[Congressional Record Volume 140, Number 120 (Sunday, August 21, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: August 21, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
CONFERENCE REPORT ON S. 1587, FEDERAL ACQUISITION STREAMLINING ACT OF
1994
Mr. CONYERS submitted the following conference report and statement
on the Senate bill (S. 1587) to revise and streamline the acquisition
laws of the Federal Government, and for other purposes:
Conference Report (H. Rept. 103-712)
[To accompany S. 1587]
The committee of conference on the disagreeing votes of the
two Houses on the amendment of the House to the bill (S.
1587), to revise and streamline the acquisition laws of the
Federal Government, and for other purposes, having met, after
full and free conference, have agreed to recommend and do
recommend to their respective Houses as follows:
That the Senate recede from its disagreement to the
amendment of the House and agree to the same with an
amendment as follows:
In lieu of the matter proposed to be inserted by the House
amendment, insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Federal Acquisition
Streamlining 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--Armed Services Acquisitions
SUBPART A--COMPETITION REQUIREMENTS
Sec. 1001. References to Federal Acquisition Regulation.
Sec. 1002. Establishment or maintenance of alternative sources of
supply.
Sec. 1003. Clarification of approval authority for use of procedures
other than full and open competition.
Sec. 1004. Task and delivery order contracts.
Sec. 1005. Acquisition of expert services.
SUBPART B--PLANNING, SOLICITATION, EVALUATION, AND AWARD
Sec. 1011. Source selection factors.
Sec. 1012. Solicitation provision regarding evaluation of purchase
options.
Sec. 1013. Prompt notice of award.
Sec. 1014. Post-award debriefings.
Sec. 1015. Protest file.
Sec. 1016. Agency actions on protests.
SUBPART C--KINDS OF CONTRACTS
Sec. 1021. Repeal of requirement for Secretarial determination
regarding use of cost type or incentive contract.
Sec. 1022. Revision and reorganization of multiyear contracting
authority.
SUBPART D--MISCELLANEOUS
Sec. 1031. Repeal of requirement for annual report by advocates for
competition.
Part II--Civilian Agency Acquisitions
SUBPART A--COMPETITION REQUIREMENTS
Sec. 1051. References to Federal Acquisition Regulation.
Sec. 1052. Establishment or maintenance of alternative sources of
supply.
Sec. 1053. Clarification of approval authority for use of procedures
other than full and open competition.
Sec. 1054. Task and delivery order contracts.
Sec. 1055. Acquisition of expert services.
SUBPART B--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. Agency actions on protests.
SUBPART C--KINDS OF CONTRACTS
Sec. 1071. Repeal of 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 III--Acquisitions Generally
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.
Subtitle B--Truth in Negotiations
Part I--Armed Services Acquisitions
Sec. 1201. Stabilization of dollar threshold of applicability.
Sec. 1202. Exceptions to cost or pricing data requirements.
Sec. 1203. Restrictions on additional authority to require cost or
pricing data or other information.
Sec. 1204. Additional special rules for commercial items.
Sec. 1205. Right of United States to examine contractor records.
Sec. 1206. Required regulations.
Sec. 1207. Consistency of time references.
Sec. 1208. Exception for transfers between divisions, subsidiaries, and
affiliates.
Sec. 1209. Coverage of Coast Guard and NASA for interest and payments
on certain overpayments.
Sec. 1210. Repeal of superseded provision.
Part II--Civilian Agency Acquisitions
Sec. 1251. Revision of civilian agency provisions to ensure uniform
treatment of cost or pricing data.
Sec. 1252. Repeal of obsolete provision.
Subtitle C--Research and Development
Sec. 1301. Research projects.
Subtitle D--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. Definition of protest.
Sec. 1439. Oversight of acquisition of automatic data processing
equipment by Federal agencies.
Subtitle E--Policy, Definitions, and Other Matters
Part I--Armed Services Acquisitions
Sec. 1501. Repeal of policy statement.
Sec. 1502. Definitions.
Sec. 1503. Delegation of procurement functions.
Sec. 1504. Determinations and decisions.
Sec. 1505. Restrictions on undefinitized contractual actions.
Sec. 1506. Repeal of requirement relating to production special tooling
and production special test equipment.
Sec. 1507. Regulations for bids.
Part II--Civilian Agency Acquisitions
Sec. 1551. Definitions.
Sec. 1552. Delegation of procurement functions.
Sec. 1553. Determinations and decisions.
Sec. 1554. Repeal of preference for recycled toner cartridges.
Sec. 1555. Cooperative purchasing.
TITLE II--CONTRACT ADMINISTRATION
Subtitle A--Contract Payment
Part I--Armed Services Acquisitions
Sec. 2001. Contract financing.
Sec. 2002. Repeal of vouchering procedures section.
Part II--Civilian Agency Acquisitions
Sec. 2051. Contract financing.
Part III--Acquisitions Generally
Sec. 2091. Government-wide application of payment protections for
subcontractors and suppliers.
Subtitle B--Cost Principles
Part I--Armed Services Acquisitions
Sec. 2101. Allowable contract costs.
Sec. 2102. Repeal of authority for contract profit controls during
emergency periods.
Part II--Civilian Agency Acquisitions
Sec. 2151. Allowable contract costs.
Part III--Acquisitions Generally
Sec. 2191. Travel expenses of Government contractors.
Sec. 2192. Revision of cost principle relating to entertainment, gift,
and recreation costs for contractor employees.
Subtitle C--Audit and Access to Records
Part I--Armed Services Acquisitions
Sec. 2201. Consolidation and revision of authority to examine records
of contractors.
Part II--Civilian Agency Acquisitions
Sec. 2251. Authority to examine records of contractors.
Subtitle D--Claims and Disputes
Part I--Armed Services Acquisitions
Sec. 2301. Certification of contract claims.
Sec. 2302. Shipbuilding claims.
Part II--Acquisitions Generally
Sec. 2351. Contract Disputes Act improvements.
Sec. 2352. Extension of alternative dispute resolution authority.
Sec. 2353. Expedited resolution of contract administration matters.
Sec. 2354. Authority for district courts to obtain advisory opinions
from boards of contract appeals in certain cases.
Subtitle E--Miscellaneous
Part I--Armed Services Acquisitions
Sec. 2401. Clarification of provision relating to quality control of
certain spare parts.
Sec. 2402. Contractor guarantees regarding weapon systems.
Part II--Acquisitions Generally
Sec. 2451. Section 3737 of the Revised Statutes: expansion of authority
to prohibit setoffs against assignees; reorganization of
section; revision of obsolete provisions.
Sec. 2452. Repeal of requirement for deposit of contracts with GAO.
Sec. 2453. Repeal of obsolete deadline regarding procedural regulations
for the Cost Accounting Standards Board.
Sec. 2454. Codification of accounting requirement for contracted
advisory and assistance services.
Sec. 2455. Uniform suspension and debarment.
TITLE III--SERVICE SPECIFIC AND MAJOR SYSTEMS STATUTES
Subtitle A--Major Systems Statutes
Sec. 3001. Weapon development and procurement schedules.
Sec. 3002. Selected acquisition report requirement.
Sec. 3003. Unit cost report requirement.
Sec. 3004. Requirement for independent cost estimate and manpower
estimate before development or production.
Sec. 3005. Baseline description.
Sec. 3006. Repeal of requirement for competitive prototyping for major
programs.
Sec. 3007. Repeal of requirement for competitive alternative sources
for major programs.
Subtitle B--Testing Statutes
Sec. 3011. Authority of Director of Operational Test and Evaluation to
communicate views directly to Secretary of Defense.
Sec. 3012. Responsibility of Director of Operational Test and
Evaluation for live fire testing.
Sec. 3013. Requirement for unclassified version of annual report on
operational test and evaluation.
Sec. 3014. Survivability and lethality testing.
Sec. 3015. Limitation on quantities to be procured for low-rate initial
production.
Subtitle C--Service Specific Laws
Sec. 3021. Gratuitous services of officers of certain reserve
components.
Sec. 3022. Authority to rent samples, drawings, and other information
to others.
Sec. 3023. Repeal of application of Public Contracts Act to certain
naval vessel contracts.
Sec. 3024. Repeal of requirement for construction of vessels on Pacific
coast.
Sec. 3025. Scientific investigation and research for the Navy.
Subtitle D--Civil Reserve Air Fleet
Sec. 3031. Definitions.
Sec. 3032. Consolidation of provisions relating to contractual
commitment of aircraft.
Sec. 3033. Use of military installations by contractors.
Subtitle E--Miscellaneous
Sec. 3061. Regulations on procurement, production, warehousing, and
supply distribution functions.
Sec. 3062. Repeal of requirements regarding product evaluation
activities.
Sec. 3063. Department of Defense acquisition of intellectual property
rights.
Sec. 3064. Liquid fuels and natural gas: contracts for storage,
handling, or distribution.
Sec. 3065. Codification and revision of limitation on lease of vessels,
aircraft, and vehicles.
Sec. 3066. Soft drink supplies.
Sec. 3067. Disbursement of funds of military department to cover
obligations of another agency of Department of Defense.
TITLE IV--SIMPLIFIED ACQUISITION THRESHOLD
Subtitle A--Establishment of Threshold
Sec. 4001. Simplified acquisition threshold defined.
Sec. 4002. Establishment of simplified acquisition threshold for armed
services.
Sec. 4003. Establishment of simplified acquisition threshold for
civilian agencies.
Sec. 4004. Small business reservation.
Subtitle B--Inapplicability of Laws to Acquisitions At or Below the
Simplified Acquisition Threshold
Sec. 4101. List of inapplicable laws in Federal Acquisition Regulation.
Sec. 4102. Armed services acquisitions.
Sec. 4103. Civilian agency acquisitions.
Sec. 4104. Acquisitions generally.
Subtitle C--Simplified Acquisition Procedures
Sec. 4201. Simplified acquisition procedures.
Sec. 4202. Procurement notice.
Sec. 4203. Implementation of simplified acquisition procedures.
Subtitle D--Micro-Purchase Procedures
Sec. 4301. Procedures for purchases below micro-purchase threshold.
Subtitle E--Conforming Amendments
Sec. 4401. Armed services acquisitions.
Sec. 4402. Civilian agency acquisitions.
Sec. 4403. Office of Federal Procurement Policy Act.
Sec. 4404. Small Business Act.
TITLE V--ACQUISITION MANAGEMENT
Subtitle A--Armed Services Acquisitions
Sec. 5001. Performance based management.
Sec. 5002. Review of acquisition program cycle.
Subtitle B--Civilian Agency Acquisitions
Sec. 5051. Performance based management.
Sec. 5052. Results-oriented acquisition process.
Subtitle C--Pilot Programs
Sec. 5061. OFPP test program for executive agencies.
Sec. 5062. NASA mid-range procurement test program.
Sec. 5063. Federal Aviation Administration acquisition pilot program.
Sec. 5064. Department of Defense acquisition pilot programs.
Subtitle D--Miscellaneous
Sec. 5091. Vendor and employee excellence awards.
Sec. 5092. Waiting period for significant changes proposed for
acquisition regulations.
Sec. 5093. Sense of Congress on negotiated rulemaking.
TITLE VI--OTHER PROCUREMENT-RELATED MATTERS
Sec. 6001. Post-employment rules.
Sec. 6002. Contracting functions performed by Federal personnel.
Sec. 6003. Repeal of executed requirement for study and report.
Sec. 6004. Interests of Members of Congress.
Sec. 6005. Whistleblower protections for contractor employees of
Department of Defense, Coast Guard, and National
Aeronautics and Space Administration.
Sec. 6006. Whistleblower protections for contractor employees of
civilian agencies.
Sec. 6007. Comptroller General review of the provision of legal advice
for Inspectors General.
Sec. 6008. Cost savings for official travel.
Sec. 6009. Prompt resolution of audit recommendations.
TITLE VII--SMALL BUSINESS AND SOCIOECONOMIC LAWS
Subtitle A--Small Business Laws
Sec. 7101. Repeal of certain requirements.
Sec. 7102. Contracting program for certain small business concerns.
Sec. 7103. Extension of test program for negotiation of comprehensive
small business subcontracting plans.
Sec. 7104. Small Business Procurement Advisory Council.
Sec. 7105. Extension of defense contract goal to Coast Guard and
National Aeronautics and Space Administration.
Sec. 7106. Procurement goals for small business concerns owned by
women.
Sec. 7107. Development of definitions regarding certain small business
concerns.
Sec. 7108. Functions of Office of Federal Procurement Policy relating
to small business.
Subtitle B--Socioeconomic Laws
Sec. 7201. Acquisitions generally.
Sec. 7202. Prohibition on use of funds for documenting economic or
employment impact of certain acquisition programs.
Sec. 7203. Merit-based award of contracts and grants.
Sec. 7204. Maximum practicable opportunities for apprentices on Federal
construction projects.
Sec. 7205. Repeal of obsolete provision.
Sec. 7206. Repeal of obsolete and redundant provisions of law.
Subtitle C--Waiver of Application of Prevailing Wage-Setting
Requirements to Volunteers
Sec. 7301. Short title.
Sec. 7302. Purpose.
Sec. 7303. Waiver for individuals who perform volunteer services for
public entities.
Sec. 7304. Waiver for individuals who perform volunteer services for
nonprofit entities.
Sec. 7305. Contracts affected.
Sec. 7306. Report.
TITLE VIII--COMMERCIAL ITEMS
Subtitle A--Definitions and Regulations
Sec. 8001. Definitions.
Sec. 8002. Regulations on acquisition of commercial items.
Sec. 8003. List of inapplicable laws in Federal Acquisition Regulation.
Subtitle B--Armed Services Acquisitions
Sec. 8101. Establishment of new chapter in title 10.
Sec. 8102. Relationship to other provisions of law.
Sec. 8103. Definitions.
Sec. 8104. Preference for acquisition of commercial items.
Sec. 8105. Inapplicability of certain provisions of law.
Sec. 8106. Presumption that technical data under contracts for
commercial items are developed exclusively at private
expense.
Subtitle C--Civilian Agency Acquisitions
Sec. 8201. Relationship to other provisions of law.
Sec. 8202. Definitions.
Sec. 8203. Preference for acquisition of commercial items.
Sec. 8204. Inapplicability of certain provisions of law.
Subtitle D--Acquisitions Generally
Sec. 8301. Inapplicability of certain provisions of law.
Sec. 8302. Flexible deadlines for submission of offers of commercial
items.
Sec. 8303. Additional responsibilities for advocates for competition.
Sec. 8304. Provisions not affected.
Sec. 8305. Comptroller General review of Federal Government use of
market research.
TITLE IX--FEDERAL ACQUISITION COMPUTER NETWORK
Sec. 9001. Federal acquisition computer network architecture and
implementation.
Sec. 9002. Implementation of FACNET capability in armed services.
Sec. 9003. Implementation of FACNET capability in civilian agencies.
Sec. 9004. GAO determination of eligible agency contracts.
TITLE X--EFFECTIVE DATES AND IMPLEMENTATION
Sec. 10001. Effective date and applicability.
Sec. 10002. Implementing regulations.
Sec. 10003. Evaluation by the Comptroller General.
Sec. 10004. Data collection through the Federal Procurement Data
System.
Sec. 10005. Technical and clerical amendments.
TITLE I--CONTRACT FORMATION
Subtitle A--Competition Statutes
PART I--ARMED SERVICES ACQUISITIONS
Subpart A--Competition Requirements
SEC. 1001. REFERENCES TO FEDERAL ACQUISITION REGULATION.
Section 2304 of title 10, United States Code, is amended--
(1) in subsection (a)(1)(A), by striking out
``modifications'' and all that follows through ``note)'' and
inserting in lieu thereof ``Federal Acquisition Regulation'';
and
(2) in subsection (g)(1), by striking out ``regulations
modified'' and all that follows through ``note)'' and
inserting in lieu thereof ``Federal Acquisition Regulation''.
SEC. 1002. ESTABLISHMENT OR MAINTENANCE OF ALTERNATIVE
SOURCES OF SUPPLY.
(a) Additional Justification for Establishing or
Maintaining Alternative Sources.--Section 2304(b)(1) of such
title is amended--
(1) by striking out ``or'' at the end of subparagraph (B);
(2) by striking out the period at the end of subparagraph
(C) and inserting in lieu thereof a semicolon; and
(3) by adding at the end the following new subparagraphs:
``(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.''.
(b) Prohibition on Use of Classes of Purchases or
Contracts.--Section 2304(b) of title 10, United States Code,
is amended by adding at the end the following new paragraph:
``(4) A determination under paragraph (1) may not be made
for a class of purchases or contracts.''.
SEC. 1003. CLARIFICATION OF APPROVAL AUTHORITY FOR USE OF
PROCEDURES OTHER THAN FULL AND OPEN
COMPETITION.
Section 2304(f)(1)(B)(i) of title 10, United States Code,
is amended by inserting before the semicolon at the end the
following: ``or by an official referred to in clause (ii),
(iii), or (iv)''.
SEC. 1004. TASK AND DELIVERY ORDER CONTRACTS.
(a) Authority.--(1) Chapter 137 of title 10, United States
Code, is amended by inserting after section 2304 the
following new sections:
``Sec. 2304a. Task and delivery order contracts: general
authority
``(a) Authority To Award.--Subject to the requirements of
this section, section 2304c of this title, and other
applicable law, the head of an agency may enter into a task
or delivery order contract (as defined in section 2304d of
this title) for procurement of services or property.
``(b) Solicitation.--The solicitation for a task or
delivery order contract shall include the following:
``(1) The period of the contract, including the number of
options to extend the contract and the period for which the
contract may be extended under each option, if any.
``(2) The maximum quantity or dollar value of the services
or property to be procured under the contract.
``(3) A statement of work, specifications, or other
description that reasonably describes the general scope,
nature, complexity, and purposes of the services or property
to be procured under the contract.
``(c) Applicability of Restriction on Use of Noncompetitive
Procedures.--The head of an agency may use procedures other
than competitive procedures to enter into a task or delivery
order contract under this section only if an exception in
subsection (c) of section 2304 of this title applies to the
contract and the use of such procedures is approved in
accordance with subsection (f) of such section.
``(d) Single and Multiple Contract Awards.--(1) The head of
an agency may exercise the authority provided in this
section--
``(A) to award a single task or delivery order contract; or
``(B) if the solicitation states that the head of the
agency has the option to do so, to award separate task or
delivery order contracts for the same or similar services or
property to two or more sources.
``(2) No determination under section 2304(b) of this title
is required for award of multiple task or delivery order
contracts under paragraph (1)(B).
``(3) The regulations implementing this subsection shall--
``(A) establish a preference for awarding, to the maximum
extent practicable, multiple task or delivery order contracts
for the same or similar services or property under the
authority of paragraph (1)(B); and
``(B) establish criteria for determining when award of
multiple task or delivery order contracts would not be in the
best interest of the Federal Government.
``(e) Contract Modifications.--A task or delivery order may
not increase the scope, period, or maximum value of the task
or delivery order contract under which the order is issued.
The scope, period, or maximum value of the contract may be
increased only by modification of the contract.
``(f) Inapplicability to Contracts for Advisory and
Assistance Services.--Except as otherwise specifically
provided in section 2304b of this title, this section does
not apply to a task or delivery order contract for the
procurement of advisory and assistance services (as defined
in section 1105(g) of title 31).
``(g) Relationship to Other Contracting Authority.--Nothing
in this section may be construed to limit or expand any
authority of the head of an agency or the Administrator of
General Services to enter into schedule, multiple award, or
task or delivery order contracts under any other provision of
law.
``Sec. 2304b. Task order contracts: advisory and assistance
services
``(a) Authority To Award.--(1) Subject to the requirements
of this section, section 2304c of this title, and other
applicable law, the head of an agency may enter into a task
order contract (as defined in section 2304d of this title)
for procurement of advisory and assistance services.
``(2) The head of an agency may enter into a task order
contract for procurement of advisory and assistance services
only under the authority of this section.
``(b) Limitation on Contract Period.--The period of a task
order contract entered into under this section, including all
periods of extensions of the contract under options,
modifications, or otherwise, may not exceed five years unless
a longer period is specifically authorized in a law that is
applicable to such contract.
``(c) Content of Notice.--The notice required by section 18
of the Office of Federal Procurement Policy Act (41 U.S.C.
416) and section 8(e) of the Small Business Act (15 U.S.C.
637(e)) shall reasonably and fairly describe the general
scope, magnitude, and duration of the proposed task order
contract in a manner that would reasonably enable a potential
offeror to decide whether to request the solicitation and
consider submitting an offer.
``(d) Required Content of Solicitation and Contract.--(1)
The solicitation for the proposed task order contract shall
include the information (regarding services) described in
section 2304a(b) of this title.
``(2) A task order contract entered into under this section
shall contain the same information that is required by
paragraph (1) to be included in the solicitation of offers
for that contract.
``(e) Multiple Awards.--(1) The head of an agency may, on
the basis of one solicitation, award separate task order
contracts under this section for the same or similar services
to two or more sources if the solicitation states that the
head of the agency has the option to do so.
``(2) If, in the case of a task order contract for advisory
and assistance services to be entered into under this
section, the contract period is to exceed three years and the
contract amount is estimated to exceed $10,000,000 (including
all options), the solicitation shall--
``(A) provide for a multiple award authorized under
paragraph (1); and
``(B) include a statement that the head of the agency may
also elect to award only one task order contract if the head
of the agency determines in writing that only one of the
offerers is capable of providing the services required at the
level of quality required.
``(3) Paragraph (2) does not apply in the case of a
solicitation for which the head of the agency concerned
determines in writing that, because the services required
under the task order contract are unique or highly
specialized, it is not practicable to award more than one
contract.
``(f) Contract Modifications.--(1) A task order may not
increase the scope, period, or maximum value of the task
order contract under which the order is issued. The scope,
period, or maximum value of the contract may be increased
only by modification of the contract.
``(2) Unless use of procedures other than competitive
procedures is authorized by an exception in subsection (c) of
section 2304 of this title and approved in accordance with
subsection (f) of such section, competitive procedures shall
be used for making such a modification.
``(3) Notice regarding the modification shall be provided
in accordance with section 18 of the Office of Federal
Procurement Policy Act (41 U.S.C. 416) and section 8(e) of
the Small Business Act (15 U.S.C. 637(e)).
``(g) Contract Extensions.--(1) Notwithstanding the
limitation on the contract period set forth in subsection (b)
or in a solicitation or contract pursuant to subsection (e),
a task order contract entered into by the head of an agency
under this section may be extended on a sole-source basis for
a period not exceeding six months if the head of such agency
determines that--
``(A) the award of a follow-on contract has been delayed by
circumstances that were not reasonably foreseeable at the
time the initial contract was entered into; and
``(B) the extension is necessary in order to ensure
continuity of the receipt of services pending the award of,
and commencement of performance under, the follow-on
contract.
``(2) A task order contract may be extended under the
authority of paragraph (1) only once and only in accordance
with the limitations and requirements of this subsection.
``(h) Inapplicability to Certain Contracts.--This section
does not apply to a contract for the acquisition of property
or services that includes acquisition of advisory and
assistance services if the head of an agency entering into
such contract determines that, under the contract, advisory
and assistance services are necessarily incident to, and not
a significant component of, the contract.
``(i) Advisory and Assistance Services Defined.--In this
section, the term `advisory and assistance services' has the
meaning given such term in section 1105(g) of title 31.
``Sec. 2304c. Task and delivery order contracts: orders
``(a) Issuance of Orders.--The following actions are not
required for issuance of a task or delivery order under a
task or delivery order contract:
``(1) A separate notice for such order under section 18 of
the Office of Federal Procurement Policy Act (41 U.S.C. 416)
or section 8(e) of the Small Business Act (15 U.S.C. 637(e)).
``(2) Except as provided in subsection (b), a competition
(or a waiver of competition approved in accordance with
section 2304(f) of this title) that is separate from that
used for entering into the contract.
``(b) Multiple Award Contracts.--When multiple task or
delivery order contracts are awarded under section
2304a(d)(1)(B) or 2304b(e) of this title, all contractors
awarded such contracts shall be provided a fair opportunity
to be considered, pursuant to procedures set forth in the
contracts, for each task or delivery order in excess of
$2,500 that is to be issued under any of the contracts
unless--
``(1) the agency's need for the services or property
ordered is of such unusual urgency that providing such
opportunity to all such contractors would result in
unacceptable delays in fulfilling that need;
``(2) only one such contractor is capable of providing the
services or property required at the level of quality
required because the services or property ordered are unique
or highly specialized;
``(3) the task or delivery order should be issued on a
sole-source basis in the interest of economy and efficiency
because it is a logical follow-on to a task or delivery order
already issued on a competitive basis; or
``(4) it is necessary to place the order with a particular
contractor in order to satisfy a minimum guarantee.
``(c) Statement of Work.--A task or delivery order shall
include a statement of work that clearly specifies all tasks
to be performed or property to be delivered under the order.
``(d) Protests.--A protest is not authorized in connection
with the issuance or proposed issuance of a task or delivery
order except for a protest on the ground that the order
increases the scope, period, or maximum value of the contract
under which the order is issued.
``(e) Task and Delivery Order Ombudsman.--Each head of an
agency who awards multiple task or delivery order contracts
pursuant to section 2304a(d)(1)(B) or 2304b(e) of this title
shall appoint or designate a task and delivery order
ombudsman who shall be responsible for reviewing complaints
from the contractors on such contracts and ensuring that all
of the contractors are afforded a fair opportunity to be
considered for task or delivery orders when required under
subsection (b). The task and delivery order ombudsman shall
be a senior agency official who is independent of the
contracting officer for the contracts and may be the agency's
competition advocate.
``(f) Applicability.--This section applies to task and
delivery order contracts entered into under sections 2304a
and 2304b of this title.
``Sec. 2304d. Task and delivery order contracts: definitions
``In sections 2304a, 2304b, and 2304c of this title:
``(1) The term `task order contract' means a contract for
services that does not procure or specify a firm quantity of
services (other than a minimum or maximum quantity) and that
provides for the issuance of orders for the performance of
tasks during the period of the contract.
``(2) The term `delivery order contract' means a contract
for property that does not procure or specify a firm quantity
of property (other than a minimum or maximum quantity) and
that provides for the issuance of orders for the delivery of
property during the period of the contract.''.
(2) The table of sections at the beginning of such chapter
is amended by inserting after the item relating to section
2304 the following new items:
``2304a. Task and delivery order contracts: general authority.
``2304b. Task order contracts: advisory and assistance services.
``2304c. Task and delivery order contracts: orders.
``2304d. Task and delivery order contracts: definitions.''.
(b) Repeal of Superseded Provision.--Section 2304 of title
10, United States Code, is amended by striking out subsection
(j).
(c) Conforming Amendment for Professional and Technical
Services.--Section 2331 of title 10, United States Code, is
amended by striking out subsection (c).
(d) Provisions Not Affected.--Nothing in section 2304a,
2304b, 2304c, or 2304d of title 10, United States Code, as
added by subsection (a), and nothing in the amendments made
by subsections (b) and (c), shall be construed as modifying
or superseding, or as intended to impair or restrict,
authorities or responsibilities under--
(1) the Brooks Automatic Data Processing Act (section 111
of the Federal Property and Administrative Services Act of
1949 (40 U.S.C. 759)); and
(2) the Brooks Architect-Engineers Act (title IX of the
Federal Property and Administrative Services Act of 1949 (40
U.S.C. 541 et seq.)).
SEC. 1005. ACQUISITION OF EXPERT SERVICES.
Section 2304(c)(3) of title 10, United States Code, is
amended--
(1) by striking out ``or (B)'' and inserting in lieu
thereof ``(B)''; and
(2) by inserting before the semicolon at the end the
following: ``, or (C) to procure the services of an expert
for use, in any litigation or dispute (including any
reasonably foreseeable litigation or dispute) involving the
Federal Government, in any trial, hearing, or proceeding
before any court, administrative tribunal, or agency, or in
any part of an alternative dispute resolution process,
whether or not the expert is expected to testify''.
Subpart B--Planning, Solicitation, Evaluation, and Award
SEC. 1011. SOURCE SELECTION FACTORS.
(a) Content of Solicitation.--Paragraph (2) of section
2305(a) of title 10, United States Code, is amended--
(1) in subparagraph (A)(i)--
(A) by striking out ``(and significant subfactors)'' and
inserting in lieu thereof ``and significant subfactors''; and
(B) by striking out ``cost- or price-related factors, and
noncost- or nonprice-related factors'' and inserting in lieu
thereof ``cost-related or price-related factors and
subfactors, and noncost-related or nonprice-related factors
and subfactors'';
(2) in subparagraph (A)(ii), by striking out ``(and
subfactors)'' and inserting ``and subfactors''; and
(3) in subparagraph (B)(ii), by amending subclause (I) to
read as follows:
``(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''.
(b) Evaluation Factors.--Such section is further amended by
striking out paragraph (3) and inserting in lieu thereof the
following:
``(3)(A) In prescribing the evaluation factors to be
included in each solicitation for competitive proposals, the
head of an agency--
``(i) 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);
``(ii) shall include cost or price to the Federal
Government as an evaluation factor that must be considered in
the evaluation of proposals; and
``(iii) shall disclose to offerors whether all evaluation
factors other than cost or price, when combined, are--
``(I) significantly more important than cost or price;
``(II) approximately equal in importance to cost or price;
or
``(III) significantly less important than cost or price.
``(B) The regulations implementing clause (iii) of
subparagraph (A) may not define the terms `significantly more
important' and `significantly less important' as specific
numeric weights that would be applied uniformly to all
solicitations or a class of solicitations.
``(4) Nothing in this subsection prohibits an agency from--
``(A) providing additional information in a solicitation,
including numeric weights for all evaluation factors and
subfactors on a case-by-case basis; or
``(B) stating in a solicitation that award will be made to
the offeror that meets the solicitation's mandatory
requirements at the lowest cost or price.''.
SEC. 1012. SOLICITATION PROVISION REGARDING EVALUATION OF
PURCHASE OPTIONS.
Subsection (a) of section 2305 of title 10, United States
Code, as amended by section 1011, is further amended by
adding at the end the following new paragraph:
``(5) The head of an agency, 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 for options to purchase additional
property or services under the contract unless the head of
the agency has determined that there is a reasonable
likelihood that the options will be exercised.''.
SEC. 1013. PROMPT NOTICE OF AWARD.
(a) Sealed Bid Procedures.--Paragraph (3) of section
2305(b) of title 10, United States Code, is amended--
(1) in the last sentence, by striking out ``transmitting
written notice'' and inserting in lieu thereof
``transmitting, in writing or by electronic means, notice'';
and
(2) by adding at the end the following: ``Within three days
after the date of contract award, the head of the agency
shall notify, in writing or by electronic means, each bidder
not awarded the contract that the contract has been
awarded.''.
(b) Competitive Proposals Procedures.--Paragraph (4)(B) of
such section is amended in the second sentence--
(1) by striking out ``transmitting written notice'' and
inserting in lieu thereof ``transmitting, in writing or by
electronic means, notice''; and
(2) by striking out ``shall promptly notify'' and inserting
in lieu thereof ``, within three days after the date of
contract award, shall notify, in writing or by electronic
means,''.
SEC. 1014. POST-AWARD DEBRIEFINGS.
Section 2305(b) of title 10, United States Code, is
amended--
(1) by redesignating paragraph (5) as paragraph (6); and
(2) by inserting after paragraph (4) the following new
paragraph (5):
``(5)(A) When a contract is awarded by the head of an
agency on the basis of competitive proposals, an unsuccessful
offeror, upon written request received by the agency within 3
days after the date on which the unsuccessful offeror
receives the notification of the contract award, shall be
debriefed and furnished the basis for the selection decision
and contract award. The head of the agency shall debrief the
offeror within, to the maximum extent practicable, five days
after receipt of the request by the agency.
``(B) The debriefing shall include, at a minimum--
``(i) the agency's evaluation of the significant weak or
deficient factors in the offeror's offer;
``(ii) the overall evaluated cost and technical rating of
the offer of the contractor awarded the contract and the
overall evaluated cost and technical rating of the offer of
the debriefed offeror;
``(iii) the overall ranking of all offers;
``(iv) a summary of the rationale for the award;
``(v) in the case of a proposal that includes a commercial
item that is an end item under the contract, the make and
model of the item being provided in accordance with the offer
of the contractor awarded the contract; and
``(vi) reasonable responses to relevant 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 agency.
``(C) 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(b) of title 5.
``(D) Each solicitation for competitive proposals shall
include a statement that information described in
subparagraph (B) may be disclosed in post-award debriefings.
``(E) If, within one year after the date of the contract
award and as a result of a successful procurement protest,
the agency seeks to fulfill the requirement under the
protested 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 shall make available
to all offerors--
``(i) the information provided in debriefings under this
paragraph regarding the offer of the contractor awarded the
contract; and
``(ii) the same information that would have been provided
to the original offerors.
``(F) The contracting officer shall include a summary of
the debriefing in the contract file.''.
SEC. 1015. PROTEST FILE.
Section 2305 of title 10, United States Code, is amended by
adding at the end the following new subsection:
``(e) Protest File.--(1) If, in the case of a solicitation
for a contract issued by, or an award or proposed award of a
contract by, the head of an agency, a protest is filed
pursuant to the procedures in subchapter V of chapter 35 of
title 31 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 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. 1016. AGENCY ACTIONS ON PROTESTS.
Section 2305 of title 10, United States Code, as amended by
section 1015, is further amended by adding at the end the
following new subsection:
``(f) Agency Actions on Protests.--If, in connection with a
protest, the head of an agency determines that a
solicitation, proposed award, or award does not comply with
the requirements of law or regulation, the head of the
agency--
``(1) may take any action set out in subparagraphs (A)
through (F) of subsection (b)(1) of section 3554 of title 31;
and
``(2) may pay costs described in paragraph (1) of section
3554(c) of title 31 within the limits referred to in
paragraph (2) of such section.''.
Subpart C--Kinds of Contracts
SEC. 1021. REPEAL OF REQUIREMENT FOR SECRETARIAL
DETERMINATION REGARDING USE OF COST TYPE OR
INCENTIVE CONTRACT.
Subsection (c) of section 2306 of title 10, United States
Code, is repealed.
SEC. 1022. REVISION AND REORGANIZATION OF MULTIYEAR
CONTRACTING AUTHORITY.
(a) In General.--(1) Chapter 137 of title 10, United States
Code, is amended by inserting after section 2306a the
following new section:
``Sec. 2306b. Multiyear contracts
``(a) In General.--To the extent that funds are otherwise
available for obligation, the head of an agency may enter
into multiyear contracts for the purchase of property
whenever the head of that agency finds--
``(1) that the use of such a contract will result in
substantial savings of the total anticipated costs of
carrying out the program through annual contracts;
``(2) that the minimum need for the property to be
purchased is expected to remain substantially unchanged
during the contemplated contract period in terms of
production rate, procurement rate, and total quantities;
``(3) that there is a reasonable expectation that
throughout the contemplated contract period the head of the
agency will request funding for the contract at the level
required to avoid contract cancellation;
``(4) that there is a stable design for the property to be
acquired and that the technical risks associated with such
property are not excessive;
``(5) that the estimates of both the cost of the contract
and the anticipated cost avoidance through the use of a
multiyear contract are realistic; and
``(6) in the case of a purchase by the Department of
Defense, that the use of such a contract will promote the
national security of the United States.
``(b) Regulations.--(1) Each official named in paragraph
(2) shall prescribe acquisition regulations for the agency or
agencies under the jurisdiction of such official to promote
the use of multiyear contracting as authorized by subsection
(a) in a manner that will allow the most efficient use of
multiyear contracting.
``(2)(A) The Secretary of Defense shall prescribe the
regulations applicable to the Department of Defense.
``(B) The Secretary of Transportation shall prescribe the
regulations applicable to the Coast Guard, except that the
regulations prescribed by the Secretary of Defense shall
apply to the Coast Guard when it is operating as a service in
the Navy.
``(C) The Administrator of the National Aeronautics and
Space Administration shall prescribe the regulations
applicable to the National Aeronautics and Space
Administration.
``(c) Contract Cancellations.--The regulations may provide
for cancellation provisions in multiyear contracts to the
extent that such provisions are necessary and in the best
interests of the United States. The cancellation provisions
may include consideration of both recurring and nonrecurring
costs of the contractor associated with the production of the
items to be delivered under the contract.
``(d) Participation by Subcontractors, Vendors, and
Suppliers.--In order to broaden the defense industrial base,
the regulations shall provide that, to the extent
practicable--
``(1) multiyear contracting under paragraph (1) shall be
used in such a manner as to seek, retain, and promote the use
under such contracts of companies that are subcontractors,
vendors, or suppliers; and
``(2) upon accrual of any payment or other benefit under
such a multiyear contract to any subcontractor, vendor, or
supplier company participating in such contract, such payment
or benefit shall be delivered to such company in the most
expeditious manner practicable.
``(e) Protection of Existing Authority.--The regulations
shall provide that, to the extent practicable, the
administration of this section, and of the regulations
prescribed under this section, shall not be carried out in a
manner to preclude or curtail the existing ability of an
agency--
``(1) to provide for competition in the production of items
to be delivered under such a contract; or
``(2) to provide for termination of a prime contract the
performance of which is deficient with respect to cost,
quality, or schedule.
``(f) Cancellation or Termination for Insufficient
Funding.--In the event funds are not made available for the
continuation of a contract made under this section into a
subsequent fiscal year, the contract shall be canceled or
terminated. The costs of cancellation or termination may be
paid from--
``(1) appropriations originally available for the
performance of the contract concerned;
``(2) appropriations currently available for procurement of
the type of property concerned, and not otherwise obligated;
or
``(3) funds appropriated for those payments.
``(g) Contract Cancellation Ceilings Exceeding
$100,000,000.--Before any contract described in subsection
(a) that contains a clause setting forth a cancellation
ceiling in excess of $100,000,000 may be awarded, the head of
the agency concerned shall give written notification of the
proposed contract and of the proposed cancellation ceiling
for that contract to the Committees on Armed Services and on
Appropriations of the Senate and House of Representatives,
and such contract may not then be awarded until the end of a
period of 30 days beginning on the date of such notification.
``(h) Defense Acquisitions of Weapon Systems.--In the case
of the Department of Defense, the authority under subsection
(a) includes authority to enter into the following multiyear
contracts in accordance with this section:
``(1) A multiyear contract for the purchase of a weapon
system, items and services associated with a weapon system,
and logistics support for a weapon system.
``(2) A multiyear contract for advance procurement of
components, parts, and materials necessary to the manufacture
of a weapon system, including a multiyear contract for such
advance procurement that is entered into in order to achieve
economic-lot purchases and more efficient production rates.
``(i) Defense Acquisitions Specifically Authorized by
Law.--(1) A multiyear contract may not be entered into for
any fiscal year under this section for a defense acquisition
program that has been specifically authorized by law to be
carried out using multiyear contract authority unless each of
the following conditions is satisfied:
``(A) The Secretary of Defense certifies to Congress that
the current five-year defense program fully funds the support
costs associated with the multiyear program.
``(B) The proposed multiyear contract provides for
production at not less than minimum economic rates given the
existing tooling and facilities.
``(2) If for any fiscal year a multiyear contract to be
entered into under this section is authorized by law for a
particular procurement program and that authorization is
subject to certain conditions established by law (including a
condition as to cost savings to be achieved under the
multiyear contract in comparison to specified other
contracts) and if it appears (after negotiations with
contractors) that such savings cannot be achieved, but that
substantial savings could nevertheless be achieved through
the use of a multiyear contract rather than specified other
contracts, the President may submit to Congress a request for
relief from the specified cost savings that must be achieved
through multiyear contracting for that program. Any such
request by the President shall include details about the
request for a multiyear contract, including details about the
negotiated contract terms and conditions.
``(j) Defense Contract Options for Varying Quantities.--The
Secretary of Defense may instruct the Secretary of the
military department concerned to incorporate into a proposed
multiyear contract negotiated priced options for varying the
quantities of end items to be procured over the period of the
contract.
``(k) Inapplicability to Automatic Data Processing
Contracts.--This section does not apply to contracts for the
purchase of property to which section 111 of the Federal
Property and Administrative Services Act of 1949 (40 U.S.C.
759) applies.
``(l) Multiyear Contract Defined.--For the purposes of this
subsection, 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.''.
(2) The table of sections at the beginning of such chapter
is amended by inserting after the item relating to section
2306a the following:
``2306b. Multiyear contracts.''.
(b) Conforming Cross Reference.--Subsection (h) of section
2306 of title 10, United States Code, is amended to read as
follows:
``(h) Multiyear contracting authority is provided in
section 2306b of this title.''.
Subpart D--Miscellaneous
SEC. 1031. REPEAL OF REQUIREMENT FOR ANNUAL REPORT BY
ADVOCATES FOR COMPETITION.
Subsection (c) of section 2318 of title 10, United States
Code, is repealed.
PART II--CIVILIAN AGENCY ACQUISITIONS
Subpart A--Competition Requirements
SEC. 1051. REFERENCES TO FEDERAL ACQUISITION REGULATION.
Section 303 of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 253) is amended--
(1) in subsection (a)(1)(A), by striking out
``modifications'' and all that follows through ``of 1984''
and inserting in lieu thereof ``Federal Acquisition
Regulation''; and
(2) in subsection (g)(1), by striking out ``regulations
modified'' and all that follows through ``of 1984,'' and
inserting in lieu thereof ``Federal Acquisition Regulation''.
SEC. 1052. ESTABLISHMENT OR MAINTENANCE OF ALTERNATIVE
SOURCES OF SUPPLY.
(a) Additional Justification for Establishing or
Maintaining Alternative Sources.--Section 303(b)(1) of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 253(b)(1)) is amended--
(1) by striking out ``or'' at the end of subparagraph (B);
(2) by striking out the period at the end of subparagraph
(C) and inserting in lieu thereof a semicolon; and
(3) by adding at the end the following new subparagraphs:
``(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.''.
(b) Prohibition on Use of Classes of Purchases or
Contracts.--Section 303(b) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253(b)) is
amended by adding at the end the following:
``(4) A determination under paragraph (1) may not be made
for a class of purchases or contracts.''.
SEC. 1053. CLARIFICATION OF APPROVAL AUTHORITY FOR USE OF
PROCEDURES OTHER THAN FULL AND OPEN
COMPETITION.
Section 303(f)(1)(B)(i) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C.
253(f)(1)(B)(i)) is amended by inserting before the semicolon
at the end the following: ``or by an official referred to in
clause (ii), (iii), or (iv)''.
SEC. 1054. TASK AND DELIVERY ORDER CONTRACTS.
(a) Authority.--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
sections:
``SEC. 303H. TASK AND DELIVERY ORDER CONTRACTS: GENERAL
AUTHORITY.
``(a) Authority To Award.--Subject to the requirements of
this section, section 303J, and other applicable law, the
head of an executive agency may enter into a task or delivery
order contract (as defined in section 303K) for procurement
of services or property.
``(b) Solicitation.--The solicitation for a task or
delivery order contract shall include the following:
``(1) The period of the contract, including the number of
options to extend the contract and the period for which the
contract may be extended under each option, if any.
``(2) The maximum quantity or dollar value of the services
or property to be procured under the contract.
``(3) A statement of work, specifications, or other
description that reasonably describes the general scope,
nature, complexity, and purposes of the services or property
to be procured under the contract.
``(c) Applicability of Restriction on Use of Noncompetitive
Procedures.--The head of an executive agency may use
procedures other than competitive procedures to enter into a
task or delivery order contract under this section only if an
exception in subsection (c) of section 303 applies to the
contract and the use of such procedures is approved in
accordance with subsection (f) of such section.
``(d) Single and Multiple Contract Awards.--(1) The head of
an executive agency may exercise the authority provided in
this section--
``(A) to award a single task or delivery order contract; or
``(B) if the solicitation states that the head of the
executive agency has the option to do so, to award separate
task or delivery order contracts for the same or similar
services or property to two or more sources.
``(2) No determination under section 303(b) is required for
an award of multiple task or delivery order contracts under
paragraph (1)(B).
``(3) The regulations implementing this subsection shall--
``(A) establish a preference for awarding, to the maximum
extent practicable, multiple task or delivery order contracts
for the same or similar services or property under the
authority of paragraph (1)(B); and
``(B) establish criteria for determining when award of
multiple task or delivery order contracts would not be in the
best interest of the Federal Government.
``(e) Contract Modifications.--A task or delivery order may
not increase the scope, period, or maximum value of the task
or delivery order contract under which the order is issued.
The scope, period, or maximum value of the contract may be
increased only by modification of the contract.
``(f) Inapplicability to Contracts for Advisory and
Assistance Services.--Except as otherwise specifically
provided in section 303I, this section does not apply to a
task or delivery order contract for the acquisition of
advisory and assistance services (as defined in section
1105(g) of title 31, United States Code).
``(g) Relationship to Other Contracting Authority.--Nothing
in this section may be construed to limit or expand any
authority of the head of an executive agency or the
Administrator of General Services to enter into schedule,
multiple award, or task or delivery order contracts under any
other provision of law.
``SEC. 303I. TASK ORDER CONTRACTS: ADVISORY AND ASSISTANCE
SERVICES.
``(a) Authority To Award.--(1) Subject to the requirements
of this section, section 303J, and other applicable law, the
head of an executive agency may enter into a task order
contract (as defined in section 303K) for procurement of
advisory and assistance services.
``(2) The head of an executive agency may enter into a task
order contract for advisory and assistance services only
under the authority of this section.
``(b) Limitation on Contract Period.--The period of a task
order contract entered into under this section, including all
periods of extensions of the contract under options,
modifications, or otherwise, may not exceed five years unless
a longer period is specifically authorized in a law that is
applicable to such contract.
``(c) Content of Notice.--The notice required by section 18
of the Office of Federal Procurement Policy Act (41 U.S.C.
416) and section 8(e) of the Small Business Act (15 U.S.C.
637(e)) shall reasonably and fairly describe the general
scope, magnitude, and duration of the proposed task order
contract in a manner that would reasonably enable a potential
offeror to decide whether to request the solicitation and
consider submitting an offer.
``(d) Required Content of Solicitation and Contract.--(1)
The solicitation shall include the information (regarding
services) described in section 303H(b).
``(2) A task order contract entered into under this section
shall contain the same information that is required by
paragraph (1) to be included in the solicitation of offers
for that contract.
``(e) Multiple Awards.--(1) The head of an executive agency
may, on the basis of one solicitation, award separate task
order contracts under this section for the same or similar
services to two or more sources if the solicitation states
that the head of the executive agency has the option to do
so.
``(2) If, in the case of a task order contract for advisory
and assistance services to be entered into under the
authority of this section, the contract period is to exceed
three years and the contract amount is estimated to exceed
$10,000,000 (including all options), the solicitation shall--
``(A) provide for a multiple award authorized under
paragraph (1); and
``(B) include a statement that the head of the executive
agency may also elect to award only one task order contract
if the head of the executive agency determines in writing
that only one of the offerers is capable of providing the
services required at the level of quality required.
``(3) Paragraph (2) does not apply in the case of a
solicitation for which the head of the executive agency
concerned determines in writing that, because the services
required under the contract are unique or highly specialized,
it is not practicable to award more than one contract.
``(f) Contract Modifications.--(1) A task order may not
increase the scope, period, or maximum value of the task
order contract under which the order is issued. The scope,
period, or maximum value of the contract may be increased
only by modification of the contract.
``(2) Unless use of procedures other than competitive
procedures is authorized by an exception in subsection (c) of
section 303 and approved in accordance with subsection (f) of
such section, competitive procedures shall be used for making
such a modification.
``(3) Notice regarding the modification shall be provided
in accordance with section 18 of the Office of Federal
Procurement Policy Act (41 U.S.C. 416) and section 8(e) of
the Small Business Act (15 U.S.C. 637(e)).
``(g) Contract Extensions.--(1) Notwithstanding the
limitation on the contract period set forth in subsection (b)
or in a solicitation or contract pursuant to subsection (e),
a contract entered into by the head of an executive agency
under this section may be extended on a sole-source basis for
a period not exceeding six months if the head of such
executive agency determines that--
``(A) the award of a follow-on contract has been delayed by
circumstances that were not reasonably foreseeable at the
time the initial contract was entered into; and
``(B) the extension is necessary in order to ensure
continuity of the receipt of services pending the award of,
and commencement of performance under, the follow-on
contract.
``(2) A task order contract may be extended under the
authority of paragraph (1) only once and only in accordance
with the limitations and requirements of this subsection.
``(h) Inapplicability to Certain Contracts.--This section
does not apply to a contract for the acquisition of property
or services that includes acquisition of advisory and
assistance services if the head of the executive agency
entering into such contract determines that, under the
contract, advisory and assistance services are necessarily
incident to, and not a significant component of, the
contract.
``(i) Advisory and Assistance Services Defined.--In this
section, the term `advisory and assistance services' has the
meaning given such term in section 1105(g) of title 31,
United States Code.
``SEC. 303J. TASK AND DELIVERY ORDER CONTRACTS: ORDERS.
``(a) Issuance of Orders.--The following actions are not
required for issuance of a task or delivery order under a
task or delivery order contract:
``(1) A separate notice for such order under section 18 of
the Office of Federal Procurement Policy Act (41 U.S.C. 416)
or section 8(e) of the Small Business Act (15 U.S.C. 637(e)).
``(2) Except as provided in subsection (b), a competition
(or a waiver of competition approved in accordance with
section 303(f)) that is separate from that used for entering
into the contract.
``(b) Multiple Award Contracts.--When multiple contracts
are awarded under section 303H(d)(1)(B) or 303I(e), all
contractors awarded such contracts shall be provided a fair
opportunity to be considered, pursuant to procedures set
forth in the contracts, for each task or delivery order in
excess of $2,500 that is to be issued under any of the
contracts unless--
``(1) the executive agency's need for the services or
property ordered is of such unusual urgency that providing
such opportunity to all such contractors would result in
unacceptable delays in fulfilling that need;
``(2) only one such contractor is capable of providing the
services or property required at the level of quality
required because the services or property ordered are unique
or highly specialized;
``(3) the task or delivery order should be issued on a
sole-source basis in the interest of economy and efficiency
because it is a logical follow-on to a task or delivery order
already issued on a competitive basis; or
``(4) it is necessary to place the order with a particular
contractor in order to satisfy a minimum guarantee.
``(c) Statement of Work.--A task or delivery order shall
include a statement of work that clearly specifies all tasks
to be performed or property to be delivered under the order.
``(d) Protests.--A protest is not authorized in connection
with the issuance or proposed issuance of a task or delivery
order except for a protest on the ground that the order
increases the scope, period, or maximum value of the contract
under which the order is issued.
``(e) Task and Delivery Order Ombudsman.--The head of each
executive agency who awards multiple task or delivery order
contracts pursuant to section 303H(d)(1)(B) or 303I(e) shall
appoint or designate a task and delivery order ombudsman who
shall be responsible for reviewing complaints from the
contractors on such contracts and ensuring that all of the
contractors are afforded a fair opportunity to be considered
for task or delivery orders when required under subsection
(b). The task and delivery order ombudsman shall be a senior
agency official who is independent of the contracting officer
for the contracts and may be the executive agency's
competition advocate.
``(f) Applicability.--This section applies to task and
delivery order contracts entered into under sections 303H and
303I.
``SEC. 303K. TASK AND DELIVERY ORDER CONTRACTS: DEFINITIONS.
``In sections 303H, 303I, and 303J:
``(1) The term `task order contract' means a contract for
services that does not procure or specify a firm quantity of
services (other than a minimum or maximum quantity) and that
provides for the issuance of orders for the performance of
tasks during the period of the contract.
``(2) The term `delivery order contract' means a contract
for property that does not procure or specify a firm quantity
of property (other than a minimum or maximum quantity) and
that provides for the issuance of orders for the delivery of
property during the period of the contract.''.
(b) Provisions Not Affected.--Nothing in section 303H,
303I, 303J, or 303K of the Federal Property and
Administrative Services Act of 1949, as added by subsection
(a), shall be construed as modifying or superseding, or as
intended to impair or restrict, authorities or
responsibilities under--
(1) the Brooks Automatic Data Processing Act (section 111
of the Federal Property and Administrative Services Act of
1949 (40 U.S.C. 759)); and
(2) the Brooks Architect-Engineers Act (title IX of the
Federal Property and Administrative Services Act of 1949 (40
U.S.C. 541 et seq.)).
SEC. 1055. ACQUISITION OF EXPERT SERVICES.
(a) Exception to Requirement for Use of Competitive
Procedures.--Section 303(c)(3) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253(c)) is
amended--
(1) by striking out ``or (B)'' and inserting in lieu
thereof ``(B)''; and
(2) by inserting before the semicolon at the end the
following: ``, or (C) to procure the services of an expert
for use, in any litigation or dispute (including any
reasonably foreseeable litigation or dispute) involving the
Federal Government, in any trial, hearing, or proceeding
before any court, administrative tribunal, or agency, or in
any part of an alternative dispute resolution process,
whether or not the expert is expected to testify''.
(b) Procurement Notice.--(1) Section 18(c)(1) of the Office
of Federal Procurement Policy Act (41 U.S.C. 416(c)) is
amended--
(A) by striking out ``or'' at the end of subparagraph (D);
(B) by striking out the period at the end of subparagraph
(E) and inserting in lieu thereof ``; or''; and
(C) by adding at the end the following:
``(F) the procurement is for the services of an expert for
use in any litigation or dispute (including any reasonably
foreseeable litigation or dispute) involving the Federal
Government in any trial, hearing, or proceeding before any
court, administrative tribunal, or agency, or in any part of
an alternative dispute resolution process, whether or not the
expert is expected to testify.''.
(2) Section 8(g)(1) of the Small Business Act (15 U.S.C.
637(c)) is amended--
(A) by striking out ``or'' at the end of subparagraph (D);
(B) by striking out the period at the end of subparagraph
(E) and inserting in lieu thereof ``; or''; and
(C) by adding at the end the following:
``(F) the procurement is for the services of an expert for
use in any litigation or dispute (including preparation for
any foreseeable litigation or dispute) that involves or could
involve the Federal Government in any trial, hearing, or
proceeding before any court, administrative tribunal, or
agency, or in any part of an alternative dispute resolution
process, whether or not the expert is expected to testify.''.
(c) Repeal of Amendments to Uncodified Title.--The
following provisions of law are repealed:
(1) Section 532 of Public Law 101-509 (104 Stat. 1470) and
the provision of law set out in quotes in that section.
(2) Section 529 of Public Law 102-393 (106 Stat. 1761) and
the matters inserted and added by that section.
Subpart B--Planning, Solicitation, Evaluation, and Award
SEC. 1061. SOLICITATION, EVALUATION, AND AWARD.
(a) Content of Solicitation.--Subsection (b) of section
303A of the Federal Property and Administrative Services Act
of 1949 (41 U.S.C. 253a) is amended--
(1) in paragraph (1)--
(A) by amending subparagraph (A) to read as follows:
``(A) all significant factors and significant subfactors
which the executive agency reasonably expects to consider in
evaluating sealed bids (including price) or competitive
proposals (including cost or price, cost-related or price-
related factors and subfactors, and noncost-related or
nonprice-related factors and subfactors); and''; and
(B) in subparagraph (B), by inserting ``and subfactors''
after ``factors''; and
(2) in paragraph (2)(B), by amending clause (i) to read as
follows:
``(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''.
(b) Evaluation Factors.--Such section is further amended by
adding at the end the following new subsections:
``(c)(1) In prescribing the evaluation factors to be
included in each solicitation for competitive proposals, an
executive agency--
``(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 cost or price, when combined, are--
``(i) significantly more important than cost or price;
``(ii) approximately equal in importance to cost or price;
or
``(iii) significantly less important than cost or price.
``(2) The regulations implementing subparagraph (C) of
paragraph (1) may not define the terms `significantly more
important' and `significantly less important' as specific
numeric weights that would be applied uniformly to all
solicitations or a class of solicitations.
``(d) Nothing in this section prohibits an executive agency
from--
``(1) providing additional information in a solicitation,
including numeric weights for all evaluation factors and
subfactors on a case-by-case basis; or
``(2) stating in a solicitation that award will be made to
the offeror that meets the solicitation's mandatory
requirements at the lowest cost or price.''.
(c) Evaluation and Award.--Section 303B of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C.
253b) is amended--
(1) in subsection (a), by inserting ``, and award a
contract,'' after ``competitive proposals'';
(2) in subsection (c), by inserting ``in accordance with
subsection (a)'' in the second sentence after ``shall
evaluate the bids''; and
(3) in subsection (d)--
(A) by striking out paragraph (1) and inserting in lieu
thereof the following:
``(1) An executive agency 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), if, as
required by section 303A(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.'';
(B) by striking out paragraphs (2) and (3) and by
redesignating paragraph (4) as paragraph (2); and
(C) in paragraph (2), as redesignated by subparagraph (B),
by inserting ``cost or'' before ``price'' in the first
sentence.
SEC. 1062. SOLICITATION PROVISION REGARDING EVALUATION OF
PURCHASE OPTIONS.
Section 303A of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 253a), as amended by section
1061, is further amended by adding at the end the following
new subsection:
``(e) An executive agency, 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 for options to purchase additional
property or services under the contract unless the executive
agency 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 303B
of the Federal Property and Administrative Services Act of
1949 (41 U.S.C. 253b) is amended--
(1) in the last sentence, by striking out ``transmitting
written notice'' and inserting in lieu thereof
``transmitting, in writing or by electronic means, notice'';
and
(2) by adding at the end the following: ``Within 3 days
after the date of contract award, the executive agency shall
notify, in writing or by electronic means, each bidder not
awarded the contract that the contract has been awarded.''.
(b) Competitive Proposals Procedures.--Paragraph (2) of
subsection (d) of such section, as redesignated by section
1061(c)(3)(B), is amended in the second sentence--
(1) by striking out ``transmitting written notice'' and
inserting in lieu thereof ``transmitting, in writing or by
electronic means, notice''; and
(2) 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 303B of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 253b) 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 the head of an
executive agency on the basis of competitive proposals, an
unsuccessful offeror, upon written request received by the
agency within 3 days after the date on which the unsuccessful
offeror receives the notification of the contract award,
shall be debriefed and furnished the basis for the selection
decision and contract award. The executive agency shall
debrief the offeror within, to the maximum extent
practicable, 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 and technical rating of
the offer of the contractor awarded the contract and the
overall evaluated cost and technical rating of the offer of
the debriefed offeror;
``(C) the overall ranking of all offers;
``(D) a summary of the rationale for the award;
``(E) in the case of a proposal that includes a commercial
item that is an end item under the contract, the make and
model of the item being provided in accordance with the offer
of the contractor awarded the contract; and
``(F) reasonable responses to relevant 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(b) of title 5, United
States Code.
``(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,
the executive agency seeks to fulfill the requirement under
the protested 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 head of such
executive agency shall make available to all offerors--
``(A) the information provided in debriefings under this
subsection regarding the offer of the contractor awarded the
contract; and
``(B) the same information that would have been provided to
the original offerors.
``(6) The contracting officer shall include a summary of
the debriefing in the contract file.''.
SEC. 1065. PROTEST FILE.
Section 303B of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 253b), as amended by section
1064(1), is further amended by adding at the end the
following:
``(h) Protest File.--(1) If, in the case of a solicitation
for a contract issued by, or an award or proposed award of a
contract by, the head of an executive agency, 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. AGENCY ACTIONS ON PROTESTS.
Section 303B of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 253b), as amended by section
1065, is further amended by adding at the end the following
new subsection:
``(i) Agency Actions on Protests.--If, in connection with a
protest, the head of an executive agency determines that a
solicitation, proposed award, or award does not comply with
the requirements of law or regulation, the head of such
executive agency--
``(1) may take 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 within the limits referred to in
paragraph (2) of such section.''.
Subpart C--Kinds of Contracts
SEC. 1071. REPEAL OF 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.
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 304 the following new section:
``SEC. 304B. MULTIYEAR CONTRACTS.
``(a) Authority.--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; and
``(2) the executive agency 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.
``(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 executive 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.''.
SEC. 1073. SEVERABLE SERVICES CONTRACTS CROSSING FISCAL
YEARS.
Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.), as amended by
section 1054, is further amended by inserting after section
303I the following new section:
``SEC. 303L. SEVERABLE SERVICES CONTRACTS FOR PERIODS
CROSSING FISCAL YEARS.
``(a) Authority.--The head of an executive agency may enter
into a contract for procurement of severable 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) Obligation of Funds.--Funds made available for a
fiscal year may be obligated for the total amount of a
contract entered into under the authority of subsection
(a).''.
SEC. 1074. ECONOMY ACT PURCHASES.
(a) Regulations Required.--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 provisions of chapter 137 of title 10, United
States Code, or title III of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 251 et seq.)
and 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 III--ACQUISITIONS GENERALLY
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 the offerors' past performance in the
selection of contractors.''.
(b) Guidance Required.--(1) Congress makes the following
findings:
(A) Past contract performance of an offeror is one of the
relevant factors that a contracting official of an executive
agency should consider in awarding a contract.
(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 awarded by that
official.
(2) 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) 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;
``(C) policies for ensuring that--
``(i) offerors are afforded an opportunity to submit
relevant information on past contract performance, including
performance under contracts entered into by the executive
agency concerned, contracts entered into by other departments
and agencies of the Federal Government, contracts entered
into by agencies of State and local governments, and
contracts entered into by commercial customers; and
``(ii) such information submitted by offerors is
considered; and
``(D) the period for which information on past performance
of offerors may be maintained and considered.
``(2) In the case of an offeror with respect to which there
is no information on past contract performance or with
respect to which 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.
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. 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 what types of contract clauses are to
be treated as 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.''.
Subtitle B--Truth in Negotiations
PART I--ARMED SERVICES ACQUISITIONS
SEC. 1201. STABILIZATION OF DOLLAR THRESHOLD OF
APPLICABILITY.
(a) Repeal of Reversion to Lower Threshold.--Paragraph
(1)(A) of section 2306a(a) of title 10, United States Code,
is amended--
(1) in clause (i), by striking out ``and before January 1,
1996,''; and
(2) in clause (ii), by striking out ``or after December 31,
1995,''.
(b) Adjustments for Changes in Dollar Values.--Section
2306a(a) of such title is amended by adding at the end the
following new subparagraph:
``(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.''.
(c) Repeal.--Paragraph (6) of section 2306a(a) of such
title is amended--
(1) by striking out ``(A)''; and
(2) by striking out subparagraph (B).
SEC. 1202. EXCEPTIONS TO COST OR PRICING DATA REQUIREMENTS.
(a) Exceptions Stated.--Subsection (b) of section 2306a of
title 10, United States Code, is amended to read as follows:
``(b) Exceptions.--
``(1) In general.--Submission of cost or pricing data shall
not be required under subsection (a) in the case of a
contract, a subcontract, or modification of a contract or
subcontract--
``(A) for which the price agreed upon is based on--
``(i) adequate price competition;
``(ii) established catalog or market prices of commercial
items 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 and justifies in
writing the reasons for such determination.
``(2) Modifications of contracts and subcontracts for
commercial items.--In the case of a modification of a
contract or subcontract for a commercial item that is not
covered by the prohibition on the submission of cost or
pricing data in paragraph (1)(A), submission of cost or
pricing data shall not be required under subsection (a) if--
``(A) the contract or subcontract being modified is a
contract or subcontract for which submission of cost or
pricing data may not be required by reason of paragraph
(1)(A); and
``(B) the modification would not change the contract or
subcontract, as the case may be, from a contract or
subcontract for the acquisition of a commercial item to a
contract or subcontract for the acquisition of an item other
than a commercial item.''.
``(3) FAR standards.-- The Federal Acquisition Regulation
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 to be used to
determine whether adequate price competition exists. In the
case of the exception provided in paragraph (1)(A)(ii), the
regulations shall provide that the exception applies to items
that are sold in substantial quantities to the general
public, without regard to the quantity of items that may be
sold to the Federal Government.''.
(b) Conforming Amendment to Reference.--Subsection (a)(5)
of such section is amended by striking out ``subsection
(b)(2)'' and inserting in lieu thereof ``subsection
(b)(1)(B)''.
SEC. 1203. RESTRICTIONS ON ADDITIONAL AUTHORITY TO REQUIRE
COST OR PRICING DATA OR OTHER INFORMATION.
Subsection (c) of section 2306a of title 10, United States
Code, is amended to read as follows:
``(c) Restrictions on Additional Authority to Require Cost
or Pricing Data or Other Information.--
``(1) Authority to require cost or pricing data on below-
threshold contracts.--(A) Subject to subparagraph (B), when
cost or pricing data are not required to be submitted by
subsection (a) for a contract, subcontract, or modification
of a contract or subcontract, 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, subcontract, or modification of a 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.
``(B) The head of the procuring activity may not require
certified cost or pricing data to be submitted under this
paragraph for any contract or subcontract, or modification of
a contract or subcontract, covered by the exceptions in
subsection (b)(1)(A).
``(C) The head of a procuring activity may not delegate
functions under this paragraph.
``(2) Authority to require information other than certified
cost or pricing data.--When certified cost or pricing data
are not required to be submitted under this section for a
contract, subcontract, or modification of a contract or
subcontract, the head of the procuring activity may require
submission of data other than certified cost or pricing data
to the extent necessary to determine the reasonableness of
the price of the contract, subcontract, or modification of
the contract or subcontract.''.
SEC. 1204. ADDITIONAL SPECIAL RULES FOR COMMERCIAL ITEMS.
Section 2306a of title 10, United States Code, is amended--
(1) by redesignating subsections (d), (e), (f), and (g) as
subsections (e), (f), (g), and (i), respectively; and
(2) by inserting after subsection (c) the following new
subsection (d):
``(d) Additional Exception Provisions Regarding Commercial
Items.--
``(1) Procurements based on adequate price competition.--To
the maximum extent practicable, the head of an agency shall
conduct procurements of commercial items on a competitive
basis. In any procurement of a commercial item conducted on a
competitive basis and based upon adequate price competition,
the head of the agency conducting the procurement shall not
require cost or pricing data to be submitted under subsection
(a) for the contract, subcontract, or modification of the
contract or subcontract under the procurement. If additional
information is necessary to determine the reasonableness of
the price of the contract, subcontract, or modification, the
head of the agency shall, to the maximum extent practicable,
obtain the additional information from sources other than the
offeror.
``(2) Procurements not based on adequate price
competition.--(A)(i) In any case in which it is not
practicable to conduct a procurement of a commercial item
covered by subsection (a) on a competitive basis, and the
procurement is not covered by an exception in subsection (b),
the contracting officer shall seek to obtain from the offeror
or contractor information described in clause (ii). When such
information is not available from that source, the
contracting officer shall seek to obtain such information
from another source or sources.
``(ii) The information referred in clause (i) is
information on prices at which the same item or similar items
have been sold in the commercial market that is adequate for
evaluating, through price analysis, the reasonableness of the
price of the contract, subcontract, or modification of the
contract or subcontract under the procurement.
``(B) The contracting officer shall exempt a contract,
subcontract, or modification of a contract or subcontract
under the procurement from the requirements of subsection (a)
if the contracting officer obtains the information described
in subparagraph (A)(ii) in accordance with standards and
procedures set forth in the Federal Acquisition Regulation.
``(C) A contracting officer may require submission of cost
or pricing data under subsection (a) only if the contracting
officer makes a written determination that the agency is
unable to obtain the information described in subparagraph
(A)(ii).
``(3) Authority to audit.--(A) In accordance with
procedures prescribed in the Federal Acquisition Regulation,
the head of an agency is authorized to examine all
information provided by an offeror, contractor, or
subcontractor pursuant to paragraph (2)(A) 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 subsection.
``(B) The right under subparagraph (A) shall expire 2 years
after the date of award of the contract, or 2 years after the
date of the modification of the contract, with respect to
which the information was provided.
``(4) Limitations on requests for data.--The Federal
Acquisition Regulation shall include reasonable limitations
on requests under this section for sales data relating to
commercial items.
``(5) Form of information.--In requesting information from
an offeror under this subsection, a contracting officer
shall, to the maximum extent practicable, limit the scope of
the request to include only information that is in the form
regularly maintained by the offeror in commercial operations.
``(6) Confidentiality.--Any information received under this
subsection that is exempt from disclosure under section
552(b) of title 5 shall not be disclosed by the Federal
Government.''.
SEC. 1205. RIGHT OF UNITED STATES TO EXAMINE CONTRACTOR
RECORDS.
Section 2306a of title 10, United States Code, is amended
by striking out subsection (g), as redesignated by section
1204(1), and inserting in lieu thereof the following:
``(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 authority provided by section 2313(a)(2) of this
title.''.
SEC. 1206. REQUIRED REGULATIONS.
Section 2306a of title 10, United States Code, as amended
by sections 1204 and 1205, is further amended by inserting
after subsection (g) the following new subsection:
``(h) Required Regulations.--The Federal Acquisition
Regulation shall contain provisions concerning the types of
information that offerors must submit for a contracting
officer to consider in determining whether the price of a
procurement to the Government is fair and reasonable when
certified cost or pricing data are not required to be
submitted under this section because the price of the
procurement to the United States is not expected to exceed
the applicable threshold amount set forth in subsection (a)
(as adjusted pursuant to paragraph (7) of such subsection).
Such information, at a minimum, shall include appropriate
information on the prices at which the same item or similar
items have previously been sold that is adequate for
evaluating the reasonableness of the price of the proposed
contract or subcontract for the procurement.''.
SEC. 1207. CONSISTENCY OF TIME REFERENCES.
Section 2306a of title 10, United States Code, as amended
by section 1204(1), is further amended in subparagraphs
(A)(ii) and (B)(ii) of subsection (e)(4), by inserting ``or,
if applicable consistent with paragraph (1)(B), another date
agreed upon between the parties,'' after ``(or price of the
modification)''.
SEC. 1208. EXCEPTION FOR TRANSFERS BETWEEN DIVISIONS,
SUBSIDIARIES, AND AFFILIATES.
Subsection (i) of section 2306a of title 10, United States
Code, as redesignated by section 1204(1), is amended to read
as follows:
``(i) Definitions.--In this section:
``(1) Cost or pricing data.--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 term does not include
information that is judgmental, but does include the factual
information from which a judgment was derived.
``(2) Subcontract.--The term `subcontract' includes a
transfer of commercial items between divisions, subsidiaries,
or affiliates of a contractor or a subcontractor.
``(3) Commercial item.--The term `commercial item' has the
meaning provided such term in section 4(12) of the Office of
Federal Procurement Policy Act.''.
SEC. 1209. COVERAGE OF COAST GUARD AND NASA FOR INTEREST AND
PAYMENTS ON CERTAIN OVERPAYMENTS.
Paragraph (1) of subsection (f) of section 2306a of title
10, United States Code, as redesignated by section 1204(1),
is amended by striking out ``with the Department of Defense''
in the matter preceding subparagraph (A).
SEC. 1210. REPEAL OF SUPERSEDED PROVISION.
Subsections (b) and (c) of section 803 of Public Law 101-
510 (10 U.S.C. 2306a note) are repealed.
PART II--CIVILIAN AGENCY ACQUISITIONS
SEC. 1251. REVISION OF CIVILIAN AGENCY PROVISIONS TO ENSURE
UNIFORM TREATMENT OF COST OR PRICING DATA.
(a) Revision.--Title III of the Federal Property and
Administrative Services Act of 1949 is amended--
(1) in section 304 (41 U.S.C. 254), by striking out
subsection (d); and
(2) by inserting before section 304B, as added by section
1072, the following new section:
``SEC. 304A. COST OR PRICING DATA: TRUTH IN NEGOTIATIONS.
``(a) Required Cost or Pricing Data and Certification.--(1)
The head of an executive agency 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
Streamlining 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
Streamlining 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 title
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 Streamlining 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 Streamlining 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 the head of an executive
agency on behalf of a foreign government.
``(5) For purposes of paragraph (1)(C), a contractor or
subcontractor granted a waiver under subsection (b)(1)(B)
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 Streamlining Act of
1994, the head of the executive agency 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) In general.--Submission of cost or pricing data shall
not be required under subsection (a) in the case of a
contract, a subcontract, or a modification of a contract or
subcontract--
``(A) for which the price agreed upon is based on--
``(i) adequate price competition;
``(ii) established catalog or market prices of commercial
items 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 and justifies in
writing the reasons for such determination.
``(2) Modifications of contracts and subcontracts for
commercial items.--In the case of a modification of a
contract or subcontract for a commercial item that is not
covered by the prohibition on the submission of cost or
pricing data in paragraph (1)(A), submission of cost or
pricing data shall not be required under subsection (a) if--
``(A) the contract or subcontract being modified is a
contract or subcontract for which submission of cost or
pricing data may not be required by reason of paragraph
(1)(A); and
``(B) the modification would not change the contract or
subcontract, as the case may be, from a contract or
subcontract for the acquisition of a commercial item to a
contract or subcontract for the acquisition of an item other
than a commercial item.
``(3) FAR standards.--The Federal Acquisition Regulation
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 to be used to
determine whether adequate price competition exists. In the
case of the exception provided in paragraph (1)(A)(ii), the
regulations shall provide that the exception applies to items
that are sold in substantial quantities to the general
public, without regard to the quantity of items that may be
sold to the Federal Government.
``(c) Restrictions on Additional Authority To Require Cost
or Pricing Data or Other Information.--
``(1) Authority To Require Cost or Pricing Data on Below-
Threshold Contracts.--(A) Subject to subparagraph (B), when
cost or pricing data are not required to be submitted by
subsection (a) for a contract, subcontract, or modification
of a contract or subcontract, 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, subcontract, or modification of a 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.
``(B) The head of the procuring activity may not require
certified cost or pricing data to be submitted under this
paragraph for any contract or subcontract, or modification of
a contract or subcontract, covered by the exceptions in
subsection (b)(1)(A).
``(C) The head of a procuring activity may not delegate the
functions under this paragraph.
``(2) Authority to require information other than certified
cost or pricing data.--When certified cost or pricing data
are not required to be submitted under this section for a
contract, subcontract, or modification of a contract or
subcontract, the head of the procuring activity may require
submission of data other than certified cost or pricing data
to the extent necessary to determine the reasonableness of
the price of the contract, subcontract, or modification of
the contract or subcontract.
``(d) Additional Exception Provisions Regarding Commercial
Items.--
``(1) Procurements based on adequate price competition.--To
the maximum extent practicable, the head of an executive
agency shall conduct procurements of commercial items on a
competitive basis. In any procurement of a commercial item
conducted on a competitive basis and based upon adequate
price competition, the head of the executive agency
conducting the procurement shall not require cost or pricing
data to be submitted under subsection (a) for the contract,
subcontract, or modification of the contract or subcontract
under the procurement. If additional information is necessary
to determine the reasonableness of the price of the contract,
subcontract, or modification of the contract or subcontract,
the head of the executive agency shall, to the maximum extent
practicable, obtain the additional information from sources
other than the offeror.
``(2) Procurements not based on adequate price
competition.--(A)(i) In any case in which it is not
practicable to conduct a procurement of a commercial item
covered by subsection (a) on a competitive basis, and the
procurement is not covered by an exception in subsection (b),
the contracting officer shall seek to obtain from the offeror
or contractor information described in clause (ii). When such
information is not available from that source, the
contracting officer shall seek to obtain such information
from another source or sources.
``(ii) The information referred in clause (i) is
information on prices at which the same item or similar items
have been sold in the commercial market that is adequate for
evaluating, through price analysis, the reasonableness of the
price of the contract, subcontract, or modification of the
contract or subcontract under the procurement.
``(B) The contracting officer shall exempt a contract,
subcontract, or modification of a contract or subcontract
under the procurement from the requirements of subsection (a)
if the contracting officer obtains the information described
in subparagraph (A)(ii) in accordance with standards and
procedures set forth in the Federal Acquisition Regulation.
``(C) A contracting officer may require submission of cost
or pricing data under subsection (a) only if the contracting
officer makes a written determination that the agency is
unable to obtain the information described in subparagraph
(A)(ii).
``(3) Authority to audit.--(A) In accordance with
procedures prescribed in the Federal Acquisition Regulation,
the head of an executive agency is authorized to examine all
information provided by an offeror, contractor, or
subcontractor pursuant to paragraph (2)(A) 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 2 years
after the date of award of the contract, or 2 years after the
date of the modification of the contract, with respect to
which the information was provided.
``(4) Limitations on requests for data.--The Federal
Acquisition Regulation shall include reasonable limitations
on requests under this subsection for sales data relating to
commercial items.
``(5) Form of information.--In requesting information from
an offeror under this subsection, a contracting officer
shall, to the maximum extent practicable, limit the scope of
the request to include only information that is in the form
regularly maintained by the offeror in commercial operations.
``(6) Confidentiality.--Any information received under this
subsection that is exempt from disclosure under section
552(b) of title 5 shall not be disclosed by the Federal
Government.
``(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 head of the executive
agency 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 or 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 or 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, an executive agency shall
have the authority provided by section 304C(a)(2).
``(h) Required Regulations.--The Federal Acquisition
Regulation shall include regulations concerning the types of
information that offerors must submit for a contracting
officer to consider in determining whether the price of a
procurement to the Government is fair and reasonable when
certified cost or pricing data are not required to be
submitted under this section because the price of the
procurement to the United States is not expected to exceed
the applicable threshold amount set forth in subsection (a)
(as adjusted pursuant to paragraph (7) of such subsection).
Such information, at a minimum, shall include appropriate
information on the prices at which the same item or similar
items have previously been sold that is adequate for
evaluating the reasonableness of the price of a proposed
contract or subcontract for the procurement.
``(i) Definitions.--In this section:
``(1) Cost or pricing data.--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 term does not include
information that is judgmental, but does include the factual
information from which a judgment was derived.
``(2) Subcontract.--The term `subcontract' includes a
transfer of commercial items between divisions, subsidiaries,
or affiliates of a contractor or a subcontractor.
``(3) Commercial item.--The term `commercial item' has the
meaning provided such term by section 4(12) of the Office of
Federal Procurement Policy Act.''.
(b) Applicability.--Subsection (a) of section 304A of the
Office of Federal Procurement Policy Act, as added by
subsection (a), shall apply according to the provisions
thereof on and after the date of the enactment of this Act,
notwithstanding section 10001(b).
SEC. 1252. REPEAL OF OBSOLETE PROVISION.
Section 303E of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 253e) is repealed.
Subtitle C--Research and Development
SEC. 1301. RESEARCH PROJECTS.
(a) General Authority.--Section 2358 of title 10, United
States Code, is amended to read as follows:
``Sec. 2358. Research and development projects
``(a) Authority.--The Secretary of Defense or the Secretary
of a military department may engage in basic research,
applied research, advanced research, and development projects
that--
``(1) are necessary to the responsibilities of such
Secretary's department in the field of research and
development; and
``(2) either--
``(A) relate to weapon systems and other military needs; or
``(B) are of potential interest to the Department of
Defense.
``(b) Authorized Means.--The Secretary of Defense or the
Secretary of a military department may perform research and
development projects--
``(1) by contract, cooperative agreement, or grant, in
accordance with chapter 63 of title 31;
``(2) through one or more military departments;
``(3) by using employees and consultants of the Department
of Defense; or
``(4) by mutual agreement with the head of any other
department or agency of the Federal Government.
``(c) Requirement of Potential Department of Defense
Interest.--Funds appropriated to the Department of Defense or
to a military department may not be used to finance any
research project or study unless the project or study is, in
the opinion of the Secretary of Defense or the Secretary of
that military department, respectively, of potential interest
to the Department of Defense or to such military department,
respectively.
``(d) Additional Provisions Applicable to Cooperative
Agreements.--Additional authorities, conditions, and
requirements relating to certain cooperative agreements
authorized by this section are provided in section 2371 of
this title.''.
(b) Transactions Other Than Contracts and Grants.--Section
2371 of such title is amended to read as follows:
``Sec. 2371. Research projects: transactions other than
contracts and grants
``(a) Additional Forms of Transactions Authorized.--The
Secretary of Defense and the Secretary of each military
department may enter into transactions (other than contracts,
cooperative agreements, and grants) under the authority of
this subsection in carrying out basic, applied, and advanced
research projects. The authority under this subsection is in
addition to the authority provided in section 2358 of this
title to use contracts, cooperative agreements, and grants in
carrying out such projects.
``(b) Exercise of Authority by Secretary of Defense.--In
any exercise of the authority in subsection (a), the
Secretary of Defense shall act through the Advanced Research
Projects Agency or any other element of the Department of
Defense that the Secretary may designate.
``(c) Advance Payments.--The authority provided under
subsection (a) may be exercised without regard to section
3324 of title 31.
``(d) Recovery of Funds.--(1) A cooperative agreement for
performance of basic, applied, or advanced research
authorized by section 2358 of this title and a transaction
authorized by subsection (a) may include a clause that
requires a person or other entity to make payments to the
Department of Defense or any other department or agency of
the Federal Government as a condition for receiving support
under the agreement or other transaction.
``(2) The amount of any payment received by the Federal
Government pursuant to a requirement imposed under paragraph
(1) may be credited, to the extent authorized by the
Secretary of Defense, to the appropriate account established
under subsection (f). Amounts so credited shall be merged
with other funds in the account and shall be available for
the same purposes and the same period for which other funds
in such account are available.
``(e) Conditions.--The Secretary of Defense shall ensure
that--
``(1) to the maximum extent practicable, no cooperative
agreement containing a clause under subsection (d) and no
transaction entered into under subsection (a) provides for
research that duplicates research being conducted under
existing programs carried out by the Department of Defense;
``(2) to the extent that the Secretary determines
practicable, the funds provided by the Government under a
cooperative agreement containing a clause under subsection
(d) or a transaction authorized by subsection (a) do not
exceed the total amount provided by other parties to the
cooperative agreement or other transaction; and
``(3) a cooperative agreement containing a clause under
subsection (d) or a transaction authorized under subsection
(a) is used for a research project only when the use of a
standard contract, grant, or cooperative agreement for such
project is not feasible or appropriate.
``(f) Support Accounts.--There is hereby established on the
books of the Treasury separate accounts for each of the
military departments and the Advanced Research Projects
Agency for support of research projects and development
projects provided for in cooperative agreements containing a
clause under subsection (d) and research projects provided
for in transactions entered into under subsection (a). Funds
in those accounts shall be available for the payment of such
support.
``(g) Regulations.--The Secretary of Defense shall
prescribe regulations to carry out this section.
``(h) Annual Report.--Not later than 60 days after the end
of each fiscal year, the Secretary of Defense shall submit to
the Committees on Armed Services of the Senate and House of
Representatives a report on all cooperative agreements
entered into under section 2358 of this title during such
fiscal year that contain a clause authorized by subsection
(d) and on all transactions entered into under subsection (a)
during such fiscal year. The report shall contain, with
respect to each such cooperative agreement and transaction,
the following:
``(1) A general description of the cooperative agreement or
other transaction (as the case may be), including the
technologies for which research is provided for under such
agreement or transaction.
``(2) The potential military and, if any, commercial
utility of such technologies.
``(3) The reasons for not using a contract or grant to
provide support for such research.
``(4) The amount of the payments, if any, that were
received by the Federal Government during the fiscal year
covered by the report pursuant to a clause included in such
cooperative agreement or other transaction pursuant to
subsection (d).
``(5) The amount of the payments reported under paragraph
(4), if any, that were credited to each account established
under subsection (f).
``(i) Cooperative Research and Development Agreements Under
Stevenson-Wydler Technology Innovation Act of 1980.--The
Secretary of Defense, in carrying out research projects
through the Advanced Research Projects Agency, and the
Secretary of each military department, in carrying out
research projects, may permit the director of any federally
funded research and development center to enter into
cooperative research and development agreements with any
person, any agency or instrumentality of the United States,
any unit of State or local government, and any other entity
under the authority granted by section 12 of the Stevenson-
Wydler Technology Innovation Act of 1980 (15 U.S.C. 3710a).
Technology may be transferred to a non-Federal party to such
an agreement consistent with the provisions of sections 11
and 12 of such Act (15 U.S.C. 3710, 3710a).''.
(c) Clerical Amendments.--The table of sections at the
beginning of chapter 139 of such title is amended--
(1) by striking out the item relating to section 2358 and
inserting in lieu thereof the following:
``2358. Research and development projects.'';
and
(2) by striking out the item relating to section 2371 and
inserting in lieu thereof the following:
``2371. Research projects: transactions other than contracts and
grants.''.
Subtitle D--Procurement Protests
PART I--PROTESTS TO THE COMPTROLLER GENERAL
SEC. 1401. PROTEST DEFINED.
(a) In General.--Paragraph (1) of section 3551 of title 31,
United States Code, is amended to read as follows:
``(1) The term `protest' means a written objection by an
interested party to any of the following:
``(A) A solicitation or other request by a Federal agency
for offers for a contract for the procurement of property or
services.
``(B) The cancellation of such a solicitation or other
request.
``(C) An award or proposed award of such a contract.
``(D) 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) Technical Amendments.--Section 3551 of such title is
further amended--
(1) in paragraph (2)--
(A) by inserting ``The term'' after ``(2)''; and
(B) by striking out ``; and'' and inserting in lieu thereof
a period; and
(2) in paragraph (3), by inserting ``The term'' after
``(3)''.
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 ``20 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 authorization for contract performance to proceed
was not withheld 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 ``125 days after'';
(2) in paragraph (2), by striking out ``45 calendar days
from'' and inserting ``65 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 made, 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) Section 3554 of
title 31, United States Code, is amended 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 days
after the end of such 60-day period.''.
(2) Subsection (c) of such section is amended to read as
follows:
``(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
attorneys' fees and consultant and expert witness fees; and
``(B) bid and proposal preparation.
``(2) No party (other than a small business concern (within
the meaning of section 3(a) of the Small Business Act)) may
be paid, pursuant to a recommendation made under the
authority of paragraph (1)--
``(A) costs for consultant and expert witness fees that
exceed the highest rate of compensation for expert witnesses
paid by the Federal Government; or
``(B) costs for attorneys' fees that exceed $150 per hour
unless the agency determines, based on the recommendation of
the Comptroller General on a case by case basis, that an
increase in the cost of living or a special factor, such as
the limited availability of qualified attorneys for the
proceedings involved, justifies a higher fee.
``(3) 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; 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.
``(4) 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.''.
(3) Subsection (e) of such section is amended to read as
follows:
``(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 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.''.
(4) Costs 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.
(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) Information referred to in subparagraph (A) is
procurement sensitive information, trade secrets, or other
proprietary or confidential research, development, or
commercial information.
``(C) A protective order under this paragraph shall not be
considered to authorize the withholding of any document or
information from 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 before the period at the end of the
third sentence the following: ``, including the authority to
revoke a delegation of authority with respect to a particular
contract after award of the contract, except that the
Administrator may revoke a delegation of authority 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.--Section 111(f) of
the Federal Property and Administrative Services Act of 1949
(40 U.S.C. 759(f)) is amended--
(1) in paragraph (2)(B)--
(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 unless the board determines such action is not in
the best interests of the United States.''; and
(2) 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 or, in the
case of a request for debriefing under the provisions of
section 2305(b)(5) of title 10, United States Code, or
section 303B(e) of this Act, within 5 days after the later of
the date of the filing of the protest or the date of the
debriefing.''.
(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 or pursued in bad faith; or
``(iii) does not state on its face a valid basis for
protest.''.
SEC. 1435. AWARD OF COSTS.
(a) Award.--Section 111(f)(5) of the Federal Property and
Administration Services Act of 1949 (40 U.S.C. 759(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 attorneys' fees and consultant and
expert witness fees), and bid and proposal preparation.
However, no party (other than a small business concern
(within the meaning of section 3(a) of the Small Business
Act)) may be declared entitled to costs for consultants and
expert witness fees that exceed the highest rate of
compensation for expert witnesses paid by the Federal
Government, and no party may be declared entitled to
attorneys' fees that exceed $150 per hour unless the board,
on a case by case basis, determines that an increase in the
cost of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings
involved, justifies a higher fee.''.
(b) Definition of Prevailing Party.--Section 111(f)(9) of
such Act (40 U.S.C. 759(f)(9)) is amended by adding at the
end the following:
``(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. 1436. DISMISSAL AGREEMENTS.
Section 111(f)(5) of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 759(f)(5)), as
amended by section 1435, is further 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 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 further amended--
(1) by inserting after paragraph (6) 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
cause the closing of the board 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 been brought or pursued in bad 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.''; and
(2) by striking out paragraph (8).
SEC. 1438. DEFINITION OF 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 ``subsection--'' and inserting in lieu
thereof ``subsection:'';
(2) by striking out subparagraph (A) and inserting in lieu
thereof the following:
``(A) The term `protest' means a written objection by an
interested party to any of the following:
``(i) A solicitation or other request by a Federal agency
for offers for a contract for the procurement of property or
services.
``(ii) The cancellation of such a solicitation or other
request.
``(iii) An award or proposed award of such a contract.
``(iv) 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.''; and
(3) by capitalizing the first letter of the first word in
subparagraph (B).
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) Data Collection.--(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
contract for such a 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) Whether compatibility restrictions were used in
awarding the contract.
``(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--
``(A) shall carry out a systematic, periodic review of
information received under this subsection;
``(B) shall use such information, as appropriate, to
determine the compliance of Federal agencies with the
requirements of this section; and
``(C) may take appropriate corrective action regarding an
agency's authority to lease and purchase automatic data
processing equipment upon any substantial failure by the head
of the agency to report to the Administrator in accordance
with this subsection.
``(4) The Administrator shall take appropriate corrective
action upon failure of a Federal agency to comply with the
terms of any delegation of authority to lease or purchase
automatic data processing equipment or failure to comply with
any applicable law or regulation.
``(5) The Administrator shall require in the regulations
implementing this subsection that (A) data collected pursuant
to this subsection be drawn from existing Federal agency
information; and (B) no new or additional information
reporting requirements may be imposed on offerors or
contractors to collect such data.''.
Subtitle E--Policy, Definitions, and Other Matters
PART I--ARMED SERVICES ACQUISITIONS
SEC. 1501. REPEAL OF POLICY STATEMENT.
(a) Repeal.--Section 2301 of title 10, United States Code,
is repealed.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 137 of such title is amended by striking
out the item relating to section 2301.
SEC. 1502. DEFINITIONS.
Section 2302 of title 10, United States Code, is amended--
(1) by striking out paragraph (3) and inserting in lieu
thereof the following:
``(3) The following terms have the meanings provided such
terms in section 4 of the Office of Federal Procurement
Policy Act (41 U.S.C. 403):
``(A) The term `procurement'.
``(B) The term `procurement system'.
``(C) The term `standards'.
``(D) The term `full and open competition'.
``(E) The term `responsible source'.
``(F) The term `item'.
``(G) The term `item of supply'.
``(H) The term `supplies'.
``(I) The term `commercial item'.
``(J) The term `nondevelopmental item'.
``(K) The term `commercial component'
``(L) The term `component'.''; and
(2) by striking out paragraph (7) and inserting in lieu
thereof the following new paragraph (7):
``(7) The term `simplified acquisition threshold' has the
meaning provided that term in section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403), except that,
in the case of any contract to be awarded and performed, or
purchase to be made, outside the United States in support of
a contingency operation, the term means an amount equal to
two times the amount specified for that term in section 4 of
such Act.''.
SEC. 1503. DELEGATION OF PROCUREMENT FUNCTIONS.
(a) Consolidation of Delegation Authority.--(1) Section
2311 of title 10, United States Code, is amended to read as
follows:
``Sec. 2311. Assignment and delegation of procurement
functions and responsibilities
``(a) In General.--Except to the extent expressly
prohibited by another provision of law, the head of an agency
may delegate, subject to his direction, to any other officer
or official of that agency, any power under this chapter.
``(b) Procurements For or With Other Agencies.--Subject to
subsection (a), to facilitate the procurement of property and
services covered by this chapter by each agency named in
section 2303 of this title for any other agency, and to
facilitate joint procurement by those agencies--
``(1) the head of an agency may delegate functions and
assign responsibilities relating to procurement to any
officer or employee within such agency;
``(2) the heads of two or more agencies may by agreement
delegate procurement functions and assign procurement
responsibilities from one agency to another of those agencies
or to an officer or civilian employee of another of those
agencies; and
``(3) the heads of two or more agencies may create joint or
combined offices to exercise procurement functions and
responsibilities.
``(c) Approval of Terminations and Reductions of Joint
Acquisition Programs.--(1) The Secretary of Defense shall
prescribe regulations that prohibit each military department
participating in a joint acquisition program approved by the
Under Secretary of Defense for Acquisition and Technology
from terminating or substantially reducing its participation
in such program without the approval of the Under Secretary.
``(2) The regulations shall include the following
provisions:
``(A) A requirement that, before any such termination or
substantial reduction in participation is approved, the
proposed termination or reduction be reviewed by the Joint
Requirements Oversight Council of the Department of Defense.
``(B) A provision that authorizes the Under Secretary of
Defense for Acquisition and Technology to require a military
department whose participation in a joint acquisition program
has been approved for termination or substantial reduction to
continue to provide some or all of the funding necessary for
the acquisition program to be continued in an efficient
manner.''.
(2) The table of sections at the beginning of chapter 137
of such title is amended by striking out the item relating to
section 2311 and inserting in lieu thereof the following:
``2311. Assignment and delegation of procurement functions and
responsibilities.''.
(b) Conforming Repeal.--(1) Section 2308 of title 10,
United States Code, is repealed.
(2) The table of sections at the beginning of chapter 137
of such title is amended by striking out the item related to
section 2308.
SEC. 1504. DETERMINATIONS AND DECISIONS.
Section 2310 of title 10, United States Code, is amended to
read as follows:
``Sec. 2310. Determinations and decisions
``(a) Individual or Class Determinations and Decisions
Authorized.--Determinations and decisions required to be made
under this chapter by the head of an agency may be made for
an individual purchase or contract or, except to the extent
expressly prohibited by another provision of law, for a class
of purchases or contracts. Such determinations and decisions
are final.
``(b) Written Findings Required.--(1) Each determination or
decision under section 2306(g)(1), 2307(d), or 2313(c)(2)(B)
of this title 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) is final.
The head of the agency 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. 1505. RESTRICTIONS ON UNDEFINITIZED CONTRACTUAL ACTIONS.
(a) Clarification of Limitation.--Subsection (b) of section
2326 of title 10, United States Code, is amended--
(1) in the subsection heading, by striking out ``and
Expenditure'';
(2) in paragraph (1)(B), by striking out ``or expended'';
(3) in paragraph (2), by striking out ``expend'' and
inserting in lieu thereof ``obligate''; and
(4) in paragraph (3)--
(A) by striking out ``expended'' and inserting in lieu
thereof ``obligated''; and
(B) by striking out ``expend'' and inserting in lieu
thereof ``obligate''.
(b) Waiver Authority.--Such subsection is further amended--
(1) by redesignating paragraph (4) as paragraph (5); and
(2) by inserting after paragraph (3) the following new
paragraph (4):
``(4) The head of an agency may waive the provisions of
this subsection with respect to a contract of that agency if
such head of an agency determines that the waiver is
necessary in order to support a contingency operation.''.
(c) Inapplicability of Restrictions to Contracts Within the
Simplified Acquisition Threshold.--Subsection (g)(1)(B) of
such section is amended by striking out ``small purchase
threshold'' and inserting in lieu thereof ``simplified
acquisition threshold''.
SEC. 1506. REPEAL OF REQUIREMENT RELATING TO PRODUCTION
SPECIAL TOOLING AND PRODUCTION SPECIAL TEST
EQUIPMENT.
(a) Repeal.--Section 2329 of title 10, United States Code,
is repealed.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 137 of such title is amended by striking
out the item related to section 2329.
SEC. 1507. REGULATIONS FOR BIDS.
Section 2381(a) of title 10, United States Code, is amended
by striking out ``(a) The Secretary'' and all that follows
through the end of paragraph (1) and inserting in lieu
thereof the following:
``(a) The Secretary of Defense may--
``(1) prescribe regulations for the preparation,
submission, and opening of bids for contracts; and''.
PART II--CIVILIAN AGENCY ACQUISITIONS
SEC. 1551. DEFINITIONS.
Section 309 of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 259) is amended by striking
out subsection (c) and inserting in lieu thereof the
following:
``(c) The following terms have the meanings provided such
terms in section 4 of the Office of Federal Procurement
Policy Act (41 U.S.C. 403):
``(1) The term `procurement'.
``(2) The term `procurement system'.
``(3) The term `standards'.
``(4) The term `full and open competition'.
``(5) The term `responsible source'.
``(6) The term `technical data'.
``(7) The term `major system'.
``(8) The term `item'.
``(9) The term `item of supply'.
``(10) The term `supplies'.
``(11) The term `commercial item'.
``(12) The term `nondevelopmental item'.
``(13) The term `commercial component'
``(14) The term `component'.
``(d) The term `simplified acquisition threshold' has the
meaning provided that term in section 4 of the Office of
Federal Procurement Policy Act (41 U.S.C. 403), except that,
in the case of any contract to be awarded and performed, or
purchase to be made, outside the United States in support of
a contingency operation, the term means an amount equal to
two times the amount specified for that term in section 4 of
such Act.
``(e) The term `Federal Acquisition Regulation' means the
Federal Acquisition Regulation issued pursuant to section
25(c)(1) of the Office of Federal Procurement Policy Act (41
U.S.C. 421(c)(1)).''.
SEC. 1552. DELEGATION OF PROCUREMENT FUNCTIONS.
Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.) is amended by
adding at the end the following new section:
``SEC. 311. ASSIGNMENT AND DELEGATION OF PROCUREMENT
FUNCTIONS AND RESPONSIBILITIES.
``(a) In General.--Except to the extent expressly
prohibited by another provision of law, the head of an
executive agency may delegate 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) the head of an executive agency may delegate
functions and assign responsibilities relating to procurement
to any officer or employee within such agency;
``(2) the heads of two or more executive agencies may by
agreement delegate procurement functions and assign
procurement responsibilities, consistent with section 1535 of
title 31, United States Code, and regulations issued under
section 1074 of the Federal Acquisition Streamlining Act of
1994, 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
establish joint or combined offices to exercise procurement
functions and responsibilities.''.
SEC. 1553. DETERMINATIONS AND DECISIONS.
Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.), as amended by
section 1552, is further amended by adding at the end the
following new section:
``SEC. 312. DETERMINATIONS AND DECISIONS.
``(a) Individual or Class Determinations and Decisions
Authorized.--Determinations and decisions required to be made
under this title by the head of an executive agency may be
made for an individual purchase or contract or, except to the
extent expressly prohibited by another provision of law, for
a class of purchases or contracts. Such determinations and
decisions are final.
``(b) Written Findings Required.--(1) Each determination
under section 305(d) or section 304C(c)(2)(B) 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) is final.
``(3) The head of an executive agency shall maintain for a
period of not less than 6 years a copy of each finding
referred to in paragraph (1) that is made by a person in that
executive agency. The period begins on the date of the
determination or decision to which the finding relates.''.
SEC. 1554. REPEAL OF PREFERENCE FOR RECYCLED TONER
CARTRIDGES.
The following provisions of law, relating to a preference
for procurement of recycled toner cartridges, are repealed:
(1) Section 630 of Public Law 102-393 (106 Stat. 1773) and
the provision of law enclosed in quotation marks in that
section (42 U.S.C. 6962(j)).
(2) Section 401 of Public Law 103-123 (107 Stat. 1238; 42
U.S.C. 6962 note).
SEC. 1555. 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 of the General Services
Administration 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 Commonwealth of Puerto Rico.
``(iii) 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.
``(C) In any case in which an entity listed in subparagraph
(A) uses a Federal supply schedule, the Administrator may
require the entity to reimburse the General Services
Administration for any administrative costs of using the
schedule.
``(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 (41 U.S.C. 46 et seq.), 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.''.
TITLE II--CONTRACT ADMINISTRATION
Subtitle A--Contract Payment
PART I--ARMED SERVICES ACQUISITIONS
SEC. 2001. CONTRACT FINANCING.
(a) Reorganization of Principal Authority Provision.--
Section 2307 of title 10, United States Code, is amended--
(1) by striking out the section heading and inserting in
lieu thereof the following:
``Sec. 2307. Contract financing'';
(2) by inserting ``Payment Authority.--'' after ``(a)'' in
subsection (a);
(3) by inserting ``Payment Amount.--'' after ``(b)'' in
subsection (b);
(4) by inserting ``Security for Advance Payments.--'' after
``(c)'' in subsection (c);
(5) by inserting ``Conditions for Progress Payments.--''
after ``(d)'' in subsection (d);
(6) by inserting ``Action in Case of Fraud.--'' after
``(e)'' in subsection (e); and
(7) by redesignating subsections (b), (c), (d), and (e) as
subsections (c), (d), (e), and (h), respectively.
(b) Performance-Based Payments.--Such section, as amended
by subsection (a), is further amended by inserting after
subsection (a) the following new subsection (b):
``(b) Performance-Based Payments.--Whenever practicable,
payments under subsection (a) shall be made on any of the
following bases:
``(1) Performance measured by objective, quantifiable
methods such as delivery of acceptable items, work
measurement, or statistical process controls.
``(2) Accomplishment of events defined in the program
management plan.
``(3) Other quantifiable measures of results.''.
(c) Terminology Correction.--Subsection (a)(2) of such
section is amended by striking out ``bid''.
(d) Effective Date of Lien Related to Advance Payments.--
Such section, as amended by subsection (a)(7), is further
amended in subsection (d) by inserting before the period at
the end of the third sentence the following: ``and is
effective immediately upon the first advancement of funds
without filing, notice, or any other action by the United
States''.
(e) Conditions for Progress Payments.--Such section, as
amended by subsection (a)(7), is further amended in
subsection (e)--
(1) in the first sentence of paragraph (1), by striking out
``work, which'' and all that follows through ``accomplished''
and inserting in lieu thereof ``work accomplished that meets
standards established under the contract''; and
(2) by striking out paragraph (3) and inserting in lieu
thereof the following:
``(3) This subsection applies to any contract in an amount
greater than $25,000.''.
(f) Conditions for Payments for Commercial Items.--Such
section, as amended by subsection (a)(7), is further amended
by inserting after subsection (e) the following new
subsection (f):
``(f) Conditions for Payments for Commercial Items.--(1)
Payments under subsection (a) for commercial items may be
made under such terms and conditions as the head of the
agency determines are appropriate or customary in the
commercial marketplace and are in the best interests of the
United States. 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 (d) and (e) need not be
applied if they would be inconsistent, as determined by the
head of the agency, with commercial terms and conditions
pursuant to paragraphs (1) and (2).''.
(g) Navy Contracts.--Such section, as amended by subsection
(f), is further amended by inserting after subsection (f) the
following new subsection (g):
``(g) Certain Navy Contracts.--(1) The Secretary of the
Navy shall provide that the rate for progress payments on any
contract awarded by the Secretary for repair, maintenance, or
overhaul of a naval vessel shall be not less than--
``(A) 95 percent, in the case of a firm considered to be a
small business; and
``(B) 90 percent, in the case of any other firm.
``(2) The Secretary of the Navy may advance to private
salvage companies such funds as the Secretary considers
necessary to provide for the immediate financing of salvage
operations. Advances under this paragraph shall be made on
terms that the Secretary considers adequate for the
protection of the United States.
``(3) The Secretary of the Navy shall provide, in each
contract for construction or conversion of a naval vessel,
that, when partial, progress, or other payments are made
under such contract, the United States is secured by a lien
upon work in progress and on property acquired for
performance of the contract on account of all payments so
made. The lien is paramount to all other liens.''.
(h) Relationship To Prompt Payment Requirements.--The
amendments made by this section are 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 (as such procedures are in
effect on the date of the enactment of this Act), except that
the Government may accept payment terms offered by a
contractor offering a commercial item.
(i) Clerical Amendment.--The table of sections at the
beginning of chapter 137 of title 10, United States Code, is
amended by striking out the item relating to section 2307 and
inserting in lieu thereof the following:
``2307. Contract financing.''.
(j) Repeal of Superseded Provisions.--(1) Sections 7312,
7364, and 7521 of title 10, United States Code, are repealed.
(2) Section 7522 of such title is amended--
(A) by striking out subsection (b); and
(B) by redesignating subsection (c) as subsection (b).
(3) Chapters 633, 637, and 645 of such title are amended by
striking out items in the tables of sections for such
chapters as follows:
(A) For chapter 633, the item relating to section 7312.
(B) For chapter 637, the item relating to section 7364.
(C) For chapter 645, the item relating to section 7521.
SEC. 2002. REPEAL OF VOUCHERING PROCEDURES SECTION.
(a) Repeal.--Section 2355 of title 10, United States Code,
is repealed.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 139 of such title is amended by striking
out the item relating to section 2355.
PART II--CIVILIAN AGENCY ACQUISITIONS
SEC. 2051. CONTRACT FINANCING.
(a) Reorganization of Principal Authority Provision.--
Section 305 of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 255) is amended--
(1) by striking out the section heading and the section
designation and inserting in lieu thereof the following:
``SEC. 305. CONTRACT FINANCING.'';
(2) by inserting ``Payment Authority.--'' after ``(a)'' in
subsection (a);
(3) by inserting ``Payment Amount.--'' after ``(b)'' in
subsection (b);
(4) by inserting ``Security for Advance Payments.--'' after
``(c)'' in subsection (c); and
(5) by redesignating subsections (b) and (c) as subsections
(c) and (d), respectively.
(b) Performance-Based Payments.--Such section, as amended
by subsection (a), is further amended by inserting after
subsection (a) the following new subsection (b):
``(b) Performance-Based Payments.--Whenever practicable,
payments under subsection (a) shall be made on any of the
following bases:
``(1) Performance measured by objective, quantifiable
methods such as delivery of acceptable items, work
measurement, or statistical process controls.
``(2) Accomplishment of events defined in the program
management plan.
``(3) Other quantifiable measures of results.''.
(c) Terminology Correction.--Subsection (a)(2) of such
section is amended by striking out ``bid''.
(d) Effective Date of Lien Related to Advance Payments.--
Such section, as amended by subsection (a)(5), is further
amended in subsection (d) by inserting before the period at
the end of the third sentence the following: ``and is
effective immediately upon the first advancement of funds
without filing, notice, or any other action by the United
States''.
(e) Revision of Civilian Agency Provision To Ensure Uniform
Requirements for Progress Payments.--Such section is further
amended by adding at the end the following new subsections:
``(e) Conditions for Progress Payments.--(1) The executive
agency 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
executive agency determines necessary to permit the executive
agency to carry out the preceding sentence.
``(2) The executive agency 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 executive agency has not made the contractual
terms, specifications, and price definite.
``(3) This subsection applies to any contract in an amount
greater than $25,000.
``(f) Conditions for Payments for Commercial Items.--(1)
Payments under subsection (a) for commercial items may be
made under such terms and conditions as the head of the
executive agency determines are appropriate or customary in
the commercial marketplace and are in the best interests of
the United States. The head of the executive 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 (d) and (e) need not be
applied if they would be inconsistent, as determined by the
head of the executive agency, with commercial terms and
conditions pursuant to paragraphs (1) and (2).''.
``(g) 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
executive agency reduce or suspend further payments to such
contractor.
``(2) The head of an executive agency 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 head of the executive agency may reduce or suspend
further payments to the contractor under such contract.
``(3) The extent of any reduction or suspension of payments
by an executive agency 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 head
of an executive agency whether to reduce or suspend payments
under paragraph (2), and for each recommendation received by
the executive agency in connection with such decision, shall
be prepared and be retained in the files of the executive
agency.
``(5) The head of each executive agency shall prescribe
procedures to ensure that, before the head of the executive
agency 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 executive agency in
response to such proposed reduction or suspension.
``(6) Not later than 180 days after the date on which the
head of an executive agency 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 head of such
executive agency whether the suspension or reduction should
continue.
``(7) The head of each executive agency 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) The head of an executive agency 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.''.
(f) Relationship to Prompt Payment Requirements.--The
amendments made by this section are 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 (as such procedures are in
effect on the date of the enactment of this Act), except that
the Government may accept payment terms offered by a
contractor offering a commercial item.
PART III--ACQUISITIONS GENERALLY
SEC. 2091. GOVERNMENT-WIDE APPLICATION OF PAYMENT PROTECTIONS
FOR SUBCONTRACTORS AND SUPPLIERS.
Section 806 of the National Defense Authorization Act for
Fiscal Years 1992 and 1993 (Public Law 102-190; 10 U.S.C.
2301 note) is amended by striking out subsection (c) and
inserting in lieu thereof the following:
``(c) Government-Wide Applicability.--The Federal
Acquisition Regulatory Council (established by section 25(a)
of the Office of Federal Procurement Policy Act) shall modify
the Federal Acquisition Regulation (issued pursuant to
section 25(c)(1) of the Office of Federal Procurement Policy
Act (41 U.S.C. 421(c)(1)) to apply Government-wide the
requirements that the Secretary is required under subsection
(a) to prescribe in regulations applicable with respect to
the Department of Defense contracts.''.
Subtitle B--Cost Principles
PART I--ARMED SERVICES ACQUISITIONS
SEC. 2101. ALLOWABLE CONTRACT COSTS.
(a) Extension of Coverage to Coast Guard and NASA; Other
Miscellaneous Amendments.--Section 2324 of title 10, United
States Code, is amended as follows:
(1) Subsection (a) is amended--
(A) by inserting after ``(a)'' the following: ``Indirect
Cost That Violates a FAR Cost Principle.--'';
(B) by striking out ``Secretary of Defense'' and inserting
in lieu thereof ``head of an agency'';
(C) by striking out ``Department of Defense'' and inserting
in lieu thereof ``agency''; and
(D) by striking out ``the Department of Defense
Supplement'' and inserting in lieu thereof ``applicable
agency supplement''.
(2) Subsection (b) is amended--
(A) by inserting after ``(b)'' the following: ``Penalty for
Violation of Cost Principle.--'';
(B) in subparagraph (B) of paragraph (1) by striking out
``regulations issued by the Secretary'' and inserting in lieu
thereof ``provisions in the Federal Acquisition Regulation'';
and
(C) by striking out ``Secretary'' each place it appears
and inserting in lieu thereof ``head of the agency''.
(3) Subsection (c) is amended--
(A) by inserting after ``(c)'' the following: ``Waiver of
Penalty.--''; and
(B) by striking out ``The Secretary shall prescribe
regulations providing'' in the first sentence and inserting
in lieu thereof ``The Federal Acquisition Regulation shall
provide''.
(4) Subsection (d) is amended--
(A) by inserting after ``(d)'' the following:
``Applicability of Contract Disputes Procedure to
Disallowance of Cost and Assessment of Penalty.--''; and
(B) by striking out ``the Secretary'' and inserting in lieu
thereof ``the head of an agency''.
(5) Subsection (e) is amended--
(A) by inserting after ``(e)'' the following: ``Specific
Costs Not Allowable.--'';
(B) in subparagraph (D) of paragraph (1), by striking out
``regulations of the Secretary of Defense'' and inserting in
lieu thereof ``provisions of the Federal Acquisition
Regulation'';
(C) in subparagraph (M) of paragraph (1), by striking out
``regulations prescribed by the Secretary of Defense'' and
inserting in lieu thereof ``the Federal Acquisition
Regulation'';
(D) in subparagraph (A) of paragraph (2), by inserting ``of
Defense'' after ``Secretary'' the first place it occurs;
(E) in subparagraph (C) of paragraph (2), by striking out
``head of the agency'' in the first sentence and inserting in
lieu thereof ``Secretary of Defense'';
(F) in subparagraph (A) of paragraph (3), by striking out
``regulations prescribed by the Secretary'' and inserting in
lieu thereof ``the Federal Acquisition Regulation''; and
(G) by amending paragraph (4) to read as follows:
``(4) The provisions of the Federal Acquisition Regulation
implementing this section may establish appropriate
definitions, exclusions, limitations, and qualifications.''.
(6) Subsection (f) is amended--
(A) in paragraph (1)--
(i) by striking out ``(1)'' and all that follows through
``The amendments'' and inserting in lieu thereof the
following: ``Required Regulations.--(1) The Federal
Acquisition Regulation shall contain provisions on the
allowability of contractor costs. Such provisions'', and
(ii) by striking out ``These regulations'' and inserting in
lieu thereof ``The regulations''; and
(B) in paragraphs (2), (3), and (4)--
(i) by striking out ``defense'' before ``contract auditor''
each place it appears, and
(ii) by striking out ``regulation'' each place it appears
and inserting in lieu thereof ``Federal Acquisition
Regulation''.
(7) Subsection (g) is amended to read as follows:
``(g) Applicability of Regulations to Subcontractors.--The
regulations referred to in subsections (e) and (f)(1) shall
require prime contractors of a covered contract, to the
maximum extent practicable, to apply the provisions of such
regulations to all subcontractors of the covered contract.''.
(8) Subsection (h) is amended--
(A) by inserting after ``(h)'' the following: ``Contractor
Certification Required.--'';
(B) by striking out ``by the Secretary'' in paragraph (1)
and inserting in lieu thereof ``in the Federal Acquisition
Regulation''; and
(C) by striking out ``Secretary of Defense'' in paragraph
(2) and inserting in lieu thereof ``head of the agency''.
(9) Subsection (i) is amended by striking out ``The
submission to the Department of Defense'' and inserting in
lieu thereof ``Penalties for Submission of Cost Known as Not
Allowable.--The submission to an agency''.
(10) Subsection (j) is amended--
(A) by inserting after ``(j)'' the following: ``Contractor
To Have Burden of Proof.--''; and
(B) by striking out ``United States Claims Court'' and
inserting in lieu thereof ``United States Court of Federal
Claims''.
(11) Subsection (k) is amended--
(A) by inserting after ``(k)'' the following: ``Proceeding
Costs Not Allowable.--'';
(B) in paragraph (2), by striking out ``decision by the
Department of Defense--'' and inserting in lieu thereof
``decision--''; and
(C) in paragraph (4)--
(i) by inserting after ``head of the agency'' the
following: ``or Secretary of the military department
concerned'',
(ii) by striking out ``under regulations prescribed by such
agency head'' and inserting in lieu thereof ``in accordance
with the Federal Acquisition Regulation'',
(iii) by inserting ``or Secretary'' after ``agency head'',
and
(iv) by inserting before the period at the end the
following: ``or military department''.
(b) Unallowability of Costs To Influence Local Legislative
Bodies.--Subsection (e)(1)(B) of section 2324 of title 10,
United States Code, is amended by striking out ``or a State
legislature'' and inserting in lieu thereof ``, a State
legislature, or a legislative body of a political subdivision
of a State''.
(c) Clarification of Cost Principles.--Subsection (f)(1) of
such section is amended by adding at the end the following:
``(Q) Conventions.''.
(d) Covered Contract Defined.--Such section is further
amended by striking out subsections (l) and (m) and inserting
in lieu thereof the following:
``(l) Definitions.--In this section:
``(1)(A) The term `covered contract' means a contract for
an amount in excess of $500,000 that is entered into by the
head of an agency, except that such term does not include a
fixed-price contract without cost incentives or any firm
fixed-price contract for the purchase of commercial items.
``(B) Effective on October 1 of each year that is divisible
by five, the amount set forth in subparagraph (A) shall be
adjusted to the equivalent amount in constant fiscal year
1994 dollars. 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.
``(2) The term `head of the agency' or `agency head' does
not include the Secretary of a military department.
``(3) The term `agency' means the Department of Defense,
the Coast Guard, and the National Aeronautics and Space
Administration.''.
(e) Regulations.--The regulations of the Secretary of
Defense implementing section 2324 of title 10, United States
Code, shall remain in effect until the Federal Acquisition
Regulation is revised to implement the amendments made by
this section.
SEC. 2102. REPEAL OF AUTHORITY FOR CONTRACT PROFIT CONTROLS
DURING EMERGENCY PERIODS.
(a) Repeal.--Section 2382 of title 10, United States Code,
is repealed.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 141 of such title is amended by striking
out the item relating to section 2382.
PART II--CIVILIAN AGENCY ACQUISITIONS
SEC. 2151. ALLOWABLE CONTRACT COSTS.
Section 306 of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 256) is amended to read as
follows:
``SEC. 306. ALLOWABLE COSTS.
``(a) Indirect Cost That Violates a FAR Cost Principle.--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 (referred to
in section 25(c)(1) of the Office of Federal Procurement
Policy Act (41 U.S.C. 421(c)(1)) or an executive agency
supplement to the Federal Acquisition Regulation, the cost
shall be disallowed.
``(b) Penalty for Violation of Cost Principle.--(1) If the
executive agency 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 executive agency 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 executive agency 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
executive agency 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.--The Federal Acquisition
Regulation shall provide for a penalty under subsection (b)
to be waived 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 executive agency 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 (41 U.S.C. 606).
``(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, a
State legislature, or a legislative body of a political
subdivision of a State.
``(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, an executive
agency, in awarding a covered contract, may waive the
application of the provisions of paragraphs (1)(M) and (1)(N)
to that contract if the executive agency 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) An executive agency 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 executive agency will consider granting
such a waiver, and, if the executive agency will consider
granting a waiver, the criteria to be used in granting the
waiver.
``(C) An executive agency 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. Any
submission by a contractor of costs which are incurred by the
contractor and which are claimed to be allowable under
Department of Energy management and operating contracts shall
be considered a `proposal for settlement of indirect costs
incurred by the contractor for any period after such costs
have been accrued', as used in this section.
``(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.
``(Q) Conventions.
``(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 contract auditor on the
allowability of such costs.
``(3) The Federal Acquisition Regulation shall provide
that, to the maximum extent practicable, a 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 a
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 prime contractors of a covered contract, to the
maximum extent practicable, to apply the provisions of such
regulations to all subcontractors of the 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) An executive agency may, in an exceptional case,
waive the requirement for certification under paragraph (1)
in the case of any contract if the agency--
``(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 executive agency 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 executive agency
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 executive 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 firm, fixed price
contract for the purchase of commercial items.
``(2) Effective on October 1 of each year that is divisible
by five, the amount set forth in paragraph (1) shall be
adjusted to the equivalent amount in constant fiscal year
1994 dollars. 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.''.
PART III--ACQUISITIONS GENERALLY
SEC. 2191. TRAVEL EXPENSES OF GOVERNMENT CONTRACTORS.
Section 24 of the Office of Federal Procurement Policy Act
(41 U.S.C. 420) is repealed.
SEC. 2192. REVISION OF COST PRINCIPLE RELATING TO
ENTERTAINMENT, GIFT, AND RECREATION COSTS FOR
CONTRACTOR EMPLOYEES.
(a) Costs Not Allowable.--(1) The costs of gifts or
recreation for employees of a contractor or members of their
families that are provided by the contractor to improve
employee morale or performance or for any other purpose are
not allowable under a covered contract unless, within 120
days after the date of the enactment of this Act, the Federal
Acquisition Regulatory Council prescribes amendments to the
Federal Acquisition Regulation specifying circumstances under
which such costs are allowable under a covered contract.
(2) Not later than 90 days after the date of the enactment
of this Act, the Federal Acquisition Regulatory Council shall
amend the cost principle in the Federal Acquisition
Regulation that is set out in section 31.205-14 of title 48,
Code of Federal Regulations, relating to unallowability of
entertainment costs--
(A) by inserting in the cost principle a statement that
costs made specifically unallowable under that cost principle
are not allowable under any other cost principle; and
(B) by striking out ``(but see 31.205-1 and 31.205-13)''.
(b) Definitions.--In this section:
(1) The term ``employee'' includes officers and directors
of a contractor.
(2) The term ``covered contract'' has the meaning given
such term in section 2324(l) of title 10, United States Code
(as amended by section 2101(c)), and section 306(l) of the
Federal Property and Administrative Services Act of 1949 (as
added by section 2151).
(c) Effective Date.--Any amendments to the Federal
Acquisition Regulation made pursuant to subsection (a) shall
apply with respect to costs incurred after the date on which
the amendments made by section 2101 apply (as provided in
section 10001) or the date on which the amendments made by
section 2151 apply (as provided in section 10001), whichever
is later.
Subtitle C--Audit and Access to Records
PART I--ARMED SERVICES ACQUISITIONS
SEC. 2201. CONSOLIDATION AND REVISION OF AUTHORITY TO EXAMINE
RECORDS OF CONTRACTORS.
(a) Authority.--(1) Section 2313 of title 10, United States
Code, is amended to read as follows:
``Sec. 2313. Examination of records of contractor
``(a) Agency Authority.--(1) The head of an agency, acting
through an authorized representative, is authorized 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 agency under this chapter; and
``(B) a subcontractor performing any cost-reimbursement,
incentive, time-and-materials, labor-hour, or price-
redeterminable subcontract or any combination of such
subcontracts under a contract referred to in subparagraph
(A).
``(2) The head of an agency, acting through an authorized
representative, is authorized, for the purpose of evaluating
the accuracy, completeness, and currency of certified cost or
pricing data required to be submitted pursuant to section
2306a of this title with respect to a contract or
subcontract, 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) DCAA Subpoena Authority.--(1) The Director of the
Defense Contract Audit Agency (or any successor agency) may
require by subpoena the production of any records of a
contractor that the Secretary of Defense is authorized to
audit or examine under subsection (a).
``(2) Any such subpoena, in the case of contumacy or
refusal to obey, shall be enforceable by order of an
appropriate United States district court.
``(3) The authority provided by paragraph (1) may not be
redelegated.
``(4) The Director (or any successor official) shall submit
an annual report to the Secretary of Defense on the exercise
of such authority during the preceding year and the reasons
why such authority was exercised in any instance. The
Secretary shall forward a copy of each such report to the
Committees on Armed Services of the Senate and House of
Representatives.
``(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
authorized 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 head of the agency 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 head of the agency 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 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.
``(e) Limitation.--The authority of the head of an agency
under subsection (a), and the authority 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.
``(f) Inapplicability to Certain Contracts.--This section
does not apply to the following contracts:
``(1) Contracts for utility services at rates not exceeding
those established to apply uniformly to the public, plus any
applicable reasonable connection charge.
``(g) 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.
``(h) 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.
``(i) 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.''.
(2) The item relating to such section in the table of
sections at the beginning of chapter 137 of title 10, United
States Code, is amended to read as follows:
``2313. Examination of records of contractor.''.
(b) Repeal of Superseded Provision.--(1) Section 2406 of
title 10, United States Code, is repealed.
(2) The table of sections at the beginning of chapter 141
of such title is amended by striking out the item relating to
section 2406.
PART II--CIVILIAN AGENCY ACQUISITIONS
SEC. 2251. AUTHORITY TO EXAMINE RECORDS OF CONTRACTORS.
(a) Authority.--Title III of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 251 et seq.),
as amended by sections 1072 and 1251(a), is further amended
by inserting after section 304B the following new section:
``SEC. 304C. EXAMINATION OF RECORDS OF CONTRACTOR.
``(a) Agency Authority.--(1) The head of an executive
agency, acting through an authorized representative, is
authorized 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 or any combination of such
subcontracts under a contract referred to in subparagraph
(A).
``(2) The head of an executive agency, acting through an
authorized representative, is authorized, for the purpose of
evaluating the accuracy, completeness, and currency of
certified cost or pricing data required to be submitted
pursuant to section 304B with respect to a contract or
subcontract, 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) Subpoena Power.--(1) The Inspector General of an
executive agency appointed under section 3 or 8G of the
Inspector General Act of 1978 (5 U.S.C. App.) or, upon
request of the head of an executive agency, the Director of
the Defense Contract Audit Agency (or any successor agency)
of the Department of Defense or the Inspector General of the
General Services Administration may require by subpoena the
production of records of a contractor, access to which is
provided for that executive agency by subsection (a).
``(2) Any such subpoena, in the case of contumacy or
refusal to obey, shall be enforceable by order of an
appropriate United States district court.
``(3) The authority provided by paragraph (1) may not be
delegated.
``(4) In the year following a year in which authority
provided in paragraph (1) is exercised for an executive
agency, the head of the executive agency shall submit to the
Committee on Governmental Affairs of the Senate and the
Committee on Government Operations of the House of
Representatives a report on the exercise of such authority
during such preceding year and the reasons why such authority
was exercised in any instance.
``(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
authorized 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 executive agency 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 executive agency 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 on Preaward Audits Relating to Indirect
Costs.--An executive 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 title 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.
``(e) Limitation.--The authority of an executive agency
under subsection (a), and the authority 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.
``(f) Inapplicability to Certain Contracts.--This section
does not apply to the following contracts:
``(1) Contracts for utility services at rates not exceeding
those established to apply uniformly to the public, plus any
applicable reasonable connection charge.
``(g) Form of Original Record Storage.--Nothing in this
section shall be construed to preclude a contractor from
duplicating or storing original records in electronic form.
``(h) Use of Images of Original Records.--An executive
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.
``(i) 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.''.
(b) Repeal of Superseded Provision.--Section 304 of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 254) is amended by striking out subsection (c).
Subtitle D--Claims and Disputes
PART I--ARMED SERVICES ACQUISITIONS
SEC. 2301. CERTIFICATION OF CONTRACT CLAIMS.
(a) In General.--Chapter 141 of title 10, United States
Code, is amended by inserting after section 2409a the
following new section 2410:
``Sec. 2410. Requests for equitable adjustment or other
relief: certification
``(a) Certification Requirement.--A request for equitable
adjustment to contract terms or request for relief under
Public Law 85-804 (50 U.S.C. 1431 et seq.) that exceeds the
simplified acquisition threshold may not be paid unless a
person authorized to certify the request on behalf of the
contractor certifies, at the time the request is submitted,
that--
``(1) the request is made in good faith, and
``(2) the supporting data are accurate and complete to the
best of that person's knowledge and belief.
``(b) Restriction on Legislative Payment of Claims.--In the
case of a contract of an agency named in section 2303(a) of
this title, no provision of a law enacted after September 30,
1994, that directs the payment of a particular claim under
such contract, a particular request for equitable adjustment
to any term of such contract, or a particular request for
relief under Public Law 85-804 (50 U.S.C. 1431 et seq.)
regarding such contract may be implemented unless such
provision of law--
``(1) specifically refers to this subsection; and
``(2) specifically states that this subsection does not
apply with respect to the payment directed by that provision
of law.
``(c) Definition.--In this section, the term `simplified
acquisition threshold' has the meaning given that term in
section 4(11) of the Office of Federal Procurement Policy
Act.''.
(b) Repeal of Related Provision.--Section 2410e of title
10, United States Code, is repealed.
(c) Clerical amendments.--The table of sections at the
beginning of chapter 141 of such title is amended--
(A) by striking out the items relating to sections 2410 and
2410e; and
(B) by inserting after the item relating to section 2409a
the following:
``2410. Requests for equitable adjustment or other relief:
certification.''.
SEC. 2302. SHIPBUILDING CLAIMS.
(a) Increase in Time Period During Which Adjustments to
Shipbuilding Claims May Be Made.--Section 2405 of title 10,
United States Code, is amended in subsection (a)--
(1) by striking out ``entered into after December 7,
1983,''; and
(2) by striking out ``occurring more than 18 months before
the submission of the claim, request, or demand.'' and
inserting in lieu thereof the following: ``that--
``(1) in the case of a contract entered into after December
7, 1983, and before the date of the enactment of the Federal
Acquisition Streamlining Act of 1994, occurred more than 18
months before the submission of the claim, request, or
demand; and
``(2) in the case of a contract entered into on or after
the date of the enactment of the Federal Acquisition
Streamlining Act of 1994, occurred more than 6 years before
the submission of the claim, request, or demand.''.
(b) Resubmission With Corrected Certification.--Subsection
(c) of such section is amended by adding at the end the
following:
``(4) This subsection applies only with respect to a claim,
request, or demand submitted before the effective date of
this paragraph.''.
(c) Applicability.--Paragraphs (1) and (2) of section
2405(a) of title 10, United States Code, as added by
subsection (a)(2), shall apply according to the provisions
thereof on and after the date of the enactment of this Act,
notwithstanding section 10001(b).
PART II--ACQUISITIONS GENERALLY
SEC. 2351. CONTRACT DISPUTES ACT IMPROVEMENTS.
(a) Period for Filing Claims.--Section 6 of the Contract
Disputes Act of 1978 (41 U.S.C. 605) is amended in subsection
(a) by inserting after the second sentence the following:
``Each claim by a contractor against the government relating
to a contract and each claim by the government against a
contractor relating to a contract shall be submitted within 6
years after the accrual of the claim. The preceding sentence
does not apply to a claim by the government against a
contractor that is based on a claim by the contractor
involving fraud.''.
(2) Notwithstanding the third sentence of section 6(a) of
the Contract Disputes Act of 1978, as added by paragraph (1),
if a contract in existence on the date of the enactment of
this Act requires that a claim referred to in that sentence
be submitted earlier than 6 years after the accrual of the
claim, then the claim shall be submitted within the period
required by the contract. The preceding sentence does not
apply to a claim by the Federal Government against a
contractor that is based on a claim by the contractor
involving fraud.
(b) Increased Threshold for Certification, Decision, and
Notification Requirements.--Subsection (c) of such section is
amended by striking out ``$50,000'' each place it appears and
inserting in lieu thereof ``$100,000''.
(c) Increased Maximum for Applicability of Accelerated
Procedures.--Section 8(f) of the Contract Disputes Act of
1978 (41 U.S.C. 607(f)) is amended by striking out
``$50,000'' in the first sentence and inserting in lieu
thereof ``$100,000''.
(d) Increased Maximum for Applicability of Small Claims
Procedure.--Section 9(a) of the Contract Disputes Act of 1978
(41 U.S.C. 608(a)) is amended by striking out ``$10,000'' in
the first sentence and inserting in lieu thereof ``$50,000''.
(e) Requests for Issuance of Decisions.--Paragraph (4) of
section 6(c) of the Contract Disputes Act of 1978 (41 U.S.C.
605(c)) is amended--
(1) by striking out ``agency board of contract appeals''
and inserting in lieu thereof ``tribunal concerned''; and
(2) by striking out ``board,'' and inserting in lieu
thereof ``tribunal concerned,''.
SEC. 2352. EXTENSION OF ALTERNATIVE DISPUTE RESOLUTION
AUTHORITY.
(a) Extension of Authority.--Section 6(e) of the Contracts
Disputes Act of 1978 (41 U.S.C. 605(e)) is amended by
striking out ``October 1, 1995'' and inserting in lieu
thereof ``October 1, 1999''.
(b) Availability of Procedures to Small Business Government
Contractors.--Section 6(e) of such Act is amended by
inserting after the first sentence the following: ``In any
case in which the contracting officer rejects a contractor's
request for alternative dispute resolution proceedings, the
contracting officer shall provide the contractor with a
written explanation, citing one or more of the conditions in
section 572(b) of title 5, United States Code, or such other
specific reasons that alternative dispute resolution
procedures are inappropriate for the resolution of the
dispute. In any case in which a contractor rejects a request
of an agency for alternative dispute resolution proceedings,
the contractor shall inform the agency in writing of the
contractor's specific reasons for rejecting the request.''.
SEC. 2353. EXPEDITED RESOLUTION OF CONTRACT ADMINISTRATION
MATTERS.
(a) Regulations Required.--(1) The Federal Acquisition
Regulation shall include provisions that require a
contracting officer--
(A) to make every reasonable effort to respond in writing
within 30 days to any written request made to a contracting
officer with respect to a matter relating to the
administration of a contract that is received from a small
business concern; and
(B) in the event that the contracting officer is unable to
reply within the 30-day period, to transmit to the contractor
within such period a written notification of a specific date
by which the contracting officer expects to respond.
(2) The provisions shall not apply to a request for a
contracting officer's decision under the Contract Disputes
Act of 1978 (41 U.S.C. 601 et seq.).
(b) Rule of Construction.--Nothing in this section shall be
considered as creating any rights under the Contract Disputes
Act of 1978 (41 U.S.C. 601 et seq.).
(c) Definition.--In this section, the term ``small business
concern'' means a business concern that meets the
requirements of section 3(a) of the Small Business Act (15
U.S.C. 632(a)) and the regulations promulgated pursuant to
that section.
SEC. 2354. AUTHORITY FOR DISTRICT COURTS TO OBTAIN ADVISORY
OPINIONS FROM BOARDS OF CONTRACT APPEALS IN
CERTAIN CASES.
Section 10 of the Contract Disputes Act of 1978 (41 U.S.C.
609) is amended by adding at the end the following new
paragraph:
``(f)(1) Whenever an action involving an issue described in
paragraph (2) is pending in a district court of the United
States, the district court may request a board of contract
appeals to provide the court with an advisory opinion on the
matters of contract interpretation at issue.
``(2) An issue referred to in paragraph (1) is any issue
that could be the proper subject of a final decision of a
contracting officer appealable under this Act.
``(3) A district court shall direct any request under
paragraph (1) to the board of contract appeals having
jurisdiction under this Act to adjudicate appeals of contract
claims under the contract or contracts being interpreted by
the court.
``(4) After receiving a request for an advisory opinion
under paragraph (1), a board of contract appeals shall
provide the advisory opinion in a timely manner to the
district court making the request.''.
Subtitle E--Miscellaneous
PART I--ARMED SERVICES ACQUISITIONS
SEC. 2401. CLARIFICATION OF PROVISION RELATING TO QUALITY
CONTROL OF CERTAIN SPARE PARTS.
The second sentence of subsection (a) of section 2383 of
title 10, United States Code, is amended to read as follows:
``In establishing the appropriate qualification requirements,
the Secretary of Defense shall use the Department of Defense
qualification requirements that were used to qualify the
original production part unless the Secretary determines in
writing--
``(1) that there are other requirements sufficiently
similar to those requirements that should be used instead; or
``(2) that any or all such requirements are unnecessary.''.
SEC. 2402. CONTRACTOR GUARANTEES REGARDING WEAPON SYSTEMS.
(a) Repeal of Requirement for Report on Waivers.--
Subsection (e) of section 2403 of title 10, United States
Code, is amended--
(1) by striking out ``(1)''; and
(2) by striking out paragraph (2).
(b) Provisions To Be Addressed by Regulations.--Subsection
(h) of such section is amended--
(1) by redesignating paragraph (2) as paragraph (3); and
(2) by inserting after paragraph (1) the following new
paragraph (2):
``(2) The regulations shall include the following:
``(A) Guidelines for negotiating contractor guarantees that
are reasonable and cost effective, as determined on the basis
of the likelihood of defects and the estimated cost of
correcting such defects.
``(B) Procedures for administering contractor guarantees.
``(C) Guidelines for determining the cases in which it may
be appropriate to waive the requirements of this section.''.
PART II--ACQUISITIONS GENERALLY
SEC. 2451. SECTION 3737 OF THE REVISED STATUTES: EXPANSION OF
AUTHORITY TO PROHIBIT SETOFFS AGAINST
ASSIGNEES; REORGANIZATION OF SECTION; REVISION
OF OBSOLETE PROVISIONS.
Section 3737 of the Revised Statutes (41 U.S.C. 15) is
amended to read as follows:
``Sec. 3737. (a) No contract or order, or any interest
therein, shall be transferred by the party to whom such
contract or order is given to any other party, and any such
transfer shall cause the annulment of the contract or order
transferred, so far as the United States is concerned. All
rights of action, however, for any breach of such contract by
the contracting parties, are reserved to the United States.
``(b) The provisions of subsection (a) shall not apply in
any case in which the moneys due or to become due from the
United States or from any agency or department thereof, under
a contract providing for payments aggregating $1,000 or more,
are assigned to a bank, trust company, or other financing
institution, including any Federal lending agency, provided:
``(1) That, in the case of any contract entered into after
October 9, 1940, no claim shall be assigned if it arises
under a contract which forbids such assignment.
``(2) That, unless otherwise expressly permitted by such
contract, any such assignment shall cover all amounts payable
under such contract and not already paid, shall not be made
to more than one party, and shall not be subject to further
assignment, except that any such assignment may be made to
one party as agent or trustee for two or more parties
participating in such financing.
``(3) That, in the event of any such assignment, the
assignee thereof shall file written notice of the assignment
together with a true copy of the instrument of the assignment
with--
``(A) the contracting officer or the head of his department
or agency;
``(B) the surety or sureties upon the bond or bonds, if
any, in connection with such contract; and
``(C) the disbursing officer, if any, designated in such
contract to make payment.
``(c) Notwithstanding any law to the contrary governing the
validity of assignments, any assignment pursuant to this
section shall constitute a valid assignment for all purposes.
``(d) In any case in which moneys due or to become due
under any contract are or have been assigned pursuant to this
section, no liability of any nature of the assignor to the
United States or any department or agency thereof, whether
arising from or independently of such contract, shall create
or impose any liability on the part of the assignee to make
restitution, refund, or repayment to the United States of any
amount heretofore since July 1, 1950, or hereafter received
under the assignment.
``(e) Any contract of the Department of Defense, the
General Services Administration, the Department of Energy, or
any other department or agency of the United States
designated by the President, except any such contract under
which full payment has been made, may, upon a determination
of need by the President, provide or be amended without
consideration to provide that payments to be made to the
assignee of any moneys due or to become due under such
contract shall not be subject to reduction or setoff. Each
such determination of need shall be published in the Federal
Register.
``(f) If a provision described in subsection (e) or a
provision to the same general effect has been at any time
heretofore or is hereafter included or inserted in any such
contract, payments to be made thereafter to an assignee of
any moneys due or to become due under such contract shall not
be subject to reduction or setoff for any liability of any
nature of the assignor to the United States or any department
or agency thereof which arises independently of such
contract, or hereafter for any liability of the assignor on
account of--
``(1) renegotiation under any renegotiation statute or
under any statutory renegotiation article in the contract;
``(2) fines;
``(3) penalties (which term does not include amounts which
may be collected or withheld from the assignor in accordance
with or for failure to comply with the terms of the
contract); or
``(4) taxes, social security contributions, or the
withholding or non withholding of taxes or social security
contributions, whether arising from or independently of such
contract.
``(g) Except as herein otherwise provided, nothing in this
section shall be deemed to affect or impair rights of
obligations heretofore accrued.''.
SEC. 2452. REPEAL OF REQUIREMENT FOR DEPOSIT OF CONTRACTS
WITH GAO.
Section 3743 of the Revised Statutes (41 U.S.C. 20) is
repealed.
SEC. 2453. 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''.
SEC. 2454. CODIFICATION OF ACCOUNTING REQUIREMENT FOR
CONTRACTED ADVISORY AND ASSISTANCE SERVICES.
(a) Funding To Be Identified in Budget.--Section 1105 of
title 31, United States Code, is amended by adding at the end
the following new subsection:
``(g)(1) The Director of the Office of Management and
Budget shall establish the funding for advisory and
assistance services for each department and agency as a
separate object class in each budget annually submitted to
the Congress under this section.
``(2)(A) In paragraph (1), except as provided in
subparagraph (B), the term `advisory and assistance services'
means the following services when provided by nongovernmental
sources:
``(i) Management and professional support services.
``(ii) Studies, analyses, and evaluations.
``(iii) Engineering and technical services.
``(B) In paragraph (1), the term `advisory and assistance
services' does not include the following services:
``(i) Routine automated data processing and
telecommunications services unless such services are an
integral part of a contract for the procurement of advisory
and assistance services.
``(ii) Architectural and engineering services, as defined
in section 901 of the Brooks Architect-Engineers Act (40
U.S.C. 541).
``(iii) Research on basic mathematics or medical,
biological, physical, social, psychological, or other
phenomena.''.
(b) Repeal of Source Law.--Section 512 of Public Law 102-
394 (106 Stat. 1826) is repealed.
(c) Repeal of Superseded Provisions.--(1) Section 2212 of
title 10, United States Code, is repealed.
(2) Section 1114 of title 31, United States Code, is
repealed.
(3)(A) The table of sections at the beginning of chapter
131 of title 10, United States Code, is amended by striking
out the item relating to section 2212.
(B) The table of sections at the beginning of chapter 11 of
title 31, United States Code, is amended by striking out the
item relating to section 1114.
SEC. 2455. UNIFORM SUSPENSION AND DEBARMENT.
(a) Requirement for Regulations.--Regulations shall be
issued providing that provisions for the debarment,
suspension, or other exclusion of a participant in a
procurement activity under the Federal Acquisition
Regulation, or in a nonprocurement activity under regulations
issued pursuant to Executive Order No. 12549, shall have
government-wide effect. No agency shall allow a party to
participate in any procurement or nonprocurement activity if
any agency has debarred, suspended, or otherwise excluded (to
the extent specified in the exclusion agreement) that party
from participation in a procurement or nonprocurement
activity.
(b) Authority To Grant Exception.--The regulations issued
pursuant to subsection (a) shall provide that an agency may
grant an exception permitting a debarred, suspended, or
otherwise excluded party to participate in procurement
activities of that agency to the extent exceptions are
authorized under the Federal Acquisition Regulation, or to
participate in nonprocurement activities of that agency to
the extent exceptions are authorized under regulations issued
pursuant to Executive Order No. 12549.
(c) Definitions.--In this section:
(1) The term ``procurement activities'' means all
acquisition programs and activities of the Federal
Government, as defined in the Federal Acquisition Regulation.
(2) The term ``nonprocurement activities'' means all
programs and activities involving Federal financial and
nonfinancial assistance and benefits, as covered by Executive
Order No. 12549 and the Office of Management and Budget
guidelines implementing that order.
(3) The term ``agency'' means an Executive agency as
defined in section 103 of title 5, United States Code.
TITLE III--SERVICE SPECIFIC AND MAJOR SYSTEMS STATUTES
Subtitle A--Major Systems Statutes
SEC. 3001. WEAPON DEVELOPMENT AND PROCUREMENT SCHEDULES.
(a) Deadline and Purpose.--Subsection (a) of section 2431
of title 10, United States Code, is amended--
(1) in the first sentence--
(A) by striking out ``at the same time'' and inserting in
lieu thereof ``not later than 45 days after''; and
(B) by striking out ``a written report'' and inserting in
lieu thereof ``budget justification documents''; and
(2) in the second and third sentences, by striking out
``report'' and inserting in lieu thereof ``documents''.
(b) Additional Matters To Be Included.--Subsection (b) of
such section is amended--
(1) by striking out ``include--'' and inserting in lieu
thereof ``include each of the following:'';
(2) by capitalizing the first letter of the first word in
each of paragraphs (1), (2), and (3);
(3) by striking out the semicolon at the end of paragraphs
(1) and (2) and inserting in lieu thereof a period;
(4) by striking out ``; and'' at the end of paragraph (3)
and inserting in lieu thereof a period; and
(5) by amending paragraph (4) to read as follows:
``(4)(A) The most efficient production rate, the most
efficient acquisition rate, and the minimum sustaining rate,
consistent with the program priority established for such
weapon system by the Secretary concerned.
``(B) In this paragraph:
``(i) The term `most efficient production rate' means the
maximum rate for each budget year at which the weapon system
can be produced with existing or planned plant capacity and
tooling, with one shift a day running for eight hours a day
and five days a week.
``(ii) The term `minimum sustaining rate' means the
production rate for each budget year that is necessary to
keep production lines open while maintaining a base of
responsive vendors and suppliers.''.
SEC. 3002. SELECTED ACQUISITION REPORT REQUIREMENT.
(a) Definition of Procurement Unit Cost.--(1) Paragraph (2)
of section 2432(a) of title 10, United States Code, is
amended--
(A) in clause (A), by striking out ``for a fiscal year''
and all that follows through ``such program in such fiscal
year'';
(B) in clause (B), by striking out ``with such funds during
such fiscal year.'' and inserting in lieu thereof a period;
and
(C) by striking out the last sentence.
(2) Section 2433 of such title is amended--
(A) in subparagraph (B) of subsection (c)(1), by striking
out ``current'' before ``procurement unit cost'';
(B) in subsection (d), by striking out ``current'' before
``procurement unit cost'' each place it appears; and
(C) in subsection (e), by striking out ``current'' before
``procurement unit cost'' both places it appears.
(b) Exclusion of Firm, Fixed-Price Contracts.--Subsection
(a) of section 2432 of such title is amended in paragraph (3)
by inserting before the period at the end the following:
``and that is not a firm, fixed price contract''.
(c) Definition of Full Life-Cycle Cost.--Such subsection is
further amended in paragraph (4) by striking out ``has the
meaning'' and all that follows through the end of the
paragraph and inserting in lieu thereof the following:
``means all costs of development, procurement, military
construction, and operations and support, without regard to
funding source or management control.''.
(d) Notice of Proposed Changes in SAR.--Subsection (c) of
such section is amended in paragraph (2) by striking out the
second sentence and inserting in lieu thereof the following:
``Whenever the Secretary of Defense proposes to make changes
in the content of a Selected Acquisition Report, the
Secretary shall submit a notice of the proposed changes to
such committees. The changes shall be considered approved by
the Secretary, and may be incorporated into the report, only
after the end of the 60-day period beginning on the date on
which the notice is received by those committees.''.
(e) Elimination of Certain SAR Requirements.--Such
subsection is further amended in paragraph (3) by striking
out subparagraph (C).
(f) Uniform Implementation of Life-Cycle Cost Analysis.--
Such subsection is further amended--
(1) by striking out paragraph (5); and
(2) by adding at the end of subparagraph (A) of paragraph
(3) the following: ``The Secretary of Defense shall ensure
that this subparagraph is implemented in a uniform manner, to
the extent practicable, throughout the Department of
Defense.''.
(g) Elimination of Preliminary Report.--Subsection (f) of
such section is amended by striking out the second sentence.
(h) Terminology Corrections.--Such section is further
amended as follows:
(1) Subsection (b)(3)(A) is amended by striking out ``full
scale development or'' in clause (i).
(2) Subsection (c)(3) is amended by striking out ``full-
scale engineering'' in subparagraph (A) and inserting in lieu
thereof ``engineering and manufacturing''.
(3) Subsection (h)(1) is amended by striking out ``full-
scale engineering'' both places it appears and inserting in
lieu thereof ``engineering and manufacturing''.
SEC. 3003. UNIT COST REPORT REQUIREMENT.
(a) Revision of Baseline Report Definitions.--(1) Section
2433(a) of title 10, United States Code, is amended--
(A) in paragraph (2)--
(i) by striking out ``Baseline Selected Acquisition
Report'' and inserting in lieu thereof ``Baseline Estimate'';
and
(ii) by striking out ``Selected Acquisition Report in
which'' and all that follows through the end of the paragraph
and inserting in lieu thereof ``cost estimate included in the
baseline description for the program under section 2435 of
this title.''; and
(B) by striking out paragraph (4).
(2) Section 2433 of such title is further amended--
(A) in subsection (c)(1), by striking out ``Baseline
Report'' in subparagraphs (A) and (B) and inserting in lieu
thereof ``Baseline Estimate''; and
(B) in subsection (d), by striking out ``Baseline Report''
in paragraphs (1) and (2) and inserting in lieu thereof
``Baseline Estimate''.
(b) Contents of Unit Cost Report.--Section 2433(b) of such
title is amended in paragraph (3) by striking out ``Baseline
Report was submitted.'' and inserting in lieu thereof
``contract was entered into.''.
(c) Elimination of Certain Unit Cost Report Requirement.--
Section 2433(c) of such title, as amended by subsection (a),
is further amended--
(1) by striking out paragraph (2);
(2) by striking out ``(1)'' after ``(c)''; and
(3) by redesignating subparagraphs (A), (B), and (C) as
paragraphs (1), (2), and (3), respectively.
(d) Constant Base Year Dollars.--Section 2433(f) of such
title is amended by striking out ``include expected
inflation'' and inserting in lieu thereof ``be stated in
terms of constant base year dollars (as described in section
2430 of this title)''.
(e) Contents of SAR.--Subparagraph (I) of section
2433(g)(1) of such title is amended to read as follows:
``(I) The type of the Baseline Estimate that was included
in the baseline description under section 2435 of this title
and the date of the Baseline Estimate.''.
SEC. 3004. REQUIREMENT FOR INDEPENDENT COST ESTIMATE AND
MANPOWER ESTIMATE BEFORE DEVELOPMENT OR
PRODUCTION.
(a) Content and Submission of Estimates.--Subsection (b) of
section 2434 of title 10, United States Code, is amended to
read as follows:
``(b) Regulations.--The Secretary of Defense shall
prescribe regulations governing the content and submission of
the estimates required by subsection (a). The regulations
shall require--
``(1) that the independent estimate of the full life-cycle
cost of a program--
``(A) be prepared by an office or other entity that is not
under the supervision, direction, or control of the military
department, Defense Agency, or other component of the
Department of Defense that is directly responsible for
carrying out the development or acquisition of the program;
and
``(B) include all costs of development, procurement,
military construction, and operations and support, without
regard to funding source or management control; and
``(2) that the manpower estimate include an estimate of the
total number of personnel required--
``(A) to operate, maintain, and support the program upon
full operational deployment; and
``(B) to train personnel to carry out the activities
referred to in subparagraph (A).''.
(b) Terminology Correction, Etc.--Subsection (a) of such
section is amended--
(1) by striking out ``full-scale engineering development''
and inserting in lieu thereof ``engineering and manufacturing
development''; and
(2) by striking out ``cost of the program, together with a
manpower estimate, has'' and inserting in lieu thereof ``full
life-cycle cost of the program and a manpower estimate for
the program have''.
SEC. 3005. BASELINE DESCRIPTION.
(a) In General.--Section 2435 of title 10, United States
Code, is amended to read as follows:
``Sec. 2435. Baseline description
``(a) Baseline Description Requirement.--(1) The Secretary
of a military department shall establish a baseline
description for each major defense acquisition program under
the jurisdiction of such Secretary.
``(2) The baseline shall include sufficient parameters to
describe the cost estimate (referred to as the `Baseline
Estimate' in section 2433 of this title), schedule,
performance, support ability, and any other factor of such
major defense acquisition program.
``(b) Funding Limit.--No amount appropriated or otherwise
made available to the Department of Defense for carrying out
a major defense acquisition program may be obligated after
the program enters engineering and manufacturing development
without an approved baseline description unless such
obligation is specifically approved by the Under Secretary of
Defense for Acquisition and Technology.
``(c) Schedule.--A baseline description for a major defense
acquisition program shall be prepared under this section--
``(1) before the program enters demonstration and
validation;
``(2) before the program enters engineering and
manufacturing development; and
``(3) before the program enters production and deployment.
``(d) Regulations.--The Secretary of Defense shall
prescribe regulations governing the following:
``(1) The content of baseline descriptions under this
section.
``(2) The submission to the Secretary of the military
department concerned and the Under Secretary of Defense for
Acquisition and Technology by the program manager for a
program for which there is an approved baseline description
under this section of reports of deviations from the baseline
of the cost, schedule, performance, supportability, or any
other factor of the program.
``(3) Procedures for review of such deviation reports
within the Department of Defense.
``(4) Procedures for submission to, and approval by, the
Secretary of Defense of revised baseline descriptions.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 144 of such title is amended by amending
the item relating to section 2435 to read as follows:
``2435. Baseline description.''.
SEC. 3006. REPEAL OF REQUIREMENT FOR COMPETITIVE PROTOTYPING
FOR MAJOR PROGRAMS.
(a) Repeal.--Section 2438 of title 10, United States Code,
is repealed.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 144 of such title is amended by striking
out the item relating to section 2438.
SEC. 3007. REPEAL OF REQUIREMENT FOR COMPETITIVE ALTERNATIVE
SOURCES FOR MAJOR PROGRAMS.
(a) Repeal.--Section 2439 of title 10, United States Code,
is repealed.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 144 of such title is amended by striking
out the item relating to section 2439.
Subtitle B--Testing Statutes
SEC. 3011. AUTHORITY OF DIRECTOR OF OPERATIONAL TEST AND
EVALUATION TO COMMUNICATE VIEWS DIRECTLY TO
SECRETARY OF DEFENSE.
Section 139(c) of title 10, United States Code, is amended
by inserting after ``(c)'' the following: ``The Director may
communicate views on matters within the responsibility of the
Director directly to the Secretary of Defense and the Deputy
Secretary of Defense without obtaining the approval or
concurrence of any other official within the Department of
Defense.''.
SEC. 3012. RESPONSIBILITY OF DIRECTOR OF OPERATIONAL TEST AND
EVALUATION FOR LIVE FIRE TESTING.
(a) Oversight of Live Fire Testing.--Subsection (b) of
section 139 of title 10, United States Code, is amended--
(1) by striking out ``and'' at the end of paragraph (4);
(2) by striking out the period at the end of paragraph (5)
and inserting in lieu thereof ``; and''; and
(3) by adding at the end the following new paragraph:
``(6) monitor and review the live fire testing activities
of the Department of Defense provided for under section 2366
of this title.''.
(b) Annual Report on Live Fire Testing.--Subsection (f) of
such section is amended by inserting ``(including live fire
testing activities)'' in the first sentence after
``operational test and evaluation activities''.
SEC. 3013. REQUIREMENT FOR UNCLASSIFIED VERSION OF ANNUAL
REPORT ON OPERATIONAL TEST AND EVALUATION.
Section 139(f) of title 10, United States Code, is amended
by inserting after the second sentence the following new
sentence: ``If the Director submits the report to Congress in
a classified form, the Director shall concurrently submit an
unclassified version of the report to Congress.''.
SEC. 3014. SURVIVABILITY AND LETHALITY TESTING.
(a) In General.--Section 2366(c) of title 10, United States
Code, is amended--
(1) by redesignating paragraph (2) as paragraph (4);
(2) by designating the second sentence of paragraph (1) as
paragraph (3) and in that paragraph by striking out ``such
certification'' and inserting in lieu thereof ``certification
under paragraph (1) or (2)''; and
(3) by inserting before paragraph (3) (as so designated)
the following new paragraph:
``(2) In the case of a covered system (or covered product
improvement program for a covered system), the Secretary may
waive the application of the survivability and lethality
tests of this section to such system or program and instead
allow testing of the system or program in combat by firing
munitions likely to be encountered in combat at components,
subsystems, and subassemblies, together with performing
design analyses, modeling and simulation, and analysis of
combat data. Such alternative testing may not be carried out
in the case of any covered system (or covered product
improvement program for a covered system) unless the
Secretary certifies to Congress, before the system or program
enters engineering and manufacturing development, that the
survivability and lethality testing of such system or program
otherwise required by this section would be unreasonably
expensive and impracticable.''.
(b) Terminology Correction.--Section 2366(c)(1) of such
title is amended by striking out ``full-scale engineering
development'' in the first sentence and inserting in lieu
thereof ``engineering and manufacturing development''.
SEC. 3015. LIMITATION ON QUANTITIES TO BE PROCURED FOR LOW-
RATE INITIAL PRODUCTION.
Section 2400(a) of title 10, United States Code, is
amended--
(1) in paragraph (2)--
(A) by striking out ``paragraph (1)'' and inserting in lieu
thereof ``this section''; and
(B) by striking out ``full-scale engineering development''
and inserting in lieu thereof ``engineering and manufacturing
development'';
(2) by redesignating paragraph (4) as paragraph (5) and in
that paragraph by inserting after the first sentence the
following: ``If the quantity exceeds 10 percent of the total
number of articles to be produced, as determined at the
milestone II decision with respect to that system, the
Secretary shall include in the statement the reasons for such
quantity.''; and
(3) by inserting after paragraph (3) the following new
paragraph (4):
``(4) The quantity of articles of a major system that may
be procured for low-rate initial production may not be less
than one operationally configured production unit unless
another quantity is established at the milestone II
decision.''.
Subtitle C--Service Specific Laws
SEC. 3021. GRATUITOUS SERVICES OF OFFICERS OF CERTAIN RESERVE
COMPONENTS.
(a) Acceptance by Secretary of Defense.--Section 10212 of
title 10, United States Code, is amended--
(1) by designating the text as subsection (b); and
(2) by inserting before such subsection the following new
subsection:
``(a) Notwithstanding section 1342 of title 31, the
Secretary of Defense may accept the gratuitous services of an
officer of a reserve component (other than an officer of the
Army National Guard of the United States or the Air National
Guard of the United States) in consultation upon matters
relating to the armed forces.''.
(b) Effective Date.--Notwithstanding section 10001, the
amendments made by subsection (a) shall take effect on
December 1, 1994, immediately after the amendments made by
the Reserve Officer Personnel Management Act.
SEC. 3022. AUTHORITY TO RENT SAMPLES, DRAWINGS, AND OTHER
INFORMATION TO OTHERS.
Susection (a) of section 2539b of title 10, United States
Code, as redesignated by section 1070(a)(13)(A) of the
National Defense Authorization Act for Fiscal Year 1995, is
amended by inserting ``rent,'' after ``sell,'' each place it
appears in paragraphs (1) and (2).
SEC. 3023. REPEAL OF APPLICATION OF PUBLIC CONTRACTS ACT TO
CERTAIN NAVAL VESSEL CONTRACTS.
(a) Repeal.--Section 7299 of title 10, United States Code,
is repealed.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 633 of such title is amended by striking
out the item relating to section 7299.
SEC. 3024. REPEAL OF REQUIREMENT FOR CONSTRUCTION OF VESSELS
ON PACIFIC COAST.
(a) Repeal.--Section 7302 of title 10, United States Code,
is repealed.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 633 of such title is amended by striking
out the item relating to section 7302.
SEC. 3025. SCIENTIFIC INVESTIGATION AND RESEARCH FOR THE
NAVY.
(a) Repeal.--Section 7203 of title 10, United States Code,
is repealed.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 631 of such title is amended by striking
out the item relating to section 7203.
Subtitle D--Civil Reserve Air Fleet
SEC. 3031. DEFINITIONS.
(a) Contractor Defined.--Section 9511(8) of title 10,
United States Code, is amended--
(1) in clause (A)--
(A) by inserting ``under section 9512 of this title'' after
``and who contracts with the Secretary''; and
(B) by striking out ``or'' at the end; and
(2) by inserting before the period at the end the
following: ``, or (C) who owns or controls, or will own or
control, new or existing aircraft and who, by contract,
commits some or all of such aircraft to the Civil Reserve Air
Fleet''.
(b) Other Definitions.--Section 9511 of such title is
further amended--
(1) in paragraph (1)--
(A) by inserting ```civil aircraft','' before
```person','';
(B) by striking out ``meaning'' and inserting in lieu
thereof ``meanings''; and
(C) by striking out ``section 101 of the Federal Aviation
Act of 1958 (49 U.S.C. 1301)'' and inserting in lieu thereof
``section 40102 of title 49'';
(2) by striking out paragraph (6);
(3) by redesignating paragraphs (7), (8), (9), (10), (11),
and (12) as paragraphs (6), (7), (8), (9), (10), and (11),
respectively; and
(4) in paragraph (11), as so redesignated--
(A) by striking out ``interoperability'' and inserting in
lieu thereof ``compatibility''; and
(B) by inserting ``an aeromedical aircraft or'' before ``a
cargo-convertible,''.
(c) Technical Correction.--Such section is amended by
striking out ``In this subchapter:'' and inserting in lieu
thereof ``In this chapter:''.
SEC. 3032. CONSOLIDATION OF PROVISIONS RELATING TO
CONTRACTUAL COMMITMENT OF AIRCRAFT.
Chapter 931 of title 10, United States Code, is amended--
(1) in subsection (a) of section 9512, by inserting
``Authority to Contract.--'' after ``(a)'';
(2) in subsection (c) of section 9512, by striking out
``(c)'' and inserting in lieu thereof ``(d) Authority To
Contract and Pay Directly.--'';
(3) in subsection (b) of section 9512, by striking out
``(b)'' and inserting in lieu thereof ``(c) Terms and
Required Repayment.--'';
(4) by redesignating subsection (a) of section 9513 as
subsection (b), transferring such subsection (as so
redesignated) to section 9512, and inserting such subsection
after subsection (a);
(5) by redesignating subsection (b) of section 9513 as
subsection (e) and transferring such subsection (as so
redesignated) to the end of section 9512;
(6) in subsection (b) of section 9512, as redesignated and
transferred to such section by paragraph (4)--
(A) by striking out ``under section 9512 of this title''
and inserting in lieu thereof ``entered into under this
section''; and
(B) by inserting ``Commitment to Civil Reserve Air Fleet.--
'' after ``(b)'';
(7) in subsection (c) of section 9512, as redesignated by
paragraph (3), by striking out ``the terms required by
section 9513 of this title and'';
(8) in subsection (e) of section 9512, as redesignated and
transferred to such section by paragraph (5)--
(A) by striking out ``under section 9512 of this title''
and inserting in lieu thereof ``entered into under this
section''; and
(B) by inserting ``Exclusivity of Commitment to Civil
Reserve Air Fleet.--'' after ``(e)''; and
(9) by striking out the heading of section 9513.
SEC. 3033. USE OF MILITARY INSTALLATIONS BY CONTRACTORS.
(a) Authority.--Chapter 931 of title 10, United States
Code, as amended by section 3022, is further amended by
adding at the end the following new section 9513:
``Sec. 9513. Use of military installations by Civil Reserve
Air Fleet contractors
``(a) Contract Authority.--(1) The Secretary of the Air
Force--
``(A) may, by contract entered into with any contractor,
authorize such contractor to use one or more Air Force
installations designated by the Secretary; and
``(B) with the consent of the Secretary of another military
department, may, by contract entered into with any
contractor, authorize the contractor to use one or more
installations, designated by the Secretary of the Air Force,
that is under the jurisdiction of the Secretary of such other
military department.
``(2) The Secretary of the Air Force may include in the
contract such terms and conditions as the Secretary
determines appropriate to promote the national defense or to
protect the interests of the United States.
``(b) Purposes of Use.--A contract entered into under
subsection (a) may authorize use of a designated installation
as a weather alternate, as a technical stop not involving the
enplaning or deplaning of passengers or cargo, or, in the
case of an installation within the United States, for other
commercial purposes. Notwithstanding any other provision of
the law, the Secretary may establish different levels and
types of uses for different installations for commercial
operations not required by the Department of Defense and may
provide in contracts under subsection (a) for different
levels and types of uses by different contractors.
``(c) Disposition of Payments for Use.--Notwithstanding any
other provision of law, amounts collected from the contractor
for landing fees, services, supplies, or other charges
authorized to be collected under the contract shall be
credited to the appropriations of the armed forces having
jurisdiction over the military installation to which the
contract pertains. Amounts so credited to an appropriation
shall be available for obligation for the same period as the
appropriation to which credited.
``(d) Hold Harmless Requirement.--A contract entered into
under subsection (a) shall provide that the contractor agrees
to indemnify and hold harmless the United States from any
action, suit, or claim of any sort resulting from, relating
to, or arising out of any activities conducted, or services
or supplies furnished, in connection with the contract.
``(e) Reservation of Right To Exclude Contractor.--A
contract entered into under subsection (a) shall provide that
the Secretary concerned may, without providing prior notice,
deny access to an installation designated under the contract
when the Secretary determines that it is necessary to do so
in order to meet military exigencies.''.
(b) Clerical Amendment.--The table of sections at the
beginning of such chapter is amended by striking out the item
relating to section 9513 and inserting in lieu thereof the
following:
``9513. Use of military installations by Civil Reserve Air Fleet
contractors.''.
Subtitle E--Miscellaneous
SEC. 3061. REGULATIONS ON PROCUREMENT, PRODUCTION,
WAREHOUSING, AND SUPPLY DISTRIBUTION FUNCTIONS.
(a) In General.--Section 2202 of title 10, United States
Code, is amended to read as follows:
``Sec. 2202. Regulations on procurement, production,
warehousing, and supply distribution functions
``The Secretary of Defense shall prescribe regulations
governing the performance within the Department of Defense of
the procurement, production, warehousing, and supply
distribution functions, and related functions, of the
Department of Defense.''.
(b) Clerical Amendment.--The item relating to section 2202
in the table of sections at the beginning of chapter 131 of
such title is amended to read as follows:
``2202. Regulations on procurement, production, warehousing, and supply
distribution functions.''.
SEC. 3062. REPEAL OF REQUIREMENTS REGARDING PRODUCT
EVALUATION ACTIVITIES.
(a) Repeal.--Section 2369 of title 10, United States Code,
is repealed.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 139 of such title is amended by striking
out the item related to section 2369.
SEC. 3063. DEPARTMENT OF DEFENSE ACQUISITION OF INTELLECTUAL
PROPERTY RIGHTS.
Section 2386 of title 10, United States Code, is amended by
striking out paragraphs (3) and (4) and inserting in lieu
thereof the following:
``(3) Technical data and computer software.
``(4) Releases for past infringement of patents or
copyrights or for unauthorized use of technical data or
computer software.''.
SEC. 3064. LIQUID FUELS AND NATURAL GAS: CONTRACTS FOR
STORAGE, HANDLING, OR DISTRIBUTION.
Section 2388(a) of title 10, United States Code, is amended
by striking out ``liquid fuels and natural gas'' and
inserting in lieu thereof ``liquid fuels or natural gas''.
SEC. 3065. CODIFICATION AND REVISION OF LIMITATION ON LEASE
OF VESSELS, AIRCRAFT, AND VEHICLES.
(a) Limitation.--(1) Chapter 141 of title 10, United States
Code, is amended by inserting after section 2401 the
following new section:
``Sec. 2401a. Lease of vessels, aircraft, and vehicles
``The Secretary of Defense or the Secretary of a military
department may not enter into any contract with a term of 18
months or more, or extend or renew any contract for a term of
18 months or more, for any vessel, aircraft, or vehicle,
through a lease, charter, or similar agreement, unless the
Secretary has considered all costs of such contract
(including estimated termination liability) and has
determined in writing that the contract is in the best
interest of the Government.''.
(2) The table of sections at the beginning of such chapter
is amended by inserting after the item relating to section
2401 the following new item:
``2401a. Lease of vessels, aircraft, and vehicles.''.
(b) Repeal of Superseded Provision.--Section 9081 of Public
Law 101-165 (103 Stat. 1147; 10 U.S.C. 2401 note) is
repealed.
SEC. 3066. SOFT DRINK SUPPLIES.
Section 2424 of title 10, United States Code, is amended by
adding at the end the following new subsection:
``(c) Paragraphs (1) and (2) of subsection (b) do not apply
to contracts for the procurement of soft drinks that are
manufactured in the United States. The Secretary of Defense
shall prescribe in regulations the standards and procedures
for determining whether a particular drink is a soft drink
and whether the drink was manufactured in the United
States.''.
SEC. 3067. DISBURSEMENT OF FUNDS OF MILITARY DEPARTMENT TO
COVER OBLIGATIONS OF ANOTHER AGENCY OF
DEPARTMENT OF DEFENSE.
Subsection (c)(2) of section 3321 of title 31, United
States Code, is amended by striking out ``military
departments of the'' and inserting in lieu thereof ``The''.
TITLE IV--SIMPLIFIED ACQUISITION THRESHOLD
Subtitle A--Establishment of Threshold
SEC. 4001. SIMPLIFIED ACQUISITION THRESHOLD DEFINED.
Section 4(11) of the Office of Federal Procurement Policy
Act (41 U.S.C. 403(11)) is amended to read as follows:
``(11) The term `simplified acquisition threshold' means
$100,000.''.
SEC. 4002. ESTABLISHMENT OF SIMPLIFIED ACQUISITION THRESHOLD
FOR ARMED SERVICES.
(a) Establishment in Title 10.--Chapter 137 of title 10,
United States Code, is amended by inserting after section
2302 the following new sections:
``Sec. 2302a. Simplified acquisition threshold
``(a) Simplified Acquisition Threshold.--For purposes of
acquisitions by agencies named in section 2303 of this title,
the simplified acquisition threshold is as specified in
section 4(11) of the Office of Federal Procurement Policy
Act.''.
(b) Clerical Amendment.--The table of sections at the
beginning of such chapter is amended by inserting after the
item relating to section 2302 the following new item:
``2302a. Simplified acquisition threshold.''.
SEC. 4003. ESTABLISHMENT OF SIMPLIFIED ACQUISITION THRESHOLD
FOR CIVILIAN AGENCIES.
Title III of the Federal Property and Administrative
Services Act of 1949 is amended by inserting after section
302 the following new section:
``SEC. 302A. SIMPLIFIED ACQUISITION THRESHOLD.
``(a) Simplified Acquisition Threshold.--For purposes of
acquisitions by executive agencies, the simplified
acquisition threshold is as specified in section 4(11) of the
Office of Federal Procurement Policy Act.''.
SEC. 4004. SMALL BUSINESS RESERVATION.
Section 15(j) of the Small Business Act (15 U.S.C. 644(j))
is amended to read as follows:
``(j)(1) Each contract for the purchase of goods and
services that has an anticipated value greater than $2,500
but not greater than $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 are competitive with market prices and are
competitive with regard to the quality and delivery of the
goods or services being purchased.
``(2) In carrying out paragraph (1), a contracting officer
shall consider a responsive offer timely received from an
eligible small business offeror.
``(3) Nothing in paragraph (1) shall be construed as
precluding an award of a contract with a value not greater
than $100,000 under the authority of subsection (a) of
section 8 of this Act, section 2323 of title 10, United
States Code, section 712 of the Business Opportunity
Development Reform Act of 1988 (Public Law 100-656; 15 U.S.C.
644 note), or section 7102 of the Federal Acquisition
Streamlining Act of 1994.''.
Subtitle B--Inapplicability of Laws to Acquisitions at or Below the
Simplified Acquisition Threshold
SEC. 4101. LIST OF INAPPLICABLE LAWS IN FEDERAL ACQUISITION
REGULATION.
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. 33. LIST OF LAWS INAPPLICABLE TO CONTRACTS NOT GREATER
THAN THE SIMPLIFIED ACQUISITION THRESHOLD IN
FEDERAL ACQUISITION REGULATION.
``(a) List of Inapplicable Provisions of Law.--(1) The
Federal Acquisition Regulation shall include a list of
provisions of law that are inapplicable to contracts or
subcontracts in amounts not greater than the simplified
acquisition threshold. A provision of law that is properly
included on the list pursuant to paragraph (2) may not be
construed as applicable to such contracts or subcontracts (as
the case may be) by an executive agency. Nothing in this
section shall be construed to render inapplicable to
contracts and subcontracts in amounts not greater than the
simplified acquisition threshold any provision of law that is
not included on such list.
``(2) A provision of law described in subsection (c) that
is enacted after the date of the enactment of the Federal
Acquisition Streamlining Act of 1994 shall be included on the
list of inapplicable provisions of law required by paragraph
(1), unless the Federal Acquisition Regulatory Council makes
a written determination that it would not be in the best
interest of the Federal Government to exempt contracts or
subcontracts in amounts not greater than the simplified
acquisition threshold from the applicability of the
provision.
``(b) Covered Law.--A provision of law referred to in
subsection (a) is any provision of law that, as determined by
the Federal Acquisition Regulatory Council, sets forth
policies, procedures, requirements, or restrictions for the
procurement of property or services by the Federal
Government, except for a provision of law that--
``(1) provides for criminal or civil penalties; or
``(2) specifically refers to this section and provides
that, notwithstanding this section, it shall be applicable to
contracts or subcontracts in amounts not greater than the
simplified acquisition threshold.
``(c) Petition.--In the event that a provision of law
described in subsection (b) is not included on the list of
inapplicable provisions of law as required by subsection (a),
and no written determination has been made by the Federal
Acquisition Regulatory Council pursuant to subsection (a)(2),
a person may petition the Administrator for Federal
Procurement Policy to take appropriate action. The
Administrator shall revise the Federal Acquisition Regulation
to include the provision on the list of inapplicable
provisions of law unless the Federal Acquisition Regulatory
Council makes a determination pursuant to subsection (a)(2)
within 60 days after the date on which the petition is
received.''.
SEC. 4102. ARMED SERVICES ACQUISITIONS.
(a) List of Inapplicable Laws in FAR.--Section 2302a of
title 10, United States Code, as added by section 4002, is
amended by adding at the end the following:
``(b) Inapplicable Laws.--No law properly listed in the
Federal Acquisition Regulation pursuant to section 33 of the
Office of Federal Procurement Policy Act shall apply to or
with respect to a contract or subcontract that is not greater
than the simplified acquisition threshold.''.
(b) Inapplicability of Requirement for Contract Clause
Regarding Contingent Fees.--Section 2306(b) of title 10,
United States Code, is amended by adding at the end the
following: ``This subsection does not apply to a contract
that is for an amount not greater than the simplified
acquisition threshold.''.
(c) Inapplicability of Authority To Examine Books and
Records of Contractors.--Section 2313 of title 10, United
States Code, as amended by section 2201, is further amended
by adding at the end of subsection (f) the following:
``(2) A contract or subcontract that is for an amount not
greater than the simplified acquisition threshold.''.
(d) Inapplicability of Requirement To Identify Suppliers
and Sources of Supplies.--Section 2384(b) of title 10, United
States Code, is amended by adding at the end the following
new paragraph:
``(3) The regulations prescribed pursuant to paragraph (1)
do not apply to a contract for an amount not greater than the
simplified acquisition threshold (as defined in section 4(11)
of the Office of Federal Procurement Policy Act (41 U.S.C.
403(11)).''.
(e) Inapplicability of Prohibition Against Doing Business
with Certain Offerors or Contractors.--Section 2393(d) of
title 10, United States Code, is amended in the second
sentence by striking out ``above'' and all that follows and
inserting in lieu thereof ``greater than the simplified
acquisition threshold (as defined in section 4(11) of the
Office of Federal Procurement Policy Act (41 U.S.C.
403(11))).''.
(f) Inapplicability of Prohibition on Limiting
Subcontractor Direct Sales to the United States.--Section
2402 of title 10, United States Code, is amended by adding at
the end the following new subsection:
``(c) This section does not apply to a contract that is for
an amount not greater than the simplified acquisition
threshold (as defined in section 4(11) of the Office of
Federal Procurement Policy Act (41 U.S.C. 403(11))).''.
(g) Inapplicability of Prohibition on Persons Convicted of
Defense-Related Felonies.--Section 2408(a) of title 10,
United States Code, is amended by adding at the end the
following new paragraph:
``(4) The prohibition in paragraph (1) does not apply with
respect to the following:
``(A) A contract referred to in subparagraph (A), (B), (C),
or (D) of such paragraph that is not greater than the
simplified acquisition threshold (as defined in section 4(11)
of the Office of Federal Procurement Policy Act (41 U.S.C.
403(11))).
``(C) A subcontract referred to in such subparagraph that
is under a contract described in subparagraph (A).''.
(h) Inapplicability of Contractor Inventory Accounting
System Standards.--Section 2410b of title 10, United States
Code, is amended--
(1) by inserting ``(a)'' before ``The Secretary''; and
(2) by adding at the end the following:
``(b) The regulations prescribed pursuant to subsection (a)
shall not apply to a contract that is for an amount not
greater than the simplified acquisition threshold.''.
(i) Inapplicability of Miscellaneous Procurement
Limitations.--Section 2534 of title 10, United States Code,
is amended by adding at the end the following:
``(g) Inapplicability to Contracts under Simplified
Acquisition Threshold.--This section does not apply to a
contract or subcontract for an amount that does not exceed
the simplified acquisition threshold.''.
SEC. 4103. CIVILIAN AGENCY ACQUISITIONS.
(a) List of Inapplicable Laws in FAR.--Section 302A of the
Federal Property and Administrative Services Act of 1949, as
added by section 4003, is amended by adding at the end the
following:
``(b) Inapplicable Laws.--No law properly listed in the
Federal Acquisition Regulation pursuant to section 33 of the
Office of Federal Procurement Policy Act shall apply to or
with respect to a contract or subcontract that is not greater
than the simplified acquisition threshold.''.
(b) Inapplicability of Prohibition on Limiting
Subcontractor Direct Sales to the United States.--Section
303G of the Federal Property and Administrative Services Act
of 1949 (41 U.S.C. 253g) is amended by adding at the end the
following new subsection:
``(c) This section does not apply to a contract for an
amount that is not greater than the simplified acquisition
threshold.''.
(c) Inapplicability of Requirement for Contract Clause
Regarding Contingent Fees.--Section 304(a) of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C.
254(a)) is amended by adding at the end the following: ``The
preceding sentence does not apply to a contract for an amount
that is not greater than the simplified acquisition
threshold.''.
(d) Authority To Examine Books and Records of
Contractors.--Section 304C of the Federal Property and
Administrative Services Act of 1949, as added by section
2251(a), is amended by adding at the end of subsection (f)
the following:
``(2) A contract or subcontract that is not greater than
the simplified acquisition threshold.''.
SEC. 4104. ACQUISITIONS GENERALLY.
(a) Requirement for Contract Clause Relating to
Kickbacks.--Section 7 of the Anti-Kickback Act of 1986 (41
U.S.C. 57) is amended by adding at the end the following new
subsections:
``(d) Subsections (a) and (b) do not apply to a prime
contract that is not greater than $100,000.
``(e) Notwithstanding subsection (d), a prime contractor
shall cooperate fully with any Federal Government agency
investigating a violation of section 3.''.
(b) Miller Act.--(1)(A) The Miller Act is amended by adding
at the end the following new section:
``Sec. 5. This Act does not apply to a contract in an
amount that is not greater than $100,000.''.
(B) Subsection (a) of the first section of such Act is
amended by striking out ``, exceeding $25,000 in amount,''.
(2)(A) The Federal Acquisition Regulation shall provide
alternatives to payment bonds as payment protections for
suppliers of labor and materials under contracts referred to
in subparagraph (C).
(B) The contracting officer for a contract shall--
(i) select, from among the payment protections provided for
in the Federal Acquisition Regulation pursuant to
subparagraph (A), one or more payment protections which the
offeror awarded the contract is to submit to the Federal
Government for the protection of suppliers of labor and
materials for such contract; and
(ii) specify in the solicitation of offers for such
contract the payment protection or protections so selected.
(C) The regulations required under subparagraph (A) and the
requirements of subparagraph (B) apply with respect to
contracts referred to in subsection (a) of the first section
of the Miller Act that are greater than $25,000 but not
greater than $100,000.
(c) Contract Work Hours and Safety Standards Act.--(1)
Section 103 of the Contract Work Hours and Safety Standards
Act (40 U.S.C. 329) is amended by adding at the end the
following new subsection:
``(c) This title does not apply to a contract in an amount
that is not greater than $100,000.''.
(2) Section 107(a) of such Act (40 U.S.C. 333(a)) is
amended by inserting after ``It shall be a condition of each
contract'' the following: ``(other than a contract referred
to in section 103(c))''.
(d) Drug-Free Workplace Act of 1988.--Section 5152(a)(1) of
the Drug-Free Workplace Act of 1988 (subtitle D of title V of
the Anti-Drug Abuse Act of 1988; Public Law 100-690; 41
U.S.C. 701(a)(1)) is amended by striking out ``of $25,000 or
more from any Federal agency'' and inserting in lieu thereof
``greater than the simplified acquisition threshold (as
defined in section 4(11) of such Act (41 U.S.C. 403(11))) by
any Federal agency''.
(e) Solid Waste Disposal Act.--Paragraph (3) of section
6002(c) of the Solid Waste Disposal Act (42 U.S.C. 6962(c))
is amended--
(1) by redesignating subparagraphs (A) and (B) as clauses
(i) and (ii), respectively;
(2) by inserting ``(A)'' after ``(3)''; and
(4) by adding at the end the following new subparagraph:
``(B) Clause (ii) of subparagraph (A) applies only to a
contract in an amount greater than $100,000.''.
Subtitle C--Simplified Acquisition Procedures
SEC. 4201. SIMPLIFIED ACQUISITION PROCEDURES.
(a) Requirement for Simplified Procedures in FAR.--The
Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.) is further amended by inserting before section 33, as
added by section 4101, the following new section:
``SEC. 31. SIMPLIFIED ACQUISITION PROCEDURES.
``(a) Requirement.--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 greater
than the simplified acquisition threshold.
``(b) Prohibition on Dividing Purchases.--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 Required.--In using
simplified acquisition procedures, the head of an executive
agency shall promote competition to the maximum extent
practicable.
``(d) Consideration of Offers Timely Received.--The
simplified acquisition procedures contained in the Federal
Acquisition Regulation shall include a requirement that a
contracting officer consider each responsive offer timely
received from an eligible offeror.
``(e) Special Rules for Use of Simplified Acquisition
Procedures.--
``(1) Effect of interim facnet capability.--The simplified
acquisition procedures provided in the Federal Acquisition
Regulation pursuant to this section may not be used by a
procuring activity of an agency for contracts in amounts
greater than $50,000 and not greater than the simplified
acquisition threshold until a certification has been made
pursuant to section 30A(a)(1) that the procuring activity has
implemented an interim FACNET capability.
``(2) Effect of full facnet capability.--(A)(i) In the case
of a procuring activity described in clause (ii), the
simplified acquisition procedures provided in the Federal
Acquisition Regulation pursuant to this section may be used
by the activity for contracts in amounts greater than $50,000
and not greater than the simplified acquisition threshold.
``(ii) Clause (i) applies to any procuring activity--
``(I) that has not certified, pursuant to section
30A(a)(1), that it has implemented interim FACNET capability;
and
``(II) that is in an agency that has excluded the procuring
activity from the agency's full FACNET certification under
section 30A(a)(2) on the basis that implementation of full
FACNET capability would not be cost effective or practicable
in that activity.
``(B) The simplified acquisition procedures provided in the
Federal Acquisition Regulation pursuant to this section may
not be used by an agency after December 31, 1999, for
contracts in amounts greater than $50,000 and not greater
than the simplified acquisition threshold until a
certification has been made pursuant to section 30A(a)(2)
that the agency has implemented a full FACNET capability.
``(f) Interim Reporting Rule.--Until October 1, 1999,
procuring activities shall continue to report under section
19(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 greater than
$25,000 that were in effect on October 1, 1992.''.
(b) Opportunity for All Responsible Potential Offerors.--
Subsection (a) of section 18 of such Act is 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 contracting
officers consider each responsive offer timely received from
an offeror.''.
(c) Establishment of Deadline for Submission of Offers.--
Subsection (a) of section 18 of such Act is further amended
by adding 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
solicitation with respect to which no such deadline is
provided by statute. Each deadline for the submission of
offers shall afford potential offerors a reasonable
opportunity to respond.''.
SEC. 4202. 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--
(1) in paragraph (1), by striking out ``the small purchase
threshold'' each place it appears and inserting in lieu
thereof ``$25,000''; and
(2) in paragraph (3)(B), by inserting after ``(B)'' the
following: ``in the case of a contract or order expected to
be greater than the simplified acquisition threshold,''.
(b) Content of Notice.--Subsection (b) of such section is
amended--
(1) by striking out ``and'' at the end of paragraph (4);
(2) by striking out the period at the end of paragraph (5)
and inserting in lieu thereof a semicolon; and
(3) by adding at the end the following:
``(6) in the case of a contract in an amount estimated to
be greater than $25,000 but not greater than the simplified
acquisition threshold--
``(A) a description of the procedures to be used in
awarding the contract; and
``(B) a statement specifying the periods for prospective
offerors and the contracting officer to take the necessary
preaward and award actions.''.
(c) Notice Not Required for Procurement Made Through
FACNET.--Subsection (c)(1) of such section, as amended by
section 1055(b), is further amended--
(1) by redesignating subparagraphs (A), (B), (C), (D), (E),
and (F) as subparagraphs (C), (D), (E), (F), (G), and (H),
respectively; and
(2) by inserting before subparagraph (C), as so
redesignated, the following new subparagraphs:
``(A) the proposed procurement is for an amount not greater
than the simplified acquisition threshold and is to be made
through a system with interim FACNET capability certified
pursuant to section 30A(a)(1) or with full FACNET capability
certified pursuant to section 30A(a)(2);
``(B)(i) the proposed procurement is for an amount not
greater than $250,000 and is to be made through a system with
full FACNET capability certified pursuant to section
30A(a)(2); and
``(ii) a certification has been made pursuant to section
30A(b) that Government-wide FACNET capability has been
implemented;''.
(d) Notice Under the Small Business Act.--
(1) Continuation of existing notice thresholds.--Subsection
(e) of section 8 of the Small Business Act (15 U.S.C. 637) is
amended--
(A) in paragraph (1), by striking out ``the small purchase
threshold'' each place it appears and inserting in lieu
thereof ``$25,000''; and
(B) in paragraph (3)(B), by inserting after ``(B)'' the
following: ``in the case of a contract or order estimated to
be greater than the simplified acquisition threshold,''.
(2) Content of notice.--Subsection (f) of such section is
amended--
(A) by striking out ``and'' at the end of paragraph (4);
(B) by striking out the period at the end of paragraph (5)
and inserting in lieu thereof a semicolon; and
(C) by adding at the end the following:
``(6) in the case of a contract in an amount estimated to
be greater than $25,000 but not greater than the simplified
acquisition threshold--
``(A) a description of the procedures to be used in
awarding the contract; and
``(B) a statement specifying the periods for prospective
offerors and the contracting officer to take the necessary
preaward and award actions.''.
(3) Notice not required for procurement made through
facnet.--Subsection (g)(1) of such section is amended--
(A) by redesignating subparagraphs (A), (B), (C), (D), (E),
and (F) as subparagraphs (C), (D), (E), (F), (G), and (H),
respectively; and
(B) by inserting before subparagraph (C), as so
redesignated, the following new subparagraphs:
``(A) the proposed procurement is for an amount not greater
than the simplified acquisition threshold and is to be made
through a system with interim FACNET capability certified
pursuant to section 30A(a)(1) of the Office of Federal
Procurement Policy Act or with full FACNET capability
certified pursuant to section 30A(a)(2) of such Act;
``(B)(i) the proposed procurement is for an amount not
greater than $250,000 and is to be made through a system with
full FACNET capability certified pursuant to section
30A(a)(2) of the Office of Federal Procurement Policy Act;
and
``(ii) a certification has been made pursuant to section
30A(b) of such Act that Government-wide FACNET capability has
been implemented;''.
SEC. 4203. IMPLEMENTATION OF SIMPLIFIED ACQUISITION
PROCEDURES.
(a) Implementation in Title 10.--(1) Chapter 137 of title
10, United States Code, is amended by inserting after section
2302a, as added by section 4002(a), the following new
section:
``Sec. 2302b. Implementation of simplified acquisition
procedures
``The simplified acquisition procedures contained in the
Federal Acquisition Regulation pursuant to section 31 of the
Office of Federal Procurement Policy Act shall apply as
provided in such section to the agencies named in section
2303(a) of this title.''.
(2) The table of sections at the beginning of chapter 137
of such title is amended by inserting after the item relating
to section 2302a, as added by section 4002(b), the following
new item:
``2302b. Implementation of simplified acquisition procedures.''.
(b) Implementation in Civilian Agencies.--Title III of the
Federal Property and Administrative Services Act of 1949 is
amended by inserting after section 302A, as added by section
4003 and amended by section 4103, the following new section:
``SEC. 302B. IMPLEMENTATION OF SIMPLIFIED ACQUISITION
PROCEDURES.
``The simplified acquisition procedures contained in the
Federal Acquisition Regulation pursuant to section 31 of the
Office of Federal Procurement Policy Act shall apply in
executive agencies as provided in such section.''.
Subtitle D--Micro-Purchase Procedures
SEC. 4301. PROCEDURES FOR PURCHASES BELOW MICRO-PURCHASE
THRESHOLD.
(a) Procedures.--The Office of Federal Procurement Policy
Act (41 U.S.C. 401 et seq.) is amended by adding after
section 31, as added by section 4201, the following new
section:
``SEC. 32. 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)), section 2323 of
title 10, United States Code, and section 7102 of the Federal
Acquisition Streamlining Act of 1994.
``(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.
``(b) Exclusion for Micro-Purchases.--A purchase by an
executive agency with an anticipated value of the micro-
purchase threshold or less is not subject to section 15(j) of
the Small Business Act (15 U.S.C. 644(j)) and the Buy
American Act (41 U.S.C. 10a-10c).
``(c) Applicability of Certain Provisions.--For purposes of
section 27, an officer or employee of an executive agency, or
a member of the Armed Forces of the United States, shall not
be considered a procurement official if--
``(1) the contracting authority of the officer, employee,
or member does not exceed $2,500; and
``(2) the head of the contracting activity concerned (or a
designee of the head of the contracting activity concerned)
determines that the duties of the position of that officer,
employee, or member are such that is it unlikely that the
officer, employee, or member will be required to conduct
procurements in a total amount greater than $20,000 in any
12-month period.
``(d) Purchases Without Competitive Quotations.--A purchase
not greater than $2,500 may be made without obtaining
competitive quotations if the contracting officer determines
that the price for the purchase is reasonable.
``(e) Equitable Distribution.--Purchases not greater than
$2,500 shall be distributed equitably among qualified
suppliers.
``(f) Implementation Through FAR.--This section shall be
implemented through the Federal Acquisition Regulation.
``(g) Micro-Purchase Threshold Defined.--For purposes of
this section, the micro-purchase threshold is the amount of
$2,500.''.
(b) Exception To Buy American Act for Micro-Purchases.--
Section 2 of the Buy American Act (41 U.S.C. 10a) is amended
by adding at the end the following: ``This section shall not
apply to manufactured articles, materials, or supplies
procured under any contract the award value of which is less
than or equal to the micro-purchase threshold under section
32 of the Office of Federal Procurement Policy Act.''.
(c) Effective Date.--Notwithstanding any other provision of
law--
(1) section 32 of the Office of Federal Procurement Policy
Act, as added by subsection (a); and
(2) the amendment made by subsection (b);
shall take effect on the date of the enactment of this Act
and shall be implemented in the Federal Acquisition
Regulation not later than 60 days after such date of
enactment.
Subtitle E--Conforming Amendments
SEC. 4401. ARMED SERVICES ACQUISITIONS.
(a) Simplified Acquisition Procedures.--Section 2304(g) of
title 10, United States Code, is amended--
(1) in paragraph (1), by striking out ``small purchases of
property and services'' and inserting in lieu thereof
``purchases of property and services for amounts not greater
than the simplified acquisition threshold'';
(2) by striking out paragraph (2);
(3) by redesignating paragraphs (3) and (4) as paragraphs
(2) and (3), respectively;
(4) in paragraph (2), as so redesignated--
(A) by striking out ``small purchase threshold'' and
inserting in lieu thereof ``simplified acquisition
threshold''; and
(B) by striking out ``small purchase procedures'' and
inserting in lieu thereof ``simplified procedures''; and
(5) in paragraph (3), as redesignated by paragraph (3), by
striking out ``small purchase procedures'' and inserting in
lieu thereof ``simplified procedures''.
(b) Solicitation Content Requirement.--Section 2305(a)(2)
of such title is amended by striking out ``small purchases)''
in the matter preceding subparagraph (A) and inserting in
lieu thereof ``a purchase for an amount not greater than the
simplified acquisition threshold)''.
(c) Cost Type Contracts.--Section 2306(e)(2)(A) of such
title is amended by striking out ``small purchase threshold''
and inserting in lieu thereof ``simplified acquisition
threshold''.
(d) Reports of Employees or Former Employees of Defense
Contractors.--Subsection (a)(1) of section 2397 of title 10,
United States Code, is amended by striking out ``small
purchase threshold (as defined in section 2302(7) of this
title)'' and inserting in lieu thereof ``simplified
acquisition threshold''.
(e) Cross Reference Amendment.--Section 9005 of Public Law
102-396 (10 U.S.C. 2441 note) is amended in the first
sentence by striking out ``small purchases covered by section
2304(g)'' and inserting in lieu thereof ``purchases for
amounts not greater than the simplified acquisition threshold
covered by section 2304(g)''.
SEC. 4402. CIVILIAN AGENCY ACQUISITIONS.
(a) Simplified Acquisition Procedures.--Section 303(g) of
the Federal Property and Administrative Services Act of 1949
(41 U.S.C. 253(g)) is amended--
(1) in paragraph (1)--
(A) by striking out ``small purchases of property and
services'' and inserting in lieu thereof ``purchases of
property and services for amounts not greater than the
simplified acquisition threshold'', and
(B) by striking out ``regulations modified, in accordance
with section 2752 of the Competition in Contracting Act of
1984,'' and inserting in lieu thereof ``Federal Acquisition
Regulation'';
(2) by striking out paragraph (2) and inserting in lieu
thereof the following:
``(2)(A) The Administrator of General Services shall
prescribe regulations that provide special simplified
procedures for acquisitions of leasehold interests in real
property at rental rates that do not exceed the simplified
acquisition threshold.
``(B) For purposes of subparagraph (A), the rental rate or
rates under a multiyear lease do not exceed the simplified
acquisition threshold if the average annual amount of the
rent payable for the period of the lease does not exceed the
simplified acquisition threshold.'';
(3) in paragraph (3)--
(A) by striking out ``small purchase threshold'' and
inserting in lieu thereof ``simplified acquisition
threshold''; and
(B) by striking out ``small purchase procedures'' and
inserting in lieu thereof ``simplified procedures'';
(4) in paragraph (4), by striking out ``small purchase
procedures'' and inserting in lieu thereof ``the simplified
procedures''; and
(5) by striking out paragraph (5).
(b) Solicitation Content Requirement.--Section 303A(b) of
such Act (41 U.S.C. 253a(b)) is amended by striking out
``small purchases)'' in the matter preceding paragraph (1)
and inserting in lieu thereof ``a purchase for an amount not
greater than the simplified acquisition threshold)''.
(c) Cost Type Contracts.--Section 304(b) of such Act (41
U.S.C. 254(b)) is amended in the sentence beginning with
``All cost and cost-plus-a-fixed-fee'' by striking out
``either $25,000'' and inserting in lieu thereof ``either the
simplified acquisition threshold''.
SEC. 4403. OFFICE OF FEDERAL PROCUREMENT POLICY ACT.
Section 19(a) of the Office of Federal Procurement Policy
Act (41 U.S.C. 417(a)) is amended by striking out
``procurements, other than small purchases,'' and inserting
in lieu thereof ``procurements greater than the simplified
acquisition threshold''.
SEC. 4404. SMALL BUSINESS ACT.
(a) Definition.--Section 3(m) of the Small Business Act (15
U.S.C. 632(m)) is amended by striking out ```small purchase
threshold''' and inserting in lieu thereof ```simplified
acquisition threshold'''.
(b) Use of Simplified Acquisition Threshold Term.--Section
8(d)(2)(A) of the Small Business Act (15 U.S.C. 637(d)(2)(A))
is amended by striking out ``small purchase threshold'' and
inserting in lieu thereof ``simplified acquisition
threshold''.
TITLE V--ACQUISITION MANAGEMENT
Subtitle A--Armed Services Acquisitions
SEC. 5001. PERFORMANCE BASED MANAGEMENT.
(a) Policy and Goals for Performance Based Management of
Programs.--(1) Chapter 131 of title 10, United States Code,
is amended by adding at the end the following new section:
``Sec. 2220. Performance based management: acquisition
programs
``(a) Establishment of Goals.--(1) The Secretary of Defense
shall approve or define the cost, performance, and schedule
goals for major defense acquisition programs of the
Department of Defense and for each phase of the acquisition
cycle of such programs.
``(2) The Comptroller of the Department of Defense shall
evaluate the cost goals proposed for each major defense
acquisition program of the Department.
``(b) Annual Reporting Requirement.--The Secretary of
Defense shall include in the annual report submitted to
Congress pursuant to section 113(c) of this title an
assessment of whether major and nonmajor acquisition programs
of the Department of Defense are achieving, on average, 90
percent of cost, performance, and schedule goals established
pursuant to subsection (a) and whether the average period for
converting emerging technology into operational capability
has decreased by 50 percent or more from the average period
required for such conversion as of the date of the enactment
of the Federal Acquisition Streamlining Act of 1994. The
Secretary shall use data from existing management systems in
making the assessment.
``(c) Performance Evaluation.--Whenever the Secretary of
Defense, in the assessment required by subsection (b),
determines that major defense acquisition programs of the
Department of Defense are not achieving, on average, 90
percent of cost, performance, and schedule goals established
pursuant to subsection (a), the Secretary shall ensure that
there is a timely review of major defense acquisition
programs and other programs as appropriate. In conducting the
review, the Secretary shall--
``(1) determine whether there is a continuing need for
programs that are significantly behind schedule, over budget,
or not in compliance with performance or capability
requirements; and
``(2) identify suitable actions to be taken, including
termination, with respect to such programs.''.
(2) The table of sections at the beginning of such chapter
is amended by adding at the end the following new item:
``2220. Performance based management: acquisition programs.''.
(b) Enhanced System of Performance Incentives.--Within one
year after the date of the enactment of this Act, the
Secretary of Defense shall review the incentives and
personnel actions available to the Secretary of Defense for
encouraging excellence in the management of defense
acquisition programs and provide an enhanced system of
incentives to facilitate the achievement of goals approved or
defined pursuant to section 2220(a) of title 10, United
States Code. The enhanced system of incentives shall, to the
maximum extent consistent with applicable law--
(1) relate pay to performance (including the extent to
which the performance of personnel in such programs
contributes to achieving the cost goals, performance goals,
and schedule goals established for acquisition programs of
the Department of Defense pursuant to section 2220(a) of
title 10, as added by subsection (a)); and
(2) provide for consideration, in personnel evaluations and
promotion decisions, of the extent to which the performance
of personnel in such programs contributes to achieving the
cost goals, performance goals, and schedule goals established
for acquisition programs of the Department of Defense
pursuant to section 2220(a) of title 10, United States Code,
as added by subsection (a).
(c) Recommended Legislation.--Not later than one year after
the date of the enactment of this Act, the Secretary of
Defense shall submit to Congress any recommended legislation
that the Secretary considers necessary to carry out section
2220 of title 10, United States Code, as added by subsection
(a), and otherwise to facilitate and enhance management of
Department of Defense acquisition programs on the basis of
performance.
SEC. 5002. REVIEW OF ACQUISITION PROGRAM CYCLE.
(a) Review.--The Secretary of Defense shall review the
regulations of the Department of Defense to ensure that
acquisition program cycle procedures are focused on achieving
the goals that are consistent with the program baseline
description established pursuant to section 2435 of title 10,
United States Code.
(b) Repeals.--Sections 835 and 836 of the National Defense
Authorization Act for Fiscal Year 1994 (Public Law 103-160;
107 Stat. 1717) are hereby repealed.
Subtitle B--Civilian Agency Acquisitions
SEC. 5051. PERFORMANCE BASED MANAGEMENT.
(a) Policy and Goals for Performance Based Management of
Programs.--Title III of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 301 et seq.),
as amended by sections 1552 and 1553, is further amended by
adding at the end the following new section:
``SEC. 313. PERFORMANCE BASED MANAGEMENT: ACQUISITION
PROGRAMS.
``(a) Congressional Policy.--It is the policy of Congress
that the head of each executive agency should achieve, on
average, 90 percent of the cost and schedule goals
established for major and nonmajor acquisition programs of
the agency without reducing the performance or capabilities
of the items being acquired.
``(b) Establishment of Goals.--(1) The head of each
executive agency shall approve or define the cost,
performance, and schedule goals for major acquisition
programs of the agency.
``(2) The chief financial officer of an executive agency
shall evaluate the cost goals proposed for each major
acquisition program of the agency.
``(c) Identification of Noncompliant Programs.--Whenever it
is necessary to do so in order to implement the policy set
out in subsection (a), the head of an executive agency
shall--
``(1) determine whether there is a continuing need for
programs that are significantly behind schedule, over budget,
or not in compliance with performance or capability
requirements; and
``(2) identify suitable actions to be taken, including
termination, with respect to such programs.''.
(b) Annual Reporting Requirement.--Section 6 of the Office
of Federal Procurement Policy Act (41 U.S.C. 405), as amended
by section 1091, is further amended by adding at the end the
following new subsection:
``(k) The Administrator shall submit to Congress, on an
annual basis, an assessment of the progress made in executive
agencies in implementing the policy stated in section 313(a)
of the Federal Property and Administrative Services Act of
1949. The Administrator shall use data from existing
management systems in making the assessment.''.
(c) Enhanced System of Performance Incentives.--Within one
year after the date of the enactment of this Act, the Deputy
Director for Management of the Office of Management and
Budget, in consultation with appropriate officials in other
departments and agencies of the Federal Government, shall, to
the maximum extent consistent with applicable law--
(1) establish policies and procedures for the heads of such
departments and agencies to designate acquisition positions
and manage employees (including the accession, education,
training and career development of employees) in the
designated acquisition positions; and
(2) review the incentives and personnel actions available
to the heads of departments and agencies of the Federal
Government for encouraging excellence in the acquisition
workforce of the Federal Government and provide an enhanced
system of incentives for the encouragement of excellence in
such workforce which--
(A) relates pay to performance (including the extent to
which the performance of personnel in such workforce
contributes to achieving the cost goals, schedule goals, and
performance goals established for acquisition programs
pursuant to section 313(b) of the Federal Property and
Administrative Services Act of 1949, as added by subsection
(a)); and
(B) provides for consideration, in personnel evaluations
and promotion decisions, of the extent to which the
performance of personnel in such workforce contributes to
achieving such cost goals, schedule goals, and performance
goals.
(d) Recommended Legislation.--Not later than one year after
the date of the enactment of this Act, the Administrator for
Federal Procurement Policy shall submit to Congress any
recommended legislation that the Secretary considers
necessary to carry out section 313 of the Federal Property
and Administrative Services Act of 1949, as added by
subsection (a), and otherwise to facilitate and enhance
management of Federal Government acquisition programs and the
acquisition workforce of the Federal Government on the basis
of performance.
SEC. 5052. RESULTS-ORIENTED ACQUISITION PROCESS.
(a) Development of Process Required.--The Administrator for
Federal Procurement Policy, in consultation with the heads of
appropriate Federal agencies, shall develop results-oriented
acquisition process guidelines for implementation by agencies
in acquisitions of property and services by the Federal
agencies. The process guidelines shall include the
identification of quantitative measures and standards for
determining the extent to which an acquisition of items other
than commercial items by a Federal agency satisfies the needs
for which the items are being acquired.
(b) Inapplicability of Process to Department of Defense.--
The process guidelines developed pursuant to subsection (a)
may not be applied to the Department of Defense.
Subtitle C--Pilot Programs
SEC. 5061. OFPP TEST PROGRAM FOR EXECUTIVE AGENCIES.
(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 the authority of this subsection, and not more than 1
such test shall be conducted under such authority in an
agency.
(b) Designation of Agencies.--Each test conducted pursuant
to subsection (a) shall be carried out in not more than 2
specific procuring activities in an agency designated by the
Administrator. Each agency so designated shall select the
procuring 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 and Limitations.--(1) Each test
conducted under subsection (a)--
(A) shall be developed and structured by the Administrator
or by the agency senior procurement executive designated
pursuant to section 16(3) of the Office of Federal
Procurement Policy Act (41 U.S.C. 414(3)) in close
coordination with the Administrator; and
(B) shall be limited to specific programs of agencies or
specific acquisitions.
(2) The total estimated life-cycle cost to the Federal
Government for each test conducted under subsection (a) may
not exceed $100,000,000.
(3)(A) Except as provided in subparagraph (B), each
contract awarded in conducting the tests under subsection (a)
(including the cost of options if all options were to be
exercised) may not exceed $5,000,000.
(B) For one of the tests conducted under subsection (a),
the amount of each contract awarded in conducting the test
(including options) may exceed $5,000,000.
(4) The program of tests conducted under subsection (a)
shall include, either as a test or as part of a test, the use
of the Federal acquisition computer network (``FACNET'')
capability required by section 30 of the Office of Federal
Procurement Policy Act (as added by section 9001) for
procurement actions in amounts greater than the simplified
acquisition threshold.
(d) Limitation on Total Value of Contracts Under Program.--
(1) 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. In
calculating such amount, the Administrator shall not include
any contract awarded for the test conducted by the National
Aeronautics and Space Administration pursuant to section 5062
of this Act.
(2) The Administrator shall monitor the value of contracts
awarded pursuant to the program under this section.
(3) 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 awarded
pursuant to the program under this section.
(e) Procedures Authorized.--Tests conducted under this
section may include any of the following procedures:
(1) Publication of agency needs before drafting of a
solicitation.
(2) Issuance of draft solicitations for comment.
(3) Streamlined solicitations that specify as the
evaluation factors the minimum factors necessary, require
sources to submit the minimum information necessary, provide
abbreviated periods for submission of offers, and specify
page limitations for offers.
(4) Limitation of source selection factors to--
(A) cost to the Federal Government;
(B) past experience and performance; and
(C) quality of the content of the offer.
(5) Evaluation of proposals by small teams of highly
qualified people over a period not greater than 30 days.
(6) Restriction of competitions to sources determined
capable in a precompetition screening process, provided that
the screening process affords all interested sources a fair
opportunity to be considered.
(7) Restriction of competitions to sources of preevaluated
products, provided that the preevaluation process affords all
interested sources a fair opportunity to be considered.
(8) Alternative notice and publication requirements.
(9) A process in which--
(A) the competitive process is initiated by publication in
the Commerce Business Daily, or by dissemination through
FACNET, of a notice that--
(i) contains a synopsis of the functional and performance
needs of the executive agency conducting the test, and, for
purposes of guidance only, other specifications; and
(ii) invites any interested source to submit information or
samples showing the suitability of its product for meeting
those needs, together with a price quotation, or, if
appropriate, showing the source's technical capability, past
performance, product supportability, or other qualifications
(including, as appropriate, information regarding rates and
other cost-related factors);
(B) contracting officials develop a request for proposals
(including appropriate specifications and evaluation
criteria) after reviewing the submissions of interested
sources and, if the officials determine necessary, after
consultation with those sources; and
(C) a contract is awarded after a streamlined competition
that is 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 the
qualification-based factors included in an invitation to
submit information pursuant to subparagraph (A).
(f) Measurable Test Criteria.--The Administrator shall
require each agency conducting a test pursuant to subsection
(a) to establish, to the maximum extent practicable,
measurable criteria for evaluation of the effects of the
procedure or technique to be tested.
(g) Test Plan.--At least 270 days before a test may be
conducted 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 (h)(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
authorization and appropriations 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.
(h) Waiver of Procurement Regulations.--(1) 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
procedures described in subsection (e).
(2) The provisions of law referred to in paragraph (1) are
as follows:
(A) The following provisions of title 10, United States
Code:
(i) Section 2304.
(ii) Section 2305.
(iii) Section 2319.
(B) Subsections (e), (f), and (g) of section 8 of the Small
Business Act (15 U.S.C. 637).
(C) The following provisions of the Revised Statutes:
(i) Section 3709 (41 U.S.C. 5).
(ii) Section 3710 (41 U.S.C. 8).
(iii) Section 3735 (41 U.S.C. 13).
(D) The following provisions of the Federal Property and
Administrative Services Act of 1949:
(i) Section 303 (41 U.S.C. 253).
(ii) Section 303A (41 U.S.C. 253a).
(iii) Section 303B (41 U.S.C. 253b).
(iv) Section 303C (41 U.S.C. 253c).
(v) Section 310 (41 U.S.C. 260).
(E) The following provisions of the Office of Federal
Procurement Policy Act:
(i) Section 4(6) (41 U.S.C. 403(6)).
(ii) Section 18 (41 U.S.C. 416).
(3) 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 (g).
(i) Report.--Not later than 6 months after completion of a
test conducted under subsection (a), the Comptroller General
shall submit to Congress a report for the test setting forth
in detail the results of the test, including such
recommendations as the Comptroller General considers
appropriate.
(j) Commencement and Expiration of Authority.--(1) The
Administrator may not exercise the authority to conduct a
test under subsection (a) in an agency and to award contracts
under such a test before the date on which the head of the
agency certifies to Congress under section 30A(a)(2) of the
Office of Federal Procurement Policy Act that the agency has
implemented a full FACNET capability.
(2) The authority to conduct a test under subsection (a) in
an agency and to award contracts under such a test shall
expire 4 years after the date on which the head of the agency
makes the certification referred to in paragraph (1).
Contracts entered into before such authority expires in an
agency pursuant to a test shall remain in effect,
notwithstanding the expiration of the authority to conduct
the test under this section.
(k) Rule of Construction.--Nothing in this section shall be
construed as authorizing the appropriation or obligation of
funds for the tests conducted pursuant to subsection (a).
SEC. 5062. NASA MID-RANGE PROCUREMENT TEST PROGRAM.
(a) In General.--The Administrator of the National
Aeronautics and Space Administration (in this section
referred to as the ``Administrator'') may conduct a test of
alternative notice and publication requirements for
procurements conducted by the National Aeronautics and Space
Administration. 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).
(b) Applicability.--The test conducted under subsection (a)
shall apply to acquisitions with an estimated annual total
obligation of funds of $500,000 or less.
(c) Limitation on Total Cost.--The total estimated life-
cycle cost to the Federal Government for the test conducted
under subsection (a) may not exceed $100,000,000.
(d) Waiver of Procurement Regulations.--(1) In conducting
the test under this section, the Administrator, with the
approval of the Administrator for Federal Procurement Policy,
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 the test.
(2) The provisions of law referred to in paragraph (1) are
as follows:
(A) Subsections (e), (f), and (g) of section 8 of the Small
Business Act (15 U.S.C. 637).
(B) Section 18 of the Office of Federal Procurement Policy
Act (41 U.S.C. 416).
(e) Report.--Not later than 6 months after completion of
the test conducted under subsection (a), the Comptroller
General shall submit to Congress a report for the test
setting forth in detail the results of the test, including
such recommendations as the Comptroller General considers
appropriate.
(f) Expiration of Authority.--The authority to conduct the
test under subsection (a) and to award contracts under such
test shall expire 4 years after the date of the enactment of
this Act. Contracts entered into before such authority
expires shall remain in effect, notwithstanding the
expiration of the authority to conduct the test under this
section.
(g) Rule of Construction.--Nothing in this section shall be
construed as authorizing the appropriation or obligation of
funds for the test conducted pursuant to subsection (a).
SEC. 5063. FEDERAL AVIATION ADMINISTRATION ACQUISITION PILOT
PROGRAM.
(a) Authority.--The Secretary of Transportation may conduct
a test of alternative and innovative procurement procedures
in carrying out acquisitions for one of the modernization
programs under the Airway Capital Investment Plan prepared
pursuant to section 44501(b) of title 49, United States Code.
In conducting such test, the Secretary shall consult with the
Administrator for Federal Procurement Policy.
(b) Pilot Program Implementation.--(1) The Secretary of
Transportation should prescribe policies and procedures for
the interaction of the program manager and the end user
executive responsible for the requirement for the equipment
acquired. Such policies and procedures should include
provisions for enabling the end user executive to participate
in acceptance testing.
(2) Not later than 45 days after the date of enactment of
this Act, the Secretary of Transportation shall identify for
the pilot program quantitative measures and goals for
reducing acquisition management costs.
(3) The Secretary of Transportation shall establish for the
pilot program a review process that provides senior
acquisition officials with reports on the minimum necessary
data items required to ensure the appropriate expenditure of
funds appropriated for the program and that--
(A) contain essential information on program results at
appropriate intervals, including the criteria to be used in
measuring the success of the program; and
(B) reduce data requirements from the current program
review reporting requirements.
(c) Special Authorities.--The authority provided by
subsection (a) shall include authority for the Secretary of
Transportation--
(1) to apply any amendment or repeal of a provision of law
made in this Act to the pilot program before the effective
date of such amendment or repeal; and
(2) to apply to a procurement of items other than
commercial items under such program--
(A) any authority provided in this Act (or in an amendment
made by a provision of this Act) to waive a provision of law
in the case of commercial items, and
(B) any exception applicable under this Act (or an
amendment made by a provision of this 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 items other than commercial items.
(d) Applicability.--Subsection (c) applies with respect
to--
(1) a contract that is awarded or modified after the date
occurring 45 days after the date of the enactment of this
Act; and
(2) a contract that is awarded before such date and is to
be performed (or may be performed), in whole or in part,
after such date.
(e) Procedures Authorized.--The test conducted under this
section may include any of the following procedures:
(1) Restriction of competitions to sources determined
capable in a precompetition screening process, provided that
the screening process affords all interested sources a fair
opportunity to be considered.
(2) Restriction of competitions to sources of preevaluated
products, provided that the preevaluation process affords all
interested sources a fair opportunity to be considered.
(3) Alternative notice and publication requirements.
(4) A process in which--
(A) the competitive process is initiated by publication in
the Commerce Business Daily, or by dissemination through
FACNET, of a notice that--
(i) contains a synopsis of the functional and performance
needs of the executive agency conducting the test, and, for
purposes of guidance only, other specifications; and
(ii) invites any interested source to submit information or
samples showing the suitability of its product for meeting
those needs, together with a price quotation, or, if
appropriate, showing the source's technical capability, past
performance, product supportability, or other qualifications
(including, as appropriate, information regarding rates and
other cost-related factors);
(B) contracting officials develop a request for proposals
(including appropriate specifications and evaluation
criteria) after reviewing the submissions of interested
sources and, if the officials determine necessary, after
consultation with those sources; and
(C) a contract is awarded after a streamlined competition
that is 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 the
qualification-based factors included in an invitation to
submit information pursuant to subparagraph (A).
(f) Waiver of Procurement Regulations.--(1) In conducting
the test under this section, the Secretary of Transportation,
with the approval of the Administrator for Federal
Procurement Policy, 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 test procedures authorized by
subsection (e).
(2) The provisions of law referred to in paragraph (1) are
as follows:
(A) Subsections (e), (f), and (g) of section 8 of the Small
Business Act (15 U.S.C. 637).
(B) The following provisions of the Federal Property and
Administrative Services Act of 1949:
(i) Section 303 (41 U.S.C. 253).
(ii) Section 303A (41 U.S.C. 253a).
(iii) Section 303B (41 U.S.C. 253b).
(iv) Section 303C (41 U.S.C. 253c).
(C) The following provisions of the Office of Federal
Procurement Policy Act:
(i) Section 4(6) (41 U.S.C. 403(6)).
(ii) Section 18 (41 U.S.C. 416).
(g) Definition.--In this section, the term ``commercial
item'' has the meaning provided that term in section 4(12) of
the Office of Federal Procurement Policy Act.
(h) Expiration of Authority.--The authority to conduct the
test under subsection (a) and to award contracts under such
test shall expire 4 years after the date of the enactment of
this Act. Contracts entered into before such authority
expires shall remain in effect, notwithstanding the
expiration of the authority to conduct the test under this
section.
(i) Rule of Construction.--Nothing in this section shall be
construed as authorizing the appropriation or obligation of
funds for the test conducted pursuant to subsection (a).
SEC. 5064. DEPARTMENT OF DEFENSE ACQUISITION PILOT PROGRAMS.
(a) In General.--The Secretary of Defense is authorized to
designate the following defense acquisition programs for
participation in the defense acquisition pilot program
authorized by section 809 of the National Defense
Authorization Act for Fiscal Year 1991 (10 U.S.C. 2430 note):
(1) Fire support combined arms tactical trainer (fscatt).--
The Fire Support Combined Arms Tactical Trainer program with
respect to all contracts directly related to the procurement
of a training simulation system (including related hardware,
software, and subsystems) to perform collective training of
field artillery gunnery team components, with development of
software as required to generate the training exercises and
component interfaces.
(2) Joint direct attack munition (jdam i).--The Joint
Direct Attack Munition program with respect to all contracts
directly related to the development and procurement of a
strap-on guidance kit, using an inertially guided, Global
Positioning System updated guidance kit to enhance the
delivery accuracy of 1000-pound and 2000-pound bombs in
inventory.
(3) Joint primary aircraft training system (jpats).--The
Joint Primary Aircraft Training System (JPATS) with respect
to all contracts directly related to the acquisition of a new
primary trainer aircraft to fulfill Air Force and Navy joint
undergraduate aviation training requirements, and an
associated ground-based training system consisting of air
crew training devices (simulators), courseware, a Training
Management System, and contractor support for the life of the
system.
(4) Commercial-derivative aircraft (cda).--
(A) All contracts directly related to the acquisition or
upgrading of commercial-derivative aircraft for use in
meeting airlift and tanker requirements and the air vehicle
component for airborne warning and control systems.
(B) For purposes of this paragraph, the term ``commercial-
derivative aircraft'' means any of the following:
(i) Any aircraft (including spare parts, support services,
support equipment, technical manuals, and data related
thereto) that is or was of a type customarily used in the
course of normal business operations for other than Federal
Government purposes, that has been issued a type certificate
by the Administrator of the Federal Aviation Administration,
and that has been sold or leased for use in the commercial
marketplace or that has been offered for sale or lease for
use in the commercial marketplace.
(ii) Any aircraft that, but for modifications of a type
customarily available in the commercial marketplace, or minor
modifications made to meet Federal Government requirements,
would satisfy or would have satisfied the criteria in
subclause (I).
(iii) For purposes of a potential complement or alternative
to the C-17 program, any nondevelopmental airlift aircraft,
other than the C-17 or any aircraft derived from the C-17,
shall be considered a commercial-derivative aircraft.
(5) Commercial-derivative engine (cde).--The commercial
derivative engine program with respect to all contracts
directly related to the acquisition of (A) commercial
derivative engines (including spare engines and upgrades),
logistics support equipment, technical orders, management
data, and spare parts, and (B) commercially derived engines
for use in supporting the purchase of commercial-derivative
aircraft for use in airlift and tanker requirements
(including engine replacement and upgrades) and the air
vehicle component for airborne warning and control systems.
For purposes of a potential complement or alternative to the
C-17 program, any nondevelopmental airlift aircraft engine
shall be considered a commercial-derivative engine.
(b) Pilot Program Implementation.--(1) The text of section
833 of the National Defense Authorization Act for Fiscal Year
1994 (Public Law 103-160; 107 Stat. 1716) is amended to read
as follows:
``(a) Mission-Oriented Program Management.--In the exercise
of the authority provided in section 809 of the National
Defense Authorization Act for Fiscal Year 1991 (10 U.S.C.
2430 note), the Secretary of Defense should propose for one
or more of the defense acquisition programs covered by the
Defense Acquisition Pilot Program to utilize the concept of
mission-oriented program management.
``(b) Policies and Procedures.--In the case of each defense
acquisition program covered by the Defense Acquisition Pilot
Program, the Secretary of Defense should prescribe policies
and procedures for the interaction of the program manager and
the commander of the operational command (or a
representative) responsible for the requirement for the
equipment acquired, and for the interaction with the
commanders of the unified and specified combatant commands.
Such policies and procedures should include provisions for
enabling the user commands to participate in acceptance
testing.''.
(2) The text of section 837 of National Defense
Authorization Act for Fiscal Year 1994 (Public Law 103-160;
107 Stat. 1718) is amended to read as follows:
``The Secretary of Defense shall take any additional
actions that the Secretary considers necessary to waive
regulations not required by statute that affect the
efficiency of the contracting process within the Department
of Defense. Such actions shall include, in the Secretary's
discretion, developing methods to streamline the procurement
process, streamlining the period for entering into contracts,
and defining alternative techniques to reduce reliance on
military specifications and standards, in contracts for the
defense acquisition programs participating in the Defense
Acquisition Pilot Program.''.
(3) The text of section 838 of National Defense
Authorization Act for Fiscal Year 1994 (Public Law 103-160;
107 Stat. 1718) is amended to read as follows:
``For at least one participating defense acquisition
program for which a determination is made to make payments
for work in progress under the authority of section 2307 of
title 10, United States Code, the Secretary of Defense should
define payment milestones on the basis of quantitative
measures of results.''.
(4) Not later than 45 days after the date of the enactment
of the Federal Acquisition Streamlining Act of 1994, the
Secretary of Defense shall identify for each defense
acquisition program participating in the pilot program
quantitative measures and goals for reducing acquisition
management costs.
(5) For each defense acquisition program participating in
the pilot program, the Secretary of Defense shall establish a
review process that provides senior acquisition officials
with reports on the minimum necessary data items required to
ensure the appropriate expenditure of funds appropriated for
the program and that--
(A) contain essential information on program results at
appropriate intervals, including the criteria to be used in
measuring the success of the program; and
(B) reduce data requirements from the current program
review reporting requirements.
(c) Special Authority.--The authority delegated under
subsection (a) may include authority for the Secretary of
Defense--
(1) to apply any amendment or repeal of a provision of law
made in this Act to the pilot programs before the effective
date of such amendment or repeal; and
(2) to apply to a procurement of items other than
commercial items under such programs--
(A) any authority provided in this Act (or in an amendment
made by a provision of this Act) to waive a provision of law
in the case of commercial items, and
(B) any exception applicable under this Act (or an
amendment made by a provision of this 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 items other than commercial items.
(d) Applicability.--(1) Subsection (c) applies with respect
to--
(A) a contract that is awarded or modified during the
period described in paragraph (2); and
(B) 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.
(2) The period referred to in paragraph (1) is the period
that begins 45 days after the date of the enactment of this
Act and ends on September 30, 1998.
(e) Rule of Construction.--Nothing in this section shall be
construed as authorizing the appropriation or obligation of
funds for the programs designated for participation in the
defense acquisition pilot program under the authority of
subsection (a).
Subtitle D--Miscellaneous
SEC. 5091. VENDOR AND EMPLOYEE EXCELLENCE AWARDS.
Section 6(d) of the Office of Federal Procurement Policy
Act (41 U.S.C. 405(d)) is amended--
(1) by striking out ``and'' at the end of paragraph (7);
(2) by redesignating paragraph (8) as paragraph (12); and
(3) by adding at the end the following new paragraphs:
``(8) providing for a Government-wide award to recognize
and promote vendor excellence;
``(9) 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. 5092. WAITING PERIOD FOR SIGNIFICANT CHANGES PROPOSED
FOR ACQUISITION REGULATIONS.
(a) Increased Period.--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.''.
(b) Technical Amendment.--Section 22(d) of such Act is
amended by designating the second sentence as paragraph (3).
SEC. 5093. 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 can be 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 appropriate circumstances
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).
TITLE VI--OTHER PROCUREMENT-RELATED MATTERS
SEC. 6001. POST-EMPLOYMENT RULES.
(a) Repeal.--(1) Section 801 of title 37, United States
Code, is repealed.
(2) The table of sections for chapter 15 of title 37,
United States Code, is amended by striking out the item
relating to section 801.
(b) Suspension of Effect of Certain Provision of Law.--
Section 281 of title 18, United States Code, shall not be
effective during the period beginning on the date of the
enactment of this Act and ending at the end of December 31,
1996. Such section shall not apply after that date to any
relationship otherwise punishable under such section that
existed during such period.
SEC. 6002. 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 a person described in
subsection (b) may be paid by an executive agency for
services to conduct evaluations or analyses of any aspect of
a proposal submitted for an acquisition unless personnel
described in subsection (b) 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 executive agency shall determine in accordance with the
standards and procedures set forth in the Federal Acquisition
Regulation whether--
``(A) a sufficient number of personnel described in
subsection (b) within the agency or another Federal agency
are readily available to perform a particular evaluation or
analysis for the head of the executive agency making the
determination; and
``(B) the readily available personnel have the training and
capabilities necessary to perform the evaluation or analysis.
``(b) Covered Personnel.--For purposes of subsection (a),
the personnel described in this subsection are as follows:
``(1) An employee, as defined in section 2105 of title 5,
United States Code.
``(2) A member of the Armed Forces of the United States.
``(3) A person assigned to a Federal agency pursuant to
subchapter VI of chapter 33 of title 5, United States Code.
``(c) Rule of Construction.--Nothing in this section is
intended to affect the relationship between the Federal
Government and a federally funded research and development
center.''.
(b) Requirement for Guidance and Regulations.--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--
(1) review part 37 of title 48 of the Code of Federal
Regulations as it relates to the use of advisory and
assistance services; and
(2) provide guidance and promulgate regulations regarding--
(A) 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
(B) the manner in which personnel with expertise may be
shared with agencies needing expertise for such acquisitions.
SEC. 6003. 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. 6004. 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. 6005. WHISTLEBLOWER PROTECTIONS FOR CONTRACTOR EMPLOYEES
OF DEPARTMENT OF DEFENSE, COAST GUARD, AND
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION.
(a) Whistleblower Protections for Contractor Employees.--
Section 2409 of title 10, United States Code, is amended to
read as follows:
``Sec. 2409. Contractor employees: protection from reprisal
for disclosure of certain information
``(a) Prohibition of Reprisals.--An employee of a
contractor may not be discharged, demoted, or otherwise
discriminated against as a reprisal for disclosing to a
Member of Congress or an authorized official of an agency or
the Department of Justice information relating to a
substantial violation of law related to a contract (including
the competition for or negotiation of a contract).
``(b) Investigation of Complaints.--A person who believes
that the person has been subjected to a reprisal prohibited
by subsection (a) may submit a complaint to the Inspector
General of an agency. Unless the Inspector General determines
that the complaint is frivolous, the Inspector General shall
investigate the complaint and, upon completion of such
investigation, submit a report of the findings of the
investigation to the person, the contractor concerned, and
the head of the agency.
``(c) Remedy and Enforcement Authority.--(1) If the head of
the agency determines that a contractor has subjected a
person to a reprisal prohibited by subsection (a), the head
of the agency may take one or more of the following actions:
``(A) Order the contractor to take affirmative action to
abate the reprisal.
``(B) Order the contractor to reinstate the person to the
position that the person held before the reprisal, together
with the compensation (including back pay), employment
benefits, and other terms and conditions of employment that
would apply to the person in that position if the reprisal
had not been taken.
``(C) Order the contractor to pay the complainant an amount
equal to the aggregate amount of all costs and expenses
(including attorneys' fees and expert witnesses' fees) that
were reasonably incurred by the complainant for, or in
connection with, bringing the complaint regarding the
reprisal, as determined by the head of the agency.
``(2) Whenever a person fails to comply with an order
issued under paragraph (1), the head of the agency shall file
an action for enforcement of such order in the United States
district court for a district in which the reprisal was found
to have occurred. In any action brought under this paragraph,
the court may grant appropriate relief, including injunctive
relief and compensatory and exemplary damages.
``(3) Any person adversely affected or aggrieved by an
order issued under paragraph (1) may obtain review of the
order's conformance with this subsection, and any regulations
issued to carry out this section, in the United States court
of appeals for a circuit in which the reprisal is alleged in
the order to have occurred. No petition seeking such review
may be filed more than 60 days after issuance of the order by
the head of the agency. Review shall conform to chapter 7 of
title 5.
``(d) Construction.--Nothing in this section may be
construed to authorize the discharge of, demotion of, or
discrimination against an employee for a disclosure other
than a disclosure protected by subsection (a) or to modify or
derogate from a right or remedy otherwise available to the
employee.
``(e) Definitions.--In this section:
``(1) The term `agency' means an agency named in section
2303 of this title.
``(2) The term `head of an agency' has the meaning provided
by section 2302(1) of this title.
``(3) The term `contract' means a contract awarded by the
head of an agency.
``(4) The term `contractor' means a person awarded a
contract with an agency.
``(5) The term `Inspector General' means an Inspector
General appointed under the Inspector General Act of 1978.''.
(b) Related Law.--(1) Section 2409a of title 10, United
States Code, is repealed.
(2) The table of sections at the beginning of chapter 141
of such title is amended by striking out the item relating to
section 2409a.
SEC. 6006. WHISTLEBLOWER PROTECTIONS FOR CONTRACTOR EMPLOYEES
OF CIVILIAN AGENCIES.
Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.) is amended by
adding at the end the following new section:
``SEC. 315. CONTRACTOR EMPLOYEES: PROTECTION FROM REPRISAL
FOR DISCLOSURE OF CERTAIN INFORMATION.
``(a) Prohibition of Reprisals.--An employee of a
contractor may not be discharged, demoted, or otherwise
discriminated against as a reprisal for disclosing to a
Member of Congress or an authorized official of an executive
agency or the Department of Justice information relating to a
substantial violation of law related to a contract (including
the competition for or negotiation of a contract).
``(b) Investigation of Complaints.--A person who believes
that the person has been subjected to a reprisal prohibited
by subsection (a) may submit a complaint to the Inspector
General of the executive agency. Unless the Inspector General
determines that the complaint is frivolous, the Inspector
General shall investigate the complaint and, upon completion
of such investigation, submit a report of the findings of the
investigation to the person, the contractor concerned, and
the head of the agency. In the case of an executive agency
that does not have an inspector general, the duties of the
inspector general under this section shall be performed by an
official designated by the head of the executive agency.
``(c) Remedy and Enforcement Authority.--(1) If the head of
an executive agency determines that a contractor has
subjected a person to a reprisal prohibited by subsection
(a), the head of the executive agency may take one or more of
the following actions:
``(A) Order the contractor to take affirmative action to
abate the reprisal.
``(B) Order the contractor to reinstate the person to the
position that the person held before the reprisal, together
with the compensation (including back pay), employment
benefits, and other terms and conditions of employment that
would apply to the person in that position if the reprisal
had not been taken.
``(C) Order the contractor to pay the complainant an amount
equal to the aggregate amount of all costs and expenses
(including attorneys' fees and expert witnesses' fees) that
were reasonably incurred by the complainant for, or in
connection with, bringing the complaint regarding the
reprisal, as determined by the head of the executive agency.
``(2) Whenever a person fails to comply with an order
issued under paragraph (1), the head of the executive agency
shall file an action for enforcement of such order in the
United States district court for a district in which the
reprisal was found to have occurred. In any action brought
under this paragraph, the court may grant appropriate relief,
including injunctive relief and compensatory and exemplary
damages.
``(3) Any person adversely affected or aggrieved by an
order issued under paragraph (1) may obtain review of the
order's conformance with this subsection, and any regulations
issued to carry out this section, in the United States court
of appeals for a circuit in which the reprisal is alleged in
the order to have occurred. No petition seeking such review
may be filed more than 60 days after issuance of the order by
the head of the agency. Review shall conform to chapter 7 of
title 5, United States Code.
``(d) Construction.--Nothing in this section may be
construed to authorize the discharge of, demotion of, or
discrimination against an employee for a disclosure other
than a disclosure protected by subsection (a) or to modify or
derogate from a right or remedy otherwise available to the
employee.
``(e) Definitions.--In this section:
``(1) The term `contract' means a contract awarded by the
head of an executive agency.
``(2) The term `contractor' means a person awarded a
contract with an executive agency.
``(3) The term `Inspector General' means an Inspector
General appointed under the Inspector General Act of 1978.''.
SEC. 6007. COMPTROLLER GENERAL REVIEW OF THE PROVISION OF
LEGAL ADVICE FOR INSPECTORS GENERAL.
(a) Review and Report Required.--Not later than March 1,
1995, the Comptroller General of the United States shall--
(1) conduct a review of the independence of the legal
services being provided to Inspectors General appointed under
the Inspector General Act of 1978; and
(2) submit to Congress a report on the results of the
review.
(b) Matters Required for Report.--The report shall include
the following matters:
(1) With respect to each department or agency of the
Federal Government that has an Inspector General appointed in
accordance with the Inspector General Act of 1978 whose only
or principal source of legal advice is the general counsel or
other chief legal officer of the department or agency, an
assessment of the extent of the independence of the legal
advisers providing advice to the Inspector General.
(2) A comparison of the findings under the assessment
referred to in paragraph (1) with findings on the same
matters with respect to each Inspector General whose source
of legal advice is legal counsel accountable solely to the
Inspector General.
SEC. 6008. COST SAVINGS FOR OFFICIAL TRAVEL.
(a) Guidelines.--The Administrator of the General Services
Administration shall issue guidelines to ensure that agencies
promote, encourage, and facilitate the use of frequent
traveler programs offered by airlines, hotels, and car rental
vendors by Federal employees who engage in official air
travel, for the purpose of realizing to the maximum extent
practicable cost savings for official travel.
(b) Requirement.--Any awards granted under such a frequent
traveler program accrued through official travel shall be
used only for official travel.
(c) Report.--Not later than one year after the date of the
enactment of this Act, the Administrator shall report to
Congress on efforts to promote the use of frequent traveler
programs by Federal employees.
SEC. 6009. PROMPT RESOLUTION OF AUDIT RECOMMENDATIONS.
Federal agencies shall resolve or take corrective action on
all Office of Inspector General audit report findings within
a maximum of six months after their issuance, or, in the case
of audits performed by non-Federal auditors, six months after
receipt of the report by the Federal Government.
TITLE VII--SMALL BUSINESS AND SOCIOECONOMIC LAWS
Subtitle A--Small Business Laws
SEC. 7101. REPEAL OF CERTAIN REQUIREMENTS.
(a) Set-Aside Priority.--Section 15 of the Small Business
Act (15 U.S.C. 644) is amended by striking out subsections
(e) and (f).
(b) Certificate of Competence.--Section 804 of Public Law
102-484 (106 Stat. 2447; 10 U.S.C. 2305 note) is repealed.
SEC. 7102. CONTRACTING PROGRAM FOR CERTAIN SMALL BUSINESS
CONCERNS.
(a) Procurement Procedures Authorized.--(1) To facilitate
the attainment of a goal for the participation of small
business concerns owned and controlled by socially and
economically disadvantaged individuals that is established
for a Federal agency pursuant to section 15(g)(1) of the
Small Business Act (15 U.S.C. 644(g)(1)), the head of the
agency may enter into contracts using--
(A) less than full and open competition by restricting the
competition for such awards to small business concerns owned
and controlled by socially and economically disadvantaged
individuals described in subsection (d)(3)(C) of section 8 of
the Small Business Act (15 U.S.C. 637); and
(B) a price evaluation preference not in excess of 10
percent when evaluating an offer received from such a small
business concern as the result of an unrestricted
solicitation.
(2) Paragraph (1) does not apply to the Department of
Defense, the Coast Guard, and the National Aeronautics and
Space Administration.
(b) Implementation Through the Federal Acquisition
Regulation.--
(1) In general.--The Federal Acquisition Regulation shall
be revised to provide for uniform implementation of the
authority provided in subsection (a).
(2) Matters to be addressed.--The revisions of the Federal
Acquisition Regulation made pursuant to paragraph (1) shall
include--
(A) conditions for the use of advance payments;
(B) provisions for contract payment terms that provide
for--
(i) accelerated payment for work performed during the
period for contract performance; and
(ii) full payment for work performed;
(C) guidance on how contracting officers may use, in
solicitations for various classes of products or services, a
price evaluation preference pursuant to subsection (a)(1)(B),
to provide a reasonable advantage to small business concerns
owned and controlled by socially and economically
disadvantaged individuals without effectively eliminating any
participation of other small business concerns; and
(D)(i) procedures for a person to request the head of a
Federal agency to determine whether the use of competitions
restricted to small business concerns owned and controlled by
socially and economically disadvantaged individuals at a
contracting activity of such 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; and
(ii) guidance for limiting the use of such restricted
competitions in the case of any contracting activity and
class of contracts determined in accordance with such
procedures to have caused a particular industry category to
bear a disproportionate share of the contracts awarded to
attain the goal established for that contracting activity.
(c) Termination.--This section shall cease to be effective
at the end of September 30, 2000.
SEC. 7103. EXTENSION OF TEST PROGRAM FOR NEGOTIATION OF
COMPREHENSIVE SMALL BUSINESS SUBCONTRACTING
PLANS.
Section 834(e) of the National Defense Authorization Act
for Fiscal Years 1990 and 1991 (Public Law 101-189; 15 U.S.C.
637 note) is amended by striking out ``September 30, 1994.''
in the second sentence and inserting in lieu thereof
``September 30, 1998.''.
SEC. 7104. 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 develop positions on proposed procurement
regulations affecting the small business community; and
(2) to submit comments reflecting such positions to
appropriate regulatory authorities.
(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 Director of the Minority Business Development
Agency.
(3) The head of each Office of Small and Disadvantaged
Business Utilization (established under section 15(k) of the
Small Business Act (15 U.S.C. 644(k)) in each Federal agency
having procurement powers.
(d) Chairman.--The Council shall be chaired by the
Administrator of the Small Business Administration.
(e) Meetings.--The Council shall meet at the call of the
chairman as necessary to consider proposed procurement
regulations affecting the small business community.
(f) Consideration of Council Comments.--The Federal
Acquisition Regulatory Council and other appropriate
regulatory authorities shall consider comments submitted in a
timely manner pursuant to subsection (b)(2).
SEC. 7105. EXTENSION OF DEFENSE CONTRACT GOAL TO COAST GUARD
AND NATIONAL AERONAUTICS AND SPACE
ADMINISTRATION.
Section 2323 of title 10, United States Code, is amended to
read as follows:
``Sec. 2323. Contract goal for small disadvantaged businesses
and certain institutions of higher education
``(a) Goal.--(1) Except as provided in subsection (d), a
goal of 5 percent of the amount described in subsection (b)
shall be the objective of the Department of Defense, the
Coast Guard, and the National Aeronautics and Space
Administration in each fiscal year 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) The Federal Acquisition Regulation (issued under
section 25(c) of the Office of Federal Procurement Policy Act
(41 U.S.C. 421(c)) shall provide procedures or guidelines for
contracting officers to set goals which 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.
``(b) Amount.--With respect to the Department of Defense,
the requirements of subsection (a) for any fiscal year apply
to the combined total of the following amounts:
``(A) Funds obligated for contracts entered into with the
Department of Defense for such fiscal year for procurement.
``(B) Funds obligated for contracts entered into with the
Department of Defense for such fiscal year for research,
development, test, and evaluation.
``(C) Funds obligated for contracts entered into with the
Department of Defense for such fiscal year for military
construction.
``(D) Funds obligated for contracts entered into with the
Department of Defense for operation and maintenance.
``(2) With respect to the Coast Guard, 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 Coast Guard for such fiscal year.
``(3) With respect to the National Aeronautics and Space
Administration, 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 National
Aeronautics and Space Administration for such fiscal year.
``(c) Types of Assistance.--(1) To attain the goal
specified in subsection (a)(1), the head of an 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
agency procurement procedures, instruction in preparation of
proposals, and other such assistance as the head of the
agency considers appropriate. If the resources of the agency
are inadequate to provide such assistance, the head of the
agency 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) Infrastructure assistance provided by the Department
of Defense under this section to historically Black colleges
and universities and to minority institutions may include
programs to do the following:
``(A) Establish and enhance undergraduate, graduate, and
doctoral programs in scientific disciplines critical to the
national security functions of the Department of Defense.
``(B) Make Department of Defense personnel available to
advise and assist faculty at such colleges and universities
in the performance of defense research and in scientific
disciplines critical to the national security functions of
the Department of Defense.
``(C) Establish partnerships between defense laboratories
and historically Black colleges and universities and minority
institutions for the purpose of training students in
scientific disciplines critical to the national security
functions of the Department of Defense.
``(D) Award scholarships, fellowships, and the
establishment of cooperative work-education programs in
scientific disciplines critical to the national security
functions of the Department of Defense.
``(E) Attract and retain faculty involved in scientific
disciplines critical to the national security functions of
the Department of Defense.
``(F) Equip and renovate laboratories for the performance
of defense research.
``(G) Expand and equip Reserve Officer Training Corps
activities devoted to scientific disciplines critical to the
national security functions of the Department of Defense.
``(H) Provide other assistance as the Secretary determines
appropriate to strengthen scientific disciplines critical to
the national security functions of the Department of Defense
or the college infrastructure to support the performance of
defense research.
``(4) The head of the agency 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) Applicability.--Subsection (a) does not apply to the
Department of Defense--
``(1) to the extent to which the Secretary of Defense
determines that compelling national security considerations
require otherwise; and
``(2) if the Secretary notifies Congress of such
determination and the reasons for such determination.
``(e) 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;
``(iii) in the case of the Department of Defense, actively
monitor and assess the progress of the military departments,
Defense Agencies, and prime contractors of the Department of
Defense in attaining such goal; and
``(iv) in the case of the Coast Guard and the National
Aeronautics and Space Administration, actively monitor and
assess the progress of the prime contractors of the agency in
attaining such goal.
``(B) In making the assessment under clauses (iii) and (iv)
of subparagraph (A), the head of the agency 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 head of an agency shall make advance
payments under section 2307 of this title 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 head an agency may enter into contracts
using less than full and open competitive procedures
(including awards under section 8(a) of the Small Business
Act) 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 head an agency 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 head of an agency
shall maximize the number of minority small business
concerns, historically Black colleges and universities, and
minority institutions participating in the program.
``(5) Each head of an agency shall prescribe regulations
which 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 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).
``(f) 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 imprisonment for not more than one year, or a
fine under title 18, 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)).
``(g) Industry Categories.--(1) To the maximum extent
practicable, the head of the agency shall--
``(A) ensure that no particular industry category bears a
disproportionate share of the contracts awarded to attain the
goal established by subsection (a); and
``(B) ensure that contracts awarded to attain the goal
established by subsection (a) are made across the broadest
possible range of industry categories.
``(2) Under procedures prescribed by the head of the
agency, a person may request the Secretary 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 head of the agency
shall take appropriate actions to limit the contracting
activity's use of set asides in awarding contracts in that
particular industry category.
``(h) 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 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.
``(i) Annual Report.--(1) Not later than December 15 of
each year, the head of the agency shall submit to Congress a
report on the progress of the agency 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 (e)(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 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.
``(j) Definitions.--In this section:
``(1) The term `agency' means the Department of Defense,
the Coast Guard, and the National Aeronautics and Space
Administration.
``(2) The term `head of an agency' means the Secretary of
Defense, the Secretary of Transportation, and the
Administrator of the National Aeronautics and Space
Administration.
``(k) Effective Date.--(1) This section applies in the
Department of Defense to each of fiscal years 1987 through
2000.
``(2) This section applies in the Coast Guard and the
National Aeronautics and Space Administration in each of
fiscal years 1995 through 2000.''.
SEC. 7106. PROCUREMENT GOALS FOR SMALL BUSINESS CONCERNS
OWNED BY WOMEN.
(a) Goals.--Section 15 of the Small Business Act (15 U.S.C.
644) is amended--
(1) by striking out ``and small business concerns owned and
controlled by socially and economically disadvantaged
individuals'' each place it appears in the first sentence and
fourth sentences of subsection (g)(1), the second sentence of
subsection (g)(2), and paragraphs (1), (2)(A), (2)(D), and
(2)(E) of subsection (h) and inserting in lieu thereof ``,
small business concerns owned and controlled by socially and
economically disadvantaged individuals, and small business
concerns owned and controlled by women'';
(2) in subsection (g)--
(A) by inserting after the third sentence of paragraph (1)
the following: ``The Government-wide goal for participation
by small business concerns owned and controlled by women
shall be established at not less than 5 percent of the total
value of all prime contract and subcontract awards for each
fiscal year.'';
(B) in the first sentence of paragraph (2), by striking out
``and by small business concerns owned and controlled by
socially and economically disadvantaged individuals,'' and
inserting in lieu thereof ``, by small business concerns
owned and controlled by socially and economically
disadvantaged individuals, and by small business concerns
owned and controlled by women''; and
(C) in the fourth sentence of paragraph (2), by inserting
after ``including participation by small business concerns
owned and controlled by socially and economically
disadvantaged individuals'' the following: ``and
participation by small business concerns owned and controlled
by women''; and
(3) in subsection (h)(2)(F), by striking out ``women-owned
small business enterprises'' and inserting in lieu thereof
``small business concerns owned and controlled by women''.
(b) Subcontract Participation.--Section 8(d) of such Act
(15 U.S.C. 637(d)) is amended--
(1) by striking out ``and small business concerns owned and
controlled by socially and economically disadvantaged
individuals'' both places it appears in paragraph (1), both
places it appears in paragraph (3)(A), in paragraph (4)(D),
in subparagraphs (A), (C), and (F) of paragraph (6), and in
paragraph (10)(B) and inserting in lieu thereof ``, small
business concerns owned and controlled by socially and
economically disadvantaged individuals, and small business
concerns owned and controlled by women'';
(2) by striking out subparagraph (D) in paragraph (3) and
inserting in lieu thereof the following:
``(E) Contractors acting in good faith may rely on written
representations by their subcontractors regarding their
status as either a small business concern, a small business
concern owned and controlled by socially and economically
disadvantaged individuals, or a small business concern owned
and controlled by women.'';
(3) in paragraph (3), by inserting after subparagraph (C)
the following new subparagraph (D):
``(D) The term `small business concern owned and controlled
by women' shall mean a small business concern--
``(i) which is at least 51 per centum owned by one or more
women; or, in the case of any publicly owned business, at
least 51 per centum of the stock of which is owned by one or
more women; and
``(ii) whose management and daily business operations are
controlled by one or more women.''; and
(4) in paragraph (4)(E), by inserting ``and for small
business concerns owned and controlled by women'' after ``as
defined in paragraph (3) of this subsection''.
(c) Misrepresentations of Status.--(1) Subsection (d)(1) of
section 16 of such Act (15 U.S.C. 645) is amended by striking
out ``or `small business concern owned and controlled by
socially and economically disadvantaged individuals''' and
inserting in lieu thereof ``, a `small business concern owned
and controlled by socially and economically disadvantaged
individuals', or a `small business concerns owned and
controlled by women'''.
(2) Subsection (e) of such section is amended by striking
out ``or `small business concern owned and controlled by
socially and economically disadvantaged individuals''' and
inserting in lieu thereof ``, a `small business concern owned
and controlled by socially and economically disadvantaged
individuals', or a `small business concerns owned and
controlled by women'''.
(d) Definition.--Section 3 of such Act (15 U.S.C. 632) is
amended by adding at the end the following new subsection:
``(n) For the purposes of this Act, a small business
concern is a small business concern owned and controlled by
women if--
``(1) at least 51 percent of small business concern is
owned by one or more women or, in the case of any publicly
owned business, at least 51 percent of the stock of which is
owned by one or more women; and
``(2) the management and daily business operations of the
business are controlled by one or more women.''.
SEC. 7107. DEVELOPMENT OF DEFINITIONS REGARDING CERTAIN SMALL
BUSINESS CONCERNS.
(a) Review Required.--(1) The Administrator for Federal
Procurement Policy shall conduct a comprehensive review of
Federal laws, as in effect on November 1, 1994, to identify
and catalogue all of the provisions in such laws that define
(or describe for definitional purposes) the small business
concerns set forth in paragraph (2) for purposes of
authorizing the participation of such small business concerns
as prime contractors or subcontractors in--
(A) contracts awarded directly by the Federal Government or
subcontracts awarded under such contracts; or
(B) contracts and subcontracts funded, in whole or in part,
by Federal financial assistance under grants, cooperative
agreements, or other forms of Federal assistance.
(2) The small business concerns referred to in paragraph
(1) are as follows:
(A) Small business concerns owned and controlled by
socially and economically disadvantaged individuals.
(B) Minority-owned small business concerns.
(C) Small business concerns owned and controlled by women.
(D) Woman-owned small business concerns.
(b) Matters To Be Developed.--On the basis of the results
of the review carried out under subsection (a), the
Administrator for Federal Procurement Policy shall develop--
(1) uniform definitions for the small business concerns
referred to in subsection (a)(2);
(2) uniform agency certification standards and procedures
for--
(A) determinations of whether a small business concern
qualifies as a small business concern referred to in
subsection (a)(2) under an applicable standard for purposes
of contracts and subcontracts referred to in subsection
(a)(1); and
(B) reciprocal recognition by an agency of a decision of
another agency regarding whether a small business concern
qualifies as a small business concern referred to in
subsection (a)(2) for such purposes; and
(3) such other related recommendations as the Administrator
determines appropriate consistent with the review results.
(c) Procedures and Schedule.--(1) The Administrator for
Federal Procurement Policy shall provide for the
participation in the review and activities under subsections
(a) and (b) by representatives of--
(A) the Small Business Administration (including the Office
of the Chief Counsel for Advocacy);
(B) the Minority Business Development Agency of the
Department of Commerce;
(C) the Department of Transportation;
(D) the Environmental Protection Agency; and
(E) such other executive departments and agencies as the
Administrator considers appropriate.
(2) In carrying out subsections (a) and (b), the
Administrator shall consult with representatives of
organizations representing--
(A) minority-owned business enterprises;
(B) women-owned business enterprises; and
(C) other organizations that the Administrator considers
appropriate.
(3) Not later than 60 days after the date of the enactment
of this Act, the Administrator shall publish in the Federal
Register a notice which--
(A) lists the provisions of law identified in the review
carried out under subsection (a);
(B) describes the matters to be developed on the basis of
the results of the review pursuant to subsection (b);
(C) solicits public comment regarding the matters described
in the notice pursuant to subparagraphs (A) and (B) for a
period of not less than 60 days; and
(D) addresses such other matters as the Administrator
considers appropriate to ensure the comprehensiveness of the
review and activities under subsections (a) and (b).
(d) Report.--Not later than May 1, 1996, the Administrator
for Federal Procurement Policy shall submit to the Committees
on Small Business of the Senate and the House of
Representatives a report on the results of the review carried
out under subsection (a) and the actions taken under
subsection (b). The report shall include a discussion of the
results of the review, a description of the consultations
conducted and public comments received, and the
Administrator's recommendations with regard to the matters
identified under subsection (b).
SEC. 7108. FUNCTIONS OF OFFICE OF FEDERAL PROCUREMENT POLICY
RELATING TO SMALL BUSINESS.
(a) Policies.--Section 6(d) of the Office of Federal
Procurement Policy Act (41 U.S.C. 405(d)) is amended by
adding after paragraph (9), as added by section 5091, the
following new paragraphs:
``(10) developing policies, in consultation with the
Administrator of the Small Business Administration, that
ensure that small businesses, small businesses owned and
controlled by socially and economically disadvantaged
individuals, and small businesses owned and controlled by
women are provided with the maximum practicable opportunities
to participate in procurements that are conducted for amounts
below the simplified acquisition threshold;
``(11) developing policies that will promote achievement of
goals for participation by small businesses, small businesses
owned and controlled by socially and economically
disadvantaged individuals, and small business owned and
controlled by women; and''.
(b) Education and Training.--Section 6(d)(5) of the Office
of Federal Procurement Policy Act (41 U.S.C. 405(d)(5)) is
amended--
(1) by striking out ``and'' at the end of subparagraph (A);
(2) by striking out the semicolon 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 training, 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.''.
Subtitle B--Socioeconomic Laws
SEC. 7201. ACQUISITIONS GENERALLY.
The Act of June 30, 1936 (41 U.S.C. 35 et seq.), commonly
referred to as the ``Walsh-Healey Act'', is amended--
(1) in the first section, by striking out subsection (a)
and redesignating subsections (b), (c), (d), and (e), as
subsections (a), (b), (c), and (d), respectively;
(2) in section 10(b) by striking out ``manufacturer of, or
regular dealer in,'' and inserting in lieu thereof ``supplier
of'';
(3) in section 10(c) by striking out `` `regular dealer',
`manufacturer',''; and
(4) by adding at the end the following new sections:
``Sec. 11. (a) The Secretary of Labor may prescribe in
regulations the standards for determining whether a
contractor is a manufacturer of or a regular dealer in
materials, supplies, articles, or equipment to be
manufactured or used in the performance of a contract entered
into by any executive department, independent establishment,
or other agency or instrumentality of the United States, or
by the District of Columbia, or by any corporation all the
stock of which is beneficially owned by the United States,
for the manufacture or furnishing of materials, supplies,
articles, and equipment.
``(b) Any interested person shall have the right of
judicial review of any legal question regarding the
interpretation of the terms `regular dealer' and
`manufacturer', as defined pursuant to subsection (a).''.
SEC. 7202. PROHIBITION ON USE OF FUNDS FOR DOCUMENTING
ECONOMIC OR EMPLOYMENT IMPACT OF CERTAIN
ACQUISITION PROGRAMS.
(a) Revision and Codification.--(1) Subchapter I of
chapter 134 of title 10, United States Code, is amended by
adding at the end the following new section:
``Sec. 2247. Prohibition on use of funds for documenting
economic or employment impact of certain acquisition
programs
``No funds appropriated by the Congress may be obligated or
expended to assist any contractor of the Department of
Defense in preparing any material, report, lists, or analysis
with respect to the actual or projected economic or
employment impact in a particular State or congressional
district of an acquisition program for which all research,
development, testing, and evaluation has not been
completed.''.
(2) The table of sections at the beginning of such
subchapter is amended by adding at the end the following new
item:
``2247. Prohibition on use of funds for documenting economic or
employment impact of certain acquisition programs.''.
(b) Repeal of Superseded Law.--Section 9048 of Public Law
102-396 (106 Stat. 1913) is repealed.
SEC. 7203. MERIT-BASED AWARD OF CONTRACTS AND GRANTS.
(a) Armed Services Acquisitions.--(1) Section 2304 of title
10, United States Code, as amended by section 1005, is
further amended--
(A) in subsection (c)(5), by inserting ``subject to
subsection (j),'' after ``(5)''; and
(B) by adding at the end the following new subsection:
``(j)(1) It is the policy of Congress that an agency named
in section 2303(a) of this title should not be required by
legislation to award a new contract to a specific non-Federal
Government entity. It is further the policy of Congress that
any program, project, or technology identified in legislation
be procured through merit-based selection procedures.
``(2) A provision of law may not be construed as requiring
a new contract to be awarded to a specified non-Federal
Government entity unless that provision of law--
``(A) specifically refers to this subsection;
``(B) specifically identifies the particular non-Federal
Government entity involved; and
``(C) specifically states that the award to that entity is
required by such provision of law in contravention of the
policy set forth in paragraph (1).
``(3) For purposes of this subsection, a contract is a new
contract unless the work provided for in the contract is a
continuation of the work performed by the specified entity
under a preceding contract.
``(4) This subsection shall not apply with respect to any
contract that calls upon the National Academy of Sciences to
investigate, examine, or experiment upon any subject of
science or art of significance to an agency named in section
2303(a) of this title and to report on such matters to the
Congress or any agency of the Federal Government.''.
(2) Chapter 139 of title 10, United States Code, is amended
by adding at the end the following new section:
``Sec. 2374. Merit-based award of grants for research and
development
``(a) It is the policy of Congress that an agency named in
section 2303(a) of this title should not be required by
legislation to award a new grant for research, development,
test, or evaluation to a non-Federal Government entity. It is
further the policy of Congress that any program, project, or
technology identified in legislation be awarded through
merit-based selection procedures.
``(b) A provision of law may not be construed as requiring
a new grant to be awarded to a specified non-Federal
Government entity unless that provision of law--
``(1) specifically refers to this subsection;
``(2) specifically identifies the particular non-Federal
Government entity involved; and
``(3) specifically states that the award to that entity is
required by such provision of law in contravention of the
policy set forth in subsection (a).
``(c) For purposes of this section, a grant is a new grant
unless the work provided for in the grant is a continuation
of the work performed by the specified entity under a
preceding grant.
``(d) This section shall not apply with respect to any
grant that calls upon the National Academy of Sciences to
investigate, examine, or experiment upon any subject of
science or art of significance to an agency named in section
2303(a) of this title and to report on such matters to the
Congress or any agency of the Federal Government.''.
(3) The table of sections at the beginning of such chapter
is amended by adding at the end the following new item:
``2374. Merit-based award of grants for research and development.''.
(b) Civilian Agency Acquisitions.--(1) Section 303 of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 253) is amended--
(A) in subsection (c)(5), by inserting ``subject to
subsection (h),'' after ``(5)''; and
(B) by adding at the end the following new subsection:
``(h)(1) It is the policy of Congress that an executive
agency should not be required by legislation to award a new
contract to a specific non-Federal Government entity. It is
further the policy of Congress that any program, project, or
technology identified in legislation be procured through
merit-based selection procedures.
``(2) A provision of law may not be construed as requiring
a new contract to be awarded to a specified non-Federal
Government entity unless that provision of law--
``(A) specifically refers to this subsection;
``(B) specifically identifies the particular non-Federal
Government entity involved; and
``(C) specifically states that the award to that entity is
required by such provision of law in contravention of the
policy set forth in paragraph (1).
``(3) For purposes of this subsection, a contract is a new
contract unless the work provided for in the contract is a
continuation of the work performed by the specified entity
under a preceding contract.
``(4) This subsection shall not apply with respect to any
contract that calls upon the National Academy of Sciences to
investigate, examine, or experiment upon any subject of
science or art of significance to an executive agency and to
report on such matters to the Congress or any agency of the
Federal Government.''.
(2) Title III of such Act, as amended by section 6006, is
further amended by adding at the end the following new
section:
``SEC. 316. MERIT-BASED AWARD OF GRANTS FOR RESEARCH AND
DEVELOPMENT
``(a) Policy.--It is the policy of Congress that an
executive agency should not be required by legislation to
award a new grant for research, development, test, or
evaluation to a non-Federal Government entity. It is further
the policy of Congress that any program, project, or
technology identified in legislation be awarded through
merit-based selection procedures.
``(b) Rule of Construction.--A provision of law may not be
construed as requiring a new grant to be awarded to a
specified non-Federal Government entity unless that provision
of law--
``(1) specifically refers to this subsection;
``(2) specifically identifies the particular non-Federal
Government entity involved; and
``(3) specifically states that the award to that entity is
required by such provision of law in contravention of the
policy set forth in subsection (a).
``(c) New Grant Defined.--For purposes of this section, a
grant is a new grant unless the work provided for in the
grant is a continuation of the work performed by the
specified entity under a preceding grant.
``(d) Inapplicability to Certain Grants.--This section
shall not apply with respect to any grant that calls upon the
National Academy of Sciences to investigate, examine, or
experiment upon any subject of science or art of significance
to an executive agency and to report on such matters to
Congress or any agency of the Federal Government.''.
SEC. 7204. MAXIMUM PRACTICABLE OPPORTUNITIES FOR APPRENTICES
ON FEDERAL CONSTRUCTION PROJECTS.
It is the sense of the House of Representatives that--
(1) contractors performing Federal construction contracts
should, to the maximum extent practicable, give preference in
the selection of subcontractors to subcontractors
participating in apprenticeship programs registered with the
Department of Labor or with a State apprenticeship agency
recognized by such Department; and
(2) contractors and subcontractors performing Federal
construction contracts should provide maximum practicable
opportunities for employment of apprentices who are
participating in or who have completed such apprenticeship
programs.
SEC. 7205. REPEAL OF OBSOLETE PROVISION.
Section 308 of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 258) is repealed.
SEC. 7206. REPEAL OF OBSOLETE AND REDUNDANT PROVISIONS OF
LAW.
(a) Repeal of Requirement for Policy Guidance.--Title III
of the Act of March 3, 1933 (41 U.S.C. 10a et seq.), commonly
referred to as the ``Buy American Act'', is amended in
section 4(g) (41 U.S.C. 10b-1(g)) by striking out paragraphs
(2)(C) and (3).
(b) Repeal of Reporting Requirement.--Section 9096(b) of
Public Law 102-396 (106 Stat. 1924; 41 U.S.C. 10b-2(b)) is
repealed.
(c) Repeal of Studies of Waivers.--Section 306 of the Trade
Agreements Act of 1979 (19 U.S.C. 2516) is repealed.
Subtitle C--Waiver of Application of Prevailing Wage-Setting
Requirements to Volunteers
SEC. 7301. SHORT TITLE.
This subtitle may be cited as the ``Community Improvement
Volunteer Act of 1994''.
SEC. 7302. PURPOSE.
It is the purpose of this subtitle to promote and provide
opportunities for people who wish to volunteer their services
to State or local governments, public agencies, or nonprofit
charitable organizations in the construction, repair or
alteration (including painting and decorating) of public
buildings and public works that are funded, in whole or in
part, with Federal financial assistance authorized under
certain Federal programs and that might not otherwise be
possible without the use of volunteers.
SEC. 7303. WAIVER FOR INDIVIDUALS WHO PERFORM VOLUNTEER
SERVICES FOR PUBLIC ENTITIES.
(a) In General.--The requirement that certain laborers and
mechanics be paid in accordance with the wage-setting
provisions of the Act of March 3, 1931 (commonly known as the
``Davis-Bacon Act'') (40 U.S.C. 276a et seq.) as set forth in
any of the Acts or provisions described in section 7305 shall
not apply to an individual--
(1) who volunteers--
(A) to perform a service directly to a State or local
government or a public agency for civic, charitable, or
humanitarian reasons, without promise, expectation, or
receipt of compensation for services rendered, other than
expenses, reasonable benefits, or a nominal fee (as defined
in subsection (b)), but solely for the personal purpose or
pleasure of the individual; and
(B) to provide such services freely and without pressure or
coercion, direct or implied, from any employer;
(2) whose contribution of service is not for the direct or
indirect benefit of any contractor otherwise performing or
seeking to perform work on the same project for which the
individual is volunteering;
(3) who is not employed by and does not provide services to
a contractor or subcontractor at any time on the federally
assisted or insured project for which the individual is
volunteering; and
(4) who is not otherwise employed by the same public agency
to perform the same type of services as those for which the
individual proposes to volunteer.
(b) Expenses.--Payments of expenses, reasonable benefits,
or a nominal fee may be provided to volunteers described in
subsection (a) only in accordance with regulations issued by
the Secretary of Labor. In prescribing the regulations, the
Secretary shall take into consideration criteria such as the
total amount of payments made (relating to expenses,
benefits, or fees) in the context of the economic realities.
The regulations shall include provisions that provide that--
(1) a payment for an expense may be received by a volunteer
for items such as uniform allowances, protective gear and
clothing, reimbursement for approximate out-of-pocket
expenses, or for the cost or expense of meals and
transportation;
(2) a reasonable benefit may include the inclusion of a
volunteer in a group insurance plan (such as a liability,
health, life, disability, or worker's compensation plan) or
pension plan, or the awarding of a length of service award;
and
(3) a nominal fee may not be used as a substitute for
compensation and may not be connected to productivity.
The decision as to what constitutes a nominal fee for
purposes of paragraph (3) shall be determined based on the
context of the economic realities of the situation involved
and shall be made by the Secretary of Labor.
(c) Economic Reality.--For purposes of subsection (b), in
determining whether an expense, benefit, or fee described in
such subsection may be paid to volunteers in the context of
the economic realities of the particular situation, the
Secretary of Labor may not permit any such expense, benefit,
or fee that has the effect of undermining labor standards by
creating downward pressure on prevailing wages in the local
construction industry.
SEC. 7304. WAIVER FOR INDIVIDUALS WHO PERFORM VOLUNTEER
SERVICES FOR NONPROFIT ENTITIES.
The requirement that certain laborers and mechanics be paid
in accordance with the wage-setting provisions of the Act of
March 3, 1931 (commonly known as the ``Davis-Bacon Act'') (40
U.S.C. 276a et seq.) as set forth in any of the Acts or
provisions described in section 7305 shall not apply to any
individual--
(1) who volunteers--
(A) to perform a service directly to a public or private
nonprofit recipient of Federal assistance for civic,
charitable, or humanitarian reasons, without promise,
expectation, or receipt of compensation for services
rendered, but solely for the personal purpose or pleasure of
the individual; and
(B) to provide such services freely and without pressure or
coercion, direct or implied, from any employer;
(2) whose contribution of service is not for the direct or
indirect benefit of any contractor otherwise performing or
seeking to perform work on the same project for which the
individual is volunteering;
(3) who is not employed by and does not provide services to
a contractor or subcontractor at any time on the federally
assisted or insured project for which the individual is
volunteering; and
(4) who is not otherwise employed by the recipient of
Federal assistance to perform the same type of services as
those for which the individual proposes to volunteer.
SEC. 7305. CONTRACTS AFFECTED.
For purposes of sections 7303 and 7304, the Acts or
provisions described in this section are--
(1) the Library Services and Construction Act (20 U.S.C.
351 et seq.);
(2) the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450 et seq.);
(3) section 329 of the Public Health Service Act (42 U.S.C.
254b);
(4) section 330 of the Public Health Service Act (42 U.S.C.
254c);
(5) the Indian Health Care Improvement Act (25 U.S.C. 1601
et seq.); and
(6) the Housing and Community Development Act of 1974 (42
U.S.C. 5301 et seq.).
SEC. 7306. REPORT.
Not later than December 31, 1997, the Secretary of Labor
shall prepare and submit to the appropriate committees of
Congress a report that--
(1) to the maximum extent practicable--
(A) identifies and assesses the barriers that prevent
private for-profit entities from using volunteers permitted
under this subtitle; and
(B) assesses whether private for-profit entities should be
permitted to use volunteers on projects relating to the
construction, repair, or alteration of public buildings and
public works if--
(i) such volunteers are performing services for civic,
charitable, humanitarian or educational reasons;
(ii) the contribution of such services is not for the
direct or indirect benefit of the private for-profit entity
that is performing or seeking to perform work on such
projects; and
(iii) such projects would not otherwise be possible without
the use of volunteers; and
(2) contains recommendations with respect to other Acts
related to the Davis-Bacon Act that may be considered in
legislation to permit volunteer work.
TITLE VIII--COMMERCIAL ITEMS
Subtitle A--Definitions and Regulations
SEC. 8001. 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, other than real property, that is of a type
customarily used by the general public or by nongovernmental
entities for purposes other than governmental purposes, and
that--
``(i) has been sold, leased, or licensed to the general
public; or
``(ii) has been offered for sale, lease, or license to the
general public.
``(B) Any item that evolved from an item described in
subparagraph (A) through advances in technology or
performance and that is not yet available in the commercial
marketplace, but will be available in the commercial
marketplace 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), (C), or (E) 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
substantial quantities, in the commercial marketplace based
on established catalog prices for specific tasks performed
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.
``(H) A nondevelopmental item, if the procuring agency
determines, in accordance with conditions set forth in the
Federal Acquisition Regulation, that the item was developed
exclusively at private expense and has been sold in
substantial quantities, on a competitive basis, to multiple
State and local governments.
``(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 (A) or
(B) that requires only minor modification or modification of
the type customarily 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 is not yet in use.
``(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) Stylistic Amendments.--Such section is further
amended--
(1) by striking out ``Act--'' in the matter preceding
paragraph (1) and inserting in lieu thereof ``Act:'';
(2) by capitalizing the first letter of the first word in
each of paragraphs (1) through (11);
(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) by striking out ``; and'' at the end of paragraphs (4)
and (10) and inserting in lieu thereof a period.
SEC. 8002. REGULATIONS ON ACQUISITION OF COMMERCIAL ITEMS.
(a) In General.--The Federal Acquisition Regulation shall
provide regulations to implement paragraphs (12) through (15)
of section 4 of the Office of Federal Procurement Policy Act,
chapter 140 of title 10, United States Code, and sections 314
through 314B of the Federal Property and Administrative
Services Act of 1949.
(b) Contract Clauses.--(1) The regulations prescribed under
subsection (a) shall contain a list of contract clauses to be
included in contracts for the acquisition of commercial end
items. Such list shall, to the maximum extent practicable,
include only those contract clauses--
(A) that are required to implement provisions of law or
executive orders applicable to acquisitions of commercial
items or commercial components, as the case may be; or
(B) that are determined to be consistent with standard
commercial practice.
(2) Such regulations shall provide that a prime contractor
shall not be required by the Federal Government to apply to
any of its divisions, subsidiaries, affiliates,
subcontractors, or suppliers that are furnishing commercial
items any contract clause except those--
(A) that are required to implement provisions of law or
executive orders applicable to subcontractors furnishing
commercial items or commercial components, as the case may
be; or
(B) that are determined to be consistent with standard
commercial practice.
(3) To the maximum extent practicable, only the contract
clauses listed pursuant to paragraph (1) may be used in a
contract, and only the contract clauses referred to in
paragraph (2) may be required to be used in a subcontract,
for the acquisition of commercial items or commercial
components by or for an executive agency.
(4) The Federal Acquisition Regulation shall provide
standards and procedures for waiving the use of contract
clauses required pursuant to paragraph (1), other than those
required by law, including standards for determining the
cases in which a waiver is appropriate.
(5) For purposes of this subsection, the term `subcontract'
includes a transfer of commercial items between divisions,
subsidiaries, or affiliates of a contractor or subcontractor.
(c) Market Acceptance.--(1) The Federal Acquisition
Regulation shall provide that under appropriate conditions
the head of an executive agency may require offerors to
demonstrate that the items offered--
(A) have either--
(i) achieved commercial market acceptance; or
(ii) been satisfactorily supplied to an executive agency
under current or recent contracts for the same or similar
requirements; and
(B) otherwise meet the item description, specifications, or
other criteria prescribed in the public notice and
solicitation relating to the contract.
(2) The Federal Acquisition Regulation shall provide
guidance to ensure that the criteria for determining
commercial market acceptance include the consideration of--
(A) the minimum needs of the executive agency concerned;
and
(B) the entire relevant commercial market, including small
businesses.
(d) Use of Firm, Fixed Price Contracts.--The Federal
Acquisition Regulation shall include, for acquisitions of
commercial items--
(1) a requirement that firm, fixed price contracts or fixed
price with economic price adjustment contracts be used to the
maximum extent practicable; and
(2) a prohibition on use of cost type contracts.
(e) 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.
(f) Defense Contract Clauses.--(1) Section 824(b) of the
National Defense Authorization Act for Fiscal Years 1990 and
1991 (Public Law 101-189; 10 U.S.C. 2325 note) shall cease to
be effective on the date on which the regulations
implementing this section become effective.
(2) Notwithstanding subsection (b), a contract of the
Department of Defense entered into before the date on which
section 824(b) ceases to be effective under paragraph (1),
and a subcontract entered into before such date under such a
contract, may include clauses developed pursuant to
paragraphs (2) and (3) of section 824(b) of the National
Defense Authorization Act for Fiscal Years 1990 and 1991
(Public Law 101-189; 10 U.S.C. 2325 note).
SEC. 8003. LIST OF INAPPLICABLE LAWS IN FEDERAL ACQUISITION
REGULATION.
(a) List.--The Office of Federal Procurement Policy Act (41
U.S.C. 401 et seq.), is amended by adding after section 33,
as added by section 4101, the following new section:
``SEC. 34. LIST OF LAWS INAPPLICABLE TO PROCUREMENTS OF
COMMERCIAL ITEMS IN FEDERAL ACQUISITION
REGULATION.
``(a) List of Inapplicable Provisions of Law.--(1) The
Federal Acquisition Regulation shall include a list of
provisions of law that are inapplicable to contracts for the
procurement of commercial items. A provision of law that is
properly included on the list pursuant to paragraph (2) may
not be construed as applicable to purchases of commercial
items by an executive agency. Nothing in this section shall
be construed to render inapplicable to contracts for the
procurement of commercial items any provision of law that is
not included on such list.
``(2) A provision of law described in subsection (c) that
is enacted after the date of the enactment of the Federal
Acquisition Streamlining Act of 1994 shall be included on the
list of inapplicable provisions of law required by paragraph
(1), unless the Federal Acquisition Regulatory Council makes
a written determination that it would not be in the best
interest of the Federal Government to exempt contracts for
the procurement of commercial items from the applicability of
the provision.
``(b) Subcontracts.--(1) The Federal Acquisition Regulation
shall include a list of provisions of law that are
inapplicable to subcontracts under either a contract for the
procurement of commercial items or a subcontract for the
procurement of commercial items. A provision of law that is
properly included on the list pursuant to paragraph (2) may
not be construed as applicable to such subcontracts. Nothing
in this section shall be construed to render inapplicable to
subcontracts under a contract for the procurement of
commercial items any provision of law that is not included on
such list.
``(2) A provision of law described in subsection (c) shall
be included on the list of inapplicable provisions of law
required by paragraph (1) unless the Federal Acquisition
Regulatory Council makes a written determination that it
would not be in the best interest of the Federal Government
to exempt subcontracts under a contract for the procurement
of commercial items from the applicability of the provision.
``(3) Nothing in this subsection shall be construed to
authorize the waiver of the applicability of any provision of
law with respect to any subcontract under a contract with a
prime contractor reselling or distributing commercial items
of another contractor without adding value.
``(4) In this subsection, the term `subcontract' includes a
transfer of commercial items between divisions, subsidiaries,
or affiliates of a contractor or subcontractor.
``(c) Covered Law.--A provision of law referred to in
subsections (a) and (b) is any provision of law that, as
determined by the Federal Acquisition Regulatory Council,
sets forth policies, procedures, requirements, or
restrictions for the procurement of property or services by
the Federal Government, except for a provision of law that--
``(1) provides for criminal or civil penalties; or
``(2) specifically refers to this section and provides
that, notwithstanding this section, it shall be applicable to
contracts for the procurement of commercial items.
``(d) Petition.--In the event that a provision of law
described in subsection (c) is not included on the list of
inapplicable provisions of law as required by subsection (a)
or (b), and no written determination has been made by the
Federal Acquisition Regulatory Council pursuant to subsection
(a)(2) or (b)(2), a person may petition the Administrator for
Federal Procurement Policy to take appropriate action. The
Administrator shall revise the Federal Acquisition Regulation
to include the provision on the list of inapplicable
provisions of law unless the Federal Acquisition Regulatory
Council makes a determination pursuant to subsection (a)(2)
or (b)(2) within 60 days after the date on which the petition
is received.''.
(b) Effective Date of Petition Provision.--No petition may
be filed under section 34(d) of the Office of Federal
Procurement Policy Act, as added by subsection (a), until
after the date occurring 6 months after the date of the
enactment of this Act.
Subtitle B--Armed Services Acquisitions
SEC. 8101. ESTABLISHMENT OF NEW CHAPTER IN TITLE 10.
(a) Establishment.--Part IV of subtitle A of title 10,
United States Code, is amended by inserting after chapter 139
the following new chapter 140:
``CHAPTER 140--PROCUREMENT OF COMMERCIAL ITEMS
``Sec.
``2375. Relationship of commercial item provisions to other provisions
of law.
``2376. Definitions.
``2377. Preference for acquisition of commercial items.
(b) Clerical Amendment.--The tables of chapters at the
beginning of subtitle A of title 10, United States Code, and
the beginning of part IV of such subtitle are amended by
inserting after the item relating to chapter 139 the
following new item:
``140. Procurement of Commercial Items......................2375''.....
SEC. 8102. RELATIONSHIP TO OTHER PROVISIONS OF LAW.
Chapter 140 of title 10, United States Code, as added by
section 8101, is amended by adding after the table of
sections the following:
``Sec. 2375. Relationship of commercial item provisions to
other provisions of law
``(a) Applicability of title.--Unless otherwise
specifically provided, nothing in this chapter shall be
construed as providing that any other provision of this title
relating to procurement is inapplicable to the procurement of
commercial items.
``(b) List of Laws Inapplicable to Contracts for the
Acquisition of Commercial Items.--No contract for the
procurement of a commercial item entered into by the head of
an agency shall be subject to any law properly listed in the
Federal Acquisition Regulation (pursuant to section 34 of the
Office of Federal Procurement Policy Act).
``(c) Cross reference to exception to cost or pricing data
requirements for commercial items.--For provisions relating
to exceptions for requirements for cost or pricing data for
contracts for the procurement of commercial items, see
section 2306a(d) of this title.''.
SEC. 8103. DEFINITIONS.
Chapter 140 of title 10, United States Code, as amended by
section 8102, is further amended by adding after section 2375
the following new section:
``Sec. 2376. Definitions
``In this chapter:
``(1) The terms `commercial item', `nondevelopmental item',
`component', and `commercial component' have the meanings
provided in section 4 of the Office of Federal Procurement
Policy Act.
``(2) The term `head of an agency' means the Secretary of
Defense, the Secretary of Transportation, and the
Administrator of the National Aeronautics and Space
Administration.
``(3) The term `agency' means the Department of Defense,
the Coast Guard, and the National Aeronautics and Space
Administration.''.
SEC. 8104. PREFERENCE FOR ACQUISITION OF COMMERCIAL ITEMS.
(a) In General.--Chapter 140 of title 10, United States
Code, as amended by section 8103, is further amended by
adding after section 2376 the following new section:
``Sec. 2377. Preference for acquisition of commercial items
``(a) Preference.--The head of an agency shall ensure that,
to the maximum extent practicable--
``(1) requirements of the 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, nondevelopmental
items other than commercial items, may be procured to fulfill
such requirements; and
``(3) offerors of commercial items and nondevelopmental
items other than commercial items are provided an opportunity
to compete in any procurement to fill such requirements.
``(b) Implementation.--The head of an agency shall ensure
that procurement officials in that agency, to the maximum
extent practicable--
``(1) acquire commercial items or nondevelopmental items
other than commercial items to meet the needs of the agency;
``(2) require prime contractors and subcontractors at all
levels under the agency contracts to incorporate commercial
items or nondevelopmental items other than commercial items
as components of items supplied to the 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, nondevelopmental items
other than commercial 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, nondevelopmental items
other than commercial items in response to the agency
solicitations;
``(5) revise the 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
agency shall conduct market research appropriate to the
circumstances--
``(A) before developing new specifications for a
procurement by that agency; and
``(B) before soliciting bids or proposals for a contract in
excess of the simplified acquisition threshold.
``(2) The head of an agency shall use the results of market
research to determine whether there are commercial items or,
to the extent that commercial items suitable to meet the
agency's needs are not available, nondevelopmental items
other than commercial items available that--
``(A) meet the agency's requirements;
``(B) could be modified to meet the agency's requirements;
or
``(C) could meet the agency's requirements if those
requirements were modified to a reasonable extent.
``(3) In conducting market research, the head of an agency
should not require potential sources to submit more than the
minimum information that is necessary to make the
determinations required in paragraph (2).''.
(b) Repeal of Superseded Provision.--(1) Section 2325 of
title 10, United States Code, is repealed.
(2) The table of sections at the beginning of chapter 137
of such title is amended by striking out the item relating to
section 2325.
SEC. 8105. INAPPLICABILITY OF CERTAIN PROVISIONS OF LAW.
(a) Inapplicability of Requirement for Contract Clause
Regarding Contingent Fees.--Section 2306(b) of title 10,
United States Code, as amended by section 4102(b), is further
amended by inserting before the period at the end of the
sentence added by that section the following: ``or to a
contract for the acquisition of commercial items''.
(b) Inapplicability of Requirement To Identify Suppliers
and Sources of Supplies.--Paragraph (2) of section 2384(b) of
title 10, United States Code, is amended to read as follows:
``(2) The regulations prescribed pursuant to paragraph (1)
do not apply to a contract that requires the delivery of
supplies that are commercial items, as defined in section
4(12) of the Office of Federal Procurement Policy Act (41
U.S.C. 403(12))).''.
(c) Inapplicability of Prohibition Against Doing Business
with Certain Offerors or Contractors.--Section 2393(d) of
title 10, United States Code, as amended by section 4102(e),
is further amended by adding at the end the following: ``The
requirement shall not apply in the case of a subcontract for
the acquisition of commercial items (as defined in section
4(12) of the Office of Federal Procurement Policy Act (41
U.S.C. 403(12))).''.
(d) Reports by Employees or Former Employees of Defense
Contractors.--Section 2397(a)(1) of title 10, United States
Code, as amended by section 4401(d), is further amended by
adding at the end the following: ``The term does not include
a contract for the purchase of commercial items (as defined
in section 4(12) of the Office of Federal Procurement Policy
Act (41 U.S.C. 403(12)).''.
(e) Limits on Employment for Certain Former DOD
Officials.--Section 2397b(f) of title 10, United States Code,
is amended in paragraph (2)(B)--
(A) by striking out ``or'' at the end of clause (i);
(B) by striking out the period at the end of clause (ii)
and inserting in lieu thereof ``; or''; and
(C) by adding at the end the following new clause:
``(iii) any person who contracts to supply the Department
of Defense only commercial items (as defined in section 4(12)
of the Office of Federal Procurement Policy Act (41 U.S.C.
403(12))''.
(f) Defense Contractor Requirements Concerning Former DOD
Officials.--Section 2397c of title 10, United States Code, is
amended by adding at the end the following:
``(e) This section does not apply to contracts for the
purchase of commercial items (as defined in section 4(12) of
the Office of Federal Procurement Policy Act (41 U.S.C.
403(12))).''.
(g) Inapplicability of Prohibition on Limitation of
Subcontractor Direct Sales.--(1) Section 2402 of title 10,
United States Code, as amended by section 4102(f), is further
amended by adding at the end the following new subsection:
``(d)(1) An agreement between the contractor in a contract
for the acquisition of commercial items and a subcontractor
under such contract that restricts sales by such
subcontractor directly to persons other than the contractor
may not be considered to unreasonably restrict sales by that
subcontractor to the United States in violation of the
provision included in such contract pursuant to subsection
(a) if the agreement does not result in the United States
being treated differently with regard to the restriction than
any other prospective purchaser of such commercial items from
that subcontractor.
``(2) In paragraph (1), the term `commercial item' has the
meaning given such term in section 4(12) of the Office of
Federal Procurement Policy Act (41 U.S.C. 403(12)).''.
(h) Inapplicability of Prohibition on Persons Convicted of
Defense-related Felonies.--Paragraph (4) of section 2408(a)
of title 10, United States Code, as added by section 4102(g),
is amended--
(1) by inserting after subparagraph (A) the following:
``(B) A contract referred to in such subparagraph that is
for the acquisition of commercial items (as defined in
section 4(12) of the Office of Federal Procurement Policy Act
(41 U.S.C. 403(12))).''; and
(2) by inserting ``or (B)'' before the period at the end of
subparagraph (C).
(i) Inapplicability of Contractor Inventory Accounting
System Standards.--Section 2410b of title 10, United States
Code, is amended by adding after subsection (b), as added by
section 4102(h), the following:
``(c) The regulations prescribed pursuant to subsection (a)
shall not apply to a contract for the purchase of commercial
items (as defined in section 4(12) of the Office of Federal
Procurement Policy Act (41 U.S.C. 403(12))).''.
(j) Inapplicability of Reporting Requirement Regarding
Dealings With Terrorist Countries.--Section 843(a) of Public
Law 103-160 (107 Stat. 1720) is amended by adding at the end
the following:
``(3) This section does not apply with respect to a
contract for the procurement of a commercial item (as defined
in section 4(12) of the Office of Federal Procurement Policy
Act (41 U.S.C. 403(12))).''.
(k) Amendments to Armed Services Provision.--Section 806 of
the National Defense Authorization Act for Fiscal Years 1992
and 1993 (Public Law 102-190; 10 U.S.C. 2301 note) is amended
by striking out subsection (b) and inserting in lieu thereof
the following:
``(b) Inapplicability to Certain Contracts.--Regulations
prescribed under this section shall not apply to a contract
for the acquisition of commercial items (as defined in
section 4(12) of the Office of Federal Procurement Policy
Act).''.
SEC. 8106. PRESUMPTION THAT TECHNICAL DATA UNDER CONTRACTS
FOR COMMERCIAL ITEMS ARE DEVELOPED EXCLUSIVELY
AT PRIVATE EXPENSE.
(a) Regulations Required to Include Presumption of
Development At Private Expense.--Paragraph (1) of section
2320(b) of title 10, United States Code, is amended by
inserting before the semicolon at the end the following:
``and providing that, in the case of a contract for a
commercial item, the item shall be presumed to be developed
at private expense unless shown otherwise in accordance with
section 2321(f)''.
(b) Assertion of Restriction Presumed Justified.--Section
2321 of title 10, United States Code, is amended--
(1) by redesignating subsections (f), (g), (h), and (i) as
subsections (g), (h), (i), and (j); and
(2) by inserting after subsection (e) the following new
subsection:
``(f) Presumption of Development Exclusively at Private
Expense for Commercial Items Contracts.--In the case of a
challenge to a use or release restriction that is asserted
with respect to technical data of a contractor or
subcontractor under a contract for commercial items, the
contracting officer shall presume that the contractor or
subcontractor has justified the restriction on the basis that
the item was developed exclusively at private expense,
whether or not the contractor or subcontractor submits a
justification in response to the notice provided pursuant to
subsection (d)(3). In such a case, the challenge to the use
or release restriction may be sustained only if information
provided by the Department of Defense demonstrates that the
item was not developed exclusively at private expense.''.
Subtitle C--Civilian Agency Acquisitions
SEC. 8201. RELATIONSHIP TO OTHER PROVISIONS OF LAW.
Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.), as amended by
section 5051(a), is further amended by adding after section
313 the following new section:
``SEC. 314. RELATIONSHIP OF COMMERCIAL ITEM PROVISIONS TO
OTHER PROVISIONS OF LAW.
``(a) Applicability of Title.--Unless otherwise
specifically provided, nothing in this section, section 314A,
or section 314B shall be construed as providing that any
other provision of this title relating to procurement is
inapplicable to the procurement of commercial items.
``(b) List of Laws Inapplicable to Contracts for the
Acquisition of Commercial Items.--No contract for the
procurement of a commercial item entered into by the head of
an executive agency shall be subject to any law properly
listed in the Federal Acquisition Regulation (pursuant to
section 34 of the Office of Federal Procurement Policy Act).
SEC. 8202. DEFINITIONS.
Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.), as amended by
section 8201, is further amended by adding after section 314
the following new section:
``SEC. 314A. DEFINITIONS.
``As used in this title, the terms `commercial item',
`nondevelopmental item', `component', and `commercial
component' have the meanings provided in section 4 of the
Office of Federal Procurement Policy Act.''.
SEC. 8203. PREFERENCE FOR ACQUISITION OF COMMERCIAL ITEMS.
Title III of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 251 et seq.), as amended by
section 8202, is further amended by adding after section 314A
the following new section:
``SEC. 314B. 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 executive agency's needs are not available,
nondevelopmental items other than commercial items, may be
procured to fulfill such requirements; and
``(3) offerors of commercial items and nondevelopmental
items other than commercial 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 nondevelopmental items
other than commercial 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 nondevelopmental items other than
commercial 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
executive agency's needs are not available, nondevelopmental
items other than commercial 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
executive agency's needs are not available, nondevelopmental
items other than commercial 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 or, to the extent that commercial items suitable to
meet the executive agency's needs are not available,
nondevelopmental items other than 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.
``(3) In conducting market research, the head of an
executive agency should not require potential sources to
submit more than the minimum information that is necessary to
make the determinations required in paragraph (2).''.
SEC. 8204. INAPPLICABILITY OF CERTAIN PROVISIONS OF LAW.
(a) Inapplicability of Prohibition on Limiting
Subcontractor Direct Sales to the United States.--Section
303G of the Federal Property and Administrative Services Act
of 1949 (41 U.S.C. 253g), as amended by section 4103(b), is
further amended by adding at the end the following new
subsection:
``(d) An agreement between the contractor in a contract for
the acquisition of commercial items and a subcontractor under
such contract that restricts sales by such subcontractor
directly to persons other than the contractor may not be
considered to unreasonably restrict sales by that
subcontractor to the United States in violation of the
provision included in such contract pursuant to subsection
(a) if the agreement does not result in the Federal
Government being treated differently with regard to the
restriction than any other prospective purchaser of such
commercial items from that subcontractor.''.
(b) Inapplicability of Requirement for Contract Clause
Regarding Contingent Fees.--Section 304(a) of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C.
254(a)), as amended by section 4103(c), is further amended by
inserting before the period at the end of the sentence added
by section 4103(c) the following: ``or to a contract for the
acquisition of commercial items''.
Subtitle D--Acquisitions Generally
SEC. 8301. INAPPLICABILITY OF CERTAIN PROVISIONS OF LAW.
(a) Federal Water Pollution Control Act.--Section 508 of
the Federal Water Pollution Control Act (33 U.S.C. 1368) is
amended by adding at the end the following new subsection:
``(f)(1) No certification by a contractor, and no contract
clause, may be required in the case of a contract for the
acquisition of commercial items in order to implement a
prohibition or requirement of this section or a prohibition
or requirement issued in the implementation of this section.
``(2) In paragraph (1), the term `commercial item' has the
meaning given such term in section 4(12) of the Office of
Federal Procurement Policy Act (41 U.S.C. 403(12)).''.
(b) Contract Work Hours and Safety Standards Act.--The
Contract Work Hours and Safety Standards Act (title I of the
Work Hours and Safety Act of 1962 (40 U.S.C. 327 et seq.)) is
amended by adding at the end the following new section:
``Sec. 108. (a) No certification by a contractor, and no
contract clause, may be required in the case of a contract
for the acquisition of commercial items in order to implement
a prohibition or requirement in this title.
``(b) In subsection (a), the term `commercial item' has the
meaning given such term in section 4(12) of the Office of
Federal Procurement Policy Act (41 U.S.C. 403(12)).''.
(c) Anti-Kickback Act of 1986.--(1) Section 7 of the Anti-
Kickback Act of 1986 (41 U.S.C. 57), as amended by section
4104(a), is further amended by inserting before the period at
the end of subsection (d) the following: ``or to a prime
contract for the acquisition of commercial items (as defined
in section 4(12) of such Act (41 U.S.C. 403(12))).''.
(2) Section 8 of such Act (41 U.S.C. 58) is amended by
adding at the end the following: ``This section does not
apply with respect to a prime contract for the acquisition of
commercial items (as defined in section 4(12) of the Office
of Federal Procurement Policy Act (41 U.S.C. 403(12))).''.
(d) Cost Accounting Standards Board.--Section 26(f)(2) of
the Office of Federal Procurement Policy Act (41 U.S.C.
422(f)(2)) is amended--
(1) by inserting ``(A)'' after ``(2)'';
(2) by striking out ``, other than contracts or
subcontracts'' and all that follows and inserting in lieu
thereof a period; and
(3) by inserting at the end the following:
``(B) Subparagraph (A) does not apply to the following
contracts or subcontracts:
``(i) Contracts or subcontracts where the price negotiated
is based on established catalog or market prices of
commercial items sold in substantial quantities to the
general public.
``(ii) Contracts or subcontracts where the price negotiated
is based on prices set by law or regulation.
``(iii) Any other firm fixed-price contract or subcontract
(without cost incentives) for commercial items.
``(C) In this paragraph, the term `subcontract' includes a
transfer of commercial items between divisions, subsidiaries,
or affiliates of a contractor or subcontractor.''.
(e) Certification Requirements.--Subsection (e)(1)(B) of
section 27 of the Office of Federal Procurement Policy Act
(41 U.S.C. 423) is amended by inserting after ``certifies in
writing to such contracting officer'' the following: ``,
except in the case of a contract for the procurement of
commercial items,''.
(f) Drug-Free Workplace Act of 1988.--Section 5152(a)(1) of
the Drug-Free Workplace Act of 1988 (subtitle D of title V of
Public Law 100-690; 41 U.S.C. 701 et seq.), as amended by
section 4104(d), is further amended by inserting after the
matter inserted by such section 4104(d) the following: ``,
other than a contract for the procurement of commercial items
as defined in section 4 of the Office of Federal Procurement
Policy Act (41 U.S.C. 403)),''.
(g) Clean Air Act.--The Federal Acquisition Regulation may
not contain a requirement for a certification by a contractor
under a contract for the acquisition of commercial items, or
a requirement that such a contract include a contract clause,
in order to implement a prohibition or requirement of section
306 of the Clean Air Act (42 U.S.C. 7606) or a prohibition or
requirement issued in the implementation of that section,
since there is nothing in such section 306 that requires such
a certification or contract clause.
(h) Fly American Requirements.--Section 40118 of title 49,
United States Code, is amended by adding at the end the
following new subsection:
``(f)(1) No certification by a contractor, and no contract
clause, may be required in the case of a contract for the
transportation of commercial items in order to implement a
requirement in this section.
``(2) In paragraph (1), the term `commercial item' has the
meaning given such term in section 4(12) of the Office of
Federal Procurement Policy Act (41 U.S.C. 403(12)).''.
SEC. 8302. 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)), as amended by section 4201(c), is
further amended by adding at the end the following new
paragraph:
``(6) The Administrator shall prescribe regulations
defining limited circumstances in which flexible deadlines
can be used under paragraph (3) for the submission of bids or
proposals for the procurement of commercial items.''.
SEC. 8303. 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 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. 8304. PROVISIONS NOT AFFECTED.
Nothing in this title shall be construed as modifying or
superseding, or as intended to impair or restrict,
authorities or responsibilities under--
(1) section 2323 of title 10, United States Code, or
section 7102 of the Federal Acquisition Streamlining Act of
1994;
(2) the Brooks Automatic Data Processing Act (section 111
of the Federal Property and Administrative Services Act of
1949 (40 U.S.C. 759));
(3) Brooks Architect-Engineers Act (title IX of the Federal
Property and Administrative Services Act of 1949 (40 U.S.C.
541 et seq.);
(4) subsections (a) and (d) of section 8 of the Small
Business Act (15 U.S.C. 637(a) and (d)); or
(5) the Javits-Wagner-O'Day Act (41 U.S.C. 46-48c).
SEC. 8305. 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 IX--FEDERAL ACQUISITION COMPUTER NETWORK
SEC. 9001. FEDERAL ACQUISITION COMPUTER NETWORK ARCHITECTURE
AND IMPLEMENTATION.
(a) Federal Acquisition Computer Network Architecture.--The
Office of Federal Procurement Policy Act (41 U.S.C. 401 et
seq.) is amended by adding after section 29, as added by
section 1093, the following new sections:
``SEC. 30. FEDERAL ACQUISITION COMPUTER NETWORK (FACNET)
ARCHITECTURE.
``(a) In General.--(1) The Administrator shall establish a
program for the development and implementation of a Federal
acquisition computer network architecture (hereinafter in
this section referred to as `FACNET') that will be
Government-wide and provide interoperability among users. The
Administrator shall assign a program manager for FACNET and
shall provide for overall direction of policy and leadership
in the development, coordination, installation, operation,
and completion of implementation of FACNET by executive
agencies.
``(2) In carrying out paragraph (1), the Administrator
shall consult with the heads of appropriate Federal agencies
with applicable technical and functional expertise, including
the Office of Information and Regulatory Affairs, the
National Institute of Standards and Technology, the General
Services Administration, and the Department of Defense.
``(3) Government-wide FACNET capability (as defined in
section 30A(b)) shall be implemented not later than January
1, 2000.
``(b) Functions of FACNET.--The FACNET architecture shall
provide for the following functions:
``(1) Government functions.--Allow executive agencies to do
the following electronically:
``(A) Provide widespread public notice of solicitations for
contract opportunities issued by an executive agency.
``(B) Receive responses to solicitations and associated
requests for information through such system.
``(C) Provide public notice of contract awards (including
price) through such system.
``(D) In cases in which it is practicable, receive
questions regarding solicitations through such system.
``(E) In cases in which it is practicable, issue 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) Private Sector User functions.--Allow private sector
users to do the following electronically:
``(A) Access notice of solicitations for contract
opportunities issued by an executive agency.
``(B) Access and review solicitations issued by an
executive agency.
``(C) Respond to solicitations issued by the executive
agency.
``(D) In cases in which it is practicable, receive orders
from the executive agency.
``(E) Access information on contract awards (including
price) made by the executive agency.
``(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 interchange of procurement
information between the private sector and the Federal
Government and among Federal agencies.
``(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
any point of entry.
``(c) Notice and Solicitation Regulations.--In connection
with implementation of the architecture referred to in
subsection (a), the Federal Acquisition Regulatory Council
shall ensure that the Federal Acquisition Regulation contains
appropriate notice and solicitation provisions applicable to
acquisitions conducted through a FACNET capability. The
provisions shall specify the required form and content of
notices of acquisitions and the minimum periods for
notifications of solicitations and for deadlines for the
submission of offers under solicitations. Each minimum period
specified for a notification of solicitation and each
deadline for the submission of offers under a solicitation
shall afford potential offerors a reasonable opportunity to
respond.
``(d) Architecture Defined.--For purposes of this section,
the term `architecture' means the conceptual framework that--
``(1) uses a combination of commercial hardware and
commercial software to enable contractors to conduct business
with the Federal Government by electronic means; and
``(2) includes a description of the functions to be
performed to achieve the mission of streamlining procurement
through electronic commerce, the system elements and
interfaces needed to perform the functions, and the
designation of performance levels of those system elements.
``SEC. 30A. FEDERAL ACQUISITION COMPUTER NETWORK
IMPLEMENTATION.
``(a) Certification of FACNET Capability in Procuring
Activities and Agencies.--(1) When the senior procurement
executive of an executive agency or, in the case of the
Department of Defense, the Under Secretary of Defense for
Acquisition and Technology, determines that a procuring
activity of the executive agency has implemented an interim
FACNET capability (as defined in subsection (c)), the
executive or the Under Secretary shall certify to the
Administrator that such activity has implemented an interim
FACNET capability.
``(2) When the head of an executive agency, with the
concurrence of the Administrator for Federal Procurement
Policy, determines that the executive agency has implemented
a full FACNET capability (as defined in subsection (d)), the
head of the executive agency shall certify to Congress that
the executive agency has implemented a full FACNET
capability.
``(3) The head of each executive agency shall provide for
implementation of both interim FACNET capability and full
FACNET capability, with priority on providing convenient and
universal user access as required by section 30(b)(3)(C), in
that executive agency as soon as practicable after the date
of the enactment of the Federal Acquisition Streamlining Act
of 1994.
``(b) Certification of Government-Wide FACNET Capability.--
When the Administrator for Federal Procurement Policy
determines that the Federal Government is making at least 75
percent of eligible contracts in amounts greater than the
micro-purchase threshold and not greater than the simplified
acquisition threshold entered into by the Government during
the preceding fiscal year through a system with full FACNET
capability, the Administrator shall certify to Congress that
the Government has implemented a Government-wide FACNET
capability.
``(c) Implementation of Interim FACNET Capability.--A
procuring activity shall be considered to have implemented an
interim FACNET capability if--
``(1) with respect to each procurement expected to be in an
amount greater than the micro-purchase threshold and not
greater than the simplified acquisition threshold, the
procuring activity has implemented the FACNET functions
described in paragraphs (1)(A), (1)(B), (2)(A), (2)(B), and
(2)(C) of section 30(b); and
``(2) for each such procurement (other than a procurement
for which notice is not required under section 18(c) or with
respect to which the head of the procuring activity
determines that it is not cost effective or practicable), the
procuring activity issues notices of solicitations and
receives responses to solicitations through a system having
those functions.
``(d) Implementation of Full FACNET Capability.--An
executive agency shall be considered to have implemented a
full FACNET capability if (except in the case of procuring
activities (or portions thereof) of the executive agency for
which the head of the executive agency determines that
implementation is not cost effective or practicable)--
``(1) the executive agency has implemented all of the
FACNET functions described in section 30(b); and
``(2) more than 75 percent of the eligible contracts in
amounts greater than the micro-purchase threshold and not
greater than the simplified acquisition threshold entered
into by the executive agency during the preceding fiscal year
have been made through a system with those functions.
``(e) Eligible Contracts.--For purposes of subsections (b)
and (d), a contract is eligible if it is not in any class of
contracts determined by the Federal Acquisition Regulatory
Council (pursuant to section 9004 of the Federal Acquisition
Streamlining Act of 1994) to be unsuitable for acquisition
through a system with full FACNET capability.''.
(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. 9002. IMPLEMENTATION OF FACNET CAPABILITY IN ARMED
SERVICES.
(a) Implementation in Title 10.--Chapter 137 of title 10,
United States Code, is amended by inserting after section
2302b, as added by section 4203, the following new section:
``Sec. 2302c. Implementation of FACNET capability
``(a) Implementation of FACNET Capability.--(1) The head of
each agency named in section 2303 of this title shall
implement the Federal acquisition computer network (`FACNET')
capability required by section 30 of the Office of Federal
Procurement Policy Act. In the case of the Department of
Defense, the implementation shall be by the Secretary of
Defense, acting through the Under Secretary of Defense for
Acquisition and Technology, for the Department of Defense as
a whole. For purposes of this section, the term `head of an
agency' does not include the Secretaries of the military
departments.
``(2) In implementing the FACNET capability pursuant to
paragraph (1), the head of an agency shall consult with the
Administrator for Federal Procurement Policy.
``(b) Designation of Agency Official.--The head of each
agency named in paragraph (5) or (6) of section 2303 of this
title shall designate a program manager to have
responsibility for implementation of FACNET capability for
that agency and otherwise to implement this section. Such
program manager shall report directly to the senior
procurement executive designated for the agency under section
16(3) of the Office of Federal Procurement Policy Act (41
U.S.C. 414(3)).''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 137 of such title is amended by
inserting after the item relating to section 2302b the
following new item:
``2302c. Implementation of FACNET capability.''.
(c) Effective Date.--A FACNET capability may be implemented
and used in an agency before the promulgation of regulations
implementing this section (as provided in section 10002). If
such implementation and use occurs, the period for submission
of bids or proposals under section 18(a)(3)(B) of the Office
of Federal Procurement Policy Act, in the case of a
solicitation through FACNET, may be less than the period
otherwise applicable under that section, but shall be at
least 10 days. The preceding sentence shall not be in effect
after September 30, 1995.
SEC. 9003. IMPLEMENTATION OF FACNET CAPABILITY IN CIVILIAN
AGENCIES.
Title III of the Federal Property and Administrative
Services Act of 1949 is amended by inserting after section
302B, as added by section 4203, the following new section:
``SEC. 302C. IMPLEMENTATION OF FACNET CAPABILITY.
``(a) Implementation of FACNET Capability.--(1) The head of
each executive agency shall implement the Federal acquisition
computer network (`FACNET') capability required by section 30
of the Office of Federal Procurement Policy Act.
``(2) In implementing the FACNET capability pursuant to
paragraph (1), the head of an executive agency shall consult
with the Administrator for Federal Procurement Policy.
``(b) Designation of Agency Official.--The head of each
executive agency shall designate a program manager to have
responsibility for implementation of FACNET capability for
that agency and otherwise to implement this section. Such
program manager shall report directly to the senior
procurement executive designated for the executive agency
under section 16(3) of the Office of Federal Procurement
Policy Act (41 U.S.C. 414(3)).''.
SEC. 9004. GAO DETERMINATION OF ELIGIBLE AGENCY CONTRACTS.
(a) Report on Contracts Not Suitable for Acquisition
Through Full FACNET Capability.--Not later than 3 years after
the date of the enactment of this Act, the Comptroller
General shall submit to the Administrator for Federal
Procurement Policy and the congressional committees referred
to in subsection (d) a report on the classes of contracts in
amounts greater than the micro-purchase threshold and not
greater than the simplified acquisition threshold that are
not suitable for acquisition through a system with full
FACNET capability.
(b) FAR Council Determinations.--Not earlier than 3 years
after the date of the enactment of this Act, and after
consideration of the report of the Comptroller General
required by subsection (a), the Federal Acquisition
Regulatory Council (established by section 25 of the Office
of Federal Procurement Policy Act) may make a determination
that a class or classes of contracts in amounts greater than
the micro-purchase threshold and not greater than the
simplified acquisition threshold are not suitable for
acquisition through a system with full FACNET capability. Any
such determination shall be submitted to the congressional
committees referred to in subsection (d). Each determination
under this subsection shall take effect 60 days after the
date on which it is submitted to those committees.
(c) Applicability of Determinations.--Each determination
under subsection (b) shall apply for purposes of determining
eligible contracts under section 30A(e) of the Office of
Federal Procurement Policy Act, as added by section 9001.
(d) Committees.--The report required by subsection (a), and
any determination made under subsection (b), shall be
submitted to the Committees on Governmental Affairs, on Armed
Services, and on Small Business of the Senate and the
Committees on Government Operations, on Armed Services, and
on Small Business of the House of Representatives.
(e) Definitions.--In this section:
(1) The term ``simplified acquisition threshold'' has the
meaning provided by section 4(11) of the Office of Federal
Procurement Policy Act, as amended by section 4001.
(2) The term ``micro-purchase threshold'' has the meaning
provided by section 32(g) of the Office of Federal
Procurement Policy Act, as added by section 4301.
(3) The term ``full FACNET capability'' has the meaning
described in section 30A(d) of the Office of Federal
Procurement Policy Act, as added by section 9001(a).
TITLE X--EFFECTIVE DATES AND IMPLEMENTATION
SEC. 10001. EFFECTIVE DATE AND APPLICABILITY.
(a) Effective Date.--Except as otherwise provided in this
Act, this Act and the amendments made by this Act shall take
effect on the date of the enactment of this Act.
(b) Applicability of Amendments.--(1) An amendment made by
this Act shall apply, in the manner prescribed in the final
regulations promulgated pursuant to section 10002 to
implement such amendment, with respect to any solicitation
that is issued, any unsolicited proposal that is received,
and any contract entered into pursuant to such a solicitation
or proposal, on or after the date described in paragraph (3).
(2) An amendment made by this Act shall also apply, to the
extent and in the manner prescribed in the final regulations
promulgated pursuant to section 10002 to implement such
amendment, with respect to any matter related to--
(A) a contract that is in effect on the date described in
paragraph (3);
(B) an offer under consideration on the date described in
paragraph (3); or
(C) any other proceeding or action that is ongoing on the
date described in paragraph (3).
(3) The date referred to in paragraphs (1) and (2) is the
date specified in such final regulations. The date so
specified shall be October 1, 1995, or any earlier date that
is not within 30 days after the date on which such final
regulations are published.
(c) Immediate Applicability of Certain Amendments.--
Notwithstanding subsection (b), the amendments made by the
following provisions of this Act apply on and after the date
of the enactment of this Act: sections 1001, 1021, 1031,
1051, 1071, 1092, 1201, 1506(a), 1507, 1554, 2002(a), 2191,
3062(a), 3063, 3064, 3065(a)(1), 3065(b), 3066, 3067,
6001(a), 7101, 7103, 7205, and 7207, the provisions of
subtitles A, B, and C of title III, and the provisions of
title V.
SEC. 10002. IMPLEMENTING REGULATIONS.
(a) Proposed Revisions.--Proposed revisions to the Federal
Acquisition Regulation and such other proposed regulations
(or revisions to existing regulations) as may be necessary to
implement this Act shall be published in the Federal Register
not later than 210 days after the date of the enactment of
this Act.
(b) Public Comment.--The proposed regulations described in
subsection (a) shall be made available for public comment for
a period of not less than 60 days.
(c) Final Regulations.--Final regulations shall be
published in the Federal Register not later than 330 days
after the date of enactment of this Act.
(d) Modifications.--Final regulations promulgated pursuant
to this section to implement an amendment made by this Act
may provide for modification of an existing contract without
consideration upon the request of the contractor.
(e) Requirement for Clarity.--Officers and employees of the
Federal Government who prescribe regulations to implement
this Act and the amendments made by this Act shall make every
effort practicable to ensure that the regulations are concise
and are easily understandable by potential offerors as well
as by Government officials.
(f) Savings Provisions.--(1) Nothing in this Act shall be
construed to affect the validity of any action taken or any
contract entered into before the date specified in the
regulations pursuant to section 10001(b)(3) except to the
extent and in the manner prescribed in such regulations.
(2) Except as specifically provided in this Act, nothing in
this Act shall be construed to require the renegotiation or
modification of contracts in existence on the date of the
enactment of this Act.
(3) Except as otherwise provided in this Act, a law amended
by this Act shall continue to be applied according to the
provisions thereof as such law was in effect on the day
before the date of the enactment of this Act until--
(A) the date specified in final regulations implementing
the amendment of that law (as promulgated pursuant to this
section); or
(B) if no such date is specified in regulations, October 1,
1995.
SEC. 10003. EVALUATION BY THE COMPTROLLER GENERAL.
(a) Evaluation Relating to Issuance of Regulations.--Not
later than 180 days after the issuance in final form of
revisions to the Federal Acquisition Regulation pursuant to
section 10002, the Comptroller General shall submit to
Congress a report evaluating compliance with such section.
(b) Evaluation of Implementation of Regulations.--Not later
than 18 months after issuance in final form of revisions to
the Federal Acquisition Regulation pursuant to section 10002,
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--
(1) the Committees on Governmental Affairs, on Armed
Services, and on Small Business of the Senate; and
(2) the Committees on Government Operations, on Armed
Services, and on Small Business of the House of
Representatives.
SEC. 10004. 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 identifying the
following matters:
(1) Contract awards made pursuant to competitions conducted
pursuant to section 2323 of title 10, United States Code, or
section 7102 of the Federal Acquisition Streamlining Act of
1994.
(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 4(11) of the Office of Federal Procurement Policy Act
(41 U.S.C. 403(11)).
SEC. 10005. TECHNICAL AND CLERICAL AMENDMENTS.
(a) Table of Contents Amendments.--
(1) Office of federal procurement policy act.--The first
section 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. 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. 25. Federal Acquisition Regulatory Council.
``Sec. 26. Cost Accounting Standards Board.
``Sec. 27. Procurement integrity.
``Sec. 28. Advocate for the Acquisition of Commercial Products.
``Sec. 29. Nonstandard contract clauses.
``Sec. 30. Federal acquisition computer network (FACNET).
``Sec. 30A. Federal acquisition computer network implementation.
``Sec. 31. Simplified acquisition procedures.
``Sec. 32. Procedures applicable to purchases below micro-purchase
threshold.
``Sec. 33. List of laws inapplicable to contracts not greater than
the simplified acquisition threshold in Federal
Acquisition Regulation.
``Sec. 34. List of laws inapplicable to procurements of commercial
items in Federal Acquisition Regulation.''.
(2) Federal property and administrative services act of
1949.--The first section of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 471 et seq.)
is amended to read as follows:
``SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
``(a) Short Title.--This Act may be cited as the `Federal
Property and Administrative Services Act of 1949'.
``(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. Definitions.
``TITLE I--ORGANIZATION
``Sec. 101. General Services Administration.
``Sec. 102. Transfer of affairs of Bureau of Federal Supply.
``Sec. 103. Transfer of affairs of the Federal Works Agency.
``Sec. 104. Records management: Transfer of the National Archives.
``Sec. 106. Redistribution of functions.
``Sec. 107. Transfer of funds.
``Sec. 109. General supply fund.
``Sec. 110. Information Technology Fund.
``Sec. 111. Automatic data processing equipment.
``Sec. 112. Federal information centers.
``TITLE II--PROPERTY MANAGEMENT
``Sec. 201. Procurement, warehousing, and related activities.
``Sec. 202. Property utilization.
``Sec. 203. Disposal of surplus property.
``Sec. 204. Proceeds from transfer or disposition of property.
``Sec. 205. Policies, regulations, and delegations.
``Sec. 206. Surveys, standardization, and cataloging.
``Sec. 207. Applicability of antitrust laws.
``Sec. 208. Employment of personnel.
``Sec. 209. Civil remedies and penalties.
``Sec. 210. Operation of buildings and related activities.
``Sec. 211. Motor vehicle identification and operation.
``Sec. 212. Reports to Congress.
``TITLE III--PROCUREMENT PROCEDURE
``Sec. 301. Declaration of purpose.
``Sec. 302. Application and procurement methods.
``Sec. 302A. Simplified acquisition threshold.
``Sec. 302B. Implementation of simplified acquisition procedures.
``Sec. 302C. Implementation of FACNET capability.
``Sec. 303. Competition requirements.
``Sec. 303A. Planning and solicitation requirements.
``Sec. 303B. Evaluation and award.
``Sec. 303C. Encouragement of new competition.
``Sec. 303D. Validation of proprietary data restrictions.
``Sec. 303F. Economic order quantities.
``Sec. 303G. Prohibition of contractors limiting subcontractor sales
directly to the United States.
``Sec. 303H. Task and delivery order contracts: general authority.
``Sec. 303I. Task order contracts: advisory and assistance services.
``Sec. 303J. Task and delivery order contracts: orders.
``Sec. 303K. Task and delivery order contracts: definitions.
``Sec. 303L. Severable services contracts for periods crossing fiscal
years.
``Sec. 304. Contract requirements.
``Sec. 304A. Cost or pricing data: truth in negotiations.
``Sec. 304B. Multiyear contracts.
``Sec. 304C. Examination of records of contractor.
``Sec. 305. Contract financing.
``Sec. 306. Allowable costs.
``Sec. 307. Administrative determinations and delegations.
``Sec. 309. Definitions.
``Sec. 310. Statutes not applicable.
``Sec. 311. Assignment and delegation of procurement functions and
responsibilities.
``Sec. 312. Determinations and decisions.
``Sec. 313. Performance based management: acquisition programs.
``Sec. 314. Relationship of commercial item provisions to other
provisions of law.
``Sec. 314A. Definitions relating to procurement of commercial items.
``Sec. 314B. Preference for acquisition of commercial items.
``Sec. 315. Contractor employees: protection from reprisal for
disclosure of certain information.
``TITLE IV--FOREIGN EXCESS PROPERTY
``Sec. 401. Disposal of foreign excess property.
``Sec. 402. Methods and terms of disposal.
``Sec. 403. Proceeds; foreign currencies.
``Sec. 404. Miscellaneous provisions.
``TITLE VI--GENERAL PROVISIONS
``Sec. 601. Applicability of existing procedures.
``Sec. 602. Repeal and saving provisions.
``Sec. 603. Authorization for appropriations and transfer of
authority.
``Sec. 604. Separability.
``Sec. 605. Effective date.
``TITLE VIII--URBAN LAND UTILIZATION
``Sec. 801. Short title.
``Sec. 802. Declaration of purpose and policy.
``Sec. 803. Disposal of urban lands.
``Sec. 804. Acquisition or change of use of real property.
``Sec. 805. Waiver during national emergency.
``Sec. 806. Definitions.
``TITLE IX--SELECTION OF ARCHITECTS AND ENGINEERS
``Sec. 901. Definitions.
``Sec. 902. Policy.
``Sec. 903. Requests for data on architectural and engineering
services.
``Sec. 904. Negotiation of contracts for architectural and engineering
services.
``Sec. 905. Short title.''.
(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.
(c) Repeals of Executed Provisions.--The Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.) is amended--
(1) by striking out section 13; and
(2) by striking out the first section 15 (which made
amendments to the Federal Property and Administrative
Services Act of 1949).
(d) Cross Reference Corrections.--Section 3552 of title 31,
United States Code, is amended--
(1) by striking out ``section 111(h)'' and inserting in
lieu thereof ``section 111(f)''; and
(2) by striking out ``759(h)'' and inserting in lieu
thereof ``759(f)''.
(e) Consistency of Terminology With Customary Usage.--
Section 304(b) of the Federal Property and Administrative
Services Act of 1949 (41 U.S.C. 254(b)) is amended by
striking out ``per centum'' each place it appears and
inserting in lieu thereof ``percent''.
(f) Enactment of Popular Names of Certain Acts.--
(1) Miller act.--The Act of August 24, 1935 (40 U.S.C.
270a-270d), commonly referred to as the ``Miller Act'', is
amended by adding at the end the following new section:
``Sec. 6. This Act may be cited as the `Miller Act'.''.
(2) Brooks architect-engineers act.--Title IX of the
Federal Property and Administrative Services Act of 1949 (40
U.S.C. 541-544) is amended by adding at the end the following
new section:
``SEC. 905. SHORT TITLE.
``This title may be cited as the `Brooks Architect-
Engineers Act'.''.
(3) Brooks automatic data processing act.--Section 111 of
the Federal Property and Administrative Services Act of 1949
(40 U.S.C. 759), as amended by section 1439, is further
amended by adding at the end the following new subsection:
``(i) This section may be cited as the `Brooks Automatic
Data Processing Act'.''.
(4) Buy american act.--The Act of March 3, 1933 (41 U.S.C.
10a-10c), commonly referred to as the ``Buy American Act'',
is amended by adding at the end the following new section:
``Sec. 5. This Act may be cited as the `Buy American
Act'.''.
(5) Walsh-healey act.--The Act of June 30, 1936 (41 U.S.C.
35 et seq.), commonly referred to as the ``Walsh-Healey
Act'', as amended by section 7201, is further amended by
adding at the end the following new section:
``Sec. 12. This Act may be cited as the `Walsh-Healey
Act'.''
(6) Javits-wagner-o'day act.--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), that was revised and reenacted in the Act of June 23,
1971 (85 Stat. 77), is amended by adding at the end the
following new section:
``short title
``Sec. 7. This Act may be cited as the `Javits-Wagner-O'Day
Act'.''.
And the House agree to the same.
Conferees from the Committee on Government Operations, for
consideration of the Senate bill, and the House amendment,
and modifications committed to conference:
John Conyers,
Mike Synar,
Steve Neal,
Tom Lantos,
Major R. Owens,
Edolphus Towns,
John M. Spratt, Jr.,
Bobby L. Rush,
Carolyn B. Maloney,
Marjorie Margolies-Mezvinsky,
Bill Clinger,
Al McCandless,
J. Dennis Hastert,
Jon Kyl,
Christopher Shays,
Steven Schiff,
As additional conferees from the Committee on Armed Services,
for consideration of the Senate bill, and the House
amendment, and modifications committed to conference:
Ronald V. Dellums,
Norman Sisisky,
Lane Evans,
James H. Bilbray,
Chet Edwards,
Elizabeth Furse,
Floyd Spence,
John R. Kasich,
Herbert H. Bateman,
Curt Weldon,
As additional conferees from the Committee on Education and
Labor, for consideration of sections 4024(d), 4101(b),
4101(c), 6101-02, 8005(c)(2), and 11001-04 of the Senate
bill, and section 4105 of the House amendment, and
modifications committed to conference:
William D. Ford,
Austin J. Murphy,
As additional conferees from the Committee on the Judiciary,
for consideration of sections 1421-22, 1437, 2451, 2551-53,
2555, that portion of section 4011 that adds a new section
29(b)(2) to the Federal Procurement Policy Act, sections
4024(a), (b), (c), and (f), 4101(b) and (c), 6001-04, 6053,
and 8005(c)(3) and (c)(4) of the Senate bill; and that
portion of section 4011 that adds a new section 4B(c) to the
Federal Procurement Policy Act, that portion of section 4031
that adds a new subsection (c)(9) to section 23012a of title
10, United States Code, that portion of section 4041 that
adds a new subsection (c)(2) to section 302A of the Federal
Property and Administrative Services Act of 1949, sections
4051, 5003, that portion of section 7106 that adds a new
section 2285(a)(12) to title 10, United States Code, that
portion of section 7205 that adds a new section 314D(a)(4) to
the Federal Property and Administrative Services Act of 1949,
and section 7301(b) of the House amendment, and modifications
committed to conference:
Jack Brooks,
John Bryant,
Hamilton Fish,
As additional conferees from the Committee on Public Works
and Transportation, for consideration of sections 1056 and
1067 of the Senate bill and modifications committed to
conference:
Norman Y. Mineta,
James Traficant,
Bud Shuster,
As additional conferees from the Committee on Small Business,
for consideration of sections 1055(b)(2), 2554, 4102-05, that
portion of section 4011 that adds a new section 29(b)(1) to
the Office of Federal Procurement Policy Act, sections 4012,
4014(d), 4015(d), and 4074 of the Senate bill, and sections
4104 and 8002 of the House amendment, and modifications
committed to conference:
John L. LaFalce,
Neal Smith,
As additional conferees from the Committee on Energy and
Commerce, for consideration of sections 4024(g), 6003(a)(4)
and (b)(4), and 8005(c)(6) of the Senate bill, and
modifications committed to conference:
John D. Dingell,
Al Swift,
Carlos J. Moorhead,
Managers on the Part of the House.
John Glenn,
Sam Nunn,
Dale Bumpers,
Jim Sasser,
J.J. Exon,
Carl Levin,
David Pryor,
Jeff Bingaman,
Richard Shelby,
Byron L. Dorgan,
Bill Roth,
Strom Thurmond,
Ted Stevens,
John Warner,
Bill Cohen,
Larry Pressler,
John McCain,
Bob Smith,
Managers on the Part of the Senate.
JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE
The managers on the part of the House and the Senate at the
conference on the disagreeing votes of the two Houses on the
amendment of the House to the bill (S. 1587) to revise and
streamline the acquisition laws of the Federal Government,
and for other purposes, submit the following joint statement
to the House and the Senate in explanation of the effect of
the action agreed upon by the managers and recommended in the
accompanying conference report:
The House amendment struck all of the Senate bill after the
enacting clause and inserted a substitute text.
The Senate recedes from its disagreement to the amendment
of the House with an amendment that is a substitute for the
Senate bill and the House amendment. The differences between
the Senate bill, the House amendment, and the substitute
agreed to in conference are noted below, except for clerical
corrections, conforming changes made necessary by agreements
reached by the conferees, and minor drafting and clerical
changes.
TITLE I--CONTRACT FORMATION
Subtitle A--Competition Statutes
PART I--ARMED SERVICES ACQUISITIONS
Subpart A--Competition Requirements
References to Federal acquisition regulation (sec. 1001)
The Senate bill contained a provision (sec. 1001) that
would clarify references to the Federal Acquisition
Regulation by removing an obsolete reference to modifications
to the regulation.
The House amendment contained an identical provision (sec.
1001).
The conferees agree to this provision.
Establishment or maintenance of alternate sources of supply
(sec. 1002)
The Senate bill contained a provision (sec. 1002) that
would amend 10 U.S.C. 2304(b) to permit an agency to exclude
a particular source in order to maintain an alternate source
to: (1) ensure a continuous flow of supplies or services; (2)
satisfy a critical need for health, safety, or other
emergency supplies; or (3) satisfy projected needs resulting
from a high demand.
The House amendment contained a similar provision (sec.
1002).
The Senate recedes with a technical amendment.
Clarification of approval authority for use of procedures
other than full and open competition (sec. 1003)
The Senate bill contained a provision (sec. 1003) that
would clarify the law governing the approval authority for
the use of non-competitive procedures within the Department
of Defense.
The House amendment contained an identical provision (sec.
1003).
The conferees agree to this provision.
Task and delivery order contracts (sec. 1004)
The Senate bill contained a provision (sec. 1004) that
would add a new section, 10 U.S.C. 2304a, authorizing the use
of task order contracts for advisory and assistance services.
The provision would establish a requirement that
solicitations for such contracts shall ordinarily provide for
multiple awards where the contract period is to exceed three
years and the contract is estimated to exceed $10,000,000 and
for fair consideration of each awardee for each task order
issued under such multiple contracts.
The House amendment contained no similar provision.
The House recedes with an amendment clarifying that nothing
in this section is intended to amend or impair the
authorities or responsibilities under section 111 of the
Federal Property and Administration Services Act or title IX
of the Federal Property and Administrative Services Act.
In addition, the conference agreement would provide general
authorization for the use of task and delivery order
contracts to acquire goods and services other than advisory
and assistance services. The conferees note that this
provision is intended as a codification of existing authority
to use such contractual vehicles. All otherwise applicable
provisions of law would remain applicable to such
acquisitions, except to the extent specifically provided in
this section. For example, the requirements of the
Competition in Contracting Act, although they would be
inapplicable to the issuance of individual orders under task
and delivery order contracts, would continue to apply to the
solicitation and award of the contracts themselves.
Acquisition of expert services (sec. 1005)
The Senate bill contained a provision (sec. 1005) that
would establish a new exception to the requirement for the
use of competitive procedures in 10 U.S.C. 2304(C)(3) when
contracting for expert services for use in Federal
litigation.
The House amendment contained no similar provision.
The House recedes.
Subpart B--Planning, Solicitation, Evaluation, and Award
Source selection factors (sec. 1011)
The Senate bill contained a provision (sec. 1011) that
would clarify the Competition in Contracting Act solicitation
provisions requiring the disclosure of evaluation factors and
subfactors and authorizing awards without discussions.
The House amendment contained a similar provision (sec.
1011) that also would provide that implementing regulations
may not define ``significantly more'' or ``significantly less
important'' as specific numeric weights to be uniformly
applied.
The Senate recedes with a clarifying amendment.
Solicitation provision regarding evaluation of purchase
options (sec. 1012)
The Senate bill contained a provision (sec. 1012) that
would make a technical amendment regarding the consideration
of option pricing.
The House amendment contained a similar provision (sec.
1012).
The Senate recedes.
Prompt notice of award (sec. 1013)
The Senate bill contained a provision (sec. 1013) that
would require notice to all offerors as soon as practicable
after date of contract award.
The House amendment contained a provision (sec. 1013) that
would require that such notice be given ``within three days''
of award. The provision also would allow electronic
transmission of a written notice.
The Senate recedes.
Post-award debriefings (sec. 1014)
The Senate bill contained a provision (sec. 1014) that
would require prompt debriefings providing basic information
on the award to unsuccessful offerors, if requested within
three days after receipt of notification of contract award.
The Senate provision also would require disclosure of
debriefing information to all offerors if, within one year of
contract award, the agency seeks to fulfill the same
requirement.
The House amendment contained a similar provision (sec.
1014).
The House recedes with an amendment that would require the
agency, to the maximum extent practicable, to debrief the
offeror within five days after the agency's receipt of an
offeror's request and that would make other clarifying
changes.
The conferees intent that information not anticipated to be
released under this provision includes information relating
to trade secrets; privileged or confidential manufacturing
processes and techniques; and commercial and financial
information that is privileged or confidential, including
cost breakdowns, profit, indirect cost rates, and similar
information. Information concerning such matters is protected
currently under the Federal Acquisition Regulation.
Protest file (sec. 1015)
The Senate bill contained a provision (sec. 1015) that
would require the Department of Defense to maintain protest
files in protests to the Comptroller General.
The House amendment contained a similar provision (sec.
1015).
The Senate recedes.
Agency actions on protests (sec. 1016)
The Senate bill contained a provision (sec. 1016) that
would authorize the Department of defense to pay costs and
fees in bid protest settlements.
The House amendment contained a similar provision (sec.
1016).
The Senate recedes with a technical amendment.
Subpart C--Kinds of Contracts
Repeal of requirement for Secretarial determination regarding
use of cost type or incentive contracts (sec. 1021)
The Senate bill contained a provision (sec. 1021) that
would repeal the requirement for a determination prior to the
use of cost or incentive-type contracts in defense
procurements.
The House amendment contained an identical provision (sec.
1021).
The conferees agree to this provision.
Revision and reorganization of multiyear contracting
authority (sec. 1022)
The conferees recommend a revision and reorganization of
the current Department of Defense multiyear contracting
authority in 10 U.S.C. 2306(h) to accommodate the inclusion
of the U.S. Coast Guard and National Aeronautics and Space
Administration. Such authority would be addressed in a new
section 10 U.S.C. 2306b.
Subpart D--Miscellaneous Provisions for the Encouragement of
Competition
Repeal of requirement for annual report by advocates for
Competition (sec. 1031)
The Senate bill contained a provision (sec. 1031) that
would repeal 10 U.S.C. 2318, requiring annual reports by
Department of Defense competition advocates. The separate
requirement for annual reports on competition by competition
advocates of all agencies (in section 20(b)) of the Office of
Federal Procurement Policy Act) would remain in effect.
The House amendment contained an identical provision (sec.
1031).
The conferees agree to this provision.
PART II--CIVILIAN AGENCY ACQUISITIONS
Subpart A--Competition Requirements
References to Federal acquisition regulation (sec. 1051)
The Senate bill contained a provision (sec. 1051) that
would clarify references to the Federal Acquisition
Regulation by removing an obsolete reference to modifications
to the regulation. The House amendment contained an identical
provision (sec. 1051).
The conferees agree to this provision.
Establishment or maintenance of alternate sources of supply
(sec. 1052)
The Senate bill contained a provision (sec. 1052) that
would amend 41 U.S.C. 253(b) to permit an agency to exclude a
particular source in order to maintain an alternate source
to: (1) ensure a continuous flow of supplies or services; (2)
satisfy a critical need for health, safety, or other
emergency supplies; or (3) satisfy projected needs resulting
from a high demand.
The House amendment contained a similar provision (sec.
1052).
The Senate recedes with a technical amendment.
Clarification of approval authority for use of procedures
other than full and open competition (sec. 1053)
The Senate bill contained a provision (sec. 1053) that
would clarify the law governing the approval authority for
the use of non-competitive procedures for civilian agencies.
The House amendment contained an identical provision (sec.
1053).
The conferees agree to this provision.
Task and delivery order contracts (sec. 1054)
The Senate bill contained a provision (sec. 1054) that
would add a new section 303H to the Federal Property and
Administrative Services Act, authorizing the use of task
order contracts for advisory and assistance services. The
provision would establish a requirement that solicitations
for such contracts shall ordinarily provide for multiple
awards where the contract period is to exceed three years and
the contract is estimated to exceed $10,000,000 and for fair
consideration of each awardee for each task order issued
under such multiple contracts.
The House amendment contained no similar provision.
The House recedes with an amendment clarifying that nothing
in this section is intended to amend or impair the
authorities or responsibilities under section 111 of the
Federal Property and Administrative Services Act or title IX
of the Federal Property and Administrative Services Act.
In addition, the conference agreement would provide general
authorization for the use of task and delivery order
contracts to acquire goods and services other than advisory
and assistance services. The conferees note that this
provision is intended as a codification of existing authority
to use such contractual vehicles. All otherwise applicable
provisions of law would remain applicable to such
acquisitions, except to the extent specifically provided in
this section. For example, the requirements of the
Competition in Contracting Act, although they would be
inapplicable to the issuance of individual orders under task
and delivery order contracts, would continue to apply to the
solicitation and award of the contracts themselves.
Acquisition of expert services (sec. 1055)
The Senate bill contained a provision (sec. 1055) that
would establish for civilian agencies a new exception to the
requirement for the use of competitive procedures in 41
U.S.C. 253(c)(3) for expert litigation services, similar to
the provisions set forth in section 1005 for the Department
of Defense. The section would conform the notice requirements
in 41 U.S.C. 416(c) and 15 U.S.C. 637(c) and repeal a
codified provision that exempts from the Competition in
Contracting Act all Internal Revenue Service contracts to
hire experts for the examination of tax returns or litigating
actions under the Internal Revenue Code.
The House amendment contained no similar provision.
The House recedes.
Subpart B--Planning, Solicitation, Evaluation and Award
Solicitation, evaluation, and award (sec. 1061)
The Senate bill contained a provision (sec. 1061) that
would clarify the Competition in Contracting Act solicitation
provisions requiring the disclosure of evaluation factors and
subfactors and authorizing awards without discussions in
civilian acquisitions.
The House amendment contained a provision (sec. 1061) that
also would provide that implementing regulations may not
define ``significantly more'' or ``significantly less
important'' as specified numeric weights to be uniformly
applied.
The Senate recedes with a clarifying amendment.
Solicitation provision regarding evaluation of purchase
options (sec. 1062)
The Senate bill contained a provision (sec. 1062) that
would make a technical amendment regarding the consideration
of option pricing.
The House amendment contained a similar provision (sec.
1062).
The Senate recedes.
Prompt notice of award (sec. 1063)
The Senate bill contained a provision (sec. 1063) that
would require notice to all offerors as soon as practical
after date of contract award.
The House amendment contained a provision (sec. 1063) that
would stipulate such notice be given ``within three days.''
The provision also would allow electronic transmission of the
written notice.
The Senate recedes.
Post-award debriefings (sec. 1064)
The Senate bill contained a provision (sec. 1063) that
would require prompt debriefings providing basic information
on the award to unsuccessful offerors if requested within
three days after receipt of notification of contract award.
The Senate provision also would require disclosure of
debriefing information to all offerors if, within one year of
contract award, the agency seeks to fulfill the same
requirement.
The House amendment contained a similar provision (sec.
1064).
The House recedes with an amendment that would require the
agency, to the maximum extent practicable, to debrief the
offeror within five days after the agency's receipt of the
offeror's request, and that would make other clarifying
changes.
The conferees intend that information not anticipated to be
released under this provision includes information relating
to trade secrets; privileged or confidential manufacturing
processes and techniques; and commercial and financial
information that is privileged or confidential, including
cost breakdowns, profit, indirect cost rates, and similar
information. Information concerning such matters is protected
currently under the Federal Acquisition Regulation.
Protest file (sec. 1065)
The Senate bill contained a provision (sec. 1065) that
would require civilian agencies to maintain protest files in
protests to the Comptroller General.
The House amendment contained a similar provision (sec.
1065).
The Senate recedes.
Agency actions on protests (sec. 1066)
The Senate bill contained a provision (sec. 1066) that
would authorize civilian agencies to pay costs and fees in
bid protest settlements.
The House amendment contained a similar provision (sec.
1066).
The Senate recedes with a technical amendment.
Subpart C--Kinds of Contracts
Repeal of agency head determination regarding use of cost
type or incentive contract (sec. 1071)
The Senate bill contained a provision (sec. 1071) that
would repeal the requirement for a determination prior to the
use of cost or incentive-type contracts.
The House amendment contained an identical provision (sec.
1071).
The conferees agree to this provision.
Multiyear contracting authority (sec. 1072)
The Senate bill contained a provision (sec. 1072) that
would amend the Federal Property and Administrative Services
Act to add a new section 303J to permit civilian agencies to
enter into multiyear contracts where sufficient
appropriations are available and obligated and the agency
head determines that the need for property or services is
reasonably firm and continuing and such a contract is in the
best interest of the United States.
The House amendment contained a similar provision (sec.
1072) that would define the multiyear contract as a contract
not exceeding five years. It would require a notice to
Congress for any contract containing a cancellation ceiling
in excess of $10,000,000.
The Senate recedes with a technical amendment.
Severable contracts crossing fiscal years (sec. 1073)
The Senate bill contained a provision (sec. 1073) that
would authorize agencies to enter into contracts for
severable services which cross fiscal years as long as the
base period does not exceed one year.
The House amendment contained a similar provision (sec.
1073).
The House recedes.
Economy Act purchases (sec. 1074)
The Senate bill contained a provision (sec. 1074) that
would provide for the revision of the Federal Acquisition
Regulation to govern federal agencies' exercise of authority
to purchase goods and services under other agencies'
contracts under 31 U.S.C. 1535, commonly known as the
``Economy Act.''
The House amendment contained no similar provision.
The House recedes.
PART III--ACQUISITIONS GENERALLY
Policy regarding consideration of contractor past performance
(sec. 1091)
The Senate bill contained a provision (sec. 1091) that
would provide that the Office of Federal Procurement Policy
should prescribe guidance for executive agencies regarding
consideration of the past performance of offerors in awarding
contracts. The guidance would include evaluation standards,
information collection and maintenance policies, and policies
for ensuring that offerors are provided an opportunity to
submit past performance information, including performance,
under contracts with Federal, State, and local governments,
and with commercial customers.
The House amendment contained a similar provision (sec.
1091), but did not provide for consideration of performance
under contracts with Federal, State, and local government, or
with commercial customers.
The House recedes with a technical amendment.
Repeal of requirement for annual report on competition (sec.
1092)
The Senate bill contained a provision (sec. 1092) that
would repeal Section 23 of the Office of Federal Procurement
Policy Act, which requires an annual report on competition
each year through fiscal year 1990. The separate requirement
for annual reports on competition by agency competition
advocates (in section 20(b) of the OFPP Act) would remain in
effect.
The House amendment contained an identical provision (sec.
1092).
The conferees agree to this provision.
Discouragement of nonstandard contract clauses (sec. 1093)
The House amendment contained a provision (sec. 1093) that
would require the Federal Acquisition Regulatory Council to
promulgate regulations to discourage the repetitive use of
nonstandard clauses.
The Senate bill contained no similar provision.
The Senate recedes.
Subtitle B--Truth in Negotiations
PART I--ARMED SERVICES ACQUISITIONS
Stabilization of dollar threshold of applicability (sec.
1201)
The Senate bill contained a provision (sec. 1201) that
would set the dollar threshold for the Truth in Negotiations
Act in 10 U.S.C. 2306a at $500,000 and provide for periodic
inflation adjustments.
The House amendment contained a similar provision (sec.
1201). The two provisions differed in that the Senate bill
provided for inflation adjustments to be rounded to the
nearest $50,000, while the House amendment provided for
rounding to the nearest $10,000.
The House recedes.
Exceptions to cost or pricing data requirements (sec. 1202)
The Senate bill contained a provision (sec. 1202) that
would broaden the exceptions to the requirement to provide
cost or pricing data under the Truth in Negotiations Act in
10 U.S.C. 2306a.
The House amendment contained a similar provision (sec.
1202(a)).
The Senate recedes with an amendment, which would address
the differences between the two provisions as follows.
(1) Modifications.--The Senate bill would preclude the
requirement of cost or pricing data in the case of a
modification to a contract or subcontract for a commercial
item as long as the modification would not change the item
from a commercial item to a non-commercial item. The House
amendment contained no similar provision. The conference
agreement would adopt the Senate language, with a clarifying
amendment.
(2) Catalog or Market Prices.--The House amendment would
substitute the phrase ``sufficient quantities'' for the
statutory phrase ``substantial quantities'' in this
exception. The Senate bill contained no similar provision.
The conference agreement would adopt the Senate position. The
conferees intend that the current regulatory interpretation
of this exception should be changed in light of the purposes
of this Act to provide broader flexibility for the purchase
of commercial items, as required by the provision explained
in paragraph (4) below.
Both the Senate bill and the House amendment would extend
the catalog or market price exemption to cover not only
commercial items, but also services sold at catalog or market
prices. The conference agreement would also extend the
catalog or market price exemption to cover services in
appropriate cases. This would be accomplished through the new
definition of the term ``commercial item'' in Title VIII of
the bill. Under the new definition, the term ``commercial
item'' would include services that are sold in substantial
quantities in the commercial marketplace based on established
catalog prices for specific tasks performed and under
standard commercial terms and conditions. The catalog or
market price except would be available, in appropriate cases,
to services that are included in this definition.
(3) Waiver.--The Senate bill would not change the existing
waiver provision. The existing provision authorizes a waiver
upon a written (and delegable) determination by the head of
the agency concerned. The House amendment instead would
require a non-delegable determination by the head of the
procuring activity. The conference agreement would adopt the
House language.
(4) Regulations.--The House amendment contained a provision
that would require the issuance, in the Federal Acquisition
Regulation, of clear standards for determining whether the
exceptions to the cost or pricing data requirements apply. In
the case of the ``adequate price competition'' exception, the
regulations would specify the criteria to be used to
determine whether adequate price competition exists. In the
case of the ``catalog or market pricing'' exception, the
regulations would preclude consideration of sales to federal
agencies in determining whether an item has been sold in
substantial quantities to the general public.
The conference agreement would adopt the House provision.
The existing regulations apply a ``percentage of sales
test'', which compares a company's sales to the general
public to the company's sales to the federal government, for
the purposes of determining whether a product is sold in
substantial quantities to the general public. Under this
approach, two companies that sell precisely the same number
of an identical item to the general public are treated
differently, depending on the quantity of items they sell to
the federal government. The conferees intend that the
``percentage of sales'' test no longer be used.
The provision recommended by the conferees would require
equal treatment of the two companies. Under the new approach,
the determination whether sales to the general public are
``substantial'' could be made by comparison to the size of
the market for the item as a whole (including small
businesses), but could not be made by comparison to sales of
a particular company to the federal government. Standards
regarding the percentage of sales made on the basis of
catalog prices would still be permissible.
The conferees note that section 824 of the National Defense
Authorization Act for Fiscal Year 1990 required the Secretary
of Defense to revise the regulations governing the
applicability of the catalog or market pricing exception, by
no later than August 1991, to make it easier for commercial
items to qualify for the exception. Despite this clear
statutory directive, this provision has yet to be implemented
by the Department of Defense. The provision recommended by
the conferees would direct that these regulations be revised
in a manner similar to that previously required by section
824.
Restrictions on additional authority to require cost or
pricing data or other information (sec. 1203)
The Senate bill contained a provision (sec. 1203) which
would limit the authority of the Department of Defense to
require cost or pricing data in cases where the exceptions to
the requirement apply.
The House amendment contained a similar provision (sec.
1202(b)). The House provision would prohibit an agency from
requiring the submission of cost or pricing data where one of
the statutory exceptions to the requirement applies. An
agency could require the submission of cost or pricing data
for procurements of less than $500,000 only upon a written
(nondelegable) determination by the head of the procuring
activity.
The Senate recedes with an amendment. Under the conference
agreement, an agency would be prohibited from requiring the
submission of full, certified cost or pricing data where one
of the statutory exemptions applies. However, a contracting
officer would be authorized to require the submission of
information (less than full, certified cost or pricing data),
if such information would be necessary to determine the
reasonableness of price. Such information need not be
certified by the offeror as current, accurate, and complete,
and would be limited to the minimum of information that would
be necessary to determine price reasonableness.
Additional special rules for commercial items (sec. 1204)
The Senate bill contained a provision (sec. 1204) that
would create a new exception to cost or pricing data
requirements in 10 U.S.C. 2306a for commercial items.
The House amendment contained a similar provision (sec.
7104).
The Senate recedes with an amendment, which would address
the differences between the two provision as follows:
(1) Competition.--The Senate bill would require that, to
the maximum extent practicable, agencies shall conduct
procurements of commercial items on a competitive basis. The
House amendment would provide that if a commercial item is
purchased on the basis of adequate price competition or
established catalog or market prices, the procurement shall
be exempt from cost or pricing data requirements and, to the
maximum extent practicable, the agency may not require any
additional information from the offeror to determine price
reasonableness.
The conference agreement would combine the language of the
Senate and the House bills. Under the conference agreement,
agencies would be required to conduct procurements of
commercial items on a competitive basis to the maximum extent
practicable. It is the intent of the conferees that
requirements for commercial items should be structured,
wherever possible, so that multiple commercial items can
compete for the same requirement. Where a commercial item is
purchased on the basis of adequate price competition, the
purchase would be exempt from cost or pricing data
requirements. If data not obtained through the competition is
needed to determine the reasonableness of price, it must be
obtained, to the maximum extent practicable, from sources
other than the offeror.
(2) Authority to require cost or pricing data.--The Senate
bill would authorize contracting officers to waive cost or
pricing data requirements when they are able to obtain
adequate information on commercial pricing to determine that
the price is fair and reasonable. The House amendment would
permit the waiver of cost or pricing data requirements where
price analysis is sufficient to determine whether the price
of a contract for a commercial item is fair and reasonable.
Under the conference agreement, the contracting officer
would be required (in any case in which it is not practicable
to purchase a commercial item on a competitive basis) to seek
information on prices at which the same or similar items have
been sold in the commercial market. Such information must be
sought from the offeror or contractor, or when such
information is not available from that source, from another
source or sources. If the contracting officer is able to
obtain information of this type that is adequate to evaluate,
the reasonableness of contract price through price analysis,
the contracting officer must exempt the procurement from cost
or pricing data requirements. If the contracting officer
makes a written determination that the agency is unable to
obtain adequate information for this purpose, the contracting
officer must require the submission of cost or pricing data.
(3) Right to audit.--The Senate bill would authorize audits
to determine whether the agency was receiving accurate
information under this section. The House amendment would
authorize audits for any purpose other than determining the
completeness of the data supplied. In addition, the Senate
bill would provide for audit authority up to three years
after the date of award, while the House amendment would
limit the authority to one year after the commencement of
performance (or any other date agreed upon in the contract).
The conference agreement would adopt the Senate language,
with a modification to limit the audit authority to a period
of two years after the date of award.
(4) Requests for data and forms of information.--The House
amendment contained three provisions addressing the
information that may be requested under this section. The
first provision would require the Federal Acquisition
Regulation to establish reasonable limitations on requests
for sales data on commercial items. The second would provide
that a contracting officer may request information from an
offeror of a commercial item only in the form regularly
maintained by the offeror in commercial operations, adequate
to demonstrate the market price of an item, or otherwise
needed to establish a fair and reasonable price. The third
would provide that all documentation received from an offeror
under this section and marked as proprietary shall be treated
by the Government as confidential. The Senate bill contained
no similar provisions.
The conference agreement would adopt the House language
with a modification to clarify that: (a) any information
received under this section that would be exempt from
disclosure under the Freedom of Information Act may not be
disclosed by the agency; and (b) contracting officers should,
to the maximum extent practicable, request information from
offerors in a form that is regularly maintained by the
offeror in its commercial operations.
Right of United States to examine contractor records (sec.
1205)
The Senate bill contained a provision (sec. 1205) that
would cross-reference the right of the United States to
examine contractor records under the audit provision in 10
U.S.C. 2313.
The House amendment contained a similar provision (sec.
1203).
The House recedes.
Required regulations (sec. 1206)
The Senate bill contained a provision (sec. 1206) that
would codify the requirement, in Section 803 of the National
Defense Authorization Act for Fiscal Year 1991, concerning
the types of price information which offerors must provide
for use by contracting officers in determining the
reasonableness of the contract price in procurements under
the $500,000 Truth in Negotiations Act threshold.
The House amendment contained no similar provision.
The House recedes with a technical amendment.
Consistency of time references (sec. 1207)
The Senate bill contained a provision (sec. 1207) that
would ensure consistency of time references in the Truth in
Negotiations Act in 10 U.S.C. 2306a.
The House amendment contained a similar provision (sec.
1204).
The House recedes with a technical amendment.
Exception for transfers between divisions, subsidiaries, and
affiliates (sec. 1208)
The Senate bill contained a provision (sec. 1208) that
would amend the Truth in Negotiations Act in 10 U.S.C. 2306a
to define the term ``subcontract'' to include a transfer of
commercial items between divisions, subsidiaries, or
affiliates of a contractor or subcontractor.
The House amendment contained no similar provision.
The House recedes with a technical amendment.
Coverage of Coast Guard and NASA for interest and payments on
certain overpayments (sec. 1209)
The conference agreement includes a provision that would
make conforming modifications to the Truth in Negotiations
Act in 10 U.S.C. 2306a to ensure that the National
Aeronautics and Space Administration and the United States
Coast Guard are covered.
Repeal of superseded provision (sec. 1210)
The Senate bill contained a provision (sec. 1209) that
would repeal subsections (b) and (c) of section 803 of the
National Defense Authorization Act for Fiscal Year 1991.
Subsection 803(b), which required a review of the impact of
the $500,000 threshold, would be superseded by section 1201
of the Senate bill, which would create a permanent $500,000
threshold for the Truth in Negotiations Act. Subsection
803(c), which concerned price information in below-threshold
procurements, would be codified by section 1206 of the Senate
bill.
The House amendment contained a provision (sec. 1205) which
differed from the Senate provision in that: (1) it would not
have repealed subsection 803(b); and (2) it would have
repealed, but not codified, subsection 803(c).
The House recedes.
PART II--CIVILIAN AGENCY ACQUISITIONS
Revision of civilian agency provisions to ensure uniform
treatment of cost or pricing data (sec. 1251)
The Senate bill contained a provision (sec. 1251) that
would amend the Federal Property and Administrative Services
Act to ensure uniform treatment of cost or pricing data for
civilian agencies and for the Department of Defense.
The House amendment contained a similar provision (sec.
1251).
The Senate recedes with a technical amendment.
Repeal of obsolete provision (sec. 1252)
The Senate bill contained a provision (sec. 1252) that
would repeal the obsolete cost or pricing data requirements
in section 303E of the Federal Property and Administrative
Services Act.
The House amendment contained a similar provision (sec.
1252).
The Senate recedes.
Subtitle C--Research and Development
Research projects (sec. 1301)
The Senate bill contained a provision (sec. 1301) that
would make technical amendments in the research and
development authorities of the Department of Defense.
The House amendment contained no similar provision.
The House recedes with a technical amendment.
Subtitle D--Procurement Protests
PART I--COMPTROLLER GENERAL
Protest defined (sec. 1401)
The Senate bill contained a provision (sec. 1401) that
would amend 31 U.S.C. 3551 to make clear that the definition
of protest covers protests of solicitations, cancellation of
solicitations, awards or proposed awards of contracts, and
the cancellation of an award (where such cancellation is
alleged to be based on improprieties in the award process) to
be consistent with the definition set forth in section 1439
for the General Services Board of Contract Appeals.
The House amendment contained a similar provision (sec.
1401).
The Senate recedes with a technical amendment.
Review of protests and effect on contracts pending decision
(sec. 1402)
The Senate bill contained a provision (sec. 1402) that
would amend 31 U.S.C. 3553.
Subsection (a) would make technical changes to refer to
calendar days instead of working days.
Subsection (b) would permit contractors to begin
performance unless the contracting officer withholds an
authorization to proceed with performance in the first ten
days after contract award. A contracting officer could
withhold authorization if he or she felt that a bid protest
was likely and that immediate performance would not be in the
best interest of the United States. The provision is intended
to avoid adding costs to the United States from starting,
stopping, and restarting contract performance in cases where
protests are considered likely and immediate performance is
not necessary.
The House amendment contained a similar provision (sec.
1402).
The House recedes with an amendment that would provide
contracting agencies 20 days within which to submit a
protests report when the express option protest process is
invoked.
Decisions on protests (sec. 1403)
The Senate bill contained a provision (sec. 1403) that
would amend 31 U.S.C. 3554, regarding Comptroller General
decisions on bid protests.
Subsection (a) would make technical changes to refer to
calendar days instead of working days and to provide that an
amendment that adds new ground of protests should be resolved
to the maximum extent practicable, within the time period for
final decision on the initial protest.
Subsection (b) would provide that the Comptroller General
may recommend the payment of fees and costs in bid protest
cases, rather than directing agencies to pay such fees and
costs. This provision would address questions that have been
raised about the constitutionality of existing law. This
subsection would also authorize the payment of consultant and
expert witness fees as well as attorneys' fees in protest
cases, and would limit all such fees to the levels
established in the Equal Access to Justice Act (EAJA). This
fee cap would not apply to protests filed by small
businesses.
The House amendment contained a similar provision (sec.
1403), which also would allow recovery of costs for frivolous
protests and authorize the Comptroller General to issue
protective orders Further, the House amendment would provide
different time frames.
The House recedes with an amendment that would provide the
Comptroller General authority to issue protective orders. The
amendment would also provide for a $150 limit on attorneys'
fees, which is higher than the current EAJA rate. The
amendment would allow for higher fees if such higher fees are
determined by the agency, based on the Comptroller General's
recommendation, to be justified. The amendment would limit
the reimbursement for fees of consultants and expert witness
to the highest rate paid by the Federal Government for expert
witnesses.
The conferees note that the $150 fee level should be
considered as a maximum, not a minimum. The conferees do not
intend the provision to authorize the payment of rates that
are higher than charged by an attorney in other similar cases
or by other attorneys of similar level of experience in bid
protest cases.
The conferees also note that this provision would entitle a
small business concern to recover ``reasonable attorneys'
fees'' in appropriate cases. The conferees expect the
Comptroller General to be vigilant in reviewing attorneys'
fees to ensure that they are reasonable. The cap placed on
attorneys' fees for businesses other than small business
constitutes a benchmark as to what constitutes a
``reasonable'' level for attorneys' fees for small
businesses.
Regulations (sec. 1404)
The Senate bill contained a provision (sec. 1404) that
would authorize the Comptroller General to issue regulations
on the calculation of time periods and electronic filings and
disseminations.
The House amendment contained an identical provision (sec.
1404).
The conferees agree to this provision.
PART II--PROTESTS IN PROCUREMENTS OF AUTOMATIC DATA PROCESSING
Revocation of delegations of procurement authority (sec.
1431)
The Senate bill contained a provision (sec. 1431) that
would authorize the Administrator of General Services to
revoke a delegation of authority after the award of a
contract where there is a finding of a violation of law or
regulation in connection with the contract award.
The House amendment contained a similar provision (sec.
1431).
The Senate recedes.
Authority of the General Services Administration Board of
Contract Appeals (sec. 1432)
The Senate bill contained a provision (sec. 1432) that
would clarify that at the request of an interested party, the
General Services Administration Board of Contract Appeals
shall review any decision by a contracting officer alleged to
have violated a statute, regulation, or the conditions of any
delegation of procurement authority.
The House amendment contained an identical provision (sec.
1432).
The conferees agree to this provision.
Periods for certain actions (sec. 1433)
The Senate bill contained a provision (sec. 1433) that
would amend section 111(f) of the Federal Property and
Administrative Services Act.
Subsection (a) would conform the schedule for General
Services Administration Board of Contract Appeals hearings on
suspension of procurement authority to the time frames
established in section 1402 for protests before the
Comptroller General and provide that pre-award suspensions
need not preclude continuance of the procurement process to
point of award unless the agency head determines such action
not to be in the best interests of the United States.
Subsection (b) would substitute calendar days for working
days and require that an amendment that adds new grounds of
protest be resolved, to the maximum extent practicable,
within the time limits established for resolution of the
initial protest.
The House amendment contained a similar provision (sec.
1433).
The Senate recedes with an amendment that would provide
that the termination regarding the pre-award suspension would
be made by the Board.
Dismissals of protests (sec. 1434)
The Senate bill contained a provision (sec. 1434) that
would authorize the General Services Administration Board of
Contract Appeals to dismiss a protest that is frivolous,
brought in bad faith, or does not state on its face a valid
basis for protest.
The House amendment contained a similar provision (sec.
1434) that also would provide for the imposition of liability
on a protester bringing a frivolous protest for costs of the
United States incurred in defending against the protest.
The House recedes with an amendment which would provide
that the Board may impose appropriate procedural sanctions
against protestors filing such protests.
Awards of costs (sec. 1435)
The Senate bill contained a provision (sec. 1435) that
would authorize the payment of consultant and expert witness
fees as well as attorneys' fees in protest cases before the
General Services Administration Board of Contract Appeals,
and would limit all such fees to the levels established in
the Equal Access to Justice Act (EAJA). The fee cap would not
apply to small businesses.
The House amendment contained a similar provision (sec.
1435) but did not include a cap on fees and included a
definition of the term ``prevailing party.''
The House recedes with an amendment that would provide for
a $150 limit on attorneys' fees, which is higher than the
current EAJA rate. The amendment would allow for fees above
$150 if such higher fees are determined by the Board to be
justified. The amendment would limit the reimbursement for
fees of consultants and expert witness to the highest rate
paid by the Federal Government for expert witnesses.
The conferees note that the $150 fee level should be
considered as a maximum, not a minimum. The conferees do not
intend the provision to authorize the payment of rates that
are higher than charged by an attorney in other similar cases
or by other attorneys of similar level of experience in bid
protest cases.
The conferees also note that this provision would entitle a
small business concern to recover ``reasonable attorneys'
fees'' in appropriate cases. The conferees expect the Board
to be vigilant in reviewing attorneys' fees to ensure that
they are reasonable. The cap placed on attorneys' fees for
businesses other than small business constitutes a benchmark
as to what constitutes a ``reasonable'' level for attorneys'
fees for small businesses.
Dismissal agreements (sec. 1436)
The Senate bill contained a provision (sec. 1436) that
would require public disclosure of any settlement agreement
that provides for the dismissal of a protest and involves a
direct or indirect expenditure of appropriated funds. This
provision also would authorize agencies to make such payments
from the judgment fund.
The House amendment contained an identical provision (sec.
1436).
The conferees agree to this provision.
Matters to be covered in regulations (sec. 1437)
The Senate bill contained a provision (sec. 1438) that
would authorize the General Services Administration Board of
Contract Appeals to adopt appropriate rules and procedures
which would, at a minimum, address the computation of time
periods under the statute and provide procedures for
electronic filing and dissemination of documents.
The House amendment contained a similar provision (sec.
1437).
The Senate recedes.
Definition of protest (sec. 1438)
The Senate bill contained a provision (sec. 1439) that
would amend the definition of ``protest'' in 40 U.S.C.
759(f)(9) regarding protests to the General Services
Administration Board of Contract Appeals to clarify that the
term covers protests of solicitations, cancellations of
solicitations, awards or proposed awards of contracts, and
the cancellation of an award (where such cancellation is
alleged to be based on improprieties in the award process).
The same definition would be provided for the General
Accounting Office in section 1401 of the Senate bill.
The House amendment contained a similar provision (sec.
1438).
The Senate recedes with a technical amendment.
Oversight of acquisition of automatic data processing
equipment by federal agencies (sec. 1439)
The House amendment contained a provision (sec. 1439) that
would require the Administrator of the General Services to
collect and compile data on automated data processing
acquisitions.
The Senate bill contained no similar provision.
The Senate recedes.
Subtitle E--Policy, Definitions, and Other Matters
PART I--ARMED SERVICES ACQUISITIONS
Repeal of policy statement (sec. 1501)
The House amendment contained a provision (sec. 1501) that
would revise 10 U.S.C. 2301 to restate congressional defense
procurement policy.
The Senate bill contained no similar provision.
The Senate recedes with an amendment that would repeal 10
U.S.C. 2301. The conferees agree that contemporary changes in
the acquisition laws, including the changes proposed in this
conference report, have made it unnecessary to set forth a
separate statement of procurement policy.
Definitions (sec. 1502)
The Senate bill contained a provision (sec. 1501) that
would amend the definitions in 10 U.S.C. 2302 to cross-
reference definitions in the Office of Federal Procurement
Policy Act, where appropriate.
The House amendment contained a similar provision (sec.
1502).
The Senate recedes with a technical amendment.
Delegation of procurement functions (sec. 1503)
The Senate bill contained a provision (sec. 1502) that
would consolidate provisions on delegation of procurement
functions for the Department of Defense.
The House amendment contained a similar provision (sec.
1503).
The Senate recedes.
Determinations and decisions (sec. 1504)
The Senate bill contained a provision (sec. 1503) that
would streamline provisions on determinations and decisions
by the Department of Defense, while retaining the requirement
that such findings be made in writing and retained for no
less than six years.
The House amendment contained a similar provision (sec.
1504).
The Senate recedes.
Restrictions on undefinitized contractual actions (sec. 1505)
The Senate bill contained a provision (sec. 1504) that
would make technical changes in 10 U.S.C. 2326, concerning
undefinitized contractual actions.
The House amendment contained in identical provision (sec.
1505).
The conferees agree to this provision.
Repeal of requirement relating to production special tooling
and production special test equipment (sec. 1506)
The Senate bill contained a provision (sec. 1505) that
would repeal 10 U.S.C. 2329, concerning contract terms of
production special tooling and production special test
equipment.
The House amendment contained a similar provision (sec.
1505).
The Senate recedes. The repeal is not intended to effect
current policies with respect to reimbursement for the costs
of production special tooling and production test equipment.
Regulations for bids (sec. 1507)
The Senate bill contained a provision (sec. 1506) that
would clarify that the authority established in 10 U.S.C.
2381(a) regarding issuance of regulations relating to bid
bonds on construction contracts. The Senate provision added a
reference to the Secretary of Defense.
The House amendment contained an identical provision (sec.
1507).
The conference agreement deletes references to the
secretaries of the military services vesting regulatory
authority in the Secretary of defense, subject to any
delegation that might be needed to meet a service unique
requirement.
PART II--CIVILIAN AGENCY ACQUISITIONS
Definitions (sec. 1551)
The Senate bill contained a provision (sec. 1551) that
would amend the definitions in the Federal Property and
Administrative Services Act to cross-reference definitions in
the Office of Federal Procurement Policy Act, where
appropriate.
The House amendment contained a similar provision (sec.
1551).
The Senate recedes with a technical amendment.
Delegation of procurement functions (sec. 1552)
The Senate bill contained a provision (sec. 1552) that
would consolidate provisions on delegation of procurement
functions for civilian agencies, in the same manner as
provided for the Department of Defense in section 1502.
The House amendment contained a similar provision (sec.
1552).
The Senate recedes with a technical amendment.
Determinations and decisions (sec. 1553)
The Senate bill contained a provision (sec. 1553) that
would streamline the provisions in the Federal Property and
Administrative Services Act on determinations and decisions,
while retaining the requirement that such findings be in
writing and retained for not less than six years.
The House amendment contained a similar provision (sec.
1553).
The Senate recedes with a technical amendment.
Repeal of preference for recycled toner cartridges (sec.
1554)
The Senate bill contained a provision (sec. 3085) that
would repeal certain restrictions relating to the acquisition
of recycled toner cartridges.
The House amendment contained a similar provision (sec.
1554).
The Senate recedes with a technical amendment.
Cooperative purchasing (sec. 1555)
The Senate bill contained a provision (sec. 1554) that
would amend the Federal Property and Administrative Services
Act to provide that the Administrator of General Services is
to provide, upon request, any of the services the
Administrator performs to other federal agencies, mixed-
ownership government corporations, or the District of
Columbia, or a qualified non-profit agency for the blind or
other severely handicapped under the Javits-Wagner-O'Day Act
and that the Administrator may provide for the use of Federal
supply schedules or other contracts by State or local
governments, Puerto Rico, or Indian tribal governments.
The House amendment contained a similar provision (sec.
1555). With respect to the use of schedules, the House
amendment would provide for the use of General Services
Administration Federal supply schedules only and would
provide that the entity using the Federal supply schedule may
be required to reimburse the General Services Administration
(GSA) for any administrative costs of using the schedule.
The Senate recedes with a technical amendment. In providing
the authority for GSA to permit State and local governments
as well as others to use GSA schedule contracts, the
conferees intend that the terms of each schedule holder's
contract govern and that schedule contractors not be required
to service other than federal government users unless the
particular schedule contract so specifies.
contract formation--legislative provisions not adopted
Two-phase selection procedures
The Senate bill contained two provisions (secs. 1017 and
1067) that would authorize two-phase selection procedures for
use on other than construction contracts where it is
anticipated that three or more offers will be received, a
substantial amount of design work is needed before a cost or
price proposal can be developed, and offerors will incur
substantial proposal preparation costs. First step proposals
would be evaluated on technical approach and qualifications;
in the second step, at least three offerors determined to be
most highly qualified under step one would submit competitive
proposals including cost or price information.
The House amendment contained no similar provision.
The Senate recedes.
Technical and conforming amendments
The Senate bill contained a provision (sec. 1022) that
would make technical and conforming amendments to 10 U.S.C.
2306.
The House amendment contained no similar provision.
The Senate recedes.
Continued occupancy of leased space
The Senate bill contained a provision (sec. 1056) that
would amend 41 U.S.C. 253(d) to permit the use of other than
competitive procedures for a follow-on lease for continued
occupancy by federal agencies of space in buildings on a one-
time basis for a period not to exceed five years upon a
determination that there is a continuous need for the space,
the space meets the agency's needs and that the space is
offered at a fair market price.
The House amendment contained no similar provision.
The Senate recedes.
Award of multiple contracts
The House amendment contained two provisions (secs. 1017
and 1067) that would authorize the Department of Defense to
award multiple contracts under a single solicitation if it
would be in the best interests of the Federal Government.
The Senate bill contained no similar provision.
The House recedes.
Elimination of certain terminology regarding defense research
activities
The Senate bill contained a provision (sec. 1302) that
would have revised 10 U.S.C. 2364 to eliminate the statutory
use of certain terminology regarding defense research
activities.
The House amendment contained no similar provision.
The Senate recedes.
Jurisdiction of the United States Court of Federal Claims
The Senate bill contained three provisions (Secs. 1421,
1422, and 1437) that would give the U.S. Court of Federal
Claims exclusive judicial jurisdiction over bid protests, and
eliminate district court jurisdiction over such protests. The
provisions would have no impact on the protest jurisdiction
of the General Accounting Office and the General Services
Administration Board of Contract Appeals.
The House amendment contained no similar provisions.
The Senate recedes.
TITLE II--CONTRACT ADMINISTRATION
Subtitle A--Contract Payment
PART I--ARMED SERVICES ACQUISITIONS
Contract financing (sec. 2001)
The Senate bill contained a provision (sec. 2001) that
would consolidate contract financing provisions for the
Department of Defense in 10 U.S.C. 2307, provide for
performance-based payments whenever practicable, and repeal
obsolete and superseded provisions.
The House amendment contained a similar provision (sec.
2001) that also would authorize payments for commercial items
using commercial terms and conditions, with certain
limitations.
The Senate recedes with an amendment that would provide for
performance-based payments whenever practicable and
commercial item payments when in the best interests of the
United States. The conference agreement would make it clear
that Prompt Payment Act requirements in chapter 39 of title
31, United States Code are not intended to be impaired or
modified by this provision.
Repeal of vouchering procedures section (sec. 2002)
The Senate bill contained a provision (sec. 2002) that
would repeal 10 U.S.C. 2355, which creates unique vouchering
requirements for the Department of Defense.
The House amendment contained an identical provision (sec.
2002).
The conferees agree to this provision.
PART II--CIVILIAN AGENCY ACQUISITIONS
Contract financing (sec. 2051)
The Senate bill contained a provision (sec. 2051) that
would consolidate contract financing provisions for the
civilian agencies and provide for performance-based payments
whenever practicable.
The House amendment contained a similar provision (sec.
2051) that would also authorize payments for commercial items
using commercial terms and conditions, with certain
limitations.
The Senate recedes with an amendment that would provide for
performance-based payments whenever practicable and
commercial item payments when in the best interests of the
United States. The conference agreement would make it clear
that Prompt Payment Act requirements in chapter 39 of title
31, United States Code are not intended to be modified by
this provision.
PART III--ACQUISITIONS GENERALLY
Government-wide application of payment protections for
subcontractors and suppliers (sec. 2091)
The House amendment contained a provision (sec. 4102) that
would require the Administrator of the Office of Federal
Procurement Policy to prescribe regulations to govern payment
protections for first tier subcontractors and suppliers under
Government contracts. This provision would make conforming
amendments to other applicable provisions of law.
The Senate bill contained no similar provision.
The Senate recedes with an amendment that would provide
that the Federal Acquisition Regulation be modified to apply
on a government-wide basis the current Department of Defense
payment protections mandated by section 806 of the National
Defense Authorization Act for Fiscal Years 1992 and 1993
(Public Law 102-190: 10 U.S.C. 2301 note) which are similar
to the provisions that are in sec. 4102 of the House
amendment.
Subtitle B--Cost principles
PART I--ARMED SERVICES ACQUISITIONS
Allowable contract costs (sec. 2101)
The Senate bill contained a provision (sec. 2101) that
would amend the Department of Defense contract cost
principles in 10 U.S.C. 2324 to raise the threshold for
coverage to $500,000, with a periodic inflation adjustment
for the threshold. This provision also would eliminate the
requirement for General Accounting Office reports and include
the costs of lobbying local government bodies in the current
prohibition against reimbursement of the costs of lobbying
before a Federal or State body.
The House amendment contained a similar provision (sec.
2101) that also would extend the coverage of the cost
principles to the U.S. Coast Guard and the National
Aeronautics and Space Administration, provide for different
inflation adjustment factors, and exempt commercial items.
The House provision did not address local lobbying costs.
The Senate recedes with an amendment that would conform the
inflation adjustment to the Senate provision (adjustments
based upon 1994 dollars and rounded to the nearest $50,000)
and provide that firm fixed price contracts for commercial
items are not subject to this provision. The amendment would
also adopt the Senate provision with respect to the local
lobbying costs. The conferees direct that the costs
associated with lobbying of local government entities be
treated in the regulations in the same manner as lobbying
before State entities is treated under the current applicable
cost principle, section 31.205-22(B) of the Federal
Acquisition Regulation.
Repeal of authority for contract profit controls during
emergency periods (sec. 2102)
The Senate bill contained a provision (sec. 2102) that
would repeal 10 U.S.C. 2382, which provides standby profit
controls for use during national emergencies. Contractor
profits would continue to be negotiated pursuant to the
principles established in the Federal Acquisition Regulation.
The House amendment contained an identical provision (sec.
2102).
The conferees agree to this provision.
PART II--CIVILIAN AGENCY ACQUISITIONS
Allowable contract costs (sec. 2151)
The Senate bill contained a provision (sec. 2151) that
would amend Section 306 of the Federal Property and
Administrative Services Act (41 U.S.C. 256) to establish
contract cost principles for civilian agencies. This
provision, which is substantially the same as section 2101,
would ensure uniform treatment of contract costs by civilian
agencies and the Department of Defense.
The House amendment contained a similar provision (sec.
2125) that would provide for different inflation adjustment
factors. It would add a provision concerning claims of
unallowable costs under Department of Energy management and
operating contracts and would exempt commercial contracts
from the cost principles. The House provision did not address
local lobbying costs.
The Senate recedes with a amendment that would adopt the
Senate inflation adjustment provision (adjustments based upon
1994 dollars and rounded to the nearest $50,000) and would
provide that firm fixed price contracts for commercial items
are not to be covered. The amendment would also adopt the
Senate provision with respect to the local lobbying costs. In
this regard, the conferees direct that the costs associated
with lobbying of local government entities be treated in the
regulations in the same manner as lobbying before State
entities is treated under the current applicable cost
principle, section 31.205-22(B) of the Federal Acquisition
Regulation (FAR).
The conferees do not intend that the current contract cost
principles in the FAR be rewritten for civilian agencies
unless the codification contains a change from current law
set forth in title 10, United States Code.
PART III--ACQUISITIONS GENERALLY
Travel expenses of government contractors (sec. 2191)
The Senate bill contained a provision (sec. 2191) that
would repeal section 24 of the Office of Federal Procurement
Policy Act (41 U.S.C. 420), regarding travel expenses of
government contractors.
The House amendment contained a similar provision (sec.
2161) that would clarify the application of the current OFPP
Act limit on reimbursement of such expenses.
The House recedes.
Revision of cost principles relating to entertainment, gift,
and recreation costs for contractor employees (sec. 2192)
The Senate bill contained a provision (sec. 2192) that
would require an amendment of the Federal Acquisition
Regulation (FAR) to provide that costs for entertainment that
are not allowable under the entertainment cost principle are
not allowable under any other principle, and to clarify the
relationship to other cost principles.
The House amendment would provide: (1) that costs for
entertainment, gifts, or recreation for employees are not
allowable unless the FAR is amended to specify circumstances
under which such costs are allowable; and (2) that costs not
allowable under the entertainment cost principles are not
allowable under any other principle.
The Senate recedes with a clarifying amendment. The
conference agreement would combine the two provisions and
make clear the Congressional intent that the Federal
Acquisition Regulation be revised so that entertainment costs
are not reimbursable on any basis.
Subtitle C--Audit and Access to Records
PART I--ARMED SERVICES ACQUISITIONS
Consolidation and revision of authority to examine records of
contractors (sec. 2201)
The Senate bill contained a provision (sec. 2201) that
would amend 10 U.S.C. 2313 to provide a consolidated audit
provision, prohibit a contracting agency preaward audit where
the contracting officer determines that audit objectives can
be met by any federal agency's audit occurring within one
year preceding the contracting officer's determination, and
clarify that no special records need to be created or
maintained in connection with General Accounting Office
access to records. The section also would repeal superseded
provisions.
The House amendment contained a similar provision (sec.
2201) that in addition would extend the applicability to
electronic forms and images of original records.
The Senate recedes with a technical amendment.
PART II--CIVILIAN AGENCY ACQUISITIONS
Authority to examine records of contractors (sec. 2251)
The Senate bill contained a provision (sec. 2251) that
would add a new section 304B to the Federal Property and
Administrative Services Act to provide a consolidated audit
provision, provide agency heads with subpoena power, prohibit
a contracting agency preaward audit where the contracting
officer determines that audit objectives can be met by any
federal agency's audit occurring within one year preceding
the contracting officer's determination, and to clarify that
no special records need to be created or maintained in
connection with General Accounting Office access to records.
The section also would repeal superseded provisions.
The House amendment contained a similar provision (sec.
2251) but would not provide for subpoena power.
The House recedes with an amendment that would limit the
subpoena power to the Defense Contract Audit Agency and the
statutory Inspectors General. With respect to an agency
without a statutory Inspector General, a subpoena could be
issued by the General Services Administration Inspector
General. The amendment also would make additional technical
and clarifying changes.
Subtitle D--Claims and Disputes
PART I--ARMED SERVICES ACQUISITIONS
Certification of contract claims (sec. 2301)
The Senate bill contained a provision (sec. 2501) that
would amend 10 U.S.C. 2410, which establishes Department of
Defense-unique requirements for the certification of contract
claims to make it clear the provision applies only to
requests for equitable adjustment and for relief under Public
Law 85-804. The provision would repeal 10 U.S.C. 2410e,
concerning a Department of Defense certification requirement.
Provisions of the Contract Disputes Act of 1978 regarding the
certification of claims would remain in effect and would
govern claims on a government-wide basis. The provision would
also codify a provision restricting legislative payment of
claims.
The House amendment contained a provision (sec. 2501) that
would amend 10 U.S.C. 2410e and repeal 10 U.S.C. 2410.
The House recedes.
Shipbuilding claims (sec. 2302)
The Senate bill contained a provision (sec. 2502) that
would amend 10 U.S.C. 2405, to conform the time allowed for
the filing of a claim, request for equitable adjustment, or
demand for payment under shipbuilding contracts to six years,
the time allowed for such actions under other types of
contracts. The Senate provision also would repeal subsection
(c) of section 2405, which concerns corrected certifications.
The House amendment contained a similar provision (sec.
2502).
The Senate recedes with a technical amendment.
PART II--ACQUISITIONS GENERALLY
Contract Disputes Act improvements (sec. 2351)
The Senate bill contained a provision (sec. 2552) that
would amend the Contract Disputes Act to clarify the periods
for filing claims. The section also would raise thresholds
for certifications and for accelerated and small claims
procedures. In addition, it would reduce the time period for
filing actions in the Court of Federal Claims from 12 months
to 90 days.
The House amendment contained no similar provision.
The House recedes with an amendment that would measure the
six year limitation for filing claims from the ``accrual'' of
the claim, increase the threshold for the applicability of
accelerated claims procedures to $100,000, and eliminate the
provision in the Senate bill reducing the time period for
filing actions in the Court of Federal Claims. In addition
the amendment would clarify the Contract Disputes Act to
insure a contractor's right to request that the ``tribunal
concerned'' in a particular claim action, whether it is an
agency board of contract appeals or a court of proper
jurisdiction, for example, the Court of Federal Claims,
direct a contracting officer to issue a decision on a claim
in a specified period of time in the event of the contracting
officer's undue delay.
Extension of alternate dispute resolution authority (sec.
2352)
The Senate bill contained a provision (sec. 2553) that
would amend the Contract Disputes Act to extend the authority
to engage in alternative dispute resolution under that Act
until October 1, 1999. The provision also would provide a
procedure for addressing requests for use of alternative
dispute resolution procedures.
The House amendment contained no similar provision.
The House recedes.
Expedited resolution of contract administration complaints
(sec. 2353)
The Senate bill contained a provision (sec. 2554) that
would require that a contracting officer make reasonable
efforts to respond within 30 days to any written inquiry from
a small business concerning contract administration. This
section would create no rights under the Contract Disputes
Act.
The House amendment contained no similar provision.
The House recedes. The conferees intend references to
written matter in this section to include electronic
transmissions.
Authority for district courts to obtain advisory opinions
from boards of contract appeals in certain cases (sec.
2354)
The Senate bill contained a provision (sec. 2555) that
would permit a district court to ask a board of contract
appeals for an advisory opinion on contract issues.
The House amendment contained no similar provision.
The House recedes with an amendment that would provide that
the board of contract appeals should provide the advisory
opinion in a timely manner to the district court.
Subtitle E--Miscellaneous
PART I--ARMED SERVICES ACQUISITIONS
Clarification of provision regarding quality control of
certain spare parts (sec. 2401)
The Senate bill contained a provision (sec. 2401) that
would repeal 10 U.S.C. 2383, which concerns the qualification
requirements for critical spare parts.
The House amendment contained a provision (sec. 2401) that
would revise 10 U.S.C. 2383.
The Senate recedes.
Contractor guarantees regarding weapons systems (sec. 2402)
The Senate bill contained a provision (sec. 2402) that
would amend 10 U.S.C. 2403, which concerns contractor
guarantees on weapons systems, to require the Department of
Defense to establish guidelines and procedures for
negotiating and administering contractor guarantees.
The House amendment contained a similar provision (sec.
2401).
The Senate recedes. The conferees agree that the Department
of Defense should take steps to test innovative approaches to
warranties with a goal of developing a more effective
implementation of the statutory requirement.
PART II--ACQUISITIONS GENERALLY
Section 3737 of the Revised Statutes: expansion of authority
to prohibit setoffs against assignees; reorganization of
section; revision of obsolete provisions (sec. 2451)
The Senate bill contained a provision (sec. 2451) that
would amend section 3737 of the Revised Statutes (41 U.S.C.
15) to expand authority for set-offs against assignees.
The House amendment contained no similar provision.
The House recedes.
Repeal of requirement for deposit of contracts with GAO (sec.
2452)
The Senate bill contained a provision (sec. 2452) which
would repeal an obsolete requirement for deposit of contracts
with GAO.
The House amendment contains no similar provision.
The House recedes.
Repeal of obsolete deadline regarding procedural regulations
for the Cost Accounting Standards Board (sec. 2453)
The Senate bill contained a provision (sec. 2302) that
would repeal an obsolete deadline for procedural regulations
that have already been issued, while retaining the provision
authorizing the issuance of such regulations.
The House amendment contained an identical provision (sec.
2301).
The conferees agree to this provision.
Codification of accounting requirement for contracted
advisory and assistance services (sec. 2454)
The Senate bill contained a provision (sec. 3051) that
would codify accounting requirements for contracted advisory
and assistance services.
The House amendment contained a similar provision (sec.
8008).
The House recedes with a technical amendment.
Uniform suspension and debarment (sec. 2455)
The Senate bill contained a provision (sec. 9004) that
would give government-wide effect to agency suspension and
debarment actions, with limited exceptions.
The House amendment contained no similar provision.
The House recedes.
contract administration--legislative provisions not adopted
Claims jurisdiction of United States district courts and the
United States Court of Federal Claims
The Senate bill contained a provision (sec. 2551) that
would amend the Little Tucker Act to clarify the concurrent
jurisdiction of district courts with the Court of Federal
Claims over contract disputes.
The House amendment contained no similar provision.
The Senate recedes.
Interest penalty on contract close-out lagtime
The House amendment contained a provision (sec. 2061) that
would permit the payment of interest penalties when contract
close-out exceeds one year after the contractor completes all
obligations.
The Senate bill contained no similar provision.
The House recedes.
TITLE III--SERVICE SPECIFIC AND MAJOR SYSTEMS STATUTES
Subtitle A--Major Systems Statutes
Weapon development and procurement schedules (sec. 3001)
The House amendment contained a provision (sec. 3001) that
would streamline the statutory requirements concerning weapon
development and procurement schedules (10 U.S.C. 2431).
The Senate bill contained no similar provision.
The Senate recedes.
Selected acquisition report requirement (sec. 3002)
The House amendment contained a provision (sec. 3002) that
would streamline the statutory requirements governing
selected acquisition reports (10 U.S.C. 2432-33) by
eliminating several requirements, eliminating extraneous data
requirements, and by redefining budgetary baselines.
The Senate bill contained no similar provision.
The Senate recedes with a clarifying amendment.
Unit cost report requirement (sec. 3003)
The House amendment contained a provision (sec. 3003) that
would streamline the statutory requirements governing unit
cost reports (10 U.S.C. 2433) by eliminating extraneous data
requirements and by redefining baselines.
The Senate bill contained no similar provision.
The Senate recedes.
Requirement for independent cost estimate and manpower
estimate before development or production (sec. 3004)
The Senate bill contained a provision (sec. 3001) that
would modify 10 U.S.C. 2434, which concerns independent cost
estimates and manpower estimates.
The House amendment contained a similar provision (sec.
3004).
The Senate recedes with a clarifying amendment.
Baseline description (sec. 3005)
The Senate bill contained a provision (sec. 3002) that
would streamline requirements for program baseline
descriptions and deviation reporting.
The House amendment contained a similar provision (sec.
3005).
The Senate recedes with a technical amendment. Although
these modifications provide DOD with added flexibility, the
conferees expect that the Department will continue to
establish program baselines and provide essential program
cost information.
Repeal of requirement for competitive prototyping of major
programs (sec. 3006)
The Senate bill contained a provision (sec. 3004) that
would repeal 10 U.S.C. 2438, concerning the use of
competitive prototyping in major programs.
The House amendment contained an identical provision (sec.
3006).
The conferees agree to this provision. The conferees expect
the Department of Defense to continue considering prototyping
as an option in the acquisition planning process and to use
competitive prototype strategies where appropriate.
Repeal of requirement for competitive alternative sources for
major programs (sec. 3007)
The Senate bill contained a provision (sec. 3005) that
would repeal 10 U.S.C. 2439, concerning the use of
competitive alternative sources in major programs.
The House amendment contained an identical provision (sec.
3007).
The conferees agree to this provision. The conferees expect
DOD to continue considering competitive alternative sources
as an option in the acquisition planning process and to use
competitive alternative sources where appropriate.
Subtitle B--Testing Statutes
Authority of the Director of Operational Test and Evaluation
to communicate views directly to the Secretary of Defense
(sec. 3011)
The Senate bill contained a provision (sec. 3011) that
would amend 10 U.S.C. 139 to provide that the Director of
Operational Test and Evaluation reports directly, without
intervening review or approval, to the Secretary and Deputy
Secretary of Defense personally.
The House amendment contained no similar provision. A
separate bill passed by the House (H.R. 4301) contained a
provision (sec. 906) that would provide for the Director to
report to the Under Secretary of Defense (Comptroller).
The House recedes with an amendment that would provide
expressly that the Director of Operational Test and
Evaluation is authorized to communicate views on matters
within the Director's responsibility directly to the
Secretary and Deputy Secretary of Defense without obtaining
the approval or concurrence of any other official within the
Department of Defense.
Under current DOD policy, the Director reports directly to
the Secretary and Deputy Secretary of Defense. The conferees
agree that this is the most desirable arrangement. If, in the
future, the Department intends to consider a different
organizational arrangement, the conferees direct the
Secretary to ensure ample consultation with Congress before
implementation of any changes. The conferees emphasize that
any such future arrangement must maintain the requirements
for independence of the Director from the Under Secretary of
Defense for Acquisition and Technology as set forth in 10
U.S.C. 139. The conferees further emphasize that section 139
prohibits placing the Director within the control of the
Under Secretary's organization, and requires the Director to
act independently of the Under Secretary.
Responsibility of the Director of Operational Test and
Evaluation for live fire testing (sec. 3012)
The Senate bill contained a provision (sec. 3012) that
would amend 10 U.S.C. 139 to assign responsibility for live
fire testing in the Department of Defense to the Director of
Operational Test and Evaluation. The Senate amendment also
would require the Director to include live fire testing
activities in the Director's annual report.
The House amendment contained no similar provision.
The House recedes with an amendment that would make it
clear that the Director would be responsible for monitoring
and reviewing the live fire testing activities of the
Department, including the Department's responsibilities under
10 U.S.C. 2366. The conferees intend that the Director
prepare the report required by 10 U.S.C. 2366(d). The
conferees note that the responsibility of the Director to
include live fire testing activities in the Director's annual
report does not replace other statutory reporting
requirements concerning live fire testing. The conferees
direct the Secretary of Defense to review all applicable
reporting requirements, and to advise the congressional
defense committees, not later than March 15, 1995, as to
whether any statutory reporting requirements should be
consolidated.
Requirement for unclassified version of annual report on
operational test and evaluation (sec. 3013)
The Senate bill contained a provision (sec. 3013) that
would amend 10 U.S.C. 139 to require the Secretary of Defense
to submit the annual report to Congress on operational test
and evaluation in an unclassified form if the report is
submitted in a classified form.
The House amendment contained no similar provision.
The House recedes.
Survivability and lethality testing (sec. 3014)
The House amendment contained a provision (sec. 3011) that
would amend 10 U.S.C. 2366 to modify requirements for
survivability and lethality testing. This section would allow
a waiver for less than full-up testing if the Secretary of
Defense certifies to Congress that such testing would be
unreasonably expensive or impractical.
The Senate bill contained no similar provision.
The Senate recedes with an amendment that would make it
clear that the certification which must be provided to
Congress in connection with such a modification must be
submitted before the system enters engineering and
manufacturing development. The effect would be to maintain
realistic survivability and lethality testing through testing
of components, subsystems, and subassemblies in cases where
the Secretary waives requirements for full up testing under
10 U.S.C. 2366.
Limitation on quantities to be procured for low-rate initial
production (sec. 3015)
The House amendment contained a provision (sec. 3012) that
would amend 10 U.S.C. 2400 to provide limits on the number of
articles that could be procured under low-rate initial
production within the engineering and manufacturing phase of
the acquisition cycles.
The Senate bill contained no similar provision.
The Senate recedes.
Subtitle C--Service Specific Laws
Gratuitous services of officers of certain reserve components
(sec. 3021)
The Senate bill contained a provision (sec. 3021) that
would revise 10 U.S.C. 279, concerning the acceptance of
gratuitous services of reserve officers by the military
departments.
The House amendment contained no similar provision.
The House recedes.
Authority to rent samples, drawings, and other information to
others (sec. 3022)
The Senate bill contained a provision (sec. 3022) that
would revise 10 U.S.C. 2541(a) to clarify that the provision
includes the authority to rent manufacturing information,
equipment, materials, and sources.
The House amendment contained no similar provision.
The House recedes.
Repeal of application of Public Contracts Act to certain
naval vessel contracts (sec. 3023)
The House amendment contained a provision (sec. 3033) that
would repeal 10 U.S.C. 7299, concerning the application of
the Walsh-Healey Act to the construction of naval vessels.
The Senate bill contained no similar provision.
The Senate recedes.
Repeal of requirement for construction of vessels on Pacific
Coast (sec. 3024)
The Senate bill contained a provision (sec. 3027) that
would repeal a provision requiring the construction of
certain naval vessels on the Pacific Coast.
The House amendment contained no similar provision.
The House recedes.
Scientific investigation and research for the Navy (sec.
3025)
The Senate bill contained a provision (sec. 3025) that
would repeal an obsolete provision concerning Navy research.
The House amendment contained no similar provision.
The House recedes.
Subtitle D--Civil Reserve Air Fleet
Civil Reserve Air Fleet (secs. 3031-33)
The Senate bill contained a provision (sec. 3023) that
would streamline and consolidate current laws concerning the
Civil Reserve Air Fleet.
The House amendment contained similar provisions (secs.
3021-23).
The Senate recedes with a clarifying amendment.
The conferees encourage the Secretary of the Air Force to
utilize the authorities provided in the conference agreement,
which would enhance the effectiveness of participation in the
Civil Reserve Air Fleet. The conference agreement would
permit the Air Force to use landing fees to mitigate the cost
of installation operations. The conferees believe this new
authority will reduce costs at installations where active and
reserve component operations have been reduced. This is
especially significant in remote and isolated locations where
support functions have been shifted to civilian contractors.
Subtitle E--Miscellaneous
Regulations on procurement, production, warehousing, and
supply distribution functions (sec. 3061)
The Senate bill contained a provision (sec. 3081) that
would amend 10 U.S.C. 2202 to delete unnecessary and
redundant language.
The House amendment contained a similar provision (sec.
3051).
The Senate recedes with a technical amendment.
Repeal of requirements regarding product evaluation
activities (sec. 3062)
The Senate bill contained a provision (sec. 3082) that
would repeal 10 U.S.C. 2369, concerning product evaluation
activities.
The House amendment contained a similar provision (sec.
3052).
The Senate recedes.
Department of Defense acquisition of intellectual property
rights (sec. 3063)
The Senate bill contained a provision (sec. 5092) that
would make technical changes in 10 U.S.C. 2386, concerning
the acquisition of intellectual property rights by DOD.
The House amendment contained an identical provision (sec.
8005).
The conferees agree to this provision.
Liquid fuels and natural gas: contracts for storage,
handling, or distribution (sec. 3064)
The Senate bill contained a provision (sec. 3061) that
would clarify 10 U.S.C. 2388(a), concerning the storage,
handling, and distribution of liquid fuels and natural gas.
The House amendment contained no similar provision.
The House recedes.
Codification and revision of limitation on lease of vessels,
aircraft, and vehicles (sec. 3065)
The Senate bill contained a provision (sec. 3083) that
codify the limitations on leasing vessels, aircraft, and
vehicles by the Department of Defense.
The House amendment contained a similar provision (sec.
3052).
The Senate recedes.
Soft drink supplies (sec. 3066)
The Senate bill contained a provision (sec. 3084) that
would revise 10 U.S.C. 2424 to permit the acquisition of U.S.
manufactured soft drinks from a military exchange store
located outside the United States for use outside the United
States.
The House amendment contained no similar provision.
The House recedes.
Disbursement of funds of military department to cover
obligations of another agency of Department of Defense
(sec. 3067)
The Senate bill contained a provision (sec. 3071) that
would clarify 31 U.S.C. 3321(c)(2), concerning the authority
to designate disbursing officers within DOD.
The House amendment contained no similar provision.
The House recedes.
service specific and major systems statutes--legislative provisions not
adopted
Repeal of requirement to designate certain programs as
defense enterprise programs
The Senate bill contained a provision (sec. 3004) that
would repeal section 809(d) of the National Defense
Authorization Act for Fiscal Year 1991. Section 809(d)
required defense acquisition pilot programs to be designated
as defense enterprise programs under 10 U.S.C. 2436.
The House amendment contained no similar provision.
The Senate recedes. The conferees note that section 809(d)
and 10 U.S.C. 2436 have been repealed by sections 821(a)(5)
and 832(b) of the National Defense Authorization Act for
Fiscal Year 1994.
Operational test and evaluation of defense acquisition
programs
The House amendment contained a provision (sec. 3013) that
would amend 10 U.S.C. 2399 to authorize the Secretary of
Defense to use alternative operational test and evaluation
procedures if the Secretary certifies to Congress that normal
testing procedures are too costly or impractical.
The Senate bill contained no similar provision.
The House recedes. In view of the fact that the position of
Director of Operational Test and Evaluation has been vacant
for over a year and a half, the conferees agree that the
changes proposed by the House should not be considered prior
to a thorough review and consideration by appropriate DOD
officials, including the next Director. The conferees agree
that it is appropriate to review current statutory
requirements to ensure that they are cost effective and
practicable. The conferees direct the Secretary of Defense to
advise the congressional defense committees no later than
March 15, 1994 on the issue of whether any changes should be
made in current law.
Exchange of personnel
The Senate bill contained a provision (sec. 3024) that
would authorize certain international personnel exchanges.
The House amendment contained no similar provision.
The Senate recedes. The conferees note that the Department
of Defense has authority to participate in international
exchanges of scientific personnel through Memoranda of
Understanding and international cooperative research and
development agreements. If DOD in the future should determine
that existing authority is insufficient, the Administration
should submit an appropriate legislative proposal.
Construction of combatant and escort vessels and assignment
of vessel projects
The Senate bill contained a provision (sec. 3026) that
would repeal a prohibition on the assignment of naval vessel
conversion, alteration, or repair based upon a requirement
that parts of the work be assigned to a particular type of
shipyard or geographic area.
The House amendment contained no similar provision.
The Senate recedes.
Authority to transfer by gift a vessel stricken from naval
vessel register
The Senate bill contained a provision (sec. 3028) that
would clarify 10 U.S.C. 7306(a), concerning the authority to
transfer by gift a vessel stricken from the naval vessel
register.
The House amendment contained no similar provision.
The Senate recedes.
Naval salvage facilities
The Senate bill contained a provision (sec. 3029) that
would revise various statutes regarding naval salvage
facilities.
The House amendment contained no similar provision.
The Senate recedes.
TITLE IV--SIMPLIFIED ACQUISITION THRESHOLD
Subtitle A--Establishment of Threshold
Simplified acquisition threshold defined (sec. 4001)
The Senate bill contained a provision (sec. 4001(a)) that
would amend the Office of Federal Procurement Policy Act to
establish a new simplified acquisition threshold of $100,000.
The House amendment contained a similar provision (sec.
4001) that would define the simplified acquisition threshold
as $25,000, increasing to $100,000 for agencies or procuring
activities conducting acquisitions using a Federal
Acquisition Computer Network (FACNET) capability, adjusted
for inflation every five years.
The House recedes. The conference agreement includes a
Federal Acquisition Computer Network cap established in Title
IX of this agreement.
Establishment of simplified acquisition threshold for Armed
Services (sec. 4002)
The House amendment contained a provision (sec. 4003) that
would establish the simplified acquisition threshold within
the Department of Defense, U.S. Coast Guard and National
Aeronautics and Space Administration.
The Senate bill contained no similar provision.
The Senate recedes with an amendment.
Establishment of simplified acquisition threshold for
civilian agencies (sec. 4003)
The House amendment contained a provision (sec. 4004) that
would establish the simplified acquisition threshold within
the civilian agencies.
The Senate bill contained no similar provision.
The Senate recedes.
Small business reservation (sec. 4004)
The Senate bill contained a provision (sec. 4012) that
would reserve all contracts under the simplified acquisition
threshold, except for those not exceeding $2,500, for small
business, and would specifically authorize continued set-
asides of all contracts under the simplified acquisition
threshold for minority small businesses.
The House amendment contained no similar provision.
The House recedes with an amendment which would set the
threshold for the reserve at $100,000. The conferees do not
intend that the increased threshold alter the current
priority among sources of supplies and services under Parts 8
and 13 of the Federal Acquisition Regulation.
Subtitle B--Inapplicability of Laws to Acquisition at or Below the
Simplified Acquisition Threshold
List of inapplicable laws in Federal Acquisition Regulation
(sec. 4101)
The Senate bill contained a provision (sec. 4021) that
would authorize the waiver, in the Federal Acquisition
Regulation (FAR), of the applicability of certain statutes to
acquisitions not exceeding the simplified acquisition
threshold. The House amendment contained a similar provision
(sec. 4021).
The House recedes with an amendment.
Under the conference agreement, the FAR would be revised to
include a list of statutes that are inapplicable to contracts
or subcontracts for acquisitions not exceeding the $100,000
simplified acquisition threshold. Any provision of law that
is properly included on the list would be inapplicable to any
such contract. Nothing in the provision would waive the
applicability of any statute that is not included on the
list, or create any private right of action or other legal
rights not expressly provided in this section, based on the
alleged inapplicability of a provision of law that is not
included on the list. The conferees intend that the FAR
should be revised, upon enactment of this Act, to list as
inapplicable to contracts for the acquisitions not exceeding
the simplified acquisition threshold each of the provisions
of law that would be made inapplicable by this Act, as well
as those provisions that currently have a $100,000 or higher
threshold.
The conference agreement would further provide that any
future-enacted provision of law that, as determined by the
FAR Council, sets forth policies, procedures, requirements,
or restrictions for the procurement of property or services
(other than a provision of law that imposes a civil or
criminal penalty, or expressly precludes a simplified
acquisition threshold exemption) would be included on the
list unless the FAR Council determines that such an exemption
would not be in the best interest of the United States. If
such a provision of law is not included on the list and the
FAR Council has not made the required determination, any
interested party may file a petition to require appropriate
action by the Administrator for Federal Procurement Policy.
Armed services acquisitions (sec. 4102)
The Senate bill contained a provision (sec. 4022) that
would exempt armed services procurements below the simplified
acquisition threshold from contingent fees certifications;
the prohibition on limiting subcontractor direct sales to the
United States; the audit requirements in 10 U.S.C. 2313; the
requirement to identify suspended or debarred subcontractors;
and the prohibition related to persons convicted of defense
related felonies.
The House amendment contained a similar provision (sec.
4032) that also would exempt 10 U.S.C. 2401b (inventory
accounting system standards) and 10 U.S.C. 2534
(miscellaneous limitations on procurement).
The Senate recedes with technical amendments.
Civilian agency acquisitions (sec. 4103)
The Senate bill contained a provision (sec. 4023) that
would, in the same manner as section 4022, exempt civilian
agency procurements below the simplified acquisition
threshold from contingent fees certifications; the
prohibition on limiting subcontractor direct sales to the
United States; and certain audit requirements.
The House amendment contained a similar provision (sec.
4042).
The House recedes with a technical amendment.
Acquisitions generally (sec. 4104)
The Senate bill contained a provision (sec. 4024) that
would exempt procurements below the simplified acquisition
threshold from the procedural requirements of the Anti-
Kickback Act; the Miller Act; the Contract Work Hours and
Safety Standards Act; the Drug-Free Workplace Act of 1988;
the certification requirements of Solid Waste Disposal Act;
and would make technical changes to the Procurement Integrity
Act substituting ``simplified acquisition threshold'' for
$100,000,'' and making conforming changes.
The House amendment contained similar provisions (secs.
4031, 4051, 4052) but did not waive the Anti-Kickback Act;
the Miller Act; the Contract Work Hours and Safety Standards
Act; or certifications under the Solid Waste Disposal Act.
The House recedes with an amendment that would clarify the
requirement to cooperate with Federal agency investigations
of violations of the Anti-Kickback Act.
Simplified acquisition procedures (sec. 4201)
The Senate bill contained a provision (sec. 4011) that
would add a new section 29 to the Office of Federal
Procurement Policy Act, authorizing the use of simplified
procedures for acquisitions under the simplified acquisition
threshold. The section also would require that regulations
implementing the new simplified procedures provide that
purchases not exceeding $2,500 not be subject to the Small
Business Act reservation requirement or the Buy American Act,
that Federal employees who make such purchases are not to be
classified as ``procurement officials'' under the Office of
Federal Procurement Policy Act, and that such purchases may
be made, as such purchases currently are made, without a
requirement to secure competitive quotations.
The House amendment contained similar provisions (secs.
4011, 6001) that would reflect the Senate's simplified
procedures and that would establish a micro-purchase
threshold adjusted for inflation every five years. The
provision would exempt such purchases from the Buy American
Act, would treat government personnel authorized to use
micro-purchases as procurement officials and would consider
any contractor entering into a micro-purchase contract to be
a competing contractor.
The Senate recedes with an amendment that would identify
simplified procedures; prohibit the dividing of requirements
for acquisition under the new threshold; promote competition;
and establish special rules for the utilization of simplified
procedures in connection with a new electronic Federal
Acquisition Computer Network (FACNET). Simplified procedures
may be used for acquisitions up to $50,000 upon enactment of
the Act. When an agency certifies that interim FACNET is
implemented, simplified procedures may be used by an agency
for contracts up to $100,000.
Micro-purchases are addressed in sec. 4301 of the
conference agreement.
Procurement notice (sec. 4202)
The Senate bill contained a provision (sec. 4014) that
would amend section 18 of the Office of Federal Procurement
Policy Act and section 8(e) of the Small Business Act to
continue the requirement that a notice of any procurement
over $25,000 be published in the Commerce Business Daily 15
days prior to the issuance of a solicitation. After the
issuance of this notice, the agency would be free to pursue
any procedures described in the notice; the current
requirement to allow the 30 days for the submissions of bids
and proposals would apply only to contracts in excess of the
simplified acquisition threshold.
The House amendment contained similar provisions (sec.
4012, 6001) that would require the posting of notices of all
solicitations between $10,000 and the simplified acquisition
threshold for at least a ten day period unless the
acquisition is conducted through the Federal Acquisition
Computer Network (FACNET) to be established under this Act.
In addition, the House amendment would establish minimum
periods for the submission of offers to be set forth in the
Federal Acquisition Regulation.
The House recedes with a technical amendment.
Implementation of simplified acquisition procedures (sec.
4203)
The House amendment contained provisions that would
establish the simplified acquisition threshold (SAT) for the
Department of Defense (DOD) (sec. 4003) and civilian agency
(sec. 4004) procurements. The provision would allow an
increase in SAT from $25,000 to $100,000 for a procuring
activity once the senior procurement executive of an agency
certifies that an interim electronic commerce capability has
been implemented by the activity. Interim capability would be
defined as the ability to issue notice of solicitation
through the system. The provision also would require an
agency to revert to a $25,000 SAT if in five years after
enactment the agency has not achieved full electronic
commerce capability for simplified acquisitions. Full
capability is defined as 75% of all eligible agency contract
actions between $2,500 (micro-purchase threshold) and
$100,000.
The Senate bill contained no similar provision linking
electronic commerce with a new simplified acquisition
threshold. The Senate bill, however, did contain a provision
(sec. 4015) which would allow the establishment of an
interoperable, governmentwide architecture for electronic
commerce, coordinated through the Administrator of Federal
Procurement Policy, that would permit the exchange of
procurement information between the government and private
users of the system.
The Senate recedes with an amendment. Electronic commerce
under a Federal Acquisition Computer Network (FACNET) is set
forth in title IX of the conference agreement. Sec. 4203 of
the conference agreement provides for implementation of
simplified acquisition procedures in DOD and civilian
agencies.
Subtitle D--Micro-Purchase Procedures
Procedures for purchases below micro-purchase threshold (sec.
4301)
The Senate bill contained a provision (sec. 4011(b)) that
would establish a ``micro-purchase threshold'' of $2,500 and
require that regulations implementing the new simplified
procedures provide that purchases not exceeding $2,500 not be
subject to the Small Business Act reservation requirement or
the Buy American Act. Federal employees who make such
purchases would not be classified as ``procurement
officials'' under the Office of Federal Procurement Policy
Act. Micro-purchases could be made without a requirement to
secure competitive quotations.
The House amendment contained similar provisions (secs.
4011, 6001) that would establish a micro-purchase threshold
adjusted for inflation every five years. The provision would
exempt such purchases from the Buy American Act, would treat
government personnel authorized to use micro-purchases as
procurement officials and would consider any contractor
entering into a micro-purchase contract to be a competing
contractor under the Procurement Integrity Act.
The House recedes with a clarifying amendment.
Subtitle E--Conforming Amendments
Armed services acquisitions (sec. 4401)
The Senate bill contained a provision (sec. 4071) that
would make conforming amendments concerning the ``simplified
acquisition threshold.''
The House amendment contained a similar provision (sec.
4071.)
The Senate recedes with a technical amendment.
Civilian agency acquisitions (sec. 4402)
The Senate bill contained a provision (sec. 4072) that
would make conforming amendments concerning the ``simplified
acquisition threshold.'' The section also would amend the
Federal Property and Administrative Services Act to authorize
the use of simplified procedures for acquisitions of leases
of real property where the annual rent does not exceed the
simplified acquisition threshold.
The House amendment contained a similar provision (sec.
4072) but did not provide for simplified lease procedures
under the simplified acquisition threshold.
The House recedes.
Office of Federal Procurement Policy Act (sec. 4403)
The Senate bill contained a provision (sec. 4073) that
would make conforming amendments concerning the ``simplified
acquisition threshold'' in the Office of Federal Procurement
Policy Act.
The House amendment contained an identical provision (sec.
4073).
The conferees agree to this provision.
Small Business Act (sec. 4404)
The Senate bill contained a provision (sec. 4074) that
would make conforming amendments concerning the ``simplified
acquisition threshold'' in the Small Business Act.
The House amendment contained no similar provision.
The House recedes.
simplified acquisition threshold--legislative provision not adopted
Revision required
The Senate bill contained a provision (sec. 4081) that
would require the FAR Council to review the Federal
Acquisition Regulation to identify and amend regulations that
are applicable below the new simplified acquisition
threshold.
The House amendment contained a similar provision (sec.
4081).
The conferees agreed that such a provision is unnecessary
in view of the detailed implementation requirements in title
X of the bill.
Fast payment under simplified acquisition procedures
The Senate bill contained a provision (sec. 4013) that
would provide that for any purchase made pursuant to
simplified acquisition procedures payment shall be made in
accordance with the Prompt Payment Act within 15 days of
receipt of invoice under appropriate circumstances. In making
such payments disbursements would be required to be matched
with obligations.
The House amendment contained no similar provision.
The Senate recedes.
GAO report on the simplified acquisition threshold
The House amendment contained a provision (sec. 4013) that
would require GAO to submit a report to Congress regarding
the effects of the simplified acquisition threshold on
participation of small business on awards less than $100,000.
The Senate bill contains no similar provision.
The House recedes.
TITLE V--ACQUISITION MANAGEMENT
Subtitle A--Armed Services Acquisitions
Performance based management (sec. 5001)
The Senate bill contained a provision (sec. 5001) that
would require the establishment of cost, schedule, and
performance goals for Department of Defense major weapons
systems, as well as the development of an enhanced system of
performance incentives.
The House amendment contains no similar provision.
The House recedes with an amendment that would delete the
policy statement from the Senate provision. This is
consistent with the conferees' goal of minimizing the number
of policy statements codified in title 10 of the United
States Code. The conference agreement also would address the
standards in the Senate provision by reflecting these
standards in the annual reporting requirements. These
standards would serve as the basis for review of programs
that do not meet cost, schedule, and performance goals. The
conferees agree that because the review of such non-complaint
programs would necessarily include an evaluation of the
current need for the program, the state of technology, and
cost and schedule estimates, there is no need to codify these
requirements. The conference agreement also would revise the
provisions of the Senate bill concerning performance
incentives to clarify that these provisions are intended to
focus on personnel whose performance would have a direct
impact on program management.
Results oriented program acquisition cycle (sec. 5002)
The Senate bill contained a provision (sec. 5002) that
would require the Secretary of Defense to establish, by
regulation, a simplified, results-oriented acquisition
program cycle.
The House amendment contains no similar provision.
The House recedes with an amendment that would require DOD
to ensure that the Department's acquisition program cycle
procedures are consistent with the revised baseline
description requirements of 10 U.S.C. 2435, as amended in
title III of the conference report. The conferees agree that
in streamlining the current acquisition program cycle, DOD
should consider the techniques set forth in the Senate
provision, including: (1) greater reliance on objective data
to confirm results of a program phase, and (2) shortening
timelines through increased use of integrated decision teams
and operator involvement in evaluating results.
Subtitle B--Civilian Agency Acquisitions
Performance based management (sec. 5051)
The Senate bill contained a provision (sec. 5051) that
would require the establishment of cost, schedule, and
performance goals for civilian agency procurements, as well
as the development of civilian acquisition workforce policies
similar to those established for the Department of Defense
acquisition workforce under chapter 87 of title 10, United
States Code.
The House amendment contains no similar provision.
The House recedes with a clarifying amendment similar to
the conference agreement on the performance based management
provisions applicable to the Department of Defense. The
conferees expect that such guidelines will consist of general
procedures and policies that would be adapted by agencies to
their specific circumstances.
Results oriented program acquisition process (sec. 5052)
The Senate bill contained a provision (sec. 5052) that
would require the Administrator for Federal Procurement
Policy, in consultation with the heads of civilian agencies,
to establish simplified, results-oriented acquisition program
cycles, similar to the process required for the Department of
Defense under section 5002 of the Senate bill. The House
amendment contained no similar provision.
The House recedes.
Subtitle C--Pilot Programs
Office of Federal Procurement Policy test program (sec. 5061)
The House amendment contained a provision (sec. 8001) that
would authorize the Administrator for Federal Procurement
Policy to conduct a program of up to six tests of alternative
and innovative procurement procedures over a four year
period.
The Senate bill contained no similar provision.
The Senate recedes with an amendment. The conference
agreement would authorize the Administrator to test
alternative and innovative acquisition practices, using one
program at each of six separate agencies. Programs in the
test would be authorized to waive specified laws and
regulations. An agency could participate in the test after
the agency has implemented the full FACNET electronic
commerce procedures required in title IV of the conference
report. The conferees expect the Office of Federal
Procurement Policy (OFPP) to be fully occupied over the next
year with the issuance of regulations implementing the full
range of reforms mandated by the Federal Acquisition
Streamlining Act of 1994, and it is the intent of the
conferees that OFPP not take any action to use the test
authority in this provision until the regulations needed to
effectuate the Act are fully implemented.
NASA mid-range procurement test program (sec. 5062)
The House amendment contained a provision (sec.
8001(b)(5)(A)) that would require the Administrator of
Federal Procurement Policy to establish one of the OFPP
acquisition pilot programs at the National Aeronautics and
Space Administration.
The Senate bill contained no similar provision.
The Senate recedes with an amendment that would authorize
the NASA Administrator to test alternative notice and
publication requirements for procurements having a value of
$500,000 or less.
Federal Aviation Administration acquisition pilot program
(sec. 5063)
The House amendment contained a provision (sec. 8001(j))
that would authorize the Federal Aviation Administration to
test innovative acquisition procedures for one of the
modernization programs under the Airway Capital Investment
Plan.
The Senate bill contained no similar provision.
The Senate recedes with a clarifying amendment.
Department of Defense acquisition pilot programs (sec. 5064)
The Senate bill contained a provision (sec. 5003) that
would authorize the Department of Defense to conduct six
programs testing innovative procurement procedures under the
defense acquisition pilot program authority set forth in
section 809 of the National Defense Authorization Act for
Fiscal Year 1991, as amended.
The House amendment contained a similar provision (sec.
8001(k)) authorizing DOD to conduct pilot programs.
The House recedes with an amendment. The conference
agreement would establish procedures for using the pilot
program authority for the following five programs, which were
authorized for pilot program status under the National
Defense Authorization Act for Fiscal Year 1995: (1) fire
support combined arms tactical trainer; (2) joint direct
attack munition; (3) commercial derivative aircraft; (4)
commercial-derivative engine; and (5) joint primary aircraft
training system.
The conference agreement also makes clarifying and
conforming changes in sections 833, 837, and 838 of the
National Defense Authorization Act for Fiscal Year 1994,
concerning the use of performance based management concepts
in the pilot programs. It is the conferees intent that DOD
should apply the concept of mission oriented program
management to at least one of the pilot programs, and that
DOD should define payment milestones on the basis of
quantitative measures of results for at least one of the
programs.
Subtitle D--Miscellaneous
Vendor and employee excellence awards (sec. 5091)
The Senate bill contained a provision (sec. 5091) that
would authorize the Administrator for Federal Procurement
Policy to establish contractor exceptional performance
awards.
The House amendment contained a provision (sec. 8007) that
would authorize the Administrator to establish awards for
vendor and employee excellence.
The Senate recedes.
Waiting period for significant changes proposed for
acquisition regulations (sec. 5092)
The Senate bill contained a provision (sec. 6054) that
would require an increased waiting period before the
effective date of significant proposed changes to acquisition
regulations.
The House amendment contained a similar provision (sec.
5004).
The House recedes.
Sense of Congress on negotiated rulemaking (sec. 5093)
The House amendment contained a provision (sec. 8006)
expressing the sense of Congress that the Federal Acquisition
Regulatory Council should consider using negotiated
rulemaking procedures in prescribing acquisition regulations.
The Senate bill contained no similar provision.
The Senate recedes with a clarifying amendment.
TITLE VI--OTHER PROCUREMENT-RELATED MATTERS
Post-employment rules (sec. 6001)
The Senate bill contained a provision (sec. 6003) that
would repeal superseded and obsolete procurement ethics
statutes.
The House amendment contained a similar provision (sec.
5005).
The House recedes with an amendment that would repeal 37
U.S.C. 801 and suspend 18 U.S.C. 281 through December 31,
1996. The conferees have agreed to suspend the effect of 18
U.S.C. 281 in anticipation of a thorough review and reform of
the procurement integrity statutes in the next Congress.
Contracting functions performed by Federal personnel (sec.
6002)
The Senate bill contained a provision (sec. 6051) that
would restrict the use of consultants to conduct evaluations
or analyses of a proposal submitted for an acquisition if
qualified federal personnel are available. The Office of
Federal Procurement Policy would be required to establish a
procedure to determine whether qualified Federal employees
are available.
The House amendment contained a similar provision (sec.
5001).
The House recedes with a technical amendment.
Repeal of executed requirement for study and report (sec.
6003)
The Senate bill contained a provision (sec. 6052) that
would repeal an executed requirement for a study and report
by the General Accounting Office.
The House amendment contained an identical provision (sec.
5002).
The conferees agree to this provision.
Interests of Members of Congress (sec. 6004)
The Senate bill contained a provision (sec. 6053) that
would make technical changes to 41 U.S.C. 22.
The House amendment contained an identical provision (sec.
5003).
The conferees agree to this provision.
Whistleblower protection for contractor employees of the
Department of Defense, Coast Guard, and National
Aeronautics and Space Administration (sec. 6005)
The Senate bill contained a provision (sec. 6101) that
would simplify and recodify the statute providing
whistleblower protection for employees of Defense Department
contractors.
The House amendment contained no similar provision.
The House recedes. In recodifying these provisions, the
conferees do not intend to require the Department of Defense
to revise the procedures or standards applicable to
contractor employee whistleblower cases under existing
regulations.
Whistleblower protection for contractor employees of civilian
agencies (sec. 6006)
The Senate bill contained a provision (sec. 6102) that
would provide whistleblower protection for employees of
civilian agency contractors identical to the protections
already available for employees of Department of Defense
contractors.
The House amendment contained no similar provision.
The House recedes with an amendment that would codify the
new provision in the Federal Property and Administrative
Services Act. The conferees direct that the regulations
implementing this provision should establish procedures and
standards that are as similar as practicable to the
procedures and standards already established in Department of
Defense regulations.
The authority created by this section is in addition to,
and not intended to override or replace, any other authority
that a federal agency may have to protect contractor employee
whistleblowers (as in the case of federal environment, health
and safety statutes containing whistleblower protection
provisions). Where more than one remedy is available, the
individual whistleblower should be informed of the available
options.
Comptroller General review of the provision of legal advice
to Inspectors General (sec. 6007)
The Senate bill contained a provision (sec. 9001) that
would require the Comptroller General to conduct a review of
the independence of legal services being provided to
Inspectors General.
The House amendment contained no similar provision.
The House recedes.
Cost savings for official travel (sec. 6008)
The Senate bill contained a provision (sec. 9002) that
would require the General Services Administration to issue
guidelines encouraging use of frequent travel programs to
realize cost savings in official travel.
The House amendment contained no similar provision.
The House recedes.
Prompt resolution of audit recommendations (sec. 6009)
The Senate bill contained a provision (sec. 9003) that
would require Federal agencies to resolve or take corrective
actions within six months of receipt of a report issued by an
Inspector General or non-Federal auditor.
The House amendment contained no similar provision.
The House recedes.
other procurement-related matters--legislative provisions not adopted
Amendments to Office of Federal Procurement Policy Act
The Senate bill contained two provisions (secs. 6001 and
6004) that would have revised and clarified the protections
of the Procurement Integrity statute (41 U.S.C. 423).
The House amendment contained no similar provision.
The Senate recedes.
Amendments to Title 18, United States Code
The Senate bill contained a provision (sec. 6002) that
would amend title 18 to add to section 208(a) a provision
expressly prohibiting any person from knowingly aiding or
abetting in a violation of the statute.
The House amendment contained no similar provision.
The Senate recedes.
TITLE VII--SMALL BUSINESS AND SOCIOECONOMIC LAWS
Subtitle A--Small Business Laws
Repeal of certain requirements (sec. 7101)
The Senate bill contained a provision (sec. 4102) that
would: (1) amend the Small Business Act by striking
subsections (e) and (f) of 15 U.S.C. 644 concerning the
priority of labor surplus area firms in small business set-
asides; and (2) repeal Section 804 of Public Law 103-484 (10
U.S.C. 2305 note) regarding notification of offerers of the
certificate of competency process.
The House amendment contained no similar provision.
The House recedes.
Contracting program for certain small business concerns (sec.
7102)
The Senate bill contained a provision (sec. 4103) that
would amend the Small Business Act to extend government-wide
the Department of Defense's so-called ``Section 1207''
program for small business concerns owned and controlled by
socially and economically disadvantaged individuals. The
section would, among other things, permit agencies to
restrict the competition to such concerns and include a price
evaluation preference of not more than ten percent for such
firms under unrestricted solicitations.
The House amendment contained a similar provision (sec.
8003) that would extend the ``section 1207'' program to the
National Aeronautics and Space Administration (NASA) and the
U.S. Coast Guard.
The House recedes with a technical amendment. Section 7105
of the conference agreement would extend the ``section 1207''
program to NASA and the U.S. Coast Guard.
Extension of test program for negotiation of comprehensive
small business subcontracting plans (sec. 7103)
The House amendment contained a provision (sec. 4103) that
would extend until September 30, 1997 the Department of
Defense test program for comprehensive small business
subcontracting plans.
The Senate bill contained no similar provision. The Senate-
passed version of S. 2182, the National Defense Authorization
Act for Fiscal Year 1995, contained a similar provision (sec.
814), which would have extended the program until September
30, 1998.
The Senate recedes with an amendment to extend the program
until September 30, 1998.
Small Business Procurement Advisory Council (sec. 7104)
The House amendment contained a provision (sec. 4104) that
would establish a Small Business Procurement Advisory Council
to discuss issues and problems, provide information, and
issue advisory reports.
The Senate bill contained no similar provision.
The Senate recedes with an amendment that would establish a
Council consisting of the Administrator of the Small Business
Administration, Director of the Minority Business Development
Agency, and the heads of the various Offices of Small and
Disadvantaged Business Utilization. The Council would prepare
and submit comments on proposed procurement regulations
impacting upon small business.
Procurement goals for small business concerns owned by women
(sec. 7106)
The Senate bill contained a provision (sec. 4104) that
would establish procurement goals for small businesses owned
by women.
The House amendment contained no similar provision.
The House recedes. In enacting this separate five percent
women's goal, the conferees do not intend to create a new set
aside or program of restricted competition for a specific
designated group, but rather to establish a target that will
result in greater opportunities for women to compete for
federal contracts. It is the conferee's intent that the
departments and agencies of the federal government make a
concerted effort to move toward this goal.We expect these
departments and agencies to identify and adopt the best
available practices to assist in moving toward this
objective. Given the slow progress to date in reaching the
current award levels, the conferees recognize that this goal
may take some time to be reached.
Development of Definition regarding certain small business
concerns (sec. 7107)
The Senate bill contained a provision (sec. 4105) that
would provide that the Administrator of Federal Procurement
Policy study use of definitions of certain types of small
business concerns.
The House amendment contained no similar provision.
The House recedes with an amendment. The conferees expect
the SBA Administrator to provide to the OFPP Administrator
the resources necessary to conduct this study.
Functions of Office of Federal Procurement Policy related to
small business (sec. 7108)
The House amendment contained a provision (sec. 4101) that
would require the Administrator of Federal Procurement Policy
to develop policies to ensure that small business and small
disadvantaged businesses are provided the maximum practicable
opportunity to participate in procurements under the
simplified acquisition threshold and develop policies to
promote achievements of goals.
The Senate bill contained no similar provision.
The Senate recedes with an amendment which would provide
for the inclusion of the education and training provision
contained in section 8004 of the House amendment.
Education and training. (sec. 7108b)
The House amendment contained a provision (sec. 8004) that
would establish policies and procedures for the
implementation of education and training programs for
critical procurement personnel designed to increase
participation of small disadvantaged businesses and women-
owned small businesses.
The Senate bill contained no similar provision.
The Senate recedes.
Subtitle B--Socioeconomic Laws
Acquisitions generally (sec. 7201)
The Senate bill contained a provision (sec. 4101(b)) that
would repeal the Walsh-Healey Act, except for the purpose of
authorizing the Secretary of Labor to define the terms
``regular dealer'' and ``manufacturer,'' which have been
incorporated by reference into a number of other statutes. A
conforming amendment would be made to 10 U.S.C. 2304(h).
The House amendment contained no similar provision.
The House recedes with an amendment that would amend the
Walsh-Healey Act to eliminate the requirement that
contractors certify that they are either manufacturers or
regular dealers in items to be supplied. The amendment would
retain the provision in the Senate bill concerning the
Secretary of Labor's authorization to define the terms
``regular dealer'' and ``manufacturer.''
Prohibition on use of funds for documenting economic or
employment impact of certain acquisition programs (sec.
7202)
The Senate bill contained a provision (sec. 4151) that
would codify a provision from the Department of Defense
Appropriations Act for Fiscal Year 1991, which prohibits the
use of appropriated funds to prepare materials, reports,
lists, or analyses on the economic effect of acquisition
programs in specific states or congressional districts.
The House amendment contained no similar provision.
The House recedes.
Merit-based award of contracts and grants (sec. 7203)
The Senate bill contained a provision (sec. 4152) that
would set forth the policy of Congress that no legislation
should be enacted that requires a procurement to be made from
a specified non-Federal Government source.
The House amendment contained two provisions (secs. 1301
and 4151) restricting award of contracts and grants to
sources specified in legislation.
The House recedes with a clarifying amendment.
Maximum practicable opportunities for apprentices on Federal
construction projects (sec. 7204)
The House amendment contained a provision (sec. 4105) that
would set forth the sense of Congress that contractors
performing Federal construction contracts should select
subcontractors participating in apprenticeship programs, and
should employ individuals participating in such programs.
The Senate bill contained no similar provision.
The Senate recedes with an amendment that would provide
that the provision represents the sense of the House of
Representatives.
Repeal of obsolete provision (sec. 7205)
The Senate bill contained a provision (sec. 4101(c)), that
would repeal 41 U.S.C. 258 as obsolete.
The House amendment contained an identical provision (sec.
4152).
The conferees agree to this provision.
Repeal of obsolete and redundant provisions (sec. 7206)
The Senate bill contained a provision (secs. 7001(a)) that
would repeal: (1) sections 4(g)(2)(C) and (4)(g)(3) of the
Buy American Act; and (2) section 9096(b) of Public Law 102-
396. The House amendment contained similar provisions (secs.
6004(a) and 6004(b)). The conference agreement repeals these
provisions of current law.
The House amendment contained a provision (sec. 6004(c))
that would repeal section 306 of the Trade Agreements Act.
The Senate bill contained no similar provision. The Senate
recedes.
The Senate bill also contained a provision (sec. 7001(b)
that would repeal 10 U.S.C. 2327. The House amendment
contained no similar provision. The Senate recedes.
Subtitle C--Waiver of Application of Prevailing Wage-Setting
Requirements to Volunteers
Waiver of the application of the prevailing wage-setting
requirements to volunteers (secs. 7301-7306)
The Senate bill contained a provision (title XI) that would
waive the application of the prevailing wage-setting
provisions of the Davis-Bacon Act to certain volunteers who
assist in the construction, repair, or alteration of certain
public buildings funded under specified Federal programs
The House amendment contained no similar provision.
The House recedes with a technical amendment.
small business and socioeconomic laws--legislative provisions not
adopted
Determinations of public interest under the Buy American Act
The House amendment contained a provision (sec. 6002) that
would revise 10 U.S.C. 2533, concerning determinations of
public interest under the Buy American Act.
The Senate bill contained no similar provision.
The House recedes. The conferees note that this item has
been addressed in section 812 of the conference report on S.
2182, the National Defense Authorization Act for Fiscal Year
1995.
Cross-servicing agreements
The Senate bill contained a provision (sec. 7003) that
would provide added flexibility for acquisition, cross-
servicing agreements, and standardization under joint and
multilateral defense arrangements.
The House amendment contained no similar provision.
The Senate recedes. The conferees note that this item is
being addressed in the conference on S. 1587, the National
Defense Authorization Act for Fiscal Year 1995.
Consolidation of limitations on procurement of goods other
than American goods
The House amendment contained a provision (sec. 6003) that
would consolidate and revise miscellaneous procurement
limitations.
The Senate bill contained no similar provision.
The House recedes. The conferees note that this item has
been addressed in section 814 of the conference report on S.
2182, the National Defense Authorization Act for Fiscal Year
1995.
International cooperative agreements
The Senate bill contained a provision (sec. 7002) that
would amend 10 U.S.C. 2531 to replace the term ``Memoranda of
Understanding'' with the broader term ``International
Cooperative Agreements,'' and to expand the authorized scope
of such agreements to cover logistics support.
The House amendment contained no similar provision.
The Senate recedes. The conferees agree in concept with the
changes proposed in the Senate bill, but agree that final
action on these provisions should be deferred until there is
further review of the details in the legislative proposal.
Study of participation by certain small businesses in federal
procurement
The House amendment contained a provision (sec. 8002) that
would require the Administrator of Federal Procurement Policy
to determine the degree of participation by small
disadvantaged businesses and compliance by executive agencies
with the goals. A report would be due not later than six
months after enactment of this Act.
The House amendment would also extend the contract goal for
small disadvantaged businesses and certain institutions of
higher learning to the U.S. Coast Guard and the Aeronautics
and Space Administration.
The Senate bill contained no similar provision.
The House recedes.
TITLE VIII--COMMERCIAL ITEMS
Subtitle A--Definitions and Regulations
Definitions (sec. 8001)
The Senate bill contained a provision (sec. 8001) that
would amend the OFPP Act to add definitions of certain terms
used in the commercial items provisions. The terms defined
included: ``commercial item'', ``nondevelopmental item'',
``component'' and ``commercial component''.
The House amendment contained a similar provision (sec.
7001).
The House recedes with an amendment that would address the
differences between the two provisions as follows.
(1) Commercial Items.--The Senate bill would define
``commercial items'' to include items of a type used by the
general public or by nongovernmental entities. The House
amendment would include items of a type used ``for other than
Federal Government purposes'' and sold or offered for sale to
domestic State and local governments.
The conference agreement would adopt an alternative
formulation, under which a nondevelopmental item would be
included in the definition of commercial item if the
procuring agency determines that the item was developed
exclusively at private expense and has been sold in
substantial quantities, on a competitive basis, to multiple
state and local governments, under conditions set forth in
the Federal Acquisition Regulation.
The definition of ``commercial items'' in the Senate bill
would include items not yet available in the commercial
marketplace that will be made available for commercial
delivery within a reasonable period, but only if the items
are ``of a type customarily used'' for other than
governmental purposes. The House amendment included such
items if they are ``intended to be used'' for other than
Federal government purposes.
The conference agreement would provide that items that are
not yet available in the commercial marketplace would be
included in the definition of commercial items if they evolve
out of commercial items based on advances in technology or
increases in capability and will be available for delivery in
the commercial marketplace in time to meet government
requirements. This provision is intended to ensure that new
generations of commercial products incorporating
technological advances are included in the definition. At the
same time, this provision should ensure that there is some
yardstick in the commercial marketplace against which to
measure price and product quality, and to serve as a
surrogate for the imposition of government-specific
requirements.
In addition, the Senate bill would include in the
definition of commercial items those services that are
procured for support of a commercial item. The House
amendment would include, in addition to such services,
services that are 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.
The conference agreement would include those commercial
services that are offered and sold competitively in
substantial quantities in the commercial marketplace, based
on established catalog prices for specific tasks performed,
and under standard commercial terms and conditions.
The definition would cover only those commercial services
that are sold based on established catalog prices for
specific tasks performed. It would not include services that
are sold based on hourly rates without a fixed catalog price
for a specific service performed.
(2) Nondevelopmental Items.--The two definitions of the
term ``nondevelopmental item'' differed in that the Senate
bill would include all commercial items in the definition of
commercial items. The House bill would include in the
definition only those commercial items that are in use by the
Federal government or by a State or local government. The
conference agreement contains the Senate definition. In those
cases where the bill would address the category of items that
are nondevelopmental items but not commercial items, the
phrase ``nondevelopmental items other than commercial items''
is used.
Regulations on acquisition of commercial items (sec. 8002)
The Senate bill contained a provision (sec. 8003) that
would require the issuance, in the Federal Acquisition
Regulation (FAR), of certain regulations regarding uniform
terms and conditions for commercial items acquisitions; the
use of market acceptance criteria; the use of firm, fixed
price contracts; contract quality requirements; and the
treatment of transfers between affiliates.
The House amendment contained a similar provision (sec.
7002).
The Senate recedes with an amendment, which would make
technical and clarifying changes and would address the
differences between the two provisions as follows.
(1) Uniform contract clauses.--With respect to uniform
contract clauses, the conference agreement would require the
inclusion, in the FAR, of a list of contract clauses to be
included in contracts for the acquisition of commercial end
items. This list would include, to the maximum extent
practicable, only those clauses that are required to
implement provisions of law or executive orders applicable to
acquisitions of commercial items and those that are
determined to be consistent with standard commercial
practice.
In addition, the FAR would be required to limit the
contract clauses that the Federal government could require a
contractor to apply to any of its divisions, subsidiaries,
affiliates, subcontractors or suppliers. These clauses would
be limited to those that are required to implement applicable
provisions of law or executive orders applicable to such
subcontracts and those that are determined to be consistent
with standard commercial practice.
The use of contract clauses and the requirement for
subcontract clauses would be limited, to the maximum extent
practicable, to those set forth in the regulations. The
provision would also provide for waivers of required contract
clauses in appropriate circumstances.
(2) Market Acceptance.--The conference agreement contains
the provision on market acceptance from the Senate bill,
which would provide that, in addition to meeting market
acceptance criteria, an item must otherwise meet the agency's
item description or specifications. The provision would also
provide that the criteria for determining market acceptance
must be based on the minimum needs of the agency and the
entire relevant commercial market, including small
businesses.
(3) Firm, Fixed Price Contracts.--The Senate bill would
provide that firm, fixed price contracts (with or without an
economic price adjustment clause) should be used for the
acquisition of commercial items ``to the maximum extent
practicable''. The House provision would contain an absolute
requirement for the use of such contracts, without the
qualifying phrase. The conference agreement would adopt the
Senate language, with a further modification prohibiting the
use of cost-type contracts for the purchase of commercial
items.
(4) Term of contracts.--The House amendment would provide
that, to the maximum extent practicable, contracts for the
acquisition of commercial items should not require contract
performance for a term longer than the customary industry
practice for the item being acquired. The Senate bill
contained no similar provision. The conference agreement does
not include this House provision, which is unnecessary in
light of the provision described in the preceding paragraph.
(5) Savings provision for existing DOD authority.--The
Senate bill would provide that the authority of the
Department of Defense to enter contracts for commercial items
under existing provisions of law would continue until the
regulations implementing this section become effective. The
House amendment would provide that the Department's authority
to enter such contracts would cease on October 1, 1994. The
conference agreement would adopt the Senate provision.
List of inapplicable laws in the Federal Acquisition
Regulation (sec. 8003)
The Senate bill contained a provision (sec. 8004) that
would address the applicability of certain statutes to
acquisitions of commercial items.
The House amendment contained two similar provisions (secs.
7105 and 7204).
The House recedes with an amendment that would address the
differences between the two provisions as follows,
(1) The Senate provision would authorize the waiver of
covered future-enacted statutes in the Federal Acquisition
Regulation (FAR) (unless specifically prohibited by the
statute), but would not automatically render any statute
inapplicable. The House provision would automatically render
future-enacted statutes inapplicable (unless specifically
prohibited by the statute), without the requirement for any
action by the FAR Council.
The conference agreement would amend the Office of Federal
Procurement Policy Act to require that the Federal
Acquisition Regulation be revised to include a list of
statutes that are inapplicable to contracts for the
acquisition of commercial items. Any provision of law that is
properly included on the list would be inapplicable to any
such contract. Nothing in the provision would waive the
applicability of any statute that is not included on the
list, or create any private right of action or other legal
rights not expressly provided in this section, based on the
alleged inapplicability of a provision of law that is not
included on the list. The conferees intend that the FAR
should be revised, upon enactment of this Act, to list as
inapplicable to contracts for the acquisition of commercial
items each of the provisions of law that would be made
inapplicable by this Act.
The conference agreement would further provide that any
future-enacted provision of law that, as determined by the
FAR Council, sets forth policies, procedures, requirements,
or restrictions for the procurement of property or services
(other than a provision of law that imposes a civil or
criminal penalty or expressly precludes a commercial items
exemption) would be included on the list unless the FAR
Council determines that such an exemption would not be in the
best interest of the United States. If such a provision of
law is not included on the list and the FAR Council has not
made the required determination, any interested party may
file a petition to require appropriate action by the
Administrator for Federal Procurement Policy.
(2) The Senate bill contained a separate provision stating
that no provision of law, whether enacted before or after the
date of enactment of this Act, would be applicable to
subcontracts under a contract or subcontract for commercial
items (with specified exceptions). The House amendment
contained no similar provision. The conference agreement
would adopt a modified version of the Senate provision.
Under the conference agreement, the FAR would be revised to
include a list of statutes that are inapplicable to
subcontracts under contracts for the acquisition of
commercial items. Any provision of law that is properly
included on the list would be inapplicable to any such
subcontract. This list would be established in the same
manner as the list of statutes that are inapplicable to prime
contracts, except that the list of provisions of law
inapplicable to subcontracts would include provisions of law
that are enacted both before and after the enactment of the
bill.
The term ``subcontract'', as used in this provision, would
include transfers of commercial items between divisions or
affiliates of a single contractor. However, this subsection
would not permit the exemption from any provision of law for
a prime contract, or for a subcontract under a contract with
a company that simply resells commercials items manufactured
by another contractor without providing value added. The
purpose of this limitation is to preclude the abuse of this
provision through the use of ``front companies''. The
conferees intend for the manufacturer of such commercial
items to be treated as a prime contractor for the purposes of
this provision and expect the FAR to be amended to provide
guidance to contracting officers to ensure against abuse.
The provision authorizing petitions to the Administrator
for Federal Procurement Policy would not be effective for a
period of six months after the date of enactment. This
delayed effective date is intended to provide the Federal
Acquisition Regulatory Council an opportunity, prior to the
filing of any petitions, to review existing provisions of law
and determine which such provisions are appropriate for
inclusion on the list of provisions inapplicable to
subcontracts.
Subtitle B--Armed Services Acquisitions
Establishment of new chapter in title 10 (sec. 8101)
The House amendment contained a similar provision (sec.
7101) that would establish a new Chapter in title 10 of the
U.S. Code relating to commercial items acquisitions.
The Senate bill contained no similar provisions.
The Senate recedes.
By placing these provisions in a separate chapter in title
10 of the U.S. Code, the conferees do not intend to make
inapplicable any statute which otherwise applies to the
acquisition of commercial items.
Relationship to other provisions of law (sec. 8102)
The House amendment contained, in the commercial items
title, two provisions listing statutes that are not
applicable to acquisitions of commercial items (sec. 7106 and
7205) and two provisions regarding the applicability of the
Truth in Negotiations Act to commercial items acquisitions
(sec. 7104 and 7203).
The Senate bill contained no similar provision.
The Senate recedes with an amendment.
The conference agreement would require the establishment of
a list of inapplicable statutes in the Federal Acquisition
Regulation, and would place provisions addressing the Truth
in Negotiations Act in 10 U.S.C. 2306a. 10 U.S.C. 2375, as
added by section 8102 of the conference agreement, would
incorporate by reference the provision requiring the list of
inapplicable statutes and the applicable provisions of the
Truth in Negotiations Act.
The conferees also recommend a provision stating that
unless otherwise specifically provided, nothing in the new
chapter of title 10 of the U.S. Code shall be construed as
making any other provision of the title relating to
procurement inapplicable to the procurement of commercial
items. For example, the requirements of the Competition in
Contracting Act and the Brooks Automated Data Processing Act
would continue to apply to acquisitions of commercial items.
Definitions (sec. 8103)
The House amendment contained a provision (sec. 7102) that
cross-referencing applicable definitions that are provided
elsewhere in title 10 of the U.S. Code and the Office of
Federal Procurement Policy Act, and clarifying that the
commercial items provisions apply to procurements of
commercial items by the National Aeronautics and Space
Administration and the United States Coast Guard.
The Senate bill contained no similar provision.
The Senate recedes with a technical amendment.
Preference for acquisition of commercial items (sec. 8104)
The Senate bill contained a provision (sec. 8002) that
would create a preference for the acquisition of commercial
items and other nondevelopmental items.
The House amendment contained similar provisions (sec. 7103
and sec. 7202).
The House recedes to the Senate provision with an
amendment, which would resolve the differences between the
two provisions as follows.
(1) The Senate bill would place the preference in a single
provision of the Office of Federal Procurement Policy Act,
while the House amendment would place the preference in
parallel provisions of title 10 of the U.S. Code and the
Federal Property and Administrative Services Act. The
conference agreement would adopt the House approach.
(2) The Senate bill would address requirements for the
procurement of supplies. The House amendment would address
requirements for the procurement of supplies and services.
The conference agreement would adopt the House provision.
(3) The Senate bill would provide that requirements should
be defined so that they may be fulfilled with commercial
items or, to the extent that commercial items suitable to
meet the agency's needs are not available, other
nondevelopmental items. The Senate bill would also provide
that offerors of commercial items and nondevelopmental items
other than commercial items should be provided an opportunity
to compete for agency requirements. In addition, the Senate
bill would provide that market research shall be used to
determine whether agency needs can be met by commercial
items, or if no suitable commercial items are available,
nondevelopmental items other than commercial items. The
conference agreement adopts the Senate language, with a minor
clarification, substituting the term ``nondevelopmental items
other than commercial items'' for the phrase ``other
nondevelopmental items''.
Under the conference agreement, contract requirements and
market research would be designed to facilitate the use of
commercial items to the maximum extent practicable. Where
suitable commercial items are not available, requirements and
market research would focus on nondevelopmental items other
than commercial items. In the procurement process, commercial
items would compete on a level playing field with other
products and services. Under full and open competition, the
company that offers the best product at the lowest price
should win the contract, regardless of whether or not that
product is a commercial item. The conferees believe that,
provided such a level playing field, commercial items are
likely to prevail in a substantial number of competitions.
(4) The House amendment would provide that an agency may,
until five years after the date of enactment, permit existing
or prior sources of nondevelopmental items to participate in
a competition for a commercial item. The conference agreement
does not include this provision. Under the conference
agreement, the only authority to limit a competition to
commercial items would be provided by the market acceptance
provision. Existing and prior sources of nondevelopmental
items could compete in procurements under this provision, but
would not benefit from the statutory exemptions available to
sources of commercial items. Since the market acceptance
provision would permit nondevelopmental items to compete with
commercial items on a level playing field, the conferees
determined that there was no need for a special
``grandfather'' provision.
(5) The Senate bill would provide that, in conducting
market research, the head of an executive agency should not
require potential sources to submit more than the minimum
information needed. The House amendment contained no similar
provision. The conference agreement would adopt the Senate
language.
Inapplicability of certain provisions of law (sec. 8105)
The Senate bill contained a provision (sec. 8005) that
would provide for the inapplicability of certain provisions
of law to contracts for the acquisition of commercial items.
The House amendment contained several provisions that would
address the same issue (secs. 7106, 7107, 7205, and 7206).
The Senate recedes with an amendment that would make
technical and clarifying changes.
With respect to 10 U.S.C. 2324 (allowable costs), the
conference agreement would exempt commercial items from the
cost principles, but only in the case of items purchased
under a firm, fixed price contract (with or without an
economic price adjustment clause). The conference agreement
would provide (in section 8002) that commercial items should
be purchased, ``to the maximum extent practicable'' under
such contracts.
The conference agreement would also exempt commercial items
from the requirements of 10 U.S.C. 2397, 2397a, 2397b, and
2397c.
Presumption that technical data under contracts for
commercial items are developed exclusively at private
expense (sec. 8106)
The House amendment contained a provision that would exempt
commercial items from 10 U.S.C. 2320 (technical data) and
2321 (validation of proprietary data restrictions).
The Senate bill contained no similar provision.
The Senate recedes with an amendment which would provide
that, for the purposes of technical data provisions in 10
U.S.C. 2320 and 10 U.S.C. 2321, a commercial item will be
presumed to have been developed exclusively at private
expense unless a federal agency can document that the item
was developed, in whole or in part, at federal government
expense.
The conferees were concerned that a blanket waiver from
these statutes could prevent the federal government from
obtaining technical data rights on items developed with
public funds. The conference approach would have the effect
of exempting commercial items from the requirement to provide
technical data (other than data on form, fit and function),
unless the government can prove that an item was developed at
government expense.
Subtitle C--Civilian Agency Acquisitions
Relationship to other provisions of law (sec. 8201)
The House amendment contained provisions listing statutes
that would not be applicable to acquisitions of commercial
items (secs. 7106 and 7205) and provisions regarding the
applicability of the Truth in Negotiations Act to commercial
items acquisitions (sec. 7104 and 7203).
The Senate bill contained no similar provisions.
The Senate recedes with an amendment containing provisions
applicable to civilian agencies that are identical to the
provisions applicable to the Department of Defense under
section 8102.
Definitions (sec. 8202)
The House amendment contained a provision (sec. 7201)
cross-referencing applicable definitions that are provided
elsewhere in the Federal Property and Administrative Services
Act and the Office of Federal Procurement Policy Act.
The Senate bill contained no similar provision.
The Senate recedes with a technical amendment.
Preference for acquisition of commercial items (sec. 8203)
The Senate bill contained a provision (sec. 8002) that
would create a preference for the acquisition of commercial
items and other nondevelopmental items.
The House amendment contained similar provisions (sec. 7103
and sec. 7202), which would place the preference in parallel
provisions of title 10 of the U.S. Code and the Federal
Property and Administrative Services Act.
The Senate recedes with an amendment that would adopt the
House approach of placing the preference in parallel
provisions in the two Acts. Section 8203 would conform the
Federal Property and Administrative Services Act provision to
the amendments to title 10 of the U.S. Code made by sec.
8104.
Inapplicability of certain provisions of law (sec. 8204)
The Senate bill contained a provision (sec. 8005) that
would provide for the inapplicability of certain provisions
of law to contracts for the acquisition of commercial items.
The House amendment contained several provisions that would
address the same issue (secs. 7106, 7107, 7205, and 7206).
The Senate recedes with an amendment that would adopt the
approach of the House bill. Section 8204 would amend the
provisions applicable to civilian agencies.
Subtitle D--Acquisitions Generally
Inapplicability of certain provisions of law (sec. 8301)
The Senate bill contained a provision (sec. 8005) that
would provide for the inapplicability of certain provisions
of law to contracts for the acquisition of commercial items.
The House amendment contained several provisions that would
address the same issue (secs. 7106, 7107, 7205, and 7206).
The Senate recedes with an amendment that would adopt the
approach of the House bill and adapt it to the structure of
the conference agreement. Section 8301 would address the
applicability of generally-applicable provisions.
The House amendment would provide that Section 26 of the
OFPP Act (Cost Accounting Standards) would not apply to
commercial items procurements. The Senate bill contained a
separate provision (sec. 2301) that would conform the
applicability of the Cost Accounting Standards to the new
exemptions in the Truth in Negotiations Act for commercial
items. The conference agreement would exempt commercial items
that are purchased under firm, fixed price contracts from the
Cost Accounting Standards.
The Senate bill provided that several statutes not
addressed in the House amendment would be inapplicable to
acquisitions of commercial items. These statutes included: 33
U.S.C. 1368 (Clean Water Act certifications); 40 U.S.C. 327
(Contract Work Hours and Safety Standards Act); 41 U.S.C. 57
and 58 (Anti-Kickback Act contract clause and inspection
authority); 42 U.S.C. 7606 (Clean Air Act certifications);
and 49 U.S.C. App. 1517 (Fly American requirements). The
conference agreement includes these provisions, with
technical and clarifying amendments.
Flexible deadlines for submission of offers of commercial
items (sec. 8302)
The Senate bill contained a provision (sec. 8006) that
would provide for flexible deadlines for the submission of
offers of commercial items.
The House amendment contained a similar provision (sec.
7302), which would authorize the use of flexible deadlines
for the submission of bids or proposals for the procurement
of commercial items only in limited circumstances to be set
forth in regulation.
The Senate recedes.
Additional responsibilities for advocates for competition
(sec. 8303)
The Senate bill contained a provision (sec. 8007) that
would make competition advocates responsible for promoting
the acquisition of commercial and nondevelopmental items and
challenging barriers to such acquisition.
The House amendment contained provision (sec. 7303) that
would address only barriers to the acquisition of commercial
items.
The Senate recedes.
Provisions Not Affected (sec. 8304)
The Senate bill contained a provision (sec. 8008) that
would provide that nothing in the commercial items title of
the bill would be construed to amend, modify, or supersede
certain provisions of law.
The House amendment contained a similar provision (sec.
7304), which also would include: (1) Sections 111 and 315 of
the Federal Property and Administrative Services Act and 10
U.S.C. 2323 (pertaining to contracting goals for small
business and small and disadvantaged businesses); and (2) all
provisions of the Small Business Act.
The Senate recedes with an amendment that would specify
sections 8(a) and 8(d) of the Small Business Act as the
provisions of that Act that are not affected by the
commercial items title. With regard to the requirements of
section 8(d), the current law on subcontracting with small
business and small disadvantaged business concerns already
recognizes the unique circumstances faced by commercial
contractors. Office of Federal Procurement Policy (OFPP)
Policy Letter 80-2, section 52.219-9(g) of the Federal
Acquisition Regulation (FAR), and section 519.704(b) of the
General Services Administration (GSA) Supplement to the FAR
all expressly authorize commercial contractors to use ``one
company-wide, annual plan'' in lieu of individual, contract-
by-contract plans to meet subcontracting requirements. As the
GSA FAR Supplement explains, a commercial products plan--
``means an annual subcontracting plan effective during the
offeror's fiscal year for all of the offeror's commercial
products, and which has goals based on the offeror's
production of both commercial and noncommercial products.
This type of plan may apply to the production of the
offeror's entire company, or it may be limited to a division
or plant.'' (Section 519.701)
Because contractors and subcontractors offering commercial
items tend to rely on their existing network of suppliers
rather than entering new subcontracts to fill government
orders, the requirements applicable to the company-wide
subcontracting plans of commercial companies differ from the
requirements applicable to individual subcontracting plans of
non-commercial companies. See e.g., sections 519.704(c)(2),
519.705-5 and 519.705-6(b) of the GSA FAR Supplement. For
example, a single company-wide plan authorized by these
regulations is likely to address subcontracting opportunities
at both the prime contract and subcontract levels, obviating
the need for the filing of individual contract-by contract or
subcontract-by subcontract plans. Title VIII of the bill is
not intended to require any change in such practices.
Comptroller General review of Federal Government use of
market research (sec. 8305)
The Senate bill contained a provision (sec. 8009) that
would require the Comptroller General to report to Congress
on the use of market research by the Federal Government.
The House amendment contained an identical provision (sec.
7305).
The conferees agree to this provision.
TITLE IX--FEDERAL ACQUISITION COMPUTER NETWORK
Federal acquisition computer network architecture and
implementation (sec. 9001)
The Senate bill contained a provision (sec. 4015) that
would amend the Office of Federal Procurement Policy (OFPP)
Act to provide that the OFPP Administrator, in consultation
with the appropriate Federal agency heads, may develop and
implement a government-wide architecture or design for
interoperable electronic commerce with specified
capabilities.
The House amendment contained a provision (sec. 4002) that
would amend the OFPP Act to require implementation of a
Federal Acquisition Computer Network (FACNET) within five
years. FACNET capabilities are defined by a set of functional
requirements for the Government, the user, and along general
design lines. The section also would define the term
``architecture'' and require an annual report to Congress
from the OFPP Administrator on implementation.
The Senate recedes with an amendment that would provide
that FACNET must be Government-wide and provide
interoperability among users and that full FACNET capability
shall be implemented Government-wide within five years after
the date of enactment of the Federal Acquisition Streamlining
of 1994.
The agreement calls for the establishment of a Federal
Acquisition Computer Network (FACNET) to require the
government to evolve its acquisition process from a paper-
based process to an electronic process. This electronic
commerce process must provide a single face to industry and
interoperability within the government.
The agreement sets forth parameters for a FACNET system
along functional lines, with parameters established for
government and private users, and for general functions.
These functions are to be implemented by agencies within 5
years of enactment of the Act. FACNET capability can be
implemented on a procuring activity basis, and procuring
activities or even agencies as a whole may ``piggyback'' on
the systems developed by other agencies.
The agreement allows agencies to use simplified procedures
for all contracts below $50,000, while maintaining the
streamlined Commerce Business Daily (CBD) notice requirement
in sec. 4202 for contracts above $25,000.
The agreement waives the CBD notice requirement and
increases the threshold for the use of simplified procedures
to $100,000 for agencies or procuring activities which have
interim electronic commerce capability. Interim capability
includes electronic notice and response.
The agreement also requires any agency that has not
achieved full electronic commerce capability by December 31,
1999 to revert back to $50,000 for simplified procedures.
Full capability is 75 percent of suitable acquisitions above
$2,500 and below $100,000 conducted through electronic
commerce. It involves developing the capability to use
electronic commerce procedures for processing certain orders,
responding to questions about solicitations, and compiling
data about the acquisition process.
The conferees intend that the Administrator is to ensure
that functions provided under the FACNET architecture do not
create competition between the federal government and private
enterprises when providing the services described under this
section. Furthermore, when developing the functions described
under this section, the Administrator is directed to ensure
that (1) the government adhere to commercial system ordering
standards to the maximum extent practicable, and (2) every
precaution be taken to avoid the requirement that additional
assets (beyond those needed to meet industry standards in
electronic commerce) be purchased by commercial vendors
contracting with the federal government via electronic means.
Implementation of FACNET capability (secs. 9002-03)
The House amendment contained provisions (secs. 4003 and
4004) that would require implementation of Federal
Acquisition Computer Network (FACNET), i.e., electronic
commerce capabilities, at the Department of Defense (DOD) and
civilian agencies' procuring activities within five years of
enactment of the Act.
The Senate bill contained no similar provision.
The Senate recedes with a clarifying technical amendment.
GAO determination of eligible agency contracts (sec. 9004)
The House amendment contained provisions (sec. 4003 and
4004) that would require an agency to conduct 75 percent of
its acquisitions above $2,500 and below $100,000 using
electronic commerce before the agency could be certified as
having full Federal Acquisition Computer Network (FACNET)
capability.
The Senate bill contained no similar provision.
The Senate recedes with an amendment requiring the
Comptroller General to issue a report, within three years of
enactment, identifying classes of contracts which would not
be suitable for acquisition through FACNET. The amendment
also would allow the Federal Acquisition Regulatory Council
to make a determination regarding which classes of contracts
should be excluded for purposes of calculating whether an
agency has achieved full FACNET capability.
TITLE X--EFFECTIVE DATES AND IMPLEMENTATION
Effective dates and applicability (sec. 10001)
The Senate bill contained a provision (sec. 10001) that
would provide that the Act would take effect on the date of
enactment, except as otherwise provided in the Act. Under the
Senate provision, amendments made by the Act would take
effect on the date on which final implementing regulations
are prescribed.
The House amendment contained a similar provision.
The House recedes with an amendment that would make
clarifying changes and provide that the amendments made by
the Act would take effect on the date provided in final
implementing regulations or October 1, 1995, whichever is
earlier.
Implementing regulations (sec. 10002)
The Senate bill contained a provision (sec. 10002) that
would establish a schedule for the promulgation of
implementing regulations.
The House amendment contained a similar provision.
The House recedes with a technical amendment. The conferees
note that acquisition streamlining requires giving maximum
discretion to contracting officers. Therefore, the agency
implementing regulations should not add additional
requirements to the Federal Acquisition Regulation, and
agencies should not restrict the discretion of contracting
officers by requiring burdensome high level approval
requirements.
Evaluation by the Comptroller General (sec. 10003)
The Senate bill contained a provision (sec. 10003) that
would require the Comptroller General to evaluate the
effectiveness of the implementing regulations.
The House amendment contained a similar provision. Under
the House amendment, the Comptroller General would issue two
reports. The first would be made not later than 180 days
after the final regulations are issued, and the second would
be made not later than 18 months after such regulations are
issued.
The Senate recedes with a clarifying amendment.
Data collection through the Federal Procurement Data System
(sec. 10004)
The Senate bill contained a provision (sec. 10004) that
would specify certain data to be collected through the
Federal Procurement Data System for acquisitions in excess of
the simplified acquisition threshold.
The House amendment contained no similar provision.
The Senate recedes with a clarifying amendment.
Technical and clerical amendments (sec. 10005)
The conference agreement contains a provision that would
make technical and clerical amendments to permanent laws
affected by the amendments that would be made by the Act.
Conferees from the Committee on Government Operations, for
consideration of the Senate bill, and the House amendment,
and modifications committed to conference:
John Conyers,
Mike Synar,
Steve Neal,
Tom Lantos,
Major R. Owens,
Edolphus Towns,
John M. Spratt, Jr.,
Bobby L. Rush,
Carolyn B. Maloney,
Marjorie Margolies-Mezvinsky,
Bill Clinger,
Al McCandless,
J. Dennis Hastert,
Jon Kyl,
Christopher Shays,
Steven Schiff,
As additional conferees from the Committee on Armed Services,
for consideration of the Senate bill, and the House
amendment, and modifications committed to conference:
Ronald V. Dellums,
Norman Sisisky,
Lane Evans,
James H. Bilbray,
Chet Edwards,
Elizabeth Furse,
Floyd Spence,
John R. Kasich,
Herbert H. Bateman,
Curt Weldon,
As additional conferees from the Committee on Education and
Labor, for consideration of sections 4024(d), 4101(b),
4101(c), 6101-02, 8005(c)(2), and 11001-04 of the Senate
bill, and section 4105 of the House amendment, and
modifications committed to conference:
William D. Ford,
Austin J. Murphy,
An additional conferees from the Committee on the Judiciary,
for consideration of sections 1421-22, 1437, 2451, 2551-53,
2555, that portion of section 4011 that adds a new section
29(b)(2) to the Federal Procurement Policy Act, sections
4024(a), (b), (c), and (f), 410(b) and (c), 6001-04, 6053,
and 8005(c)(3) and (c)(4) of the Senate bill; and that
portion of section 4011 that adds a new section 4B(c) to the
Federal Procurement Policy Act, that portion of section 4031
that adds a new subsection (c)(9) to section 23012a of title
10, United States Code, that portion of section 4041 that
adds a new subsection (c)(2) to section 302A of the Federal
Property and Administrative Services Act of 1949, sections
4051, 5003, that portion of section 7106 that adds a new
section 2285(a)(12) to title 10, United States Code, that
portion of section 7205 that adds a new section 314D(a)(4) to
the Federal Property and Administrative Services Act of 1949,
and section 7301(b) of the House amendment, and modifications
committed to conference:
Jack Brooks,
John Bryant,
Hamilton Fish,
As additional conferees from the Committee on Public Works
and Transportation, for consideration of sections 1056 and
1067 of the Senate bill and modifications committed to
conference:
Norman Y. Mineta,
James Traficant,
Bud Shuster,
As additional conferees from the Committee on Small Business,
for consideration of sections 1055(b)(2), 2554, 4102-05, that
portion of section 4011 that adds a new section 29(b)(1) to
the Office of Federal Procurement Policy Act, sections 4012,
4014(d), 4015(d), and 4074 of the Senate bill, and sections
4104 and 8002 of the House amendment, and modifications
committed to conference:
John J. LaFalce,
Neal Smith,
As additional conferees from the Committee on Energy and
Commerce, for consideration of sections 4024(g), 6003(a)(4)
and (b)(4), and 8005(c)(6) of the Senate bill, and
modifications committed to conference:
John D. Dingell,
Al Smith,
Carlos J. Moorhead,
Managers on the Part of the House.
John Glenn,
Sam Nunn,
Dale Bumpers,
Jim Sasser,
J.J. Exon,
Carl Levin,
David Pryor,
Jeff Bingaman,
Richard Shelby,
Byron L. Dorgan,
Bill Roth,
Strom Thurmond,
Ted Stevens,
John Warner,
Bill Cohen,
Larry Pressler,
John McCain,
Bob Smith,
Managers on the Part of the Senate.
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