081. Revision required.
Subtitle B--Socioeconomic and Small Business Laws
Sec. 3101. Payment protections for subcontractors and suppliers.
Sec. 3102. Small business procurement advisory council.
Subtitle C--Miscellaneous Acquisition Laws
Sec. 3151. Restriction on use of noncompetitive procedures for
procurement from a specified source.
Sec. 3152. Repeal of obsolete provision.
TITLE IV--STANDARDS OF CONDUCT
Sec. 4001. Contracting functions performed by Federal personnel.
Sec. 4002. Repeal of executed requirement for study and report.
Sec. 4003. Interests of Members of Congress.
Sec. 4004. Waiting period for significant changes proposed for
acquisition regulations.
TITLE V--COMMERCIAL ITEMS
Sec. 5001. Definitions.
Sec. 5002. Preference for acquisition of commercial items and
nondevelopmental items.
Sec. 5003. Acquisition of commercial items.
Sec. 5004. Principle of construction with future laws.
Sec. 5005. Authority to waive certain procurement laws for contracts
for commercial items.
Sec. 5006. Flexible deadlines for submission of offers of commercial
items.
Sec. 5007. Additional responsibilities for Advocates for Competition.
Sec. 5008. Provisions not affected.
Sec. 5009. Comptroller General review of Federal government use of
market research.
TITLE VI--MISCELLANEOUS PROVISIONS
Sec. 6001. Test program.
Sec. 6002. Study of participation by certain small businesses in
Federal procurement.
Sec. 6003. Furtherance of government-wide contract goal for small
disadvantaged businesses and certain
institutions of higher education.
Sec. 6004. Education and training.
Sec. 6005. Sense of Congress on negotiated rulemaking.
Sec. 6006. Vendor and employee excellence awards.
Sec. 6007. Technical and clerical amendments.
TITLE VII--EFFECTIVE DATES AND REGULATIONS
Sec. 7001. Effective dates.
Sec. 7002. Regulations.
Sec. 7003. Evaluation by the Comptroller General.
Sec. 7004. Data collection through the Federal procurement data system.
TITLE I--CONTRACT FORMATION
Subtitle A--Competition Statutes
PART I--COMPETITION REQUIREMENTS
SEC. 1051. COMPETITION REQUIREMENTS.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.) is amended by adding at the end the following new section:
``SEC. 29. COMPETITION REQUIREMENTS.
``(a)(1) Except as provided in subsections (b), (c), and (g) and
except in the case of procurement procedures otherwise expressly
authorized by statute, an executive agency in conducting a procurement
for property or services--
``(A) shall obtain full and open competition through the
use of competitive procedures in accordance with the
requirements of this title and the Federal Acquisition
Regulation; and
``(B) shall use the competitive procedure or combination of
competitive procedures that is best suited under the
circumstances of the procurement.
``(2) In determining the competitive procedures appropriate under
the circumstances, an executive agency--
``(A) shall solicit sealed bids if--
``(i) time permits the solicitation, submission,
and evaluation of sealed bids;
``(ii) the award will be made on the basis of price
and other price-related factors;
``(iii) it is not necessary to conduct discussions
with the responding sources about their bids; and
``(iv) there is a reasonable expectation of
receiving more than one sealed bid; and
``(B) shall request competitive proposals if sealed bids
are not appropriate under clause (A).
``(b)(1) An executive agency may provide for the procurement of
property or services covered by this section using competitive
procedures but excluding a particular source in order to establish or
maintain any alternative source or sources of supply for that property
or service if the agency head determines that to do so--
``(A) would increase or maintain competition and would
likely result in reduced overall costs for such procurement, or
for any anticipated procurement, of such property or services;
``(B) would be in the interest of national defense in
having a facility (or a producer, manufacturer, or other
supplier) available for furnishing the property or service in
case of a national emergency or industrial mobilization;
``(C) would be in the interest of national defense in
establishing or maintaining an essential engineering, research,
or development capability to be provided by an educational or
other nonprofit institution or a federally funded research and
development center;
``(D) would ensure the continuous availability of a
reliable source of supply of such property or service;
``(E) would satisfy projected needs for such property or
service determined on the basis of a history of high demand for
the property or service; or
``(F) in the case of medical supplies, safety supplies, or
emergency supplies, would satisfy a critical need for such
supplies.
``(2) The determination required of the agency head in paragraph
(1) may not be made for a class of purchases or contracts.
``(3) An executive agency may provide for the procurement of
property or services covered by this section using competitive
procedures, but excluding other than small business concerns in
furtherance of sections 9 and 15 of the Small Business Act (15 U.S.C.
639; 644).
``(4) A contract awarded pursuant to the competitive procedures
referred to in paragraphs (1) and (3) shall not be subject to the
justification and approval required by subsection (f)(1).
``(c) An executive agency may use procedures other than competitive
procedures only when--
``(1) the property or services needed by the executive
agency are available from only one responsible source and no
other type of property or services will satisfy the needs of
the executive agency;
``(2) the executive agency's need for the property or
services is of such an unusual and compelling urgency that the
Government would be seriously injured unless the executive
agency is permitted to limit the number of sources from which
it solicits bids or proposals;
``(3) it is necessary to award the contract to a particular
source or sources in order (A) to maintain a facility,
producer, manufacturer, or other supplier available for
furnishing property or services in case of a national emergency
or to achieve industrial mobilization, or (B) to establish or
maintain an essential engineering, research, or development
capability to be provided by an educational or other nonprofit
institution or a federally funded research and development
center;
``(4) the terms of an international agreement or treaty
between the United States Government and a foreign government
or international organization, or the written directions of a
foreign government reimbursing the executive agency for the
cost of the procurement of the property or services for such
government, have the effect of requiring the use of procedures
other than competitive procedures;
``(5) a statute expressly authorizes or requires that the
procurement be made through another executive agency or from a
specified source, or the agency's need is for a brand-name
commercial item for authorized resale;
``(6) the disclosure of the executive agency's needs would
compromise the national security unless the agency is permitted
to limit the number of sources from which it solicits bids or
proposals; or
``(7) the head of the executive agency--
``(A) determines that it is necessary in the public
interest to use procedures other than competitive
procedures in the particular procurement concerned, and
``(B) notifies the Congress in writing of such
determination not less than 30 days before the award of
the contract.
``(d)(1) For the purposes of applying subsection (c)(1)--
``(A) in the case of a contract for property or services to
be awarded on the basis of acceptance of an unsolicited
research proposal, the property or services shall be considered
to be available from only one source if the source has
submitted an unsolicited research proposal that demonstrates a
unique and innovative concept the substance of which is not
otherwise available to the United States and does not resemble
the substance of a pending competitive procurement; and
``(B) in the case of a follow-on contract for the continued
development or production of a major system or highly
specialized equipment when it is likely that award to a source
other than the original source would result in (i) substantial
duplication of cost to the Government which is not expected to
be recovered through competition, or (ii) unacceptable delays
in fulfilling the executive agency's needs, such property may
be deemed to be available only from the original source and may
be procured through procedures other than competitive
procedures.
``(2) The authority of the head of an executive agency under
subsection (c)(7) may not be delegated.
``(e) An executive agency using procedures other than competitive
procedures to procure property or services by reason of the application
of subsection (c)(2) or (c)(6) shall request offers from as many
potential sources as is practicable under the circumstances.
``(f)(1) Except as provided in paragraph (2), an executive agency
may not award a contract using procedures other than competitive
procedures unless--
``(A) the contracting officer for the contract justifies
the use of such procedures in writing and certifies the
accuracy and completeness of the justification;
``(B) the justification is approved--
``(i) in the case of a contract for an amount
exceeding $100,000 (but equal to or less than
$1,000,000), by the competition advocate for the
procuring activity (without further delegation) or by
an official referred to in clause (ii), (iii), or (iv);
``(ii) in the case of a contract for an amount
exceeding $1,000,000 (but equal to or less than
$10,000,000), by the head of the procuring activity or
a delegate who, if a member of the armed forces, is a
general or flag officer or, if a civilian; is serving
in a position in grade GS-16 or above under the General
Schedule (or in a comparable or higher position under
another schedule); or
``(iii) in the case of a contract for an amount
exceeding $10,000,000, by the senior procurement
executive of the agency designated pursuant to section
16(3) (without further delegation); and
``(C) any required notice has been published with respect
to such contract pursuant to section 18 and all bids or
proposals received in response to such notice have been
considered by such executive agency.
``(2) In the case of a procurement permitted by subsection (c)(2),
the justification and approval required by paragraph (1) may be made
after the contract is awarded. The justification and approval required
by paragraph (1) is not required--
``(A) when a statute expressly requires that the
procurement be made from a specified source;
``(B) when the agency's need is for a brand-name commercial
item for authorized resale;
``(C) in the case of a procurement permitted by subsection
(c)(7); or
``(D) in the case of a procurement conducted under (i) the
Act of June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred
to as the Wagner-O'Day Act, or (ii) section 8(a) of the Small
Business Act (15 U.S.C. 637(a)).
``(3) The justification required by paragraph (1)(A) shall
include--
``(A) a description of the agency's needs;
``(B) an identification of the statutory exception from the
requirement to use competitive procedures and a demonstration,
based on the proposed contractor's qualifications or the nature
of the procurement, of the reasons for using that exception;
``(C) a determination that the anticipated cost will be
fair and reasonable;
``(D) a description of the market survey conducted or a
statement of the reasons a market survey was not conducted;
``(E) a listing of the sources, if any, that expressed in
writing an interest in the procurement; and
``(F) a statement of the actions, if any, the agency may
take to remove or overcome a barrier to competition before a
subsequent procurement for such needs.
``(4) The justification required by paragraph (1)(A) and any
related information shall be made available for inspection by the
public consistent with the provisions of section 552 of title 5, United
States Code.
``(5) In no case may an executive agency--
``(A) enter into a contract for property or services using
procedures other than competitive procedures on the basis of
the lack of advance planning or concerns related to the amount
of funds available to the agency for procurement functions; or
``(B) procure property or services from another executive
agency unless such other executive agency complies fully with
the requirements of this title in its procurement of such
property or services.
The restriction set out in clause (B) is in addition to, and not in
lieu of any other restriction provided by law.
``(g)(1) In order to promote efficiency and economy in contracting
and to avoid unnecessary burdens for agencies and contractors, the
Federal Acquisition Regulation shall provide for special simplified
procedures for small purchases of property and services.
``(2) For the purposes of this title, a small purchase is a
purchase or contract for an amount which does not exceed the small
purchase threshold.
``(3) A proposed purchase or contract for an amount above the small
purchase threshold may not be divided into several purchases or
contracts for lesser amounts in order to use the small purchase
procedures required by paragraph (1).
``(4) In using small purchase procedures, an executive agency shall
promote competition to the maximum extent practicable.
``(5) In this subsection, the term `small purchase threshold' has
the meaning given such term in section 4(11) of the Office of Federal
Procurement Policy Act (41 U.S.C. 403(11).''.
PART II--PLANNING, SOLICITATION, EVALUATION, AND AWARD
SEC. 1061. SOLICITATION, EVALUATION, AND AWARD.
(a) Content of Solicitation.--The Office of Federal Procurement
Policy Act (41 U.S.C. 401 et seq.), as amended by section 1051, is
further amended by adding at the end the following new section:
``SEC. 30. PLANNING AND SOLICITATION REQUIREMENTS.
``(a)(1) In preparing for the procurement of property or services,
an executive agency shall--
``(A) specify its needs and solicit bids or proposals in a
manner designed to achieve full and open competition for the
procurement;
``(B) use advance procurement planning and market research;
and
``(C) develop specifications in such manner as is necessary
to obtain full and open competition with due regard to the
nature of the property or services to be acquired.
``(2) Each solicitation under this title shall include
specifications which--
``(A) consistent with the provisions of this title, permit
full and open competition; and
``(B) include restrictive provisions or conditions only to
the extent necessary to satisfy the needs of the executive
agency or as authorized by law.
``(3) For the purposes of paragraphs (1) and (2), the type of
specification included in a solicitation shall depend on the nature of
the needs of the executive agency and the market available to satisfy
such needs. Subject to such needs, specifications may be stated in
terms of--
``(A) function, so that a variety of products or services
may qualify;
``(B) performance, including specifications of the range of
acceptable characteristics or of the minimum acceptable
standards; or
``(C) design requirements.
``(b) In addition to the specifications described in subsection
(a), each solicitation for sealed bids or competitive proposals (other
than for small purchases) shall at a minimum include--
``(1) a statement of--
``(A) all significant factors and significant
subfactors (including cost or price, cost-related or
price-related factors and subfactors, and noncost-
related or nonprice-related factors and subfactors)
which the executive agency reasonably expects to
consider in evaluating sealed bids or competitive
proposals; and
``(B) the relative importance assigned to each of
those factors and subfactors; and
``(2)(A) in the case of sealed bids--
``(i) a statement that sealed bids will be
evaluated without discussions with the bidders; and
``(ii) the time and place for the opening of the
sealed bids; or
``(B) in the case of competitive proposals--
``(i) either a statement that the proposals
are intended to be evaluated with, and award
made after, discussions with the offerors, or a
statement that the proposals are intended to be
evaluated, and award made, without discussions
with the offerors (other than discussions
conducted for the purpose of minor
clarification) unless discussions are
determined to be necessary; and
``(ii) the time and place for submission of
proposals.
``(c)(1) In prescribing the evaluation factors to be included in
each solicitation for competitive proposals, an agency head--
``(A) shall clearly establish the relative importance
assigned to the evaluation factors and subfactors, including
the quality of the product or services to be provided
(including technical capability, management capability, prior
experience, and past performance of the offeror);
``(B) shall include cost or price to the Federal Government
as an evaluation factor that must be considered in the
evaluation of proposals; and
``(C) shall disclose to offerors whether all evaluation
factors other than price or cost, when combined, are--
``(i) significantly more important than price or
cost;
``(ii) approximately equal in importance to price
or cost; or
``(iii) significantly less important than price or
cost.
``(2) Nothing in this subsection prohibits an agency from--
``(A) providing additional information in a solicitation,
including numeric weights for all evaluation factors; or
``(B) stating in a solicitation that award will be made to
the offeror that meets the solicitation's mandatory
requirements at the lowest price or cost.''.
(b) Evaluation and Award.--The Office of Federal Procurement Policy
Act (41 U.S.C. 401 et seq.), as amended by subsection (a), is further
amended by adding at the end the following new section:
``SEC. 31. EVALUATION AND AWARD.
``(a) An executive agency shall evaluate sealed bids and
competitive proposals, and award a contract, based solely on the
factors specified in the solicitation.
``(b) All sealed bids or competitive proposals received in response
to a solicitation may be rejected if the agency head determines that
such action is in the public interest.
``(c) Sealed bids shall be opened publicly at the time and place
stated in the solicitation. The executive agency shall evaluate the
bids in accordance with subsection (a) without discussions with the
bidders and, except as provided in subsection (b), shall award a
contract with reasonable promptness to the responsible source whose bid
conforms to the solicitation and is most advantageous to the United
States, considering only price and the other price-related factors
included in the solicitation. The award of a contract shall be made by
transmitting written notice of the award to the successful bidder.
``(d)(1) An agency head shall evaluate competitive proposals in
accordance with subsection (a) and may award a contract--
``(A) after discussions with the offerors, provided that
written or oral discussions have been conducted with all
responsible offerors who submit proposals within the
competitive range; or
``(B) based on the proposals received and without
discussions with the offerors (other than discussions conducted
for the purpose of minor clarification), provided that, as
required by section 30(b)(2)(B)(i), the solicitation included a
statement that proposals are intended to be evaluated, and
award made, without discussions, unless discussions are
determined to be necessary.
``(2) Except as otherwise provided in subsection (b), the executive
agency shall award a contract with reasonable promptness to the
responsible source whose proposal is most advantageous to the United
States, considering only cost or price and the other factors included
in the solicitation. The executive agency shall award the contract by
transmitting written notice of the award to such source and shall
promptly notify all other offerors of the rejection of their proposals.
``(e) If the agency head considers that a bid or proposal evidences
a violation of the antitrust laws, such agency head shall refer the bid
or proposal to the Attorney General for appropriate action.
``(f)(1)(A) In preparing a solicitation for the award of a
development contract for a major system, the head of an agency shall
consider requiring in the solicitation that an offeror include in its
offer proposals described in subparagraph (B). In determining whether
to require such proposals, the head of the agency shall give due
consideration to the purposes for which the system is being procured
and the technology necessary to meet the system's required
capabilities. If such proposals are required, the head of the agency
shall consider them in evaluating the offeror's price.
``(B) The proposals that the head of an agency is to consider
requiring in a solicitation for the award of a development contract are
the following:
``(i) Proposals to incorporate in the design of the major
system items which are currently available within the supply
system of the Federal agency responsible for the major system,
available elsewhere in the national supply system, or
commercially available from more than one source.
``(ii) With respect to items that are likely to be required
in substantial quantities during the system's service life,
proposals to incorporate in the design of the major system
items which the United States will be able to acquire
competitively in the future.
``(2)(A) In preparing a solicitation for the award of a production
contract for a major system, the head of an agency shall consider
requiring in the solicitation that an offeror include in its offer
proposals described in subparagraph (B). In determining whether to
require such proposals, the head of the agency shall give due
consideration to the purposes for which the system is being procured
and the technology necessary to meet the system's required
capabilities. If such proposals are required, the head of the agency
shall consider them in evaluating the offeror's price.
``(B) The proposals that the head of an agency is to consider
requiring in a solicitation for the award of a production contract are
proposals identifying opportunities to ensure that the United States
will be able to obtain on a competitive basis items procured in
connection with the system that are likely to be reprocured in
substantial quantities during the service life of the system. Proposals
submitted in response to such requirement may include the following:
``(i) Proposals to provide to the United States the right
to use technical data to be provided under the contract for
competitive reprocurement of the item, together with cost to
the United States, if any, of acquiring such technical data and
the right to use such data.
``(ii) Proposals for the qualification or development of
multiple sources of supply for the item.
``(3) If the head of an agency is making a noncompetitive award of
a development contract or a production contract for a major system, the
factors specified in paragraphs (1) and (2) to be considered in
evaluating an offer for a contract may be considered as objectives in
negotiating the contract to be awarded.''.
(c) Applicability.--
(1) In general.--Except as provided in paragraph (2),
sections 30 and 31 of the Office of Federal Procurement Policy
Act, as added by subsections (a) and (b), shall apply to--
(A) solicitations for sealed bids or competitive
proposals issued after the end of the 180-day period
beginning on the date of the enactment of this Act; and
(B) contracts awarded pursuant to those
solicitations.
(2) Authority to apply amendments early.--The head of an
executive agency may apply sections 30 and 31 of the Office of
Federal Procurement Policy Act to solicitations issued before
the end of the period referred to in paragraph (1). The head of
the executive agency shall publish in the Federal Register
notice of any such earlier date of application at least 10 days
before that date.
(d) Standards and Requirements for Cost And Price as Evaluation
Factors.--
(1) In general.--The Federal Acquisition Regulation, as
revised pursuant to section 7002, shall establish standards and
requirements for the consideration of cost and price to the
Federal Government as evaluation factors under section 30(c) of
the Office of Federal Procurement Policy Act, as added by
subsection (a).
(2) Standards and requirements.--Standards and requirements
established under subsection (a) shall be adequate to ensure
that, to the maximum extent practicable consistent with the
needs of the Federal Government in conducting procurements--
(A) cost or price is an evaluation factor of
sufficient weight to affect each source selection
decision; and
(B) competition among competing offerors is
affected by cost or price.
SEC. 1062. SOLICITATION PROVISION REGARDING EVALUATION OF PURCHASE
OPTIONS.
Section 30 of the Office of Federal Procurement Policy Act, as
added by section 1061(a), is amended by adding at the end the following
new subsection:
``(d) An agency head, in issuing a solicitation for a contract to
be awarded using sealed bid procedures, may not include in such
solicitation a clause providing for the evaluation of prices under the
contract for options to purchase additional supplies or services under
the contract unless the agency head has determined that there is a
reasonable likelihood that the options will be exercised.''.
SEC. 1063. PROMPT NOTICE OF AWARD.
(a) Sealed Bid Procedures.--Subsection (c) of section 31 of the
Office of Federal Procurement Policy Act, as added by section 1061(b),
is amended by adding at the end the following: ``Within 3 days after
the date of contract award, the agency head shall notify, in writing or
by electronic means, offerors not awarded the contract that the
contract has been awarded.''.
(b) Competitive Proposals Procedures.--Paragraph (2) of subsection
(d) of such section is amended in the second sentence by striking out
``shall promptly notify'' and inserting in lieu thereof ``, within 3
days after the date of contract award, shall notify, in writing or by
electronic means,''.
SEC. 1064. POST-AWARD DEBRIEFINGS.
Section 31 of the Office of Federal Procurement Policy Act, as
added by section 1061(b), is amended--
(1) by redesignating subsections (e) and (f) as subsections
(f) and (g), respectively; and
(2) by inserting after subsection (d) the following new
subsection (e):
``(e)(1) When a contract is awarded by an executive agency on the
basis of competitive proposals, an unsuccessful offeror, upon written
request received by the executive agency within 3 days after the date
of receipt of notification of the contract award, shall be debriefed
and furnished the basis for the selection decision and contract award.
An employee of the executive agency shall debrief the offeror within 5
days after receipt of the request by the executive agency.
``(2) The debriefing shall include, at a minimum--
``(A) the executive agency's evaluation of the significant
weak or deficient factors in the offeror's offer;
``(B) the overall evaluated cost of the offer of the
contractor awarded the contract and the overall evaluated cost
of the offer of the debriefed offeror;
``(C) the overall ranking of all offers and the total
technical and cost scores of all offers;
``(D) a summary of the rationale for the award;
``(E) in the case of a proposal that incorporates equipment
that is a commercial item, the make and model of the item
incorporated in the offer of the contractor awarded the
contract; and
``(F) reasonable responses to questions posed by the
debriefed offeror as to whether source selection procedures set
forth in the solicitation, applicable regulations, and other
applicable authorities were followed by the executive agency.
``(3) The debriefing may not include point-by-point comparisons of
the debriefed offeror's offer with other offers and may not disclose
any information that is exempt from disclosure under section 552 of
title 5, United States Code, including information relating to--
``(A) trade secrets;
``(B) privileged or confidential manufacturing processes
and techniques; and
``(C) commercial and financial information that is
privileged or confidential, including cost breakdowns, profit,
indirect cost rates, and similar information.
``(4) Each solicitation for competitive proposals shall include a
statement that information described in paragraph (2) may be disclosed
in post-award debriefings.
``(5) If, within one year after the date of the contract award and
as a result of a successful procurement protest or otherwise, the
executive agency seeks to fulfill same the requirement under the
contract either on the basis of a new solicitation of offers or on the
basis of new best and final offers requested for that contract, the
agency head shall make available to offerors--
``(A) the information provided in debriefings under this
subsection regarding the offer of the contractor awarded the
contract; and
``(B) the comparable debriefing information that was
prepared with respect to the original offerors.
``(6) The contracting officer shall include a summary of the
debriefing in the contract file.''.
SEC. 1065. PROTEST FILE.
Section 31 of the Office of Federal Procurement Policy Act, as
amended by section 1064(1), is further amended by adding at the end the
following:
``(h)(1) If, in the case of a solicitation for a contract issued
by, or an award or proposed award of a contract by, an agency head, a
protest is filed pursuant to the procedures in subchapter V of chapter
35 of title 31, United States Code, and an actual or prospective
offeror so requests, a file of the protest shall be established by the
procuring activity and reasonable access shall be provided to actual or
prospective offerors.
``(2) Information exempt from disclosure under section 552 of title
5, United States Code, may be redacted in a file established pursuant
to paragraph (1) unless an applicable protective order provides
otherwise.
``(3) Regulations implementing this subsection shall be consistent
with the regulations regarding the preparation and submission of an
agency's protest file (the so-called `rule 4 file') for protests to the
General Services Board of Contract Appeals under section 111 of the
Federal Property and Administrative Services Act of 1949 (41 U.S.C.
759).''.
SEC. 1066. AWARD OF COSTS AND FEES IN AGENCY SETTLEMENT OF PROTESTS.
Section 31 of the Office of Federal Procurement Policy Act, as
amended by section 1065, is further amended by adding at the end the
following new subsection:
``(i) If, in connection with a protest, an agency head determines
that a solicitation, proposed award, or award does not comply with the
requirements of law or regulation, the agency head may take--
``(1) any action set out in subparagraphs (A) through (F)
of subsection (b)(1) of section 3554 of title 31, United States
Code; and
``(2) may pay costs described in paragraph (1) of section
3554(c) of such title.''.
SEC. 1067. AWARD OF MULTIPLE CONTRACTS.
Section 31 of the Office of Federal Procurement Policy Act, as
amended by section 1066, is further amended by adding at the end the
following new subsection:
``(j) Award of Multiple Contracts.--In procuring any supply or
service using competitive procedures, an executive agency may award
more than one contract for the same supply or service in any case in
which the head of the agency determines that it is in the best
interests of the Federal Government to award those contracts for the
purpose of maintaining a continuous source for the supply or
service.''.
PART III--KINDS OF CONTRACTS
SEC. 1071. AGENCY HEAD DETERMINATION REGARDING USE OF COST TYPE OR
INCENTIVE CONTRACT.
Section 304(b) of the Federal Property and Administrative Services
Act of 1949 (41 U.S.C. 254(b)) is amended by striking out the second
sentence.
SEC. 1072. MULTIYEAR CONTRACTING AUTHORITY.
(a) In General.--Title III of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 251 et seq.) is amended
by inserting after section 303G the following new section:
``SEC. 303H. MULTIYEAR CONTRACTS.
``(a) Authority.--The head of an executive agency may enter into a
multiyear contract for the acquisition of property or services if--
``(1) funds are available and obligated for such contract,
for the full period of the contract or for the first fiscal
year in which the contract is in effect, and for the estimated
costs associated with any necessary termination of such
contract;
``(2) the agency head determines that--
``(A) the need for the property or services is
reasonably firm and continuing over the period of the
contract; and
``(B) a multiyear contract will serve the best
interests of the United States by encouraging full and
open competition or promoting economy in
administration, performance, and operation of the
agency's programs; and
``(3) such contract is awarded on a fully competitive
basis.
``(b) Termination Clause.--A multiyear contract entered into under
the authority of this section shall include a clause that provides that
the contract shall be terminated if funds are not made available for
the continuation of such contract in any fiscal year covered by the
contract. Amounts available for paying termination costs shall remain
available for such purpose until the costs associated with termination
of the contract are paid.
``(c) Cancellation Ceiling Notice.--Before any contract described
in subsection (a) that contains a clause setting forth a cancellation
ceiling in excess of $10,000,000 may be awarded, the head of the agency
shall give written notification of the proposed contract and of the
proposed cancellation ceiling for that contract to the Congress, and
such contract may not then be awarded until the end of a period of 30
days beginning on the date of such notification.
``(d) Multiyear Contract Defined.--For the purposes of this
section, a multiyear contract is a contract for the purchase of
property or services for more than one, but not more than five, program
years. Such a contract may provide that performance under the contract
during the second and subsequent years of the contract is contingent
upon the appropriation of funds and (if it does so provide) may provide
for a cancellation payment to be made to the contractor if such
appropriations are not made.
``(e) Rule of Construction.--Nothing in this section is intended to
modify or affect any other provision of law that authorizes multiyear
contracts.''.
(b) Clerical Amendment.--The first section of such Act is amended
by inserting after the item relating to section 303G in the table of
contents the following new item:
``Sec. 303H. Multiyear contracts.''.
SEC. 1073. SEVERABLE SERVICES CONTRACTS CROSSING FISCAL YEARS.
(a) In General.--Title III of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 251 et seq.), as amended
by section 1072, is further amended by inserting after section 303H the
following new section:
``SEC. 303I. SEVERABLE SERVICES CONTRACTS FOR PERIODS CROSSING FISCAL
YEARS.
``(a) Authority.--The head of an executive agency may enter into a
severable contract for procurement of services for a period that begins
in one fiscal year and ends in the next fiscal year if (without regard
to any option to extend the period of the contract) the contract period
does not exceed one year.
``(b) Availability of Funds.--To the extent provided in
appropriations Acts, funds obligated for a contract entered into under
the authority of subsection (a) shall remain available until no longer
needed to pay for such contract.
``(c) Severable Contract Defined.--In this section, the term
`severable contract' means a contract that contains a clause that makes
the effectiveness of the contract for periods after the end of the
fiscal year in which the performance of the contract begins subject to
the availability of appropriations.''.
(b) Clerical Amendment.--The first section of such Act is amended
by inserting after the item relating to section 303H in the table of
contents the following new item:
``Sec. 303I. Severable services contracts for periods crossing fiscal
years.''.
SEC. 1074. ECONOMY ACT PURCHASES.
(a) Regulations Required.--Not later than six months after the date
of the enactment of this Act, the Federal Acquisition Regulation shall
be revised to include regulations governing the exercise of the
authority under section 1535 of title 31, United States Code, for
Federal agencies to purchase goods and services under contracts entered
into or administered by other agencies.
(b) Content of Regulations.--The regulations prescribed pursuant to
subsection (a) shall--
(1) require that each purchase described in subsection (a)
be approved in advance by a contracting officer of the ordering
agency with authority to contract for the goods or services to
be purchased or by another official in a position specifically
designated by regulation to approve such purchase;
(2) provide that such a purchase of goods or services may
be made only if--
(A) the purchase is appropriately made under a
contract that the agency filling the purchase order
entered into, before the purchase order, in order to
meet the requirements of such agency for the same or
similar goods or services;
(B) the agency filling the purchase order is better
qualified to enter into or administer the contract for
such goods or services by reason of capabilities or
expertise that is not available within the ordering
agency; or
(C) the agency or unit filling the order is
specifically authorized by law or regulations to
purchase such goods or services on behalf of other
agencies;
(3) prohibit any such purchase under a contract or other
agreement entered into or administered by an agency not covered
by the Federal Acquisition Regulation unless the purchase is
approved in advance by the senior procurement official
responsible for purchasing by the ordering agency; and
(4) prohibit any payment to the agency filling a purchase
order of any fee that exceeds the actual cost or, if the actual
cost is not known, the estimated cost of entering into and
administering the contract or other agreement under which the
order is filled.
(c) Monitoring System Required.--The Administrator for Federal
Procurement Policy shall ensure that, not later than one year after the
date of the enactment of this Act, systems for collecting and
evaluating procurement data are capable of collecting and evaluating
appropriate data on procurements conducted under the regulations
prescribed pursuant to subsection (a).
(d) Termination.--This section shall cease to be effective one year
after the date on which final regulations prescribed pursuant to
subsection (a) take effect.
PART IV--MISCELLANEOUS
SEC. 1091. POLICY REGARDING CONSIDERATION OF CONTRACTOR PAST
PERFORMANCE.
(a) Policy.--Section 2 of the Office of Federal Procurement Policy
Act (41 U.S.C. 401) is amended--
(1) by striking out ``and'' at the end of paragraph (12);
(2) by striking out the period at the end of paragraph (13)
and inserting in lieu thereof ``; and''; and
(3) by adding at the end the following new paragraph:
``(14) establishing policies and procedures that encourage
the consideration of contractors' past performance in the
selection of contractors.''.
(b) Guidance Required.--Section 6 of the Office of Federal
Procurement Policy Act (41 U.S.C. 405) is amended by adding at the end
the following:
``(j)(1) Congress makes the following findings:
``(A) Past contract performance of an offeror is one of the
relevant factors that contracting officials of executive
agencies should consider in entering into contracts.
``(B) It is appropriate for a contracting official to
consider past contract performance of an offeror as an
indicator of the likelihood that the offeror will successfully
perform a contract to be entered into by that official.
``(2) The Administrator shall prescribe for executive agencies
guidance regarding consideration of the past contract performance of
offerors in awarding contracts. The guidance shall include--
``(A) standards for evaluating past performance with
respect to cost (when appropriate), schedule, compliance with
technical or functional specifications, and other relevant
performance factors that facilitate consistent and fair
evaluation by all executive agencies;
``(B) policies for the collection and maintenance of
information on past contract performance that, to the maximum
extent practicable, facilitate automated collection,
maintenance, and dissemination of information and provide for
ease of collection, maintenance, and dissemination of
information by other methods, as necessary; and
``(C) policies for ensuring that offerors are afforded an
opportunity to submit information on past contract performance
and that information submitted by offerors is considered.
``(3) The Administrator shall prescribe for all executive agencies
the policy regarding the period for which information on past
performance of offerors may be maintained and considered.
``(4) In the case of an offeror regarding whom there is no
information on past contract performance or regarding whom information
on past contract performance is not available, the offeror may not be
evaluated favorably or unfavorably on the factor of past contract
performance.''.
SEC. 1092. REPEAL OF REQUIREMENT FOR ANNUAL REPORT ON COMPETITION.
Section 23 of the Office of Federal Procurement Policy Act (41
U.S.C. 419) is repealed.
SEC. 1093. DISCOURAGEMENT OF NONSTANDARD CONTRACT CLAUSES.
Section 31 of the Office of Federal Procurement Policy Act, as
amended by section 1067, is further amended by adding at the end the
following new subsection:
``(k) Nonstandard Contract Clauses.--The Federal Acquisition
Regulatory Council shall promulgate regulations to discourage the use
of a nonstandard contract clause on a repetitive basis. The regulations
shall include provisions that--
``(1) clearly define nonstandard clauses; and
``(2) require prior approval for the use of a nonstandard
clause on a repetitive basis by an official at a level of
responsibility above the contracting officer.''.
SEC. 1094. REPEAL OF OBSOLETE PROVISION.
(a) Repeal.--Section 303E of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253e) is repealed.
(b) Clerical Amendment.--The table of contents in the first section
of such Act is amended by striking out the item relating to section
303E.
Subtitle B--Truth in Negotiations
SEC. 1251. PROVISIONS TO ENSURE UNIFORM TREATMENT OF COST OR PRICING
DATA.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 1061, is further amended by adding after
section 31 the following new section:
``SEC. 32. COST OR PRICING DATA: TRUTH IN NEGOTIATIONS.
``(a) Required Cost or Pricing Data and Certification.--(1) An
agency head shall require offerors, contractors, and subcontractors to
make cost or pricing data available as follows:
``(A) An offeror for a prime contract under this title to
be entered into using procedures other than sealed-bid
procedures shall be required to submit cost or pricing data
before the award of a contract if--
``(i) in the case of a prime contract entered into
after the date of the enactment of the Federal
Acquisition Improvement Act of 1994, the price of the
contract to the United States is expected to exceed
$500,000; and
``(ii) in the case of a prime contract entered into
on or before the date of the enactment of the Federal
Acquisition Improvement Act of 1994, the price of the
contract to the United States is expected to exceed
$100,000.
``(B) The contractor for a prime contract under this
chapter shall be required to submit cost or pricing data before
the pricing of a change or modification to the contract if--
``(i) in the case of a change or modification made
to a prime contract referred to in subparagraph (A)(i),
the price adjustment is expected to exceed $500,000;
``(ii) in the case of a change or modification made
to a prime contract that was entered into on or before
the date of the enactment of the Federal Acquisition
Improvement Act of 1994, and that has been modified
pursuant to paragraph (6), the price adjustment is
expected to exceed $500,000; and
``(iii) in the case of a change or modification not
covered by clause (i) or (ii), the price adjustment is
expected to exceed $100,000.
``(C) An offeror for a subcontract (at any tier) of a
contract under this title shall be required to submit cost or
pricing data before the award of the subcontract if the prime
contractor and each higher-tier subcontractor have been
required to make available cost or pricing data under this
section and--
``(i) in the case of a subcontract under a prime
contract referred to in subparagraph (A)(i), the price
of the subcontract is expected to exceed $500,000;
``(ii) in the case of a subcontract entered into
under a prime contract that was entered into on or
before the date of the enactment of the Federal
Acquisition Improvement Act of 1994, and that has been
modified pursuant to paragraph (6), the price of the
subcontract is expected to exceed $500,000; and
``(iii) in the case of a subcontract not covered by
clause (i) or (ii), the price of the subcontract is
expected to exceed $100,000.
``(D) The subcontractor for a subcontract covered by
subparagraph (C) shall be required to submit cost or pricing
data before the pricing of a change or modification to the
subcontract if--
``(i) in the case of a change or modification to a
subcontract referred to in subparagraph (C)(i) or
(C)(ii), the price adjustment is expected to exceed
$500,000; and
``(ii) in the case of a change or modification to a
subcontract referred to in subparagraph (C)(iii), the
price adjustment is expected to exceed $100,000.
``(2) A person required, as an offeror, contractor, or
subcontractor, to submit cost or pricing data under paragraph (1) (or
required by the head of the procuring activity concerned to submit such
data under subsection (c)) shall be required to certify that, to the
best of the person's knowledge and belief, the cost or pricing data
submitted are accurate, complete, and current.
``(3) Cost or pricing data required to be submitted under paragraph
(1) (or under subsection (c)), and a certification required to be
submitted under paragraph (2), shall be submitted--
``(A) in the case of a submission by a prime contractor (or
an offeror for a prime contract), to the contracting officer
for the contract (or to a designated representative of the
contracting officer); or
``(B) in the case of a submission by a subcontractor (or an
offeror for a subcontract), to the prime contractor.
``(4) Except as provided under subsection (b), this section applies
to contracts entered into by an agency head on behalf of a foreign
government.
``(5) For purposes of paragraph (1)(C), a contractor or
subcontractor granted a waiver under subsection (b)(2) shall be
considered as having been required to make available cost or pricing
data under this section.
``(6) Upon the request of a contractor that was required to submit
cost or pricing data under paragraph (1) in connection with a prime
contract entered into on or before the date of the enactment of the
Federal Acquisition Improvement Act of 1994, the agency head that
entered into such contract shall modify the contract to reflect
subparagraphs (B)(ii) and (C)(ii) of paragraph (1). All such
modifications shall be made without requiring consideration.
``(7) Effective on October 1 of each year that is divisible by 5,
each amount set forth in paragraph (1) shall be adjusted to the amount
that is equal to the fiscal year 1994 constant dollar value of the
amount set forth. Any amount, as so adjusted, that is not evenly
divisible by $50,000 shall be rounded to the nearest multiple of
$50,000. In the case of an amount that is evenly divisible by $25,000
but not evenly divisible by $50,000, the amount shall be rounded to the
next higher multiple of $50,000.
``(b) Exceptions.--(1) Submission of cost and pricing data shall
not be required under subsection (a)--
``(A) in the case of a contract, a subcontract, or a
contract or subcontract modification, for which the price
agreed upon is based on--
``(i) adequate price competition;
``(ii) established catalog or market prices of
commercial items or of services regularly used for
other than Government purposes, as the case may be,
that are sold in substantial quantities to the general
public; or
``(iii) prices set by law or regulation; or
``(B) in an exceptional case when the head of the procuring
activity, without delegation, determines that the requirements
of this section may be waived, justifies in writing the reasons
for such determination, and certifies the accuracy and
completeness of the justification.
``(2) The Federal Acquisition Regulation (issued under section
25(c)) shall provide clear standards for determining whether the
exceptions provided in paragraph (1)(A) apply. In the case of the
exception provided in paragraph (1)(A)(i), the regulations shall
specify the criteria that will be used to determine whether adequate
price competition exists. In the case of the exception provided in
paragraph (1)(A)(ii), the regulations shall preclude the consideration
of sales to the Federal Government, including the percentage of an
item's overall sales that are made to the Federal Government, when
determining whether the item has been sold in substantial quantities to
the public.
``(c) Authority To Require Cost or Pricing Data on Below-Threshold
Contracts.--When cost or pricing data are not required to be submitted
by subsection (a), such data may nevertheless be required to be
submitted by the head of the procuring activity, but only if the head
of the procuring activity determines that such data are necessary for
the evaluation by the agency of the reasonableness of the price of the
contract or subcontract. In any case in which the head of the procuring
activity requires such data to be submitted under this subsection, the
head of the procuring activity shall justify in writing the reason for
such requirement and certify the accuracy and completeness of the
justification. The head of the procuring activity may not delegate the
functions under this subsection.
``(d) Additional Exception Provisions Regarding Commercial Items.--
(1) In any case in which it is not practicable to conduct a procurement
of a commercial item on a competitive basis and the procurement is not
covered by an exception in subsection (b), the contracting officer
shall nonetheless exempt a contract or subcontract
under the procurement from the requirements of subsection (a) if the
contracting officer develops or obtains from the offeror or contractor,
or from another source or sources, in accordance with standards and
procedures set forth in the Federal Acquisition Regulation, information
on prices at which the same or similar items have been sold in the
commercial market that is adequate for evaluating the reasonableness of
the price of the contract or subcontract for a commercial item.
``(2)(A) In accordance with procedures prescribed in the Federal
Acquisition Regulation, an agency head shall have the right to examine
all information provided by an offeror, contractor, or subcontractor
pursuant to subsection (b)(1)(A) or paragraph (1) of this subsection
and all books and records of such offeror, contractor, or subcontractor
that directly relate to such information in order to determine whether
the agency is receiving accurate information required under this
section.
``(B) The right under subparagraph (A) shall expire 1 year after
the date of commencement of performance of the contract, or 1 year
after the date of commencement of performance of the modification of
the contract, with respect to which the information was provided.
``(3) The Federal Acquisition Regulation shall establish reasonable
limitations on requests under this section for sales data relating to
commercial items.
``(e) Price Reductions for Defective Cost or Pricing Data.--(1)(A)
A prime contract (or change or modification to a prime contract) under
which a certificate under subsection (a)(2) is required shall contain a
provision that the price of the contract to the United States,
including profit or fee, shall be adjusted to exclude any significant
amount by which it may be determined by the agency head that such price
was increased because the contractor (or any subcontractor required to
make available such a certificate) submitted defective cost or pricing
data.
``(B) For the purposes of this section, defective cost or pricing
data are cost or pricing data which, as of the date of agreement on the
price of the contract (or another date agreed upon between the
parties), were inaccurate, incomplete, or noncurrent. If for purposes
of the preceding sentence the parties agree upon a date other than the
date of agreement on the price of the contract, the date agreed upon by
the parties shall be as close to the date of agreement on the price of
the contract as is practicable.
``(2) In determining for purposes of a contract price adjustment
under a contract provision required by paragraph (1) whether, and to
what extent, a contract price was increased because the contractor (or
a subcontractor) submitted defective cost or pricing data, it shall be
a defense that the United States did not rely on the defective data
submitted by the contractor or subcontractor.
``(3) It is not a defense to an adjustment of the price of a
contract under a contract provision required by paragraph (1) that--
``(A) the price of the contract would not have been
modified even if accurate, complete, and current cost or
pricing data had been submitted by the contractor or
subcontractor because the contractor or subcontractor--
``(i) was the sole source of the property or
services procured; or
``(ii) otherwise was in a superior bargaining
position with respect to the property or services
procured;
``(B) the contracting officer should have known that the
cost and pricing data in issue were defective even though the
contractor or subcontractor took no affirmative action to bring
the character of the data to the attention of the contracting
officer;
``(C) the contract was based on an agreement between the
contractor and the United States about the total cost of the
contract and there was no agreement about the cost of each item
procured under such contract; or
``(D) the prime contractor or subcontractor did not submit
a certification of cost and pricing data relating to the
contract as required under subsection (a)(2).
``(4)(A) A contractor shall be allowed to offset an amount against
the amount of a contract price adjustment under a contract provision
required by paragraph (1) if--
``(i) the contractor certifies to the contracting officer
(or to a designated representative of the contracting officer)
that, to the best of the contractor's knowledge and belief, the
contractor is entitled to the offset; and
``(ii) the contractor proves that the cost or pricing data
were available before the date of agreement on the price of the
contract (or price of the modification), or, if applicable
consistent with paragraph (1)(B), another date agreed upon
between the parties, and that the data were not submitted as
specified in subsection (a)(3) before such date.
``(B) A contractor shall not be allowed to offset an amount
otherwise authorized to be offset under subparagraph (A) if--
``(i) the certification under subsection (a)(2) with
respect to the cost or pricing data involved was known to be
false when signed; or
``(ii) the United States proves that, had the cost or
pricing data referred to in subparagraph (A)(ii) been submitted
to the United States before the date of agreement on the price
of the contract (or price of the modification) or, if
applicable under paragraph (1)(B), another date agreed upon
between the parties, the submission of such cost or pricing
data would not have resulted in an increase in that price in
the amount to be offset.
``(f) Interest and Penalties for Certain Overpayments.--(1) If the
United States makes an overpayment to a contractor under a contract
with an executive agency subject to this section and the overpayment
was due to the submission by the contractor of defective cost or
pricing data, the contractor shall be liable to the United States--
``(A) for interest on the amount of such overpayment, to be
computed--
``(i) for the period beginning on the date the
overpayment was made to the contractor and ending on
the date the contractor repays the amount of such
overpayment to the United States; and
``(ii) at the current rate prescribed by the
Secretary of the Treasury under section 6621 of the
Internal Revenue Code of 1986; and
``(B) if the submission of such defective data was a
knowing submission, for an additional amount equal to the
amount of the overpayment.
``(2) Any liability under this subsection of a contractor that
submits cost or pricing data but refuses to submit the certification
required by subsection (a)(2) with respect to the cost or pricing data
shall not be affected by the refusal to submit such certification.
``(g) Right of United States To Examine Contractor Records.--For
the purpose of evaluating the accuracy, completeness, and currency of
cost or pricing data required to be submitted by this section, the head
of an agency shall have the rights provided by section 38(a)(2).
``(h) Cost or Pricing Data Defined.--In this section, the term
`cost or pricing data' means all facts that, as of the date of
agreement on the price of a contract (or the price of a contract
modification) or, if applicable consistent with subsection (e)(1)(B),
another date agreed upon between the parties, a prudent buyer or seller
would reasonably expect to affect price negotiations significantly.
Such terms does not include information that is judgmental, but does
include the factual information from which a judgment was derived.''.
Subtitle C--Procurement Protests
PART I--PROTESTS TO THE COMPTROLLER GENERAL
SEC. 1401. PROTEST DEFINED.
Paragraph (1) of section 3551 of title 31, United States Code, is
amended to read as follows:
``(1) `protest' means a written objection by an interested
party--
``(i) to a solicitation or other request by a
Federal agency for offers for a contract for the
procurement of property or services;
``(ii) to the cancellation of such a solicitation
or other request;
``(iii) to an award or proposed award of such a
contract; or
``(iv) to a termination or cancellation of an award
of such a contract, if the written objection contains
an allegation that the termination or cancellation is
based in whole or in part on improprieties concerning
the award of the contract;''.
SEC. 1402. REVIEW OF PROTESTS AND EFFECT ON CONTRACTS PENDING DECISION.
(a) Periods for Certain Actions.--Section 3553 of title 31, United
States Code, is amended--
(1) in subsection (b)--
(A) in paragraph (1), by striking out ``one working
day of'' and inserting in lieu thereof ``one day
after''; and
(B) in paragraph (2)--
(i) in subparagraph (A), by striking out
``25 working days from'' and inserting in lieu
thereof ``35 days after''; and
(ii) in subparagraph (C), by striking out
``10 working days from'' and inserting in lieu
thereof ``15 days after''; and
(2) in subsection (c)(3), by striking out ``thereafter''
and inserting in lieu thereof ``after the making of such
finding''.
(b) Suspension of Performance.--Subsection (d) of such section is
amended to read as follows:
``(d)(1) A contractor awarded a Federal agency contract may, during
the period described in paragraph (4), begin performance of the
contract and engage in any related activities that result in
obligations being incurred by the United States under the contract
unless the contracting officer responsible for the award of the
contract withholds authorization to proceed with performance of the
contract.
``(2) The contracting officer may withhold an authorization to
proceed with performance of the contract during the period described in
paragraph (4) if the contracting officer determines in writing that--
``(A) a protest is likely to be filed; and
``(B) the immediate performance of the contract is not in
the best interests of the United States.
``(3)(A) If the Federal agency awarding the contract receives
notice of a protest in accordance with this section during the period
described in paragraph (4)--
``(i) the contracting officer may not authorize performance
of the contract to begin while the protest is pending; or
``(ii) if contract performance was authorized in accordance
with paragraph (2) before receipt of the notice, the
contracting officer shall immediately direct the contractor to
cease performance under the contract and to suspend any related
activities that may result in additional obligations being
incurred by the United States under that contract.
``(B) Performance and related activities suspended pursuant to
subparagraph (A)(ii) by reason of a protest may not be resumed while
the protest is pending.
``(C) The head of the procuring activity may authorize the
performance of the contract (notwithstanding a protest of which the
Federal agency has notice under this section)--
``(i) upon a written finding that--
``(I) performance of the contract is in the best
interests of the United States; or
``(II) urgent and compelling circumstances that
significantly affect interests of the United States
will not permit waiting for the decision of the
Comptroller General concerning the protest; and
``(ii) after the Comptroller General is notified of that
finding.
``(4) The period referred to in paragraphs (2) and (3)(A), with
respect to a contract, is the period beginning on the date of the
contract award and ending on the later of--
``(A) the date that is 10 days after the date of the
contract award; or
``(B) the date that is 5 days after the debriefing date
offered to an unsuccessful offeror for any debriefing that is
requested and, when requested, is required.''.
SEC. 1403. DECISIONS ON PROTESTS.
(a) Periods for Certain Actions.--Section 3554(a) of title 31,
United States Code, is amended--
(1) in paragraph (1), by striking out ``90 working days
from'' and inserting in lieu thereof ``120 days after'';
(2) in paragraph (2), by striking out ``45 calendar days
from'' and inserting ``60 days after'';
(3) by redesignating paragraph (3) as paragraph (4); and
(4) by inserting after paragraph (2) the following new
paragraph (3):
``(3) An amendment to a protest that adds a new ground of protest,
if timely raised, should be resolved, to the maximum extent
practicable, within the time limit established under paragraph (1) of
this subsection for final decision of the initial protest. If an
amended protest cannot be resolved within such time limit, the
Comptroller General may resolve the amended protest through the express
option under paragraph (2) of this subsection.''.
(b) GAO Recommendations on Protests.--
(1) Implementation of recommendations.--Section 3554 of
title 31, United States Code, is amended--
(A) in subsection (b), by adding at the end the
following new paragraph:
``(3) If the Federal agency fails to implement fully the
recommendations of the Comptroller General under this subsection with
respect to a solicitation for a contract or an award or proposed award
of a contract within 60 days after receiving the recommendations, the
head of the procuring activity responsible for that contract shall
report such failure to the Comptroller General not later than 5 working
days after the end of such 60-day period.'';
(B) by striking out subsection (c) and inserting in
lieu thereof the following:
``(c)(1) If the Comptroller General determines that a solicitation
for a contract or a proposed award or the award of a contract does not
comply with a statute or regulation, the Comptroller General may
recommend that the Federal agency conducting the procurement pay to an
appropriate interested party the costs of--
``(A) filing and pursuing the protest, including reasonable
attorney's fees and consultant and expert witness fees; and
``(B) bid and proposal preparation.
``(2) If the Comptroller General recommends under paragraph (1)
that a Federal agency pay costs to an interested party, the Federal
agency shall--
``(A) pay the costs promptly out of funds appropriated by
section 1304 of this title for the payment of judgments and
reimburse that appropriation account out of available funds or
out of additional funds appropriated for such Federal agency to
make such reimbursement; or
``(B) if the Federal agency does not make such payment,
promptly report to the Comptroller General the reasons for the
failure to follow the Comptroller General's recommendation.
``(3) If the Comptroller General recommends under paragraph (1)
that a Federal agency pay costs to an interested party, the Federal
agency and the interested party shall attempt to reach an agreement on
the amount of the costs to be paid. If the Federal agency and the
interested party are unable to agree on the amount to be paid, the
Comptroller General may, upon the request of the interested party,
recommend to the Federal agency the amount of the costs that the
Federal agency should pay.''; and
(C) by striking out subsection (e) and inserting in
lieu thereof the following:
``(e)(1) The Comptroller General shall report promptly to the
Committee on Governmental Affairs and the Committee on Appropriations
of the Senate and to the Committee on Government Operations and the
Committee on Appropriations of the House of Representatives any case in
which a Federal agency fails to implement fully a recommendation of the
Comptroller General under subsection (b) or (c). The report shall
include--
``(A) a comprehensive review of the pertinent procurement,
including the circumstances of the failure of the Federal
agency to implement a recommendation of the Comptroller
General; and
``(B) a recommendation regarding whether, in order to
correct an inequity or to preserve the integrity of the
procurement process, the Congress should consider--
``(i) private relief legislation;
``(ii) legislative rescission or cancellation of
funds;
``(iii) further investigation by the Congress; or
``(iv) other action.
``(2) Not later than January 31 of each year, the Comptroller
General shall transmit to the Congress a report containing a summary of
each instance in which a Federal agency did not fully implement a
recommendation of the Comptroller General under subsection (b) or (c)
during the preceding year. The report shall also describe each instance
in which a final decision in a protest was not rendered within 125 days
after the date the protest is submitted to the Comptroller General.''.
(2) Requirement for payment in accordance with prior gao
determinations.--Amounts to which the Comptroller General
declared an interested party to be entitled under section 3554
of title 31, United States Code, as in effect immediately
before the enactment of this Act, shall, if not paid or
otherwise satisfied by the Federal agency concerned before the
date of the enactment of this Act, be paid promptly from the
appropriation made by section 1304 of such title for the
payment of judgments. The Federal agency shall reimburse that
appropriation account out of available funds or out of
additional funds appropriated for such Federal agency to make
such reimbursement. If the Federal agency is unable to make the
reimbursement out of available funds, the head of such agency
shall immediately take such action as may be necessary to
transmit to Congress a request for an appropriation of
additional funds to make such reimbursement.
(c) Restriction on Access to Certain Information.--Section 3553(f)
of title 31, United States Code, is amended--
(1) by inserting ``(1)'' after ``(f)''; and
(2) by adding at the end the following:
``(2)(A) The Comptroller General may issue protective orders which
establish terms, conditions, and restrictions for the provision of any
document to a person under paragraph (1), that prohibit or restrict the
disclosure by the person of information described in subparagraph (C)
that is contained in such a document.
``(B) The penalties specified under section 27(i) of the Office of
Federal Procurement Policy Act shall apply to the disclosure of
information described in subparagraph (C) in violation of a term,
condition, or restriction in a protective order under this paragraph by
a person that is subject to the protective order.
``(C) Information referred to in subparagraphs (A) and (B) is
procurement sensitive information, trade secrets, or other proprietary
or confidential research, development, or commercial information.
``(D) A protective order under this paragraph shall not be
considered to authorize the withholding of any document or information
from the Congress or an executive agency.''.
SEC. 1404. REGULATIONS.
(a) Computation of Periods.--Section 3555 of title 31, United
States Code, is amended--
(1) by redesignating subsection (b) as subsection (d); and
(2) by inserting after subsection (a) the following new
subsection (b):
``(b) The procedures shall provide that, in the computation of any
period described in this subchapter--
``(1) the day of the act, event, or default from which the
designated period of time begins to run not be included; and
``(2) the last day after such act, event, or default be
included, unless--
``(A) such last day is a Saturday, a Sunday, or a
legal holiday; or
``(B) in the case of a filing of a paper at the
General Accounting Office or a Federal agency, such
last day is a day on which weather or other conditions
cause the closing of the General Accounting Office or
Federal agency, in which event the next day that is not
a Saturday, Sunday, or legal holiday shall be
included.''.
(b) Electronic Filings and Disseminations.--Such section, as
amended by subsection (a), is further amended by inserting after
subsection (b) the following new subsection:
``(c) The Comptroller General may prescribe procedures for the
electronic filing and dissemination of documents and information
required under this subchapter. In prescribing such procedures, the
Comptroller General shall consider the ability of all parties to
achieve electronic access to such documents and records.''.
(c) Repeal of Obsolete Deadline.--Subsection (a) of such section is
amended by striking out ``Not later than January 15, 1985, the'' and
inserting in lieu thereof ``The''.
PART II--PROTESTS IN PROCUREMENTS OF AUTOMATIC DATA PROCESSING
SEC. 1431. REVOCATION OF DELEGATIONS OF PROCUREMENT AUTHORITY.
Section 111(b)(3) of the Federal Property and Administrative
Services Act of 1949 (40 U.S.C. 759(b)(3)) is amended by inserting
after the third sentence the following: ``The Administrator may revoke
a delegation of authority with respect to a particular contract before
or after award of the contract, except that the Administrator may
revoke a delegation after the contract is awarded only when there is a
finding of a violation of law or regulation in connection with the
contract award.''.
SEC. 1432. AUTHORITY OF THE GENERAL SERVICES ADMINISTRATION BOARD OF
CONTRACT APPEALS.
The first sentence of section 111(f)(1) of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 759(f)(1)) is amended to
read as follows: ``Upon request of an interested party in connection
with any procurement that is subject to this section (including any
such procurement that is subject to delegation of procurement
authority), the board of contract appeals of the General Services
Administration (hereafter in this subsection referred to as the
`board') shall review, as provided in this subsection, any decision by
a contracting officer that is alleged to violate a statute, a
regulation, or the conditions of a delegation of procurement
authority.''.
SEC. 1433. PERIODS FOR CERTAIN ACTIONS.
(a) Suspension of Procurement Authority.--(1) Section 111(f)(2)(B)
of the Federal Property and Administrative Services Act of 1949 (40
U.S.C. 759(f)) is amended--
(A) by redesignating clauses (i) and (ii) as subclauses (I)
and (II), respectively;
(B) by inserting ``(i)'' after ``(B)''; and
(C) by adding at the end the following:
``(ii) A suspension under this subparagraph shall not preclude the
Federal agency concerned from continuing the procurement process up to
but not including award of the contract if the Board determines such
action is in the best interests of the United States.''.
(2) Section 111(f) of the Federal Property and Administrative
Services Act of 1949 (40 U.S.C. 759(f)) is amended in paragraph (3) by
striking out subparagraph (A) and inserting in lieu thereof the
following:
``(A)(i) If, with respect to an award of a contract, the board
receives notice of a protest under this subsection within the period
described in clause (ii), the board shall, at the request of an
interested party, hold a hearing to determine whether the board should
suspend the procurement authority of the Administrator or the
Administrator's delegation of procurement authority for the protested
procurement on an interim basis until the board can decide the protest.
``(ii) The period referred to in clause (i) is the period beginning
on the date on which the contract is awarded and ending at the end of
the later of--
``(I) the tenth day after the date of contract award; or
``(II) the fifth day after the debriefing date offered to
an unsuccessful offeror for any debriefing that is requested
and, when requested, is required.
``(iii) The board shall hold the requested hearing within 5 days
after the date of the filing of the protest.''.
(b) Final Decision.--Paragraph (4)(B) of such section 111(f) is
amended--
(1) by striking out ``45 working days'' and inserting in
lieu thereof ``65 days''; and
(2) by adding at the end the following: ``An amendment
which adds a new ground of protest should be resolved, to the
maximum extent practicable, within the time limits established
for resolution of the initial protest.''.
SEC. 1434. DISMISSALS OF PROTESTS.
Section 111(f)(4) of the Federal Property and Administrative
Services Act of 1949 (40 U.S.C. 759(f)(4)) is amended by striking out
subparagraph (C) and inserting in lieu thereof the following:
``(C) The board may dismiss a protest that the board determines--
``(i) is frivolous;
``(ii) has been brought in bad faith; or
``(iii) does not state on its face a valid basis for
protest.''.
SEC. 1435. AWARD OF COSTS.
Section 111(f)(5) is amended by striking out subparagraph (C) and
inserting in lieu thereof the following:
``(C) Whenever the board makes such a determination, it may, in
accordance with section 1304 of title 31, United States Code, further
declare an appropriate prevailing party to be entitled to the cost of
filing and pursuing the protest (including reasonable attorney's fees
and consultant and expert witness fees), and bid and proposal
preparation.''.
SEC. 1436. DISMISSAL AGREEMENTS.
Section 111(f)(5) of the Federal Property and Administrative
Services Act of 1949 (40 U.S.C. 759(f)(5)) is amended by adding at the
end the following new subparagraphs:
``(D) Any agreement that provides for the dismissal of a protest
and involves a direct or indirect expenditure of appropriated funds
shall be submitted to the board and shall be made a part of the public
record (subject to any protective order considered appropriate by the
board) before dismissal of the protest. If a Federal agency is a party
to a settlement agreement, the submission of the agreement submitted to
the board shall include a memorandum, signed by the contracting officer
concerned, that describes in detail the procurement, the grounds for
protest, the Federal Government's position regarding the grounds for
protest, the terms of the settlement, and the agency's position
regarding the propriety of the award or proposed award of the contract
at issue in the protest.
``(E) Payment of amounts due from an agency under subparagraph (C)
or under the terms of a settlement agreement under subparagraph (D)
shall be made from the appropriation made by section 1304 of title 31,
United States Code, for the payment of judgments. The Federal agency
concerned shall reimburse that appropriation account out of funds
available for the procurement.''.
SEC. 1437. MATTERS TO BE COVERED IN REGULATIONS.
Section 111(f) of the Federal Property and Administrative Services
Act of 1949 (40 U.S.C. 759(f)) is amended by striking out paragraph (8)
and inserting in lieu thereof the following:
``(7)(A) The board shall adopt and issue such rules and procedures
as may be necessary to the expeditious disposition of protests filed
under the authority of this subsection.
``(B) The procedures shall provide that, in the computation of any
period described in this subsection--
``(i) the day of the act, event, or default from which the
designated period of time begins to run not be included; and
``(ii) the last day after such act, event, or default be
included, unless--
``(I) such last day is a Saturday, a Sunday, or a
legal holiday; or
``(II) in the case of a filing of a paper at the
board, such last day is a day on which weather or other
conditions make the board or Federal agency
inaccessible, in which event the next day that is not a
Saturday, Sunday, or legal holiday shall be included.
``(C) The procedures may provide for electronic filing and
dissemination of documents and information required under this
subsection and in so providing shall consider the ability of all
parties to achieve electronic access to such documents and records.
``(D) The procedures shall provide that if the board expressly
finds that a protest or a portion of a protest is frivolous or has not
been brought or pursued in good faith, or that any person has willfully
abused the board's process during the course of a protest, the board
may impose appropriate procedural sanctions, including dismissal of the
protest.''.
SEC. 1438. DEFINITIONS.
(a) Protest.--Section 111(f)(9) of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 759(f)(9)) is amended--
(1) by striking out ``and'' at the end of subparagraph (A);
(2) by striking out the period at the end of subparagraph
(B) and inserting in lieu thereof ``; and''; and
(3) by adding at the end the following new subparagraph:
``(C) the term `protest' means a written objection by an
interested party--
``(i) to a solicitation or other request by a
Federal agency for offers for a contract for the
procurement of property or services;
``(ii) to the cancellation of such a solicitation
or other request;
``(iii) to an award or proposed award of such a
contract; or
``(iv) to a termination or cancellation of an award
of such a contract, if the written objection contains
an allegation that the termination or cancellation is
based in whole or in part on improprieties concerning
the award of the contract;''.
(b) Prevailing Party.--Section 111(f)(9) of such Act is amended by
adding at the end the following new subparagraph:
``(C) the term `prevailing party', with respect to a
determination of the board under paragraph (5)(B) that a
challenged action of a Federal agency violates a statute or
regulation or the conditions of a delegation of procurement
authority issued pursuant to this section, means a party that
demonstrated such violation.''.
SEC. 1439. OVERSIGHT OF ACQUISITION OF AUTOMATIC DATA PROCESSING
EQUIPMENT BY FEDERAL AGENCIES.
Section 111 of the Federal Property and Administrative Services Act
of 1949 (40 U.S.C. 759) is amended by adding at the end the following
new subsection:
``(h)(1) The Administrator shall collect and compile data regarding
the procurement of automatic data processing equipment under this
section. The data collected and compiled shall include, at a minimum,
with regard to each procurement the following:
``(A) The procuring agency.
``(B) The contractor.
``(C) The automatic data processing equipment and services
procured.
``(D) The manufacturer of the equipment procured.
``(E) The amount of the contract, to the extent that the
amount is not proprietary information.
``(F) The type of contract used.
``(G) The extent of competition for award.
``(H) Compatibility restrictions.
``(I) Significant modifications of the contract.
``(J) Contract price, to the extent that the price is not
proprietary information.
``(2) The head of each Federal agency shall report to the
Administrator in accordance with regulations issued by the
Administrator all information that the Administrator determines
necessary in order to satisfy the requirements in paragraph (1).
``(3) The Administrator shall--
``(A) carry out a systematic, periodic review of
information received under this subsection;
``(B) use such information, as appropriate, to determine
the compliance of Federal agencies with the requirements of
this section; and
``(C) have the authority to suspend the delegation to a
Federal agency of authority to lease or purchase automatic data
processing equipment upon any failure by the head of the
Federal agency to report to the Administrator in accordance
with paragraph (2).''.
Subtitle D--Definitions and Other Matters
SEC. 1551. DEFINITIONS.
Section 309(c) of the Federal Property and Administrative Services
Act of 1949 (41 U.S.C. 259(c)) is amended by striking out ``and
`supplies''' and inserting in lieu thereof ```supplies', `commercial
item', and `nondevelopmental item'''.
SEC. 1552. DELEGATION OF PROCUREMENT FUNCTIONS.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 1251, is further amended by inserting
after section 32 the following new section:
``SEC. 33. DELEGATION OF PROCUREMENT FUNCTIONS.
``(a) In General.--Except to the extent expressly prohibited by
another provision of law, an agency head may delegate, subject to his
direction, to any other officer or official of that agency, any power
under this title.
``(b) Procurements For or With Other Agencies.--Subject to
subsection (a), to facilitate the procurement of property and services
covered by this title by each executive agency for any other executive
agency, and to facilitate joint procurement by those executive
agencies--
``(1) an agency head may, within his executive agency,
delegate functions and assign responsibilities relating to
procurement;
``(2) the heads of two or more executive agencies may by
agreement delegate procurement functions and assign procurement
responsibilities from one executive agency to another of those
executive agencies or to an officer or civilian employee of
another of those executive agencies; and
``(3) the heads of two or more executive agencies may
create joint or combined offices to exercise procurement
functions and responsibilities.''.
SEC. 1553. DETERMINATIONS AND DECISIONS.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 1552, is further amended by inserting
after section 33 the following new section:
``SEC. 34. DETERMINATIONS AND DECISIONS.
``(a) Individual or Class Determinations and Decisions
Authorized.--Determinations and decisions required to be made under
title III of the Federal Property and Administration Services Act of
1949 (41 U.S.C. 251 et seq.) or chapter 137 of title 10, United States
Code, by an agency head may be made for an individual purchase or
contract or for a class of purchases or contracts. Such determinations
and decisions are final.
``(b) Written Findings Required.--(1) Each determination under
section 36(c) shall be based on a written finding by the person making
the determination or decision. The finding shall set out facts and
circumstances that support the determination or decision.
``(2) Each finding referred to in paragraph (1) shall be final. The
agency head making such finding shall maintain a copy of the finding
for not less than 6 years after the date of the determination or
decision.''.
SEC. 1554. RESEARCH, DEVELOPMENT, AND PRODUCTION COSTS.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 1553, is further amended by inserting
after section 34 the following new section:
``SEC. 35. RESEARCH, DEVELOPMENT, AND PRODUCTION COSTS.
``(a) Letters of offer for the sale of defense articles or for the
sale of defense services that are issued pursuant to sections 2761 or
2762 of title 22, United States Code, shall not include any charge for
the proportionate amount of any nonrecurring costs of research,
development, and production of major defense equipment.
``(b) Subsection (a) shall be effective with respect to sales
agreements entered into on or after October 1, 1996.''.
SEC. 1555. REPEALS.
The laws of the United States are amended to read as if the
following sections of law had not been enacted:
(1) Section 630 of Public Law 102-393.
(2) Section 401 of Public Law 103-123.
SEC. 1556. COOPERATIVE PURCHASING.
Subsection (b) of section 201 of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 481), is amended to read
as follows:
``(b)(1) The Administrator shall, as far as practicable, provide
any of the services specified in subsection (a) of this section to any
other Federal agency, mixed-ownership Government corporation (as
defined in section 9101 of title 31, United States Code), or the
District of Columbia, upon its request.
``(2)(A) The Administrator may provide for the use of Federal
supply schedules or other contracts by any of the following entities
upon request:
``(i) A State, any department or agency of a State, and any
political subdivision of a State, including a local government.
``(ii) The District of Columbia.
``(iii) The Commonwealth of Puerto Rico.
``(iv) The government of an Indian tribe (as defined in
section 4(e) of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450b(e))).
``(B) Subparagraph (A) may not be construed to authorize an entity
referred to in that subparagraph to order existing stock or inventory
from federally owned and operated, or federally owned and contractor
operated, supply depots, warehouses, or similar facilities.
``(3)(A) Upon the request of a qualified nonprofit agency for the
blind or other severely handicapped that is to provide a commodity or
service to the Federal Government under the Javits-Wagner-O'Day Act,
the Administrator may provide any of the services specified in
subsection (a) to such agency to the extent practicable.
``(B) A nonprofit agency receiving services under the authority of
subparagraph (A) shall use the services directly in making or providing
an approved commodity or approved service to the Federal Government.
``(C) In this paragraph:
``(i) The term `qualified nonprofit agency for the blind or
other severely handicapped' means--
``(I) a qualified nonprofit agency for the blind,
as defined in section 5(3) of the Javits-Wagner-O'Day
Act (41 U.S.C. 48b(3)); and
``(II) a qualified nonprofit agency for other
severely handicapped, as defined in section 5(4) of
such Act (41 U.S.C. 48b(4)).
``(ii) The terms `approved commodity' and `approved
service' mean a commodity and a service, respectively, that has
been determined by the Committee for Purchase from the Blind
and Other Severely Handicapped under section 2 of the Javits-
Wagner-O'Day Act (41 U.S.C. 47) to be suitable for procurement
by the Federal Government.
``(iii) The term `Javits-Wagner-O'Day Act' means the Act
entitled `An Act to create a Committee on Purchases of Blind-
made Products, and for other purposes', approved June 25, 1938
(41 U.S.C. 46-48c), commonly referred to as the Wagner-O'Day
Act, that was revised and reenacted in the Act of June 23, 1971
(85 Stat. 77), commonly referred to as the Javits-Wagner-O'Day
Act.''.
TITLE II--CONTRACT ADMINISTRATION
Subtitle A--Contract Payment
SEC. 2051. CONTRACT FINANCING.
(a) Reorganization of Principal Authority Provision.--The Office of
Federal Procurement Policy Act (41 U.S.C. 401 et seq.), as amended by
section 1554, is further amended by inserting after section 35 the
following new section:
``SEC. 36. CONTRACT FINANCING.
``(a) Payment Authority.--Any executive agency may--
``(1) make advance, partial, progress or other payments
under contracts of property or services made by the agency; and
``(2) insert in bid solicitations for procurement of
property or services a provision limiting to small business
concerns advance or progress payments.
``(b) Payment Amount.--Payments made under subsection (a) may not
exceed the unpaid contract price.
``(c) Security for Advance Payments.--Advance payments under
subsection (a) may be made only upon adequate security and a
determination by the agency head that to do so would be in the public
interest. Such security may be in the form of a lien in favor of the
Government on the property contracted for, on the balance in an account
in which such payments are deposited, and on such of the property
acquired for performance of the contract as the parties may agree. This
lien shall be paramount to all other liens.
``(d) Conditions for Progress Payments.--(1) The agency head shall
ensure that any payment for work in progress (including materials,
labor, and other items) under a contract of an executive agency that
provides for such payments is commensurate with the work accomplished
that meets standards established under the contract. The contractor
shall provide such information and evidence as the agency head
determines necessary to permit the agency head to carry out the
preceding sentence.
``(2) The agency head shall ensure that progress payments referred
to in paragraph (1) are not made for more than 80 percent of the work
accomplished under the contract so long as the agency head has not made
the contractual terms, specifications, and price definite.
``(3) This subsection applies to a contract for an amount equal to
or greater than the simplified acquisition threshold.
``(e) Conditions for Payments for Commercial Items.--(1) Payments
under subsection (a) for commercial items, as that term is defined in
section 4(12) of this Act, may be made under such terms and conditions
as the head of the agency determines are appropriate or customary in
the commercial marketplace. The head of the agency shall obtain
adequate security for such payments. If the security is in the form of
a lien in favor of the United States, such lien is paramount to all
other liens and is effective immediately upon the first payment,
without filing, notice, or other action by the United States.
``(2) Advance payments made under subsection (a) for commercial
items may include payments, in a total amount of not more than 15
percent of the contract price, in advance of any performance of work
under the contract.
``(3) The conditions of subsections (c) and (d) do not apply to
payments made for commercial items in accordance with this subsection.
``(f) Action in Case of Fraud.--(1) In any case in which the remedy
coordination official of an executive agency finds that there is
substantial evidence that the request of a contractor for advance,
partial, or progress payment under a contract awarded by that executive
agency is based on fraud, the remedy coordination official shall
recommend that the agency head reduce or suspend further payments to
such contractor.
``(2) An agency head receiving a recommendation under paragraph (1)
in the case of a contractor's request for payment under a contract
shall determine whether there is substantial evidence that the request
is based on fraud. Upon making such a determination, the agency head
may reduce or suspend further payments to the contractor under such
contract.
``(3) The extent of any reduction or suspension of payments by an
agency head under paragraph (2) on the basis of fraud shall be
reasonably commensurate with the anticipated loss to the United States
resulting from the fraud.
``(4) A written justification for each decision of the agency head
whether to reduce or suspend payments under paragraph (2), and for each
recommendation received by the agency head in connection with such
decision, shall be prepared and be retained in the files of the
executive agency.
``(5) Each agency head shall prescribe procedures to ensure that,
before the agency head decides to reduce or suspend payments in the
case of a contractor under paragraph (2), the contractor is afforded
notice of the proposed reduction or suspension and an opportunity to
submit matters to the head of the agency in response to such proposed
reduction or suspension.
``(6) Not later than 180 days after the date on which an agency
head reduces or suspends payments to a contractor under paragraph (2),
the remedy coordination official of the executive agency shall--
``(A) review the determination of fraud on which the
reduction or suspension is based; and
``(B) transmit a recommendation to the agency head whether
the suspension or reduction should continue.
``(7) Each agency head who receives recommendations made by a
remedy coordination official of the executive agency to reduce or
suspend payments under paragraph (2) during a fiscal year shall prepare
for such year a report that contains the recommendations, the actions
taken on the recommendations and the reasons for such actions, and an
assessment of the effects of such actions on the Federal Government.
Any such report shall be available to any Member of Congress upon
request.
``(8) An agency head may not delegate responsibilities under this
subsection to any person in a position below level IV of the Executive
Schedule.
``(9) In this subsection, the term `remedy coordination official',
with respect to an executive agency, means the person or entity in that
executive agency who coordinates within that executive agency the
administration of criminal, civil, administrative, and contractual
remedies resulting from investigations of fraud or corruption related
to procurement activities.''.
(b) Relationship to Prompt Payment Requirements.--Section 36 of the
Office of Federal Procurement Policy Act, as added by subsection (a) is
not intended to impair or modify procedures required by the provisions
of chapter 39 of title 31, United States Code, and the regulations
issued pursuant to such provisions of law, that relate to progress
payment requests, as such procedures are in effect on the date of the
enactment of this Act.
Subtitle B--Cost Principles
SEC. 2151. ALLOWABLE CONTRACT COSTS.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 2051, is further amended by inserting
after section 36 the following new section:
``SEC. 37. ALLOWABLE COSTS.
``(a) Indirect Cost That Violates a FAR Cost Principle.--The head
of an executive agency shall require that a covered contract provide
that if the contractor submits to the executive agency a proposal for
settlement of indirect costs incurred by the contractor for any period
after such costs have been accrued and if that proposal includes the
submission of a cost which is unallowable because the cost violates a
cost principle in the Federal Acquisition Regulation or an executive
agency's supplement to the Federal Acquisition Regulation, the cost
shall be disallowed.
``(b) Penalty for Violation of Cost Principle.--(1) If the agency
head determines that a cost submitted by a contractor in its proposal
for settlement is expressly unallowable under a cost principle referred
to in subsection (a) that defines the allowability of specific selected
costs, the agency head shall assess a penalty against the contractor in
an amount equal to--
``(A) the amount of the disallowed cost allocated to
covered contracts for which a proposal for settlement of
indirect costs has been submitted; plus
``(B) interest (to be computed based on provisions in the
Federal Acquisition Regulation) to compensate the United States
for the use of any funds which a contractor has been paid in
excess of the amount to which the contractor was entitled.
``(2) If the agency head determines that a proposal for settlement
of indirect costs submitted by a contractor includes a cost determined
to be unallowable in the case of such contractor before the submission
of such proposal, the agency head shall assess a penalty against the
contractor in an amount equal to two times the amount of the disallowed
cost allocated to covered contracts for which a proposal for settlement
of indirect costs has been submitted.
``(c) Waiver of Penalty.--In accordance with the Federal
Acquisition Regulation, the agency head may waive a penalty under
subsection (b) in the case of a contractor's proposal for settlement of
indirect costs when--
``(1) the contractor withdraws the proposal before the
formal initiation of an audit of the proposal by the Federal
Government and resubmits a revised proposal;
``(2) the amount of unallowable costs subject to the
penalty is insignificant; or
``(3) the contractor demonstrates, to the contracting
officer's satisfaction, that--
``(A) it has established appropriate policies and
personnel training and an internal control and review
system that provide assurances that unallowable costs
subject to penalties are precluded from being included
in the contractor's proposal for settlement of indirect
costs; and
``(B) the unallowable costs subject to the penalty
were inadvertently incorporated into the proposal.
``(d) Applicability of Contract Disputes Procedure to Disallowance
of Cost and Assessment of Penalty.--An action of an agency head under
subsection (a) or (b)--
``(1) shall be considered a final decision for the purposes
of section 6 of the Contract Disputes Act of 1978 (41 U.S.C.
605); and
``(2) is appealable in the manner provided in section 7 of
such Act.
``(e) Specific Costs Not Allowable.--(1) The following costs are
not allowable under a covered contract:
``(A) Costs of entertainment, including amusement,
diversion, and social activities, and any costs directly
associated with such costs (such as tickets to shows or sports
events, meals, lodging, rentals, transportation, and
gratuities).
``(B) Costs incurred to influence (directly or indirectly)
legislative action on any matter pending before Congress or a
State legislature.
``(C) Costs incurred in defense of any civil or criminal
fraud proceeding or similar proceeding (including filing of any
false certification) brought by the United States where the
contractor is found liable or had pleaded nolo contendere to a
charge of fraud or similar proceeding (including filing of a
false certification).
``(D) Payments of fines and penalties resulting from
violations of, or failure to comply with, Federal, State,
local, or foreign laws and regulations, except when incurred as
a result of compliance with specific terms and conditions of
the contract or specific written instructions from the
contracting officer authorizing in advance such payments in
accordance with applicable provisions of the Federal
Acquisition Regulation.
``(E) Costs of membership in any social, dining, or country
club or organization.
``(F) Costs of alcoholic beverages.
``(G) Contributions or donations, regardless of the
recipient.
``(H) Costs of advertising designed to promote the
contractor or its products.
``(I) Costs of promotional items and memorabilia, including
models, gifts, and souvenirs.
``(J) Costs for travel by commercial aircraft which exceed
the amount of the standard commercial fare.
``(K) Costs incurred in making any payment (commonly known
as a `golden parachute payment') which is--
``(i) in an amount in excess of the normal
severance pay paid by the contractor to an employee
upon termination of employment; and
``(ii) is paid to the employee contingent upon, and
following, a change in management control over, or
ownership of, the contractor or a substantial portion
of the contractor's assets.
``(L) Costs of commercial insurance that protects against
the costs of the contractor for correction of the contractor's
own defects in materials or workmanship.
``(M) Costs of severance pay paid by the contractor to
foreign nationals employed by the contractor under a service
contract performed outside the United States, to the extent
that the amount of severance pay paid in any case exceeds the
amount paid in the industry involved under the customary or
prevailing practice for firms in that industry providing
similar services in the United States, as determined under the
Federal Acquisition Regulation.
``(N) Costs of severance pay paid by the contractor to a
foreign national employed by the contractor under a service
contract performed in a foreign country if the termination of
the employment of the foreign national is the result of the
closing of, or the curtailment of activities at, a United
States facility in that country at the request of the
government of that country.
``(O) Costs incurred by a contractor in connection with any
criminal, civil, or administrative proceeding commenced by the
United States or a State, to the extent provided in subsection
(k).
``(2)(A) Pursuant to the Federal Acquisition Regulation and subject
to the availability of appropriations, the agency head, in awarding a
covered contract, may waive the application of the provisions of
paragraphs (1)(M) and (1)(N) to that contract if the agency head
determines that--
``(i) the application of such provisions to the contract
would adversely affect the continuation of a program, project,
or activity that provides significant support services for
employees of the executive agency posted outside the United
States;
``(ii) the contractor has taken (or has established plans
to take) appropriate actions within the contractor's control to
minimize the amount and number of incidents of the payment of
severance pay by the contractor to employees under the contract
who are foreign nationals; and
``(iii) the payment of severance pay is necessary in order
to comply with a law that is generally applicable to a
significant number of businesses in the country in which the
foreign national receiving the payment performed services under
the contract or is necessary to comply with a collective
bargaining agreement.
``(B) The head of the executive agency concerned shall include in
the solicitation for a covered contract a statement indicating--
``(i) that a waiver has been granted under subparagraph (A)
for the contract; or
``(ii) whether the agency head will consider granting such
a waiver, and, if the agency head will consider granting a
waiver, the criteria to be used in granting the waiver.
``(C) The agency head shall make the final determination regarding
whether to grant a waiver under subparagraph (A) with respect to a
covered contract before award of the contract.
``(3) The provisions of the Federal Acquisition Regulation
implementing this section may establish appropriate definitions,
exclusions, limitations, and qualifications.
``(f) Required Regulations.--(1) The Federal Acquisition Regulation
shall contain provisions on the allowability of contractor costs. Such
provisions shall define in detail and in specific terms those costs
which are unallowable, in whole or in part, under covered contracts.
The regulations shall, at a minimum, clarify the cost principles
applicable to contractor costs of the following:
``(A) Air shows.
``(B) Membership in civic, community, and professional
organizations.
``(C) Recruitment.
``(D) Employee morale and welfare.
``(E) Actions to influence (directly or indirectly)
executive branch action on regulatory and contract matters
(other than costs incurred in regard to contract proposals
pursuant to solicited or unsolicited bids).
``(F) Community relations.
``(G) Dining facilities.
``(H) Professional and consulting services, including legal
services.
``(I) Compensation.
``(J) Selling and marketing.
``(K) Travel.
``(L) Public relations.
``(M) Hotel and meal expenses.
``(N) Expense of corporate aircraft.
``(O) Company-furnished automobiles.
``(P) Advertising.
``(2) The Federal Acquisition Regulation shall require that a
contracting officer not resolve any questioned costs until the
contracting officer has obtained--
``(A) adequate documentation with respect to such costs;
and
``(B) the opinion of the executive agency's contract
auditor on the allowability of such costs.
``(3) The Federal Acquisition Regulation shall provide that, to the
maximum extent practicable, an executive agency's contract auditor be
present at any negotiation or meeting with the contractor regarding a
determination of the allowability of indirect costs of the contractor.
``(4) The Federal Acquisition Regulation shall require that all
categories of costs designated in the report of an executive agency's
contract auditor as questioned with respect to a proposal for
settlement be resolved in such a manner that the amount of the
individual questioned costs that are paid will be reflected in the
settlement.
``(g) Applicability of Regulations to Subcontractors.--The
regulations referred to in subsections (e) and (f)(1) shall require, to
the maximum extent practicable, that such regulations apply to all
subcontractors of a covered contract.
``(h) Contractor Certification Required.--(1) A proposal for
settlement of indirect costs applicable to a covered contract shall
include a certification by an official of the contractor that, to the
best of the certifying official's knowledge and belief, all indirect
costs included in the proposal are allowable. Any such certification
shall be in a form prescribed in the Federal Acquisition Regulation.
``(2) The agency head concerned may, in an exceptional case, waive
the requirement for certification under paragraph (1) in the case of
any contract if the agency head--
``(A) determines in such case that it would be in the
interest of the United States to waive such certification; and
``(B) states in writing the reasons for that determination
and makes such determination available to the public.
``(i) Penalties for Submission of Cost Known as Not Allowable.--The
submission to an executive agency of a proposal for settlement of costs
for any period after such costs have been accrued that includes a cost
that is expressly specified by statute or regulation as being
unallowable, with the knowledge that such cost is unallowable, shall be
subject to the provisions of section 287 of title 18, United States
Code, and section 3729 of title 31, United States Code.
``(j) Contractor To Have Burden of Proof.--In a proceeding before a
board of contract appeals, the United States Court of Federal Claims,
or any other Federal court in which the reasonableness of indirect
costs for which a contractor seeks reimbursement from the United States
is in issue, the burden of proof shall be upon the contractor to
establish that those costs are reasonable.
``(k) Proceeding Costs Not Allowable.--(1) Except as otherwise
provided in this subsection, costs incurred by a contractor in
connection with any criminal, civil, or administrative proceeding
commenced by the United States or a State are not allowable as
reimbursable costs under a covered contract if the proceeding (A)
relates to a violation of, or failure to comply with, a Federal or
State statute or regulation, and (B) results in a disposition described
in paragraph (2).
``(2) A disposition referred to in paragraph (1)(B) is any of the
following:
``(A) In the case of a criminal proceeding, a conviction
(including a conviction pursuant to a plea of nolo contendere)
by reason of the violation or failure referred to in paragraph
(1).
``(B) In the case of a civil or administrative proceeding
involving an allegation of fraud or similar misconduct, a
determination of contractor liability on the basis of the
violation or failure referred to in paragraph (1).
``(C) In the case of any civil or administrative
proceeding, the imposition of a monetary penalty by reason of
the violation or failure referred to in paragraph (1).
``(D) A final decision--
``(i) to debar or suspend the contractor,
``(ii) to rescind or void the contract, or
``(iii) to terminate the contract for default,
by reason of the violation or failure referred to in paragraph
(1).
``(E) A disposition of the proceeding by consent or
compromise if such action could have resulted in a disposition
described in subparagraph (A), (B), (C), or (D).
``(3) In the case of a proceeding referred to in paragraph (1) that
is commenced by the United States and is resolved by consent or
compromise pursuant to an agreement entered into by a contractor and
the United States, the costs incurred by the contractor in connection
with such proceeding that are otherwise not allowable as reimbursable
costs under such paragraph may be allowed to the extent specifically
provided in such agreement.
``(4) In the case of a proceeding referred to in paragraph (1) that
is commenced by a State, the agency head that awarded the covered
contract involved in the proceeding may allow the costs incurred by the
contractor in connection with such proceeding as reimbursable costs if
the agency head determines, in accordance with the Federal Acquisition
Regulation, that the costs were incurred as a result of (A) a specific
term or condition of the contract, or (B) specific written instructions
of the agency.
``(5)(A) Except as provided in subparagraph (C), costs incurred by
a contractor in connection with a criminal, civil, or administrative
proceeding commenced by the United States or a State in connection with
a covered contract may be allowed as reimbursable costs under the
contract if such costs are not disallowable under paragraph (1), but
only to the extent provided in subparagraph (B).
``(B)(i) The amount of the costs allowable under subparagraph (A)
in any case may not exceed the amount equal to 80 percent of the amount
of the costs incurred, to the extent that such costs are determined to
be otherwise allowable and allocable under the Federal Acquisition
Regulation.
``(ii) Regulations issued for the purpose of clause (i) shall
provide for appropriate consideration of the complexity of procurement
litigation, generally accepted principles governing the award of legal
fees in civil actions involving the United States as a party, and such
other factors as may be appropriate.
``(C) In the case of a proceeding referred to in subparagraph (A),
contractor costs otherwise allowable as reimbursable costs under this
paragraph are not allowable if (i) such proceeding involves the same
contractor misconduct alleged as the basis of another criminal, civil,
or administrative proceeding, and (ii) the costs of such other
proceeding are not allowable under paragraph (1).
``(6) In this subsection:
``(A) The term `proceeding' includes an investigation.
``(B) The term `costs', with respect to a proceeding--
``(i) means all costs incurred by a contractor,
whether before or after the commencement of any such
proceeding; and
``(ii) includes--
``(I) administrative and clerical expenses;
``(II) the cost of legal services,
including legal services performed by an
employee of the contractor;
``(III) the cost of the services of
accountants and consultants retained by the
contractor; and
``(IV) the pay of directors, officers, and
employees of the contractor for time devoted by
such directors, officers, and employees to such
proceeding.
``(C) The term `penalty' does not include restitution,
reimbursement, or compensatory damages.
``(l) Covered Contract Defined.--(1) In this section, the term
`covered contract' means a contract for an amount in excess of $500,000
that is entered into by an executive agency, except that such term does
not include a fixed-price contract without cost incentives or any
contract for the purchase of commercial items (as defined in section
4(12).
``(2) Effective on October 1 of each year that is divisible by 5,
the amount set forth in paragraph (1) shall be adjusted to the amount
that is equal to the fiscal year 1994 constant dollar value of the
amount set forth. An amount, as so adjusted, that is not evenly
divisible by $50,000 shall be rounded to the nearest multiple of
$50,000. In the case of an amount that is evenly divisible by $25,000
but is not evenly divisible by $50,000, the amount shall be rounded to
the next higher multiple of $50,000.''.
SEC. 2152. TRAVEL EXPENSES OF GOVERNMENT CONTRACTORS.
Section 24(a) of the Office of Federal Procurement Policy Act (41
U.S.C. 420) is amended by inserting after ``Under any contract'' the
following: ``requiring submission of cost or pricing data or the
negotiation of final indirect costs''.
Subtitle C--Audit and Access to Records
SEC. 2251. AUTHORITY TO EXAMINE RECORDS OF CONTRACTORS.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 2151, is further amended by inserting
after section 37 the following new section:
``SEC. 38. EXAMINATION OF RECORDS OF CONTRACTOR.
``(a) Agency Authority.--The head of an executive agency, acting
through an authorized representative--
``(1) is entitled to inspect the plant and audit the
records of--
``(A) a contractor performing a cost-reimbursement,
incentive, time-and-materials, labor-hour, or price-
redeterminable contract, or any combination of such
contracts, made by that executive agency under this
title; and
``(B) a subcontractor performing any cost-
reimbursement, incentive, time-and-materials, labor-
hour, or price-redeterminable subcontract under a
contract referred to in subparagraph (A) or under any
combination of such contracts; and
``(2) shall, for the purpose of evaluating the accuracy,
completeness, and currency of cost or pricing data required to
be submitted pursuant to section 32 with respect to a contract
or subcontract, have the right to examine all records of the
contractor or subcontractor related to--
``(A) the proposal for the contract or subcontract;
``(B) the discussions conducted on the proposal;
``(C) pricing of the contract or subcontract; or
``(D) performance of the contract or subcontract.
``(b) Limitation on Preaward Audits Relating to Indirect Costs.--
The head of an agency may not perform a preaward audit to evaluate
proposed indirect costs under any contract, subcontract, or
modification to be entered into in accordance with this chapter in any
case in which the contracting officer determines that the objectives of
the audit can reasonably be met by accepting the results of an audit
conducted by any other department or agency of the Federal Government
within one year preceding the date of the contracting officer's
determination.
``(c) Comptroller General Authority.--(1) Except as provided in
paragraph (2), each contract awarded after using procedures other than
sealed bid procedures shall provide that the Comptroller General and
his representatives are entitled to examine any records of the
contractor, or any of its subcontractors, that directly pertain to, and
involve transactions relating to, the contract or subcontract.
``(2) Paragraph (1) does not apply to a contract or subcontract
with a foreign contractor or foreign subcontractor if the agency head
concerned determines, with the concurrence of the Comptroller General
or his designee, that the application of that paragraph to the contract
or subcontract would not be in the public interest. However, the
concurrence of the Comptroller General or his designee is not
required--
``(A) where the contractor or subcontractor is a foreign
government or agency thereof or is precluded by the laws of the
country involved from making its records available for
examination; and
``(B) where the agency head determines, after taking into
account the price and availability of the property and services
from United States sources, that the public interest would be
best served by not applying paragraph (1).
``(3) Paragraph (1) may not be construed to require a contractor or
subcontractor to create or maintain any record that the contractor or
subcontractor does not maintain in the ordinary course of business or
pursuant to another provision of law.
``(d) Limitation.--The right of an agency head under subsection
(a), and the right of the Comptroller General under subsection (c),
with respect to a contract or subcontract shall expire three years
after final payment under such contract or subcontract.
``(e) Inapplicability to Certain Contracts.--This section is
inapplicable to contracts for utility services at rates not exceeding
those established to apply uniformly to the public, plus any applicable
reasonable connection charge.
``(f) Forms of Original Record Storage.--Nothing in this section
shall be construed to preclude a contractor from duplicating or storing
original records in electronic form.
``(g) Use of Images of Original Records.--The head of an agency
shall not require a contractor or subcontractor to provide original
records in an audit carried out pursuant to this section if the
contractor or subcontractor provides photographic or electronic images
of the original records and meets the following requirements:
``(1) The contractor or subcontractor has established
procedures to ensure that the imaging process preserves the
integrity, reliability, and security of the original records.
``(2) The contractor or subcontractor maintains an
effective indexing system to permit timely and convenient
access to the imaged records.
``(3) The contractor or subcontractor retains the original
records for a minimum of one year after imaging to permit
periodic validation of the imaging systems.
``(h) Records Defined.--In this section, the term `records'
includes books, documents, accounting procedures and practices, and
other data, regardless of type and regardless of whether such items are
in written form, in the form of computer data, or in any other form.''.
Subtitle D--Cost Accounting Standards
SEC. 2301. REPEAL OF OBSOLETE DEADLINE REGARDING PROCEDURAL REGULATIONS
FOR THE COST ACCOUNTING STANDARDS BOARD.
Section 26(f)(3) of the Office of Federal Procurement Policy Act
(41 U.S.C. 422(f)(3)) is amended in the first sentence by striking out
``Not later than 180 days after the date of the enactment of this
section, the Administrator'' and inserting in lieu thereof ``The
Administrator''.
TITLE III--SIMPLIFIED ACQUISITION THRESHOLD AND SOCIOECONOMIC, SMALL
BUSINESS, AND MISCELLANEOUS LAWS
Subtitle A--Simplified Acquisition Threshold
PART I--ESTABLISHMENT OF THRESHOLD
SEC. 3001. ESTABLISHMENT OF SIMPLIFIED ACQUISITION THRESHOLD.
(a) Establishment.--The Office of Federal Procurement Policy Act
(41 U.S.C. 401 et seq.) is amended by inserting after section 4 the
following new section:
``SEC. 4A. SIMPLIFIED ACQUISITION THRESHOLD.
``(a) In General.--The simplified acquisition threshold for
purposes of Federal acquisitions is (except as provided in subsection
(b)) the amount of $25,000, as adjusted pursuant to subsection (c).
``(b) Agencies With FACNET System.--In the case of an agency for
which there is in effect a certification under section 39A of the
Office of Federal Procurement Policy Act with respect to implementation
of a FACNET system, the simplified acquisition threshold is the amount
of $100,000, as adjusted pursuant to subsection (c).
``(c) Periodic Adjustment for Inflation.--The dollar amount in
effect under subsection (a) shall be adjusted on October 1 of each year
divisible by 5 to the equivalent amount in constant fiscal year 1990
dollars (rounded to the nearest $1,000). The dollar amount in effect
under subsection (b) shall be adjusted on October 1 of each year
divisible by 5 to the equivalent amount in constant fiscal year 1993
dollars (rounded to the nearest $1,000).
``(d) Special Rule for Contingency Operations.--In the case of a
contract to be awarded and performed, or a purchase to be made, outside
the United States in support of a contingency operation (as defined in
section 101(a)(13) of title 10, United States Code), the amounts in
effect under subsections (a) and (b) shall be two times the amounts
otherwise applicable.''.
(b) Conforming Amendment to Definition.--Section 4(11) of such Act
is amended to read as follows:
``(11) The term `small purchase threshold' means the
simplified acquisition threshold established by section 4A.''.
SEC. 3002. FEDERAL ACQUISITION COMPUTER NETWORK.
(a) Federal Acquisition Computer Network.--The Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.), as amended by section
2251, is further amended by adding after section 38 the following new
section:
``SEC. 39. FEDERAL ACQUISITION COMPUTER NETWORK (FACNET).
``(a) In General.--(1) The Administrator shall establish a program
for the development and implementation of a Federal acquisition
computer network system architecture. Any system developed in
accordance with this architecture shall be known as a `FACNET system'.
The Administrator shall assign a program manager for the FACNET system
and shall provide for overall direction of policy and leadership in the
development, coordination, installation, operation, and completion of
implementation of the FACNET system by executive agencies.
``(2) The FACNET system architecture shall involve enabling
technology and procurement electronic data interchange transaction
sets. The enabling technology shall consist of computer network
capabilities, supporting data bases, and standard interfaces that
interconnect Federal Government automated systems to the network. The
procurement electronic data interchange transaction sets shall
facilitate the electronic interchange of standard procurement
information between Federal Government and industry automated
acquisition systems.
``(3) In carrying out paragraph (1), the Administrator shall
consult with the Office of Information and Regulatory Affairs.
``(4) The Administrator shall carry out paragraph (1) not later
than the date that is 3 years after the date of enactment of the
Federal Acquisition Reform Act of 1994.
``(b) Functions of FACNET.--The FACNET system architecture shall
have the capacity to carry out the following functions:
``(1) Government functions.--
``(A) Provide widespread public notice of
solicitations for contract opportunities issued by an
executive agency and of orders to be made by the
agency.
``(B) Allow responses to solicitations and requests
for information to be submitted to the procuring
activity through such system.
``(C) Allow public notice of contract awards to be
provided through such system.
``(D) In cases in which it is practicable, allow
questions regarding solicitations to be answered
through such system.
``(E) Allow orders to be made through such system.
``(F) In cases in which it is practicable, make
payments to contractors by bank card, electronic funds
transfer, or other automated methods.
``(G) Archive data relating to each procurement
action made using such system.
``(2) User functions.--Allow private users to
electronically--
``(A) access notice of solicitations for contract
opportunities issued by an agency and of orders to be
made by the agency;
``(B) selectively access and review solicitations
and orders issued by the agency;
``(C) respond to solicitations and notices of
orders issued by the agency;
``(D) receive orders from the agency;
``(E) access information on contract awards made by
the agency; and
``(F) in cases in which it is practicable, receive
payment by bank card, electronic funds transfer, or
other automated means.
``(3) General functions.--
``(A) Allow the electronic exchange of procurement
information between the private sector and the Federal
Government.
``(B) Employ nationally and internationally
recognized data formats that serve to broaden and ease
the electronic interchange of data.
``(C) Allow convenient and universal user access
through a single point of entry.
``(c) Functions of Administrator of General Services.--The
Administrator of General Services shall do the following:
``(1) Provide technical support for FACNET systems by doing
the following:
``(A) Coordinate with the Administrator to
facilitate the efficient and widespread implementation
of various FACNET systems by executive agencies. This
shall include interfacing FACNET systems to other
systems, such as the Federal Government bank card and
Electronic Funds Transfer payment systems.
``(B) Assist the Director of the National Institute
of Standards and Technology in the development and
application of appropriate Federal Information
Processing Standards.
``(C) Prepare a technical plan for coordinating the
design, development, implementation, operation, and
maintenance of the FACNET system architecture. The plan
shall include roles and responsibilities, major
milestones, cost estimates, and performance
requirements.
``(2) Ensure compliance with section 111 of the Federal
Property and Administrative Services Act of 1949 in the
implementation of FACNET systems by executive agencies,
including by limiting the scope of delegations under subsection
(a) of that section.
``(3) Evaluate progress by executive agencies in
implementing FACNET systems, and recommend changes in that
implementation to the program manager assigned by the
Administrator under subsection (a).
``(4) Submit to the Congress, on the date that is one year
after the date of the enactment of the Federal Acquisition
Reform Act of 1994 and on that date in each of the 3 years
thereafter, a report on the overall progress by the executive
branch of the Federal Government and by each executive agency
in implementing the FACNET system architecture.
``(d) Functions of National Institute of Standards and
Technology.--The Director of the National Institute of Standards and
Technology shall--
``(1) ensure that the FACNET system architecture complies
with Federal Information Processing Standards;
``(2) issue additional standards for the FACNET system
architecture as necessary; and
``(3) establish tests to facilitate the aims of this
section and support policies established by the Administrator
under this section.''.
(b) Technical Amendments.--Section 18 of the Office of Federal
Procurement Policy Act (41 U.S.C. 416) is amended--
(1) in subsection (a)(1)(A), by striking out ``notice'' in
the matter following clause (ii) and inserting in lieu thereof
``notice of solicitation''; and
(2) in subsection (d), by striking out ``a notice under
subsection (e)'' in the first sentence and inserting in lieu
thereof ``a notice of solicitation under subsection (a)''.
SEC. 3003. IMPLEMENTATION IN EXECUTIVE AGENCIES.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 3002, is further amended by adding after
section 39 the following new section:
``SEC. 39A. IMPLEMENTATION OF FACNET SYSTEMS.
``(a) Implementation of FACNET Systems.--(1) The head of each
executive agency shall implement the Federal acquisition computer
network (`FACNET') systems required by section 39.
``(2) In implementing the FACNET systems pursuant to paragraph (1),
the head of an executive agency shall consult with the Administrator
for Federal Procurement Policy and the Administrator for General
Services.
``(b) Designation of Agency Program Manager.--(1) The head of each
executive agency shall designate a program manager to have
responsibility for implementation of FACNET systems for that agency and
otherwise to implement this section.
``(2) A program manager designated under this subsection for an
executive agency shall--
``(A) report directly to the senior procurement executive
designated for the agency under section 16(4);
``(B) be responsible for the timely and cost-effective
implementation of the FACNET system architecture for the agency
in a manner that is responsive to the procurement needs of the
agency, national business needs, and the public's interest in
open government;
``(C) develop plans for phasing-in the implementation of
FACNET systems for the procuring activities of the executive
agency and phasing-out local network systems that perform
comparable procurement functions;
``(D) participate in the interagency development of
standard procurement electronic data interchange transaction
sets; and
``(E) in carrying out this section, comply with guidelines
issued by the Administrator under this section and program
directives issued by the Administrator of General Services
under section 111 of the Federal Property and Administrative
Services Act of 1949.
``(c) Certification of FACNET System.--(1) When the senior
procurement official of an executive agency determines that a procuring
activity of the agency has implemented an interim FACNET system (as
defined in subsection (f)), the senior procurement official shall
certify to the Administrator for Federal Procurement Policy that the
agency has implemented an interim FACNET system.
``(2) When the head of an executive agency, with the concurrence of
the Administrator for Federal Procurement Policy, determines that the
agency has implemented a full FACNET system (as defined in subsection
(g)), the head of the agency shall certify to Congress that the agency
has implemented a full FACNET system.
``(3) The head of each executive agency shall provide for
implementation of both interim FACNET system and full FACNET system,
with priority on providing convenient and universal user access as
required by section 39(b)(3)(C), in that agency as soon as practicable
after the date of the enactment of the Federal Acquisition Reform Act
of 1994.
``(d) Higher Simplified Acquisition Threshold When FACNET System
Certified.--A certification to the Administrator or Congress under
subsection (c) shall be considered to be a certification for purposes
of the higher simplified acquisition threshold under section 4A(b),
except that a certification under paragraph (1) of subsection (c) shall
not constitute such a certification in the case of solicitations issued
after the end of the three-year period beginning on the date of the
enactment of the Federal Acquisition Reform Act of 1994.
``(e) Exemption From Notice Provisions.--An executive agency is
exempt from the requirements of section 18(a)(1) of the Office of
Federal Procurement Policy Act (41 U.S.C. 416(a)(1)) if the senior
procurement official of the agency makes the certification described in
subsection (c)(1).
``(f) Implementation of Interim FACNET System.--A procuring
activity shall be considered to have implemented an interim FACNET
system if--
``(1) with respect to each procurement expected to be in an
amount less than the simplified acquisition threshold, the
procuring activity has implemented the FACNET functions
described in paragraphs (1)(A) and (2)(A) of section 39(b), as
in effect on the effective date of section 3002 of the Federal
Acquisition Reform Act of 1994; and
``(2) with respect to each procurement expected to be in an
amount less than the simplified acquisition threshold, the
procuring activity issues notices of solicitations through a
system with those functions for all contracting opportunities
other than in cases covered by section 18(c).
``(g) Implementation of Full FACNET System.--(1) An executive
agency shall be considered to have implemented a full FACNET system if
(except in the case of procuring activities (or portions thereof) of
the agency for which the head of the agency determines that
implementation is not cost effective or practicable) the executive
agency has implemented all of the FACNET functions described in section
39(b), as in effect on the effective date of section 3002 of the
Federal Acquisition Reform Act of 1994.
``(2) For purposes of paragraph (1), an executive agency may not be
considered to have implemented a full FACNET system if--
``(A) the head of the agency has determined that
implementation of FACNET system is not cost effective or
practicable in the case of certain procuring activities (or
portions thereof) of the agency; and
``(B) the percentage of the procurement actions executed by
those procuring activities (or portions thereof) for the
preceding fiscal year is greater than 25 percent of the total
number of procurement actions executed by the agency for that
year.
``(h) Procuring Activities Originally Excluded in Certification.--
(1) If the head of an executive agency, in certifying under subsection
(c) that the agency has implemented a full FACNET system, determines
that such implementation is not cost effective or practicable in the
case of any procuring activity (or portion thereof) of that agency,
then that certification shall not apply under section 4A(b) to any
procurement action by that procuring activity (or portion thereof).
``(2) If the head of an executive agency determines that a full
FACNET system has subsequently been implemented for that procuring
activity (or portion thereof), the head of the agency shall make a
certification to Administrator for Federal Procurement Policy in the
same manner as a certification under paragraph (2) of subsection (c),
and such certification shall have the same effect with respect to that
procuring activity (or portion thereof) as if made under such paragraph
of subsection (c).''.
PART II--SIMPLIFICATION OF PROCEDURES
SEC. 3011. SIMPLIFIED ACQUISITION PROCEDURES.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 3001, is further amended by inserting
after section 4A the following new section:
``SEC. 4B. SIMPLIFIED ACQUISITION PROCEDURES.
``(a) Simplified Procedures Required.--In order to promote
efficiency and economy in contracting and to avoid unnecessary burdens
for agencies and contractors, the Federal Acquisition Regulation shall
provide for special simplified procedures for contracts for acquisition
of property and services that are not in excess of the simplified
acquisition threshold.
``(b) Division of Contracts Prohibited.--A proposed purchase or
contract for an amount above the simplified acquisition threshold may
not be divided into several purchases or contracts for lesser amounts
in order to use the simplified acquisition procedures required by
subsection (a).
``(c) Promotion of Competition.--In using simplified acquisition
procedures, the head of an executive agency shall promote competition
to the maximum extent practicable.''.
SEC. 3012. SMALL BUSINESS PROVISIONS.
(a) Interim Reporting Rule.--Notwithstanding section 4A of the
Office of Federal Procurement Policy Act, as added by section 3001,
during the 3-year period beginning on the date of the issuance in final
form of revisions to the Federal Acquisition Regulation under section
4C of the Office of Federal Procurement Policy Act, as added by section
3013, procuring activities shall continue to report, pursuant to
section 19(d) of the Office of Federal Procurement Policy Act (41
U.S.C. 417(d)), procurement awards with a dollar value of at least
$25,000, but less than $100,000, in conformity with the procedures for
the reporting of a contract award in excess of $25,000 in effect on
November 18, 1993.
(b) Functions of Administrator for Federal Procurement Policy.--
Section 6(d) of the Office of Federal Procurement Policy Act (41 U.S.C.
405(d)) is amended--
(1) in paragraph (7), by striking out ``and'' after the
semicolon at the end; and
(2) by redesignating paragraph (8) as paragraph (10) and
inserting after paragraph (7) the following:
``(8) developing policies, in consultation with the
Administrator of the Small Business Administration, that ensure
that small businesses and small businesses owned and controlled
by socially and economically disadvantaged persons are provided
with the maximum practicable opportunities to participate in
procurements that are conducted for amounts below the
simplified acquisition threshold;
``(9) developing policies that will promote achievement of
goals for participation by small businesses and small
businesses owned and controlled by socially and economically
disadvantaged individuals; and''.
SEC. 3013. PROCEDURES FOR PURCHASES BELOW MICRO-PURCHASE THRESHOLD.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 3011, is further amended by inserting
after section 4B the following new section:
``SEC. 4C. PROCEDURES APPLICABLE TO PURCHASES BELOW MICRO-PURCHASE
THRESHOLD.
``(a) Requirements.--(1) The head of each executive agency shall
ensure that procuring activities of that agency, in awarding a contract
with a price exceeding the micro-purchase threshold, comply with the
requirements of section 8(a) of the Small Business Act (15 U.S.C.
637(a)) and section 45 of this Act.
``(2) The authority under part 13.106(a)(1) of the Federal
Acquisition Regulation (48 C.F.R. 13.106(a)(1)), as in effect on
November 18, 1993, to make purchases without securing competitive
quotations does not apply to any purchases with a price exceeding the
micro-purchase threshold.
``(3) The head of each executive agency shall ensure that procuring
activities of that agency comply with the requirements of section 40,
relating to the small business reserve.
``(b) Certain Contracting Officials Not To Be Considered
Procurement Officials.--Any civilian officer or employee, and any
member of the Armed Forces, who has authority to enter into contracts
but whose contracting authority is limited to the amount of the micro-
purchase threshold or less is not a procurement official as defined in
paragraph (3)(A) of section 27(p).
``(c) Implementation Through FAR.--The provisions of subsections
(a) and (b) shall be implemented through the Federal Acquisition
Regulation.
``(d) Micro-Purchase Threshold Defined.--For purposes of this
subsection, the micro-purchase threshold is the amount of $2,500,
adjusted on October 1 of each year divisible by 5 to the equivalent
amount in constant fiscal year 1993 dollars (rounded to the nearest
$100).''.
SEC. 3014. PROCUREMENT NOTICE.
(a) Continuation of Existing Notice Thresholds.--Subsection (a) of
section 18 of the Office of Federal Procurement Policy Act (41 U.S.C.
416) is amended as follows:
(1) Paragraph (1) is amended--
(A) by striking out ``the small purchase
threshold'' each place it appears and inserting in lieu
thereof ``the simplified acquisition threshold'';
(B) by striking out ``(c)--'' in the matter
preceding subparagraph (A) and inserting in lieu
thereof ``(c):'';
(C) by striking out ``an executive'' at the
beginning of subparagraphs (A) and (C) and inserting in
lieu thereof ``An executive'';
(D) by striking out the semicolon at the end of
subparagraph (A) and inserting in lieu thereof a
period; and
(E) by amending subparagraph (B) to read as
follows:
``(B) An executive agency intending to solicit (including
orally or by any other means) bids or proposals for a contract
for property or services for a price expected to exceed $10,000
but not to exceed the simplified acquisition threshold shall
post a notice of solicitation described in subsection (b). The
notice shall be posted at the contracting office issuing the
solicitation or shall be made available through an electronic
system with a FACNET system that at least meets the
requirements of paragraphs (1)(A) and (2)(A) of section 39(b).
The notice shall be posted for a period of not less than 10
days, except that in the case of a posting made through an
electronic system with such a FACNET system, the posting may be
for a period of less than 10 days as prescribed in the Federal
Acquisition Regulation.''.
(2) Paragraph (3)(B) is amended by inserting after ``(B)''
the following: ``in the case of a contract or order for an
amount expected to exceed the simplified acquisition
threshold,''.
(b) Opportunity for All Responsible Potential Offerors.--Such
subsection is further amended by adding at the end the following:
``(4) An executive agency intending to solicit offers for a
contract for which a notice of solicitation is required to be posted
under paragraph (1)(B) shall ensure that all potential offerors are
permitted to respond to the solicitation for the contract within the
period of time specified in the solicitation for the submission of
offers.''.
(c) Establishment of Deadline for Submission of Offers.--Such
subsection is further amended by inserting after paragraph (4), as
added by subsection (b), the following new paragraph:
``(5) An executive agency shall establish a deadline for the
submission of all bids or proposals in response to a notice of
solicitation with respect to which no such deadline is provided by
statute.''.
(d) Exceptions.--Subsection (c) of such section is amended by
adding at the end the following new paragraph:
``(4)(A) The requirements of subsection (a)(1) shall not apply in
the case of an acquisition accomplished through the use of an
electronic system within a FACNET system, as described in section 39
and certified under section 39A.
``(B) The Federal Acquisition Regulation shall provide for minimum
periods of time for submission of offers for acquisitions described in
subparagraph (A). Such periods shall provide offerors a reasonable
opportunity to respond.
``(C) A notice of solicitation of bids or proposals for an
acquisition described in subparagraph (A) shall include the matter
described in under subsection (b).''.
SEC. 3015. SMALL BUSINESS RESERVATION.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 3003, is further amended by adding after
section 39A the following new section:
``SEC. 40. CONTRACTS: SMALL BUSINESS RESERVATION.
``(a) Requirement.--Each contract for the procurement of property
and services that has an anticipated value not in excess of $100,000
shall be reserved exclusively for small business concerns unless the
contracting officer is unable to obtain offers from two or more small
business concerns that (1) are competitive with market prices, and (2)
are competitive with regard to the quality and delivery of the goods or
services being procured.
``(b) Offers To Be Considered.--In carrying out subsection (a), a
contracting officer shall consider any offer that is responsive and
that is received in a timely manner from an eligible small business
offeror.
``(c) Relationship to Other Laws.--Nothing in subsection (a) shall
be construed as precluding an award of a contract with a value not in
excess of $100,000 under the authority of section 45 of this Act and
section 12 of the Business Opportunity Development Reform Act of 1988
(Public Law 100-656; 15 U.S.C. 644 note).
``(d) Payment Terms and Disbursement.--In the case of contracts
referred to in subsection (a) that are entered into with small business
concerns, contracting officers shall, wherever circumstances permit,
provide for the use of fast payment terms and the disbursement of
payment through electronic fund transfer.''.
SEC. 3016. GAO TEST AND REPORT ON PERFORMANCE OF SIMPLIFIED ACQUISITION
THRESHOLD.
(a) Performance Test.--The Comptroller General of the United States
shall collect data and assess the effects of the simplified acquisition
threshold, as established in section 4A of the Office of Federal
Procurement Policy Act, on the participation of small business concerns
(including small business concerns owned and controlled by socially and
economically disadvantaged individuals) in procurement awards of less
than $100,000 and the benefits and detriments, if any, to the procuring
activities of the various Executive agencies.
(b) Data To Be Collected.--Data collected under subsection (a)
shall include data regarding whether the establishment of the
simplified acquisition threshold has improved the acquisition process
in terms of reduced paperwork, financial or other savings to the
Federal Government, and any increase in the number of contractors
participating in the contracting process.
(c) Period.--Data shall be collected for purposes of subsection (a)
during the period beginning with the first full fiscal year quarter
after the effective date of the amendments made by section 3001 and
ending on September 30, 1997.
(d) Report.--By March 1, 1998, the Comptroller General shall submit
to the Committee on Government Operations of the House of
Representatives, the Committee on Governmental Affairs of the Senate,
and the Committees on Small Business of the House of Representatives
and the Senate a report on the effects of the establishment of the
simplified acquisition threshold by the amendments made by section
3001.
PART III--INAPPLICABILITY OF LAWS TO, AND WAIVER OF LAWS FOR,
ACQUISITIONS NOT IN EXCESS OF SIMPLIFIED ACQUISITION THRESHOLD
SEC. 3021. INAPPLICABILITY OF FUTURE ENACTED PROCUREMENT LAWS TO
CONTRACTS NOT EXCEEDING THE SIMPLIFIED ACQUISITION
THRESHOLD.
Section 4A of the Office of Federal Procurement Policy Act, as
added by section 3001, is amended by adding at the end the following
new subsection:
``(e) Construction With Future Enactments.--A provision of law
enacted after the date of the enactment of the Federal Acquisition
Reform Act of 1994 shall not be construed as applicable to purchases of
property or services by an executive agency for an amount not in excess
of the simplified acquisition threshold unless that provision of law
specifically refers to this section and specifically states that such
provision of law modifies or supersedes this section.''.
SEC. 3022. AUTHORITY TO WAIVE CERTAIN PROCUREMENT LAWS FOR CONTRACTS
NOT EXCEEDING THE SIMPLIFIED ACQUISITION THRESHOLD.
Section 4A of the Office of Federal Procurement Policy Act, as
amended by section 3021, is further amended by adding at the end the
following new subsection:
``(f) Authority To Waive Certain Procurement Laws.--
``(1) In general.--Subject to paragraphs (2) and (3), the
Federal Acquisition Regulatory Council may waive any provision
of law subject to implementation by the Council or by an
executive agency under section 25 of this Act that sets forth
policies, procedures, requirements, restrictions, or contract
clauses that are not necessary to implement any of the
Governmental policies set forth in paragraph (2) under a
contract in an amount not greater than the simplified
acquisition threshold. Any waiver under this subsection shall
apply to the procurement by executive agencies of property and
services not in excess of the simplified acquisition threshold.
``(2) Determination required.--The Federal Acquisition
Regulatory Council may waive a provision of law under this
section only if the Council determines that the waiver will not
adversely affect--
``(A) national security interests;
``(B) the economy, efficiency, and effectiveness of
Federal procurement;
``(C) full and open competition;
``(D) the Federal Government's ability to obtain
property and services of the requisite quality, at a
reasonable price, and within the time needed;
``(E) small and small disadvantaged business
concerns; or
``(F) fair dealings and equitable relationships
with the private sector.
``(3) Limitations.--The Federal Acquisition Regulatory
Council may not under this section waive a requirement that is
established by statute or regulation under any of the following
provisions:
``(A) Section 2533 of title 10, United States Code
(relating to limitation on procurement of goods which
are other than American goods).
``(B) Section 2631 of title 10, United States Code
(relating to preference to United States vessels for
transportation of supplies).
``(C) The Small Business Act (15 U.S.C. 631 et
seq.).
``(D) Section 4124 of title 18, United States Code
(relating to purchase of prison-made products by
Federal departments).
``(E) Title 18, United States Code, and any other
law imposing a criminal penalty.
``(F) Section 503 of the Rehabilitation Act of 1973
(29 U.S.C. 793) (relating to employment under Federal
contracts for individuals with disabilities).
``(G) Section 4212 of title 38, United States Code
(relating to veterans' employment emphasis under
Federal contracts).
``(H) The Act of August 24, 1935 (40 U.S.C. 270a et
seq.), commonly referred to as the `Miller Act'.
``(I) The Act of March 3, 1931 (40 U.S.C. 276a et
seq.), commonly referred to as the `Davis-Bacon Act'.
``(J) Title IX of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 541 et
seq.), popularly referred to as the `Brooks Architect-
Engineers Act'.
``(K) Section 111 of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 759),
popularly referred to as the `Brooks Automatic Data
Processing Act'.
``(L) Section 901(b) of the Merchant Marine Act,
1936 (46 U.S.C. app. 1241(b)) (relating to cargo
preference for American vessels).
``(M) Title III of the Act of March 3, 1933 (41
U.S.C. 10a et seq.), commonly referred to as the `Buy
American Act'.
``(N) The Act of June 25, 1938 (41 U.S.C. 46 et
seq.), commonly referred to as the Wagner-O'Day Act,
that was revised and reenacted in the Act of June 23,
1971 (85 Stat. 77), commonly referred to as the
`Javits-Wagner-O'Day Act'.
``(O) The Service Contract Act of 1965 (41 U.S.C.
351-358).
``(P) Section 27 of this Act (41 U.S.C. 423), other
than subsection (e) of that section (relating to
procurement integrity).
``(Q) Executive Order No. 11246 (or any successor
to that order), dated September 24, 1965.''.
PART IV--REVISION OF REGULATIONS
SEC. 3081. REVISION REQUIRED.
(a) Federal Acquisition Regulation.--(1) Not later than one year
after the date of the enactment of this Act, the Federal Acquisition
Regulatory Council established by section 25(a) of the Office of
Federal Procurement Policy Act (41 U.S.C. 421(a)) shall--
(A) review the Federal Acquisition Regulation to identify
regulations that are applicable to acquisitions in excess of a
specified amount that is less than $100,000; and
(B) amend the regulations so identified as necessary to
provide that such regulations do not apply to acquisitions that
are not in excess of the simplified acquisition threshold.
(2) Paragraph (1) does not apply in the case of a regulation for
which such an amendment would not be in the national interest, as
determined by the Council.
(b) Supplemental Regulations.--Not later than 90 days after the
date on which the review required by subsection (a) is completed, the
head of each executive agency that has issued regulations, policies, or
procedures referred to in section 25(c)(2) of the Office of Federal
Procurement Policy Act (41 U.S.C. 421(c)(2)) shall--
(1) identify any such regulation, policy, or procedure that
is applicable to acquisitions in excess of a specified amount
that is less than $100,000; and
(2) pursuant to section 22 of such Act (41 U.S.C. 418b),
publish amendments to the regulations so identified as
necessary to provide that such regulations, policies, and
procedures do not apply to acquisitions that are not in excess
of the simplified acquisition threshold.
(c) Definitions.--In this section:
(1) The term ``simplified acquisition threshold'' has the
meaning given such term in section 4A of the Office of Federal
Procurement Policy Act, as added by section 3001.
(2) The term ``executive agency'' has the meaning given
such term in section 3(a) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 472(b)).
Subtitle B--Socioeconomic and Small Business Laws
SEC. 3101. PAYMENT PROTECTIONS FOR SUBCONTRACTORS AND SUPPLIERS.
(a) Regulations.--
(1) In general.--The Administrator for Federal Procurement
Policy shall prescribe in regulations the requirements
described in paragraph (2).
(2) Procedures relating to compliance with payment terms.--
(A) Under procedures established in the regulations, upon the
assertion by a subcontractor or supplier of a contractor
performing a Government contract that the subcontractor or
supplier has not been paid by the prime contractor in
accordance with the payment terms of the subcontract, purchase
order, or other agreement with the prime contractor, the
contracting officer may determine the following:
(i) With respect to a construction contract,
whether the contractor has made progress payments to
the subcontractor or supplier in compliance with
chapter 39 of title 31, United States Code.
(ii) With respect to a contract other than a
construction contract, whether the contractor has made
progress or other payments to the subcontractor or
supplier in compliance with the terms of the
subcontract, purchase order, or other agreement with
the prime contractor.
(iii) With respect to either a construction
contract or a contract other than a construction
contract, whether the contractor has made final payment
to the subcontractor or supplier in compliance with the
terms of the subcontract, purchase order, or other
agreement with the prime contractor.
(iv) With respect to either a construction contract
or a contract other than a construction contract,
whether any certification of payment of the
subcontractor or supplier accompanying the contractor's
payment request to the Government is accurate.
(B) If the contracting officer determines that the prime
contractor is not in compliance with any matter referred to in
clause (i), (ii), or (iii) of subparagraph (A), the contracting
officer may, under procedures established in the regulations--
(i) encourage the prime contractor to make timely
payment to the subcontractor or supplier; or
(ii) reduce or suspend progress payments with
respect to amounts due to the prime contractor.
(C) If the contracting officer determines that a
certification referred to in clause (iv) of subparagraph (A) is
inaccurate in any material respect, the contracting officer
shall, under procedures established in the regulations,
initiate appropriate administrative or other remedial action.
(D) This paragraph shall apply with respect to any
Government contract that is in effect on the date of
promulgation of the regulations under this subsection or that
is awarded after such date.
(b) Inapplicability to Certain Contracts.--The regulations
prescribed under this section shall not apply to the following
contracts:
(1) A contract that is for an amount not in excess of the
simplified acquisition threshold (within the meaning of section
4A of the Office of Federal Procurement Policy Act).
(2) A contract for the acquisition of commercial items (as
that term is defined in section 4(12) of the Office of Federal
Procurement Policy Act.
(c) Regulations Deadlines.--(1) The Administrator for Federal
Procurement Policy shall publish proposed regulations under subsection
(a) not later than 180 days after the date of the enactment of this
Act.
(2) The Administrator shall publish final regulations under
subsection (a) not later than 270 days after the date of the enactment
of this Act.
SEC. 3102. SMALL BUSINESS PROCUREMENT ADVISORY COUNCIL.
(a) Establishment.--There is hereby established an interagency
council to be known as the ``Small Business Procurement Advisory
Council'' (hereinafter in this section referred to as the ``Council'').
(b) Duties.--The duties of the Council are--
(1) to serve as a forum for discussion of issues and
problems relating to, and ideas for improvement of, small
business procurement matters within the Federal Government;
(2) to provide information to other departments and
agencies of the Federal Government about small business
procurement; and
(3) to issue advisory reports to the Small Business
Administration and the Office of Federal Procurement Policy on
small business procurement matters.
(c) Membership.--The Council shall be composed of the following
members:
(1) The Administrator of the Small Business Administration
(or the designee of the Administrator).
(2) The Administrator for Federal Procurement Policy (or
the designee of the Administrator).
(3) The Director of the Minority Business Development
Agency.
(4) The head of each Office of Small and Disadvantaged
Business Utilization in each Federal agency having procurement
powers.
(d) Co-Chairmen.--The Council shall be co-chaired by the
Administrator of the Small Business Administration and the
Administrator for Federal Procurement Policy.
(e) Meetings.--The Council shall meet at the call of the chairmen,
but not less often than four times a year and once each quarter.
(f) Director.--The Chief Counsel for Advocacy of the Small Business
shall serve as the director of the Council. The director may not vote
on matters before the council except in the case of a tie vote among
the members. The duties of the director shall be determined by the
chairmen of the Council. The Chief Counsel for Advocacy shall receive
no additional pay by reason of the counsel's service as director of the
Council.
(g) Annual Report.--Not later than 30 days after the end of each
fiscal year, the Council shall submit to Congress a report detailing
the activities of the Council in the preceding fiscal year in carrying
out this section.
Subtitle C--Miscellaneous Acquisition Laws
SEC. 3151. RESTRICTION ON USE OF NONCOMPETITIVE PROCEDURES FOR
PROCUREMENT FROM A SPECIFIED SOURCE.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 3015, is further amended by adding at the
end the following new section:
``SEC. 41. RESTRICTION ON USE OF NONCOMPETITIVE PROCEDURES FOR
PROCUREMENT FROM A SPECIFIED SOURCE.
``(a) Policy.--It is the policy of Congress that no legislation
should be enacted that requires a procurement by an executive agency to
be made from a specified non-Federal Government source.
``(b) Conditions.--A provision of law may not be construed as
requiring a procurement by an executive agency to be made from a
specified non-Federal Government source unless that provision of law--
``(1) specifically refers to this subsection;
``(2) specifically identifies the particular non-Federal
Government source involved; and
``(3) specifically states that the procurement from that
source is required by such provision of law in contravention of
the policy set forth in subsection (a).''.
SEC. 3152. REPEAL OF OBSOLETE PROVISION.
Section 308 of the Federal Property and Administrative Services Act
of 1949 (41 U.S.C. 258) is repealed.
TITLE IV--STANDARDS OF CONDUCT
SEC. 4001. CONTRACTING FUNCTIONS PERFORMED BY FEDERAL PERSONNEL.
(a) Amendment of OFPP Act.--The Office of Federal Procurement
Policy Act, as amended by section 1092, is further amended by inserting
after section 22 the following new section 23:
``SEC. 23. CONTRACTING FUNCTIONS PERFORMED BY FEDERAL PERSONNEL.
``(a) Limitation on Payment for Advisory and Assistance Services.--
(1) No person who is not an employee may be paid by an agency for
services to conduct evaluations or analyses of any aspect of a proposal
submitted for an acquisition unless employees with adequate training
and capabilities to perform such evaluations and analyses are not
readily available within the agency or another Federal agency, as
determined in accordance with standards and procedures prescribed in
the Federal Acquisition Regulation.
``(2) In the administration of this subsection, the head of each
agency shall determine in accordance with the standards and procedures
set forth in the Federal Acquisition Regulation whether--
``(A) a sufficient number of employees within the agency or
another Federal agency are readily available to perform a
particular evaluation or analysis for the agency head making
the determination; and
``(B) the readily available employees have the training and
capabilities necessary to perform the evaluation or analysis.
``(b) Definition.--For purposes of this section, the term
`employee' has the meaning given such term in section 2105 of title 5,
United States Code.''.
(b) Requirement for Guidance and Regulations.--
(1) Guidance and regulations required.--The Federal
Acquisition Regulatory Council established by section 25(a) of
the Office of Federal Procurement Policy Act (41 U.S.C. 421(a))
shall--
(A) review part 37 of title 48 of the Code of
Federal Regulations as it relates to the use of
advisory and assistance services; and
(B) provide guidance and promulgate regulations
regarding--
(i) what actions Federal agencies are
required to take to determine whether expertise
is readily available within the Federal
Government before contracting for advisory and
technical services to conduct acquisitions; and
(ii) the manner in which Federal employees
with expertise may be shared with agencies
needing expertise for such acquisitions.
(2) Definition.--In paragraph (1), the term ``employee''
has the meaning given such term in section 2105 of title 5,
United States Code.
SEC. 4002. REPEAL OF EXECUTED REQUIREMENT FOR STUDY AND REPORT.
Section 17 of the Office of Federal Procurement Policy Act (41
U.S.C. 415) is repealed.
SEC. 4003. INTERESTS OF MEMBERS OF CONGRESS.
Section 3741 of the Revised Statutes (41 U.S.C. 22) is amended to
read as follows:
``No member of Congress shall be admitted to any share or part of
any contract or agreement made, entered into, or accepted by or on
behalf of the United States, or to any benefit to arise thereupon.''.
SEC. 4004. WAITING PERIOD FOR SIGNIFICANT CHANGES PROPOSED FOR
ACQUISITION REGULATIONS.
Section 22(a) of the Office of Federal Procurement Policy Act (41
U.S.C. 418b) is amended--
(1) by striking out ``30 days'' and inserting in lieu
thereof ``60 days''; and
(2) by adding at the end the following: ``Notwithstanding
the preceding sentence, such a policy, regulation, procedure,
or form may take effect earlier than 60 days after the
publication date when there are compelling circumstances for
the earlier effective date, but in no event may that effective
date be less than 30 days after the publication date.''.
TITLE V--COMMERCIAL ITEMS
SEC. 5001. DEFINITIONS.
(a) Definitions.--Section 4 of the Office of Federal Procurement
Policy Act (41 U.S.C. 403) is amended by adding at the end the
following new paragraphs:
``(12) The term `commercial item' means any of the
following:
``(A) Any item of a type customarily used in the
course of normal business operations for other than
Federal Government purposes, that--
``(i) has been sold, leased, or licensed to
the general public or to domestic State, or
local government entities; or
``(ii) has been offered for sale, lease, or
license to the general public or to domestic
State, or local government entities.
``(B) An item intended to be used in the course of
normal business operations for other than Federal
Government purposes that is not yet available in the
commercial marketplace, but will be available in time
to satisfy the delivery requirements under a Federal
Government solicitation.
``(C) Any item that, but for--
``(i) modifications of a type customarily
available in the commercial marketplace, or
``(ii) minor modifications made to meet
Federal Government requirements,
would satisfy the criteria in subparagraph (A) or (B).
``(D) Any combination of items meeting the
requirements of subparagraph (A), (B), or (C) that are
of a type customarily combined and sold in combination
to the general public.
``(E) Installation services, maintenance services,
repair services, training services, and other services
if such services are procured for support of an item
referred to in subparagraph (A), (B), (C), or (D) and
if the source of such services--
``(i) offers such services to the general
public and the Federal Government
contemporaneously and under similar terms and
conditions; and
``(ii) offers to use the same work force
for providing the Federal Government with such
services as the source uses for providing such
services to the general public.
``(F) Services offered and sold competitively, in
significant quantities, in the commercial marketplace
at established catalog prices or standard rates and
under standard commercial terms and conditions.
``(G) Any item, combination of items, or service
referred to in subparagraphs (A) through (F)
notwithstanding the fact that the item, combination of
items, or service is transferred between or among
separate divisions, subsidiaries, or affiliates of a
contractor.
``(13) The term `nondevelopmental item' means any of the
following:
``(A) Any commercial item.
``(B) Any previously developed item of supply that
is in use by a department or agency of the United
States, a State or local government, or a foreign
government with which the United States has a mutual
defense cooperation agreement.
``(C) Any item of supply described in subparagraph
(B) that requires only minor modification of the type
normally available in the commercial marketplace in
order to meet the requirements of the procuring
department or agency.
``(D) Any item of supply currently being produced
that does not meet the requirements of subparagraph
(A), (B), or (C) solely because the item--
``(i) is not yet in use; or
``(ii) is not yet available in the
commercial marketplace.
``(14) The term `component' means any item supplied to the
Federal Government as part of an end item or of another
component.
``(15) The term `commercial component' means any component
that is a commercial item.''.
(b) Conforming Amendments.--Such section is further amended--
(1) by striking out ``Act--'' and inserting in lieu thereof
``Act:'';
(2) by capitalizing the initial letter in the first word of
each paragraph;
(3) by striking out the semicolon at the end of each of
paragraphs (1), (2), (3), (5), (6), (7), (8), and (9) and
inserting in lieu thereof a period; and
(4) in paragraphs (4) and (10), by striking out ``; and''
at the end and inserting in lieu thereof a period.
SEC. 5002. PREFERENCE FOR ACQUISITION OF COMMERCIAL ITEMS.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 3151, is further amended by adding at the
end the following new section:
``SEC. 42. PREFERENCE FOR ACQUISITION OF COMMERCIAL ITEMS.
``(a) Preference.--The head of each executive agency shall ensure
that, to the maximum extent practicable--
``(1) requirements of the executive agency with respect to
a procurement of supplies or services are stated in terms of--
``(A) functions to be performed;
``(B) performance required; or
``(C) essential physical characteristics;
``(2) such requirements are defined so that commercial
items or, to the extent that commercial items suitable to meet
the agency's needs are not available, other nondevelopmental
items may be procured to fulfill such requirements; and
``(3) offerors of commercial items and other
nondevelopmental items are provided an opportunity to compete
in any procurement to fill such requirements.
``(b) Implementation.--The head of each executive agency shall
ensure that procurement officials in that executive agency, to the
maximum extent practicable--
``(1) acquire commercial items or other nondevelopmental
items to meet the needs of the executive agency;
``(2) require prime contractors and subcontractors at all
levels under the executive agency contracts to incorporate
commercial items or other nondevelopmental items as components
of items supplied to the executive agency;
``(3) modify requirements in appropriate cases to ensure
that the requirements can be met by commercial items or, to the
extent that commercial items suitable to meet the agency's
needs are not available, other nondevelopmental items;
``(4) state specifications in terms that enable and
encourage bidders and offerors to supply commercial items or,
to the extent that commercial items suitable to meet the
agency's needs are not available, other nondevelopmental items
in response to the executive agency solicitations;
``(5) revise the executive agency's procurement policies,
practices, and procedures not required by law to reduce any
impediments in those policies, practices, and procedures to the
acquisition of commercial items; and
``(6) require training of appropriate personnel in the
acquisition of commercial items.
``(c) Preliminary Market Research.--(1) The head of an executive
agency shall conduct market research appropriate to the circumstances--
``(A) before developing new specifications for a
procurement by that executive agency; and
``(B) before soliciting bids or proposals for a contract in
excess of the simplified acquisition threshold.
``(2) The head of an executive agency shall use the results of
market research to determine whether there are commercial items
available that--
``(A) meet the executive agency's requirements;
``(B) could be modified to meet the executive agency's
requirements; or
``(C) could meet the executive agency's requirements if
those requirements were modified to a reasonable extent.''.
SEC. 5003. ACQUISITION OF COMMERCIAL ITEMS.
(a) Required FAR Provisions.--The Office of Federal Procurement
Policy Act (41 U.S.C. 401 et seq.), as amended by section 5002, is
further amended by adding at the end the following new section:
``SEC. 43. REGULATIONS ON ACQUISITION OF COMMERCIAL ITEMS.
``(a) In General.--The Federal Acquisition Regulation shall provide
regulations to implement section 42 and paragraphs (12) through (15) of
section 4.
``(b) Terms and Conditions.--The regulations prescribed under
subsection (a) shall contain a set or sets of terms and conditions to
be included in contracts for the acquisition of commercial end items.
Such terms and conditions shall, to the maximum extent practicable,
include only those contract clauses that are determined by the agency
head to be--
``(1) required to implement provisions of law applicable to
commercial item acquisitions; or
``(2) consistent with standard commercial practice.
``(c) Terms and Conditions for Components.--Such regulations shall
provide that a prime contractor furnishing commercial items or items
other than commercial items as items or components shall not be
required to apply to any of its divisions, subsidiaries, or affiliates
or any of its subcontractors or suppliers that are furnishing
commercial items as components any clause, term, or condition except
those determined by the head of the agency to be--
``(1) required to implement provisions of law applicable to
subcontractors furnishing commercial items; or
``(2) determined to be consistent with standard commercial
practice.
``(d) Market Acceptance.--The regulations prescribed under
subsection (a) shall provide that, under appropriate conditions, the
agency head may require an offeror to demonstrate, as a condition for
being considered responsive, that the items offered meet, among other
criteria, market acceptance criteria, unless such item has been
satisfactorily supplied to an executive agency under current or recent
contracts for the same or similar requirements.
``(e) Use of Fixed Price Contracts.--The regulations prescribed
under subsection (a) shall include a requirement that firm, fixed price
contracts, or fixed price contracts with economic price adjustment
provisions, be used for the acquisition of commercial items and
components.
``(f) Term of Contracts.--The regulations prescribed under
subsection (a) shall provide that, to the extent practicable, contracts
for acquisition of commercial items shall not require contract
performance for a term longer than customary industry practice for the
item being acquired. A contracting officer may include in a contract
provisions for economic price adjustment if an extended period of
performance under the contract cannot be avoided.
``(g) Contract Quality Requirements.--The regulations prescribed
under subsection (a) shall include provisions that--
``(1) permit, to the maximum extent practicable, a
contractor under a commercial items acquisition to use the
existing quality assurance system of the contractor as a
substitute for compliance with an otherwise applicable
requirement for the Government to inspect or test the
commercial items before the contractor's tender of those items
for acceptance by the Government;
``(2) require that, to the maximum extent practicable, the
executive agency take advantage of warranties (including
extended warranties) offered by offerors of commercial items
and use such warranties for the repair and replacement of
commercial items; and
``(3) set forth guidance regarding the use of past
performance of commercial items and sources as a factor in
contract award decisions.''.
SEC. 5004. PRINCIPLE OF CONSTRUCTION WITH FUTURE LAWS.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 5003, is further amended by adding at the
end the following new section:
``SEC. 44. PRINCIPLE OF CONSTRUCTION WITH FUTURE LAWS.
``A provision of law enacted after the date of the enactment of the
Federal Acquisition Reform Act of 1994 shall not be construed as
applicable to purchases of commercial items by an executive agency
unless that provision of law specifically refers to this section and
specifically states that such provision of law modifies or supersedes
section 42, section 43, section 44, or paragraphs (12) through (15) of
section 4.''.
SEC. 5005. AUTHORITY TO WAIVE CERTAIN PROCUREMENT LAWS FOR CONTRACTS
FOR COMMERCIAL ITEMS.
The Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.), as amended by section 5004, is further amended by adding at the
end the following new section:
``SEC. 45. AUTHORITY TO WAIVE CERTAIN PROCUREMENT LAWS FOR CONTRACTS
FOR COMMERCIAL ITEMS.
``(a) In General.--Subject to subsections (b) and (c), the Federal
Acquisition Regulatory Council may waive any provision of law subject
to implementation by the Council or by an executive agency under
section 25 of this Act that sets forth policies, procedures,
requirements, restrictions, or contract clauses that are not necessary
to implement any of the Governmental policies set forth in subsection
(b) under a contract for commercial items. Any waiver under this
subsection shall apply to the procurement by executive agencies of
commercial items.
``(b) Determination Required.--The Federal Acquisition Regulatory
Council may waive a provision of law under this section only if the
Council determines that the waiver will not adversely affect--
``(1) national security interests;
``(2) the economy, efficiency, and effectiveness of Federal
procurement;
``(3) full and open competition;
``(4) the Federal Government's ability to obtain property
and services of the requisite quality, at a reasonable price,
and within the time needed;
``(5) small and small disadvantaged business concerns; or
``(6) fair dealings and equitable relationships with the
private sector.
``(c) Limitations.--The Federal Acquisition Regulatory Council may
not under this section waive a requirement that is established by
statute or regulation under any of the following provisions:
``(1) Section 2533 of title 10, United States Code
(relating to limitation on procurement of goods which are other
than American goods).
``(2) Section 2631 of title 10, United States Code
(relating to preference to United States vessels for
transportation of supplies).
``(3) The Small Business Act (15 U.S.C. 631 et seq.).
``(4) Section 4124 of title 18, United States Code
(relating to purchase of prison-made products by Federal
departments).
``(5) Title 18, United States Code, and any other law
imposing a criminal penalty.
``(6) Section 503 of the Rehabilitation Act of 1973 (29
U.S.C. 793) (relating to employment under Federal contracts for
individuals with disabilities).
``(7) Section 1352 of title 31, United States Code,
popularly referred to as the `Byrd Amendment'.
``(8) Section 4212 of title 38, United States Code
(relating to veterans' employment emphasis under Federal
contracts).
``(9) The Act of August 24, 1935 (40 U.S.C. 270a et seq.),
commonly referred to as the `Miller Act'.
``(10) The Act of March 3, 1931 (40 U.S.C. 276a et seq.),
commonly referred to as the `Davis-Bacon Act'.
``(11) Title IX of the Federal Property and Administrative
Services Act of 1949 (40 U.S.C. 541 et seq.), popularly
referred to as the `Brooks Architect-Engineers Act'.
``(12) Section 111 of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 759), popularly
referred to as the `Brooks Automatic Data Processing Act'.
``(13) Section 901(b) of the Merchant Marine Act, 1936 (46
U.S.C. app. 1241(b)) (relating to cargo preference for American
vessels).
``(14) Title III of the Act of March 3, 1933 (41 U.S.C. 10a
et seq.), commonly referred to as the `Buy American Act'.
``(15) The Act of June 25, 1938 (41 U.S.C. 46 et seq.),
commonly referred to as the Wagner-O`Day Act, that was revised
and reenacted in the Act of June 23, 1971 (85 Stat. 77),
commonly referred to as the `Javits-Wagner-O'Day Act'.
``(16) The Service Contract Act of 1965 (41 U.S.C. 351-
358).
``(17) Section 27 of this Act (41 U.S.C. 423), other than
subsection (e) of that section (relating to procurement
integrity).
``(18) Executive Order No. 11246 (or any successor to that
order), dated September 24, 1965.''.
SEC. 5006. FLEXIBLE DEADLINES FOR SUBMISSION OF OFFERS OF COMMERCIAL
ITEMS.
Section 18(a) of the Office of Federal Procurement Policy Act (41
U.S.C. 416(a)) is amended by adding at the end the following new
paragraph:
``(4) The requirements of paragraph (3)(B) do not apply to
contracts for the purchase of commercial items. The Administrator shall
prescribe for such contracts appropriate limits on the applicability of
a deadline for submission of bids or proposals that is required by
subsection (a)(1). Such limits shall be incorporated in the Federal
Acquisition Regulation.''.
SEC. 5007. ADDITIONAL RESPONSIBILITIES FOR ADVOCATES FOR COMPETITION.
(a) Responsibilities of the Advocate for Competition.--Section
20(c) of the Office of Federal Procurement Policy Act (41 U.S.C.
418(c)) is amended to read as follows:
``(c) The advocate for competition for each procuring activity
shall be responsible for promoting full and open competition, promoting
the acquisition of commercial items and other nondevelopmental items,
and challenging barriers to such acquisition, including such barriers
as unnecessarily restrictive statements of need, unnecessarily detailed
specifications, and unnecessarily burdensome contract clauses.''.
(b) Repeal of Superseded Provision.--Section 28 of such Act (41
U.S.C. 424) is repealed.
SEC. 5008. PROVISIONS NOT AFFECTED.
Nothing in this title shall be construed as amending, modifying, or
superseding, or as intended to impair or restrict authorities or
responsibilities under--
(1) section 46 of the Office of Federal Procurement Policy
Act, as added by section 6003 of this Act;
(2) section 111 of the Federal Property and Administrative
Services Act of 1949 (40 U.S.C. 759), popularly referred to as
the ``Brooks Automatic Data Processing Act'';
(3) title IX of the Federal Property and Administrative
Services Act of 1949 (40 U.S.C. 541 et seq.), popularly
referred to as the ``Brooks Architect-Engineers Act'';
(4) section 8(a) of the Small Business Act (15 U.S.C.
637(a)) or any other provision of that Act; or
(5) the Act of June 25, 1938 (41 U.S.C. 46-48c), that was
revised and reenacted in the Act of June 23, 1971 (85 Stat.
77), popularly referred to as the ``Javits-Wagner-O'Day Act''.
SEC. 5009. COMPTROLLER GENERAL REVIEW OF FEDERAL GOVERNMENT USE OF
MARKET RESEARCH.
(a) Report Required.--Not later than 2 years after the date of the
enactment of this Act, the Comptroller General of the United States
shall submit to the Congress a report on the use of market research by
the Federal Government in support of the procurement of commercial
items and nondevelopmental items.
(b) Content of Report.--The report shall include the following:
(1) A review of existing Federal Government market research
efforts to gather data concerning commercial and other
nondevelopmental items.
(2) A review of the feasibility of creating a Government-
wide data base for storing, retrieving, and analyzing market
data, including use of existing Federal Government resources.
(3) Any recommendations for changes in law or regulations
that the Comptroller General considers appropriate.
TITLE VI--MISCELLANEOUS PROVISIONS
SEC. 6001. TEST PROGRAM.
(a) In General.--The Administrator for Federal Procurement Policy
(in this section referred to as the ``Administrator'') may conduct a
program of tests of alternative and innovative procurement procedures.
To the extent consistent with this section, such program shall be
conducted consistent with section 15 of the Office of Federal
Procurement Policy Act (41 U.S.C. 413). No more than 6 such tests shall
be conducted under this authority.
(b) Designation of Agencies.--Each test conducted pursuant to
subsection (a) shall be limited to not more than 2 specific contracting
activities in an agency designated by the Administrator. Each agency so
designated shall select the contracting activities participating in the
test with the approval of the Administrator and shall designate a
procurement testing official who shall be responsible for the conduct
and evaluation of tests within that agency.
(c) Test Requirements.--Tests conducted under subsection (a)--
(1) shall be developed and structured by the Administrator
or by the agency senior procurement executives designated
pursuant to section 16(3) of the Office of Federal Procurement
Policy Act in close coordination with the Administrator;
(2) shall be for a period of not greater than 4 years;
(3) shall be limited to specific programs of agencies or
specific acquisitions;
(4) may not include any test with a total estimated life-
cycle cost to the Federal Government greater than $100,000,000;
(5) shall include--
(A) a test by the National Aeronautics and Space
Administration of simplified procurement procedures for
acquisitions with an estimated annual total obligation
of funds of $500,000 or less;
(B) a test by the General Services Administration
of expedited methods for procuring automatic data
processing equipment commodities; and
(C) a test by at least one agency of streamlined
procedures for competition among interested sources
participating in the tailoring of a solicitation for
the purchase of commercial products; and
(6) shall not include any procurement the cost of which is
expected to exceed $5,000,000 (including options).
(d) Limitation on Total Value of Contracts Under Program.--
(1) Limitation.--The Administrator shall ensure that the
total amount obligated under contracts awarded pursuant to the
program under this section does not exceed $600,000,000.
(2) Monitoring.--The Administrator shall monitor the value
of contracts awarded pursuant to the program under this
section.
(3) Prohibition on awards in excess of limit.--No contract
may be awarded under the program under this section if the
award of the contract would result in obligation of more than
$600,000,000 under contracts under this section.
(e) Procedures Authorized.--Tests conducted under this section may
include tests of any of the following procedures:
(1) Publication of agency needs prior to drafting of a
solicitation.
(2) Screening of sources and competition among capable
vendors.
(3) Issuance of draft solicitations for comment.
(4) Streamlined solicitations, with a minimized number of
evaluation factors and information required from vendors,
abbreviated periods for submission of offers, and page
limitations on offers.
(5) Limitation of source selection factors to--
(A) cost to the Federal Government;
(B) past experience; and
(C) quality of the contents of the offer.
(6) Evaluation of proposals by small teams of highly
qualified people, limited to 30 days.
(7) Competition among sources of preevaluated products.
(8) Alternative notice and publication requirements.
(9) A process in which--
(A) the competitive process is initiated by a
notice in the Commerce Business Daily synopsizing the
needs of the executive agency conducting the test, in
functional and performance terms, with other
specifications provided for guidance only;
(B) the notice invites interested sources to submit
information or samples showing their product's
suitability for those needs (with price quotations) or,
if appropriate, showing the sources' technical
capability, past performance, product supportability,
or other qualifications (with appropriate consideration
to rates and other cost-related factors);
(C) contracting officials develop a request for
proposals (including appropriate specifications and
evaluation criteria) after reviewing the submittals
made by interested sources and, if the officials
determine necessary, after consultation with those
sources; and
(D) the contract is awarded after a streamlined
competition limited to all sources that timely provided
product information in response to the notice or, if
appropriate, to those sources determined most capable
based on those qualification-based factors included in
an invitation to submit information pursuant to
subparagraph (B).
(f) Test Plan.--Not later than 60 days before implementing any test
program under this section, the Administrator shall--
(1) provide a detailed test plan, including lists of any
regulations that are to be waived, and any written
determination under subsection (g)(1)(B) to the Committee on
Government Operations of the House of Representatives and the
Committee on Governmental Affairs of the Senate;
(2) provide a copy of the plan to the appropriate
authorizing committees of the House of Representatives and the
Senate; and
(3) publish the plan in the Federal Register and provide an
opportunity for public comment.
(g) Waiver of Procurement Regulations.--
(1) In general.--For purposes of a test conducted under
subsection (a), the Administrator may waive--
(A) any provision of the Federal Acquisition
Regulation that is not required by statute; and
(B) any provision of the Federal Acquisition
Regulation that is required by a provision of law
described in paragraph (2), the waiver of which the
Administrator determines in writing to be necessary to
conduct any test of any of the 9 procedures described
in subsection (e).
(2) Provisions of law described.--The provisions of law
referred to in paragraph (1) are the following:
(A) Section 3709 of the Revised Statutes (41 U.S.C.
5).
(B) Section 3710 of the Revised Statutes (41 U.S.C.
8).
(C) Section 3735 of the Revised Statutes (41 U.S.C.
13).
(D) Section 310 of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 260).
(E) Section 303 of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253).
(F) Section 303A of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253a).
(G) Section 303B of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253b).
(H) Section 303C of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253c).
(I) Section 4(6) of the Office of Federal
Procurement Policy Act (41 U.S.C. 403(6)).
(J) Section 18 of the Office of Federal Procurement
Policy Act (41 U.S.C. 416).
(3) Proposal for additional waiver.--If the Administrator
determines that the conduct of a test requires the waiver of a
law not listed in paragraph (2) or requires approval of an
estimated dollar amount not permitted under subsection (c)(4),
the Administrator may propose legislation to authorize the
waiver or grant the approval. Before proposing such
legislation, the Administrator may provide and publish a test
plan as described in subsection (f). If Congress does not
authorize the waiver or grant the approval within 120 days
after the date of receipt of the proposal, the proposal shall
be deemed to be withdrawn. A proposal not approved within such
120 days may be resubmitted to Congress under this paragraph at
any time.
(h) Reports and Reviews.--
(1) Administrator.--The Administrator shall report to the
Congress on the results of each test conducted under subsection
(a).
(2) Comptroller general.--The Comptroller General of the
United States shall review each test conducted under subsection
(a) and report to the Congress on each test and shall report
annually to the Congress on the conduct of and results of all
tests conducted under subsection (a).
(i) Expiration of Authority.--The authority to conduct tests under
this section and to award contracts under such tests shall expire on
October 1, 1998. Contracts entered prior to October 1, 1998, pursuant
to a test shall remain in effect, notwithstanding the expiration of the
authority to conduct the test under this section.
(j) Pilot Programs.--(1) The Administrator may delegate to the
Secretary of Defense authority to conduct 7 pilot programs of
alternative and innovative procurement procedures, including the waiver
authority described in paragraph (2).
(2) The authority delegated under paragraph (1) may include
authority for the Secretary of Defense--
(A) to apply any amendment or repeal of a provision of law
made in the Federal Acquisition Reform Act of 1994 to the pilot
programs before the effective date of such amendment or repeal;
and
(B) to apply to a procurement of noncommercial items under
such programs--
(i) any authority provided in such Act (or in an
amendment made by a provision of such Act) to waive a
provision of law in the case of commercial items, and
(ii) any exception applicable under such Act (or an
amendment made by a provision of such Act) in the case
of commercial items,
before the effective date of such provision (or amendment) to the
extent that the Secretary determines necessary to test the application
of such waiver or exception to procurements of noncommercial items.
(3)(A) Paragraph (2) applies with respect to--
(i) a contract that is awarded or modified during the
period described in subparagraph (B); and
(ii) a contract that is awarded before the beginning of
such period and is to be performed (or may be performed), in
whole or in part, during such period.
(B) The period referred to in subparagraph (A) is the period that
begins 45 days after the date of the enactment of the Federal
Acquisition Reform Act of 1994 and ends on September 30, 1998.
SEC. 6002. STUDY OF PARTICIPATION BY CERTAIN SMALL BUSINESSES IN
FEDERAL PROCUREMENT.
(a) Study.--The Administrator for Federal Procurement Policy shall
conduct a study of--
(1) the degree of participation by small businesses owned
and controlled by socially and economically disadvantaged
individuals in procurements conducted by executive agencies,
other than agencies in the Department of Defense; and
(2) the extent of compliance by those executive agencies
with the goals for participation by such businesses required by
Office of Federal Procurement Policy policy letter 91-1,
relating to Government-wide small business and small
disadvantaged business goals for procurement contracts.
(b) Report.--Not later than 6 months after the date of the
enactment of this Act, the Administrator for Federal Procurement Policy
shall submit a report on the study required under subsection (a) to the
Committee on Government Operations and the Committee on Small Business
of the House of Representatives, and to the Committee on Governmental
Affairs and the Committee on Small Business of the Senate. The report
shall include recommendations to facilitate the provision of authority
to executive agencies, other than agencies in the Department of
Defense, to conduct procurement set asides for small businesses owned
and controlled by socially and economically disadvantaged individuals,
and on improved outreach programs to increase the participation by such
businesses in procurements conducted by those executive agencies.
SEC. 6003. FURTHERANCE OF GOVERNMENT-WIDE CONTRACT GOAL FOR SMALL
DISADVANTAGED BUSINESSES AND CERTAIN INSTITUTIONS OF
HIGHER EDUCATION.
The Office of Federal Procurement Policy Act (41 U.S.C. 41 et
seq.), as amended by section 5005, is further amended by adding at the
end the following new section:
``SEC. 46. FURTHERANCE OF GOVERNMENT-WIDE CONTRACT GOAL FOR SMALL
DISADVANTAGED BUSINESSES AND CERTAIN INSTITUTIONS OF
HIGHER EDUCATION.
``(a) Goal.--(1) A goal of 5 percent of the amount described in
subsection (b) shall be the objective of an executive agency in each of
fiscal years 1994 through 2000 for the total combined amount obligated
for contracts and subcontracts entered into with--
``(A) small business concerns, including mass media and
advertising firms, owned and controlled by socially and
economically disadvantaged individuals (as such term is used in
section 8(d) of the Small Business Act (15 U.S.C. 637(d)) and
regulations issued under that section), the majority of the
earnings of which directly accrue to such individuals;
``(B) historically Black colleges and universities,
including any nonprofit research institution that was an
integral part of such a college or university before November
14, 1986; and
``(C) minority institutions (as defined in section 1046(3)
of the Higher Education Act of 1965 (20 U.S.C. 1135d-5(3)),
which, for the purposes of this section, shall include
Hispanic-serving institutions (as defined in section 316(b)(1)
of such Act (20 U.S.C. 1059c(b)(1)).
``(2) The head of the agency shall establish a specific goal within
the overall 5 percent goal for the award of prime contracts and
subcontracts to historically Black colleges and universities and
minority institutions in order to increase the participation of such
colleges and universities in the program provided for by this section.
``(3)(i) The Federal Acquisition Regulation (issued under section
25(c)) shall provide procedures or guidelines for contracting officers
to set goals which executive agency prime contractors that are required
to submit subcontracting plans under section 8(d)(4)(B) of the Small
Business Act (15 U.S.C. 637(d)(4)(B)) in furtherance of the agency's
program to meet the 5 percent goal specified in paragraph (1) should
meet in awarding subcontracts, including subcontracts to minority-owned
media, to entities described in that paragraph.
``(ii) The regulations required by clause (i) shall provide that
when a contract for a major system is to be performed pursuant to a
teaming arrangement between two or more contractors, the contracting
officer shall set each team member's goal by excluding the price of the
work to be performed by the other team members from the calculation of
total planned subcontract awards.
``(b) Amount.--The requirements of subsection (a) for any fiscal
year apply to the total value of all prime contract and subcontract
awards entered into by the executive agency for such fiscal year.
``(c) Types of Assistance.--(1) To attain the goal specified in
subsection (a)(1), the head of the agency shall provide technical
assistance to the entities referred to in that subsection and, in the
case of historically Black colleges and universities and minority
institutions, shall also provide infrastructure assistance.
``(2) Technical assistance provided under this section shall
include information about the program, advice about the agency's
procurement procedures, instruction in preparation of proposals, and
other such assistance as the agency head considers appropriate. If the
resources of the executive agency are inadequate to provide such
assistance, the agency head may enter into contracts with minority
private sector entities with experience and expertise in the design,
development, and delivery of technical assistance services to eligible
individuals, business firms and institutions, acquisition agencies, and
prime contractors. Agency contracts with such entities shall be awarded
annually, based upon, among other things, the number of minority small
business concerns, historically Black colleges and universities, and
minority institutions that each such entity brings into the program.
``(3) The agency head shall, to the maximum extent practical, carry
out programs under this section at colleges, universities, and
institutions that agree to bear a substantial portion of the cost
associated with the programs.
``(d) Competitive Procedures and Advance Payments.--To attain the
goal of subsection (a):
``(1)(A) The head of the agency shall--
``(i) ensure that substantial progress is made in
increasing awards of agency contracts to entities
described in subsection (a)(1);
``(ii) exercise his utmost authority,
resourcefulness, and diligence; and
``(iii) actively monitor and assess the progress of
prime contractors of the agency in attaining such goal.
``(B) In making the assessment under subparagraph (A)(iii),
the agency head shall evaluate the extent to which use of the
authority provided in paragraphs (2) and (3) and compliance
with the requirement in paragraph (4) is effective for
facilitating the attainment of the goal.
``(2) To the extent practicable and when necessary to
facilitate achievement of the 5 percent goal described in
subsection (a), the agency head shall make advance payments
under section 36 of this Act to contractors described in
subsection (a). The Federal Acquisition Regulation shall
provide guidance to contracting officers for making advance
payments to entities described in subsection (a)(1) under such
section.
``(3) To the extent practicable and when necessary to
facilitate achievement of the 5 percent goal described in
subsection (a), the agency head may enter into contracts using
less than full and open competitive procedures and partial set
asides for entities described in subsection (a)(1), but shall
pay a price not exceeding fair market cost by more than 10
percent in payment per contract to contractors or
subcontractors described in subsection (a). The agency head
shall adjust the percentage specified in the preceding sentence
for any industry category if available information clearly
indicates that nondisadvantaged small business concerns in such
industry category are generally being denied a reasonable
opportunity to compete for contracts because of the use of that
percentage in the application of this paragraph.
``(4) To the extent practicable, the agency head shall
maximize the number of minority small business concerns,
historically Black colleges and universities, and minority
institutions participating in the program.
``(5) The Federal Acquisition Regulation shall provide for
the following:
``(A) Procedures or guidance for contracting
officers to provide incentives for prime contractors
referred to in subsection (a)(3) to increase
subcontractor awards to entities described in
subsection (a)(1).
``(B) A requirement that contracting officers
emphasize the award of contracts to entities described
in subsection (a)(1) in all industry categories,
including those categories in which such entities have
not traditionally dominated.
``(C) Guidance to executive agency personnel on the
relationship among the following programs:
``(i) The program implementing this
section.
``(ii) The program established under
section 8(a) of the Small Business Act (15
U.S.C. 637(a)).
``(iii) The small business set-aside
program established under section 15(a) of the
Small Business Act (15 U.S.C. 644(a)).
``(D) With respect to an agency procurement which
is reasonably likely to be set aside for entities
described in subsection (a)(1), a requirement that (to
the maximum extent practicable) the procurement be
designated as such a set-aside before the solicitation
for the procurement is issued.
``(E) Policies and procedures which, to the maximum
extent practicable, will ensure that current levels in
the number or dollar value of contracts awarded under
the program established under section 8(a) of the Small
Business Act (15 U.S.C. 637(a)) and under the small
business set-aside program established under section
15(a) of the Small Business Act (15 U.S.C. 644(a)) are
maintained and that every effort is made to provide new
opportunities for contract awards to eligible entities,
in order to meet the goal of subsection (a).
``(F) Implementation of this section in a manner
which will not alter the procurement process under the
program established under section 8(a) of the Small
Business Act (15 U.S.C. 637(a)).
``(G) A requirement that one factor used in
evaluating the performance of a contracting officer be
the ability of the officer to increase contract awards
to entities described in subsection (a)(1).
``(H) Increased technical assistance to entities
described in subsection (a)(1).
``(e) Penalties and Regulations Relating to Status.--(1) Whoever
for the purpose of securing a contract or subcontract under subsection
(a) misrepresents the status of any concern or person as a small
business concern owned and controlled by a minority (as described in
subsection (a)), shall be punished by a fine of not less than $10,000,
or by imprisonment for not more than one year, or both.
``(2) The Federal Acquisition Regulation shall prohibit awarding a
contract under this section to an entity described in subsection (a)(1)
unless the entity agrees to comply with the requirements of section
15(o)(1) of the Small Business Act (15 U.S.C. 644(o)(1)).
``(f) Determination by Agency Head.--Under procedures prescribed in
the Federal Acquisition Regulation, a person may request the agency
head to determine whether the use of small disadvantaged business set
asides by a contracting activity of the agency has caused a particular
industry category to bear a disproportionate share of the contracts
awarded to attain the goal established for that contracting activity
for the purposes of this section. Upon making a determination that a
particular industry category is bearing a disproportionate share, the
agency head shall take appropriate actions to limit the contracting
activity's use of set asides in awarding contracts in that particular
industry category.
``(g) Compliance With Subcontracting Plan Requirements.--(1) The
Federal Acquisition Regulation shall contain regulations to ensure that
potential contractors submitting sealed bids or competitive proposals
to the executive agency for procurement contracts to be awarded under
the program provided for by this section are complying with applicable
subcontracting plan requirements of section 8(d) of the Small Business
Act (15 U.S.C. 637(d)).
``(2) The regulations required by paragraph (1) shall ensure that,
with respect to a sealed bid or competitive proposal for which the
bidder or offeror is required to negotiate or submit a subcontracting
plan under section 8(d) of the Small Business Act (15 U.S.C. 637(d)),
the subcontracting plan shall be a factor in evaluating the bid or
proposal.
``(h) Annual Report.--(1) Not later than December 15 of each year,
the Administrator shall submit to Congress a report on the progress of
executive agencies toward attaining the goal of subsection (a) during
the preceding fiscal year.
``(2) The report required under paragraph (1) shall include the
following:
``(A) A full explanation of any progress toward attaining
the goal of subsection (a).
``(B) A plan to achieve the goal, if necessary.
``(3) The report required under paragraph (1) shall also include
the following:
``(A) The aggregate differential between the fair market
price of all contracts awarded pursuant to subsection (d)(3)
and the estimated fair market price of all such contracts had
such contracts been entered into using full and open
competitive procedures.
``(B) An analysis of the impact that subsection (a) shall
have on the ability of small business concerns not owned and
controlled by socially and economically disadvantaged
individuals to compete for contracts with the executive agency.
``(C) A description of the percentage of contracts
(actions), the total dollar amount (size of action), and the
number of different entities relative to the attainment of the
goal of subsection (a), separately for Black Americans, Native
Americans, Hispanic Americans, Asian Pacific Americans, and
other minorities.
``(D) A detailed description of the infrastructure
assistance provided under subsection (c) during the preceding
fiscal year and of the plans for providing such assistance
during the fiscal year in which the report is submitted.
``(i) Relationship to Other Goals.--This section shall not be
construed as amending, modifying, or superseding any other provision of
law establishing a goal or requirement for an agency to obligate 5
percent or more of the total value of all prime contract and
subcontract awards entered into by the agency for a fiscal year with
any entity described in subsection (a)(1).
``(j) Effective Date.--This section applies to each of fiscal years
1994 through 2000.''.
SEC. 6004. EDUCATION AND TRAINING.
Section 6(d)(5) of the Office of Federal Procurement Policy Act (41
U.S.C. 405(d)(4)) is amended--
(1) by striking out ``and'' at the end of subparagraph (A);
(2) by striking out the period at the end of subparagraph
(B) and inserting in lieu thereof ``; and''; and
(3) by adding at the end the following new subparagraph:
``(C) establish policies and procedures for the
establishment and implementation of education and
training programs authorized by this Act, including the
establishment and implementation of a sensitivity
training course, in conjunction with the General
Services Administration, for critical procurement
personnel designed to increase the participation of
small business concerns owned and controlled by
socially and economically disadvantaged individuals,
women, and other minorities in procurement activities
conducted by an executive agency.''.
SEC. 6005. SENSE OF CONGRESS ON NEGOTIATED RULEMAKING.
(a) Findings.--The Congress finds the following:
(1) The use of negotiated rulemaking or similar policy
discussion group techniques is an appropriate tool for--
(A) fostering effective implementation of, and
compliance with, laws and regulations;
(B) avoiding litigation; and
(C) achieving more productive and equitable
relationships between the Federal Government and the
regulated segments of the private sector.
(2) The use of negotiated rulemaking or similar techniques
in Federal procurement regulations could be appropriate given
the extreme complexity and intricate interactions between buyer
and seller in Federal procurements.
(b) Sense of Congress.--It is the sense of Congress that, in
prescribing acquisition regulations, the Federal Acquisition Regulatory
Council should consider using negotiated rulemaking procedures in
accordance with sections 561 through 570 of title 5, United States
Code, or similar techniques intended to achieve the benefits described
in subsection (a)(1).
SEC. 6006. VENDOR AND EMPLOYEE EXCELLENCE AWARDS.
Section 6(d) of the Office of Federal Procurement Policy Act (41
U.S.C. 405(d)), as amended by section 3012(b), is further amended--
(1) by striking out the period at the end of paragraph (10)
(as redesignated by section 3012(b)(2)) and inserting in lieu
thereof a semicolon; and
(2) by adding at the end the following new paragraphs:
``(11) providing for a Government-wide award to recognize
and promote vendor excellence; and
``(12) providing for a Government-wide award to recognize
and promote excellence in officers and employees of the Federal
Government serving in procurement-related positions.''.
SEC. 6007. TECHNICAL AND CLERICAL AMENDMENTS.
(a) Table of Contents Amendment.--Section 1 of the Office of
Federal Procurement Policy Act (41 U.S.C. 401 note) is amended to read
as follows:
``SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
``(a) Short Title.--This Act may be cited as the `Office of Federal
Procurement Policy Act'.
``(b) Table of Contents.--The table of contents for this Act is as
follows:
``Sec. 1. Short title; table of contents.
``Sec. 2. Declaration of policy.
``Sec. 3. Findings and purpose.
``Sec. 4. Definitions.
``Sec. 4A. Simplified acquisition threshold.
``Sec. 4B. Simplified acquisition procedures.
``Sec. 4C. Procedures applicable to purchases below micro-purchase
threshold.
``Sec. 5. Office of Federal Procurement Policy.
``Sec. 6. Authority and functions of the Administrator.
``Sec. 7. Administrative powers.
``Sec. 8. Responsiveness to Congress.
``Sec. 9. Effect on existing laws.
``Sec. 10. Effect on existing regulations.
``Sec. 11. Authorization of appropriations.
``Sec. 12. Delegation.
``Sec. 14. Access to information.
``Sec. 15. Tests of innovative procurement methods and procedures.
``Sec. 16. Executive agency responsibilities.
``Sec. 18. Procurement notice.
``Sec. 19. Record requirements.
``Sec. 20. Advocates for competition.
``Sec. 21. Rights in technical data.
``Sec. 22. Publication of proposed regulations.
``Sec. 23. Contracting functions performed by Federal personnel.
``Sec. 24. Travel expenses of Government contractors.
``Sec. 25. Federal Acquisition Regulatory Council.
``Sec. 26. Cost Accounting Standards Board.
``Sec. 27. Procurement integrity.
``Sec. 29. Competition requirements.
``Sec. 30. Planning and solicitation requirements.
``Sec. 31. Evaluation and award.
``Sec. 32. Cost or pricing data: truth in negotiations.
``Sec. 33. Delegation of procurement functions.
``Sec. 34. Determinations and decisions.
``Sec. 35. Research, development, and production costs.
``Sec. 36. Contract financing.
``Sec. 37. Allowable costs.
``Sec. 38. Examination of records of contractor.
``Sec. 39. Federal acquisition computer network (FACNET).
``Sec. 39A. Implementation of FACNET systems.
``Sec. 40. Contracts: small business reservation.
``Sec. 41. Restriction on use of noncompetitive procedures for
procurement from a specified source.
``Sec. 42. Preference for acquisition of commercial items.
``Sec. 43. Regulations on acquisition of commercial items.
``Sec. 44. Principle of construction with future laws.
``Sec. 45. Authority to waive certain procurement laws for contracts
for commercial items.
``Sec. 46. Furtherance of Government-wide contract goal for small
disadvantaged businesses and certain
institutions of higher education.''.
(b) Amendments for Stylistic Consistency.--
(1) Office of federal procurement policy act.--The Office
of Federal Procurement Policy Act (41 U.S.C. 401 et seq.) is
amended so that the section designation and section heading of
each section of such Act is in the same form and typeface as
the section designation and heading of this section.
(2) Federal property and administrative services act of
1949.--The Federal Property and Administrative Services Act of
1949 (41 U.S.C. 471 et seq.) is amended so that the section
designation and section heading of each section of such Act is
in the same form and typeface as the section designation and
heading of this section.
TITLE VII--EFFECTIVE DATES AND REGULATIONS
SEC. 7001. EFFECTIVE DATES.
(a) In General.--Except as provided in subsection (b), this Act and
the amendments made by this Act shall apply with respect to any
contract for which a solicitation for bid or proposal is issued after--
(1) 30 days have expired after the issuance in final form
of revisions to the Federal Acquisition Regulation pursuant to
section 7002; or
(2) 180 days have expired after the date of the enactment
of this Act;
whichever is earlier.
(b) Specific Effective Date.--Subtitle C of title I of this Act,
and the amendments made by such subtitle (relating to procurement
protests), shall apply with respect to any protest filed after the
expiration of the 90-day period beginning on the date of the enactment
of this Act.
SEC. 7002. REGULATIONS.
Not later than 150 days after the date of the enactment of this
Act, the Federal Acquisition Regulation (referred to in section 25(c)
of the Office of Federal Procurement Policy Act (41 U.S.C. 421(c)))
shall be revised, in final form, to implement this Act and the
amendments made by this Act.
SEC. 7003. EVALUATION BY THE COMPTROLLER GENERAL.
(a) Evaluation Relating to Issuance of Regulations.--Not later than
December 1, 1995, the Comptroller General shall submit to the
committees referred to in subsection (c) a report evaluating compliance
with the requirements in section 7002, relating to the issuance of
implementing regulations.
(b) Evaluation of Implementation of Regulations.--Not later than
December 1, 1996, the Comptroller General shall submit to the
committees referred to in subsection (c) a report evaluating the
effectiveness of the regulations implementing this Act in streamlining
the acquisition system and fulfilling the other purposes of this Act.
(c) Committees Designated To Receive the Reports.--The Comptroller
General shall submit the reports required by this section to the
Committees on Armed Services and on Governmental Affairs of the Senate
and the Committees on Small Business on Government Operations of the
House of Representatives.
SEC. 7004. DATA COLLECTION THROUGH THE FEDERAL PROCUREMENT DATA SYSTEM.
(a) Data Collection Required.--The Federal Procurement Data System
described in section 6(d)(4)(A) of the Office of Federal Procurement
Policy Act (41 U.S.C. 405(d)(4)(A)) shall be modified to collect from
contracts in excess of the simplified acquisition threshold data
pertaining to the following matters:
(1) Contract awards made pursuant to competitions conducted
pursuant to section 46 of the Office of Federal Procurement
Policy Act, as added by section 6003.
(2) Awards to business concerns owned and controlled by
women.
(3) Number of offers received in response to a
solicitation.
(4) Task order contracts.
(5) Contracts for the acquisition of commercial items.
(b) Definition.--In this section, the term ``simplified acquisition
threshold'' has the meaning given such term in section 4A of the Office
of Federal Procurement Policy Act (41 U.S.C. 403).
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