Payne Hackenbracht & Sullivan
Federal Acquisition Reform Act of 1995 (FARA)
H.R.1530
National Defense Authorization Act for Fiscal Year 1996 (Enrolled Bill (Sent to
President))
DIVISION D--FEDERAL ACQUISITION REFORM
SEC. 4001. SHORT TITLE.
This division may be cited as the `Federal Acquisition Reform Act of
1995'.
TITLE XLI--COMPETITION
SEC. 4101. EFFICIENT COMPETITION.
(a) ARMED SERVICES ACQUISITIONS- Section 2304 of title 10,
United States Code, is amended--
(1) by redesignating subsection (j) as subsection (k); and
(2) by inserting after subsection (i) the following new subsection
(j):
`(j) The Federal Acquisition Regulation shall ensure that the requirement to
obtain full and open competition is implemented in a manner that is
consistent with the need to efficiently fulfill the Government's
requirements.'.
(b) CIVILIAN AGENCY ACQUISITIONS- Section 303 of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 253) is
amended--
(1) by redesignating subsection (h) as subsection (i); and
(2) by inserting after subsection (g) the following new subsection
(h):
`(h) The Federal Acquisition Regulation shall ensure that the requirement
to obtain full and open competition is implemented in a manner that is
consistent with the need to efficiently fulfill the Government's
requirements.'.
(c) REVISIONS TO NOTICE THRESHOLDS- Section 18(a)(1)(B) of
the Office of Federal Procurement Policy Act (41 U.S.C. 416(a)(1)(B)) is
amended--
(A) by striking out `subsection (f)--' and all that follows through the
end of the subparagraph and inserting in lieu thereof `subsection
(b); and'; and
(B) by inserting after `property or services' the following: `for a
price expected to exceed $10,000, but not to exceed $25,000,'.
SEC. 4102. EFFICIENT APPROVAL PROCEDURES.
(a) ARMED SERVICES ACQUISITIONS- Section 2304(f)(1)(B) of
title 10, United States Code, is amended--
(1) in clause (i)--
(A) by striking out `$100,000 (but equal to or less than
$1,000,000)' and inserting in lieu thereof `$500,000 (but
equal to or less than $10,000,000)'; and
(B) by striking out `(ii), (iii), or (iv)' and inserting in lieu
thereof `(ii) or (iii)';
(2) in clause (ii)--
(A) by striking out `$1,000,000 (but equal to or less than
$10,000,000)' and inserting in lieu thereof `$10,000,000
(but equal to or less than $50,000,000)'; and
(B) by adding `or' at the end;
(3) by striking out clause (iii); and
(4) by redesignating clause (iv) as clause (iii).
(b) CIVILIAN AGENCY ACQUISITIONS- Section 303(f)(1)(B) of the
Federal Property and Administrative Services Act of 1949 (41 U.S.C.
253(f)(1)(B)) is amended--
(1) in clause (i)--
(A) by striking out `$100,000 (but equal to or less than
$1,000,000)' and inserting in lieu thereof `$500,000 (but
equal to or less than $10,000,000)'; and
(B) by striking out `(ii), (iii), or (iv);' and inserting in lieu
thereof `(ii) or (iii); and';
(2) in clause (ii)--
(A) by striking out `$1,000,000 (but equal to or less than
$10,000,000)' and inserting in lieu thereof `$10,000,000
(but equal to or less than $50,000,000)'; and
(B) by striking out the semicolon after `civilian' and
inserting in lieu thereof a comma; and
(3) in clause (iii), by striking out `$10,000,000' and inserting in lieu
thereof `$50,000,000'.
SEC. 4103. EFFICIENT COMPETITIVE RANGE DETERMINATIONS.
(a) ARMED SERVICES ACQUISITIONS- Paragraph (4) of 2305(b) of
title 10, United States Code, is amended--
(1) in subparagraph (C), by striking out `(C)', by transferring the text to the end of subparagraph (B), and in that text by striking out `Subparagraph (B)' and inserting in lieu thereof `This subparagraph';
(2) by redesignating subparagraph (B) as subparagraph (C); and
(3) by inserting before subparagraph (C) (as so redesignated) the
following new subparagraph (B):
`(B) If the contracting officer determines that the number of offerors that
would otherwise be included in the competitive range under subparagraph
(A)(i) exceeds the number at which an efficient competition can be
conducted, the contracting officer may limit the number of proposals in the
competitive range, in accordance with the criteria specified in the
solicitation, to the greatest number that will permit an efficient competition
among the offerors rated most highly in accordance with such criteria.'.
(b) CIVILIAN AGENCY ACQUISITIONS- Section 303B(d) of the
Federal Property and Administrative Services Act of 1949 (41 U.S.C.
253b(d)) is amended--
(1) by redesignating paragraph (2) as paragraph (3); and
(2) by inserting before paragraph (3) (as so redesignated) the
following new paragraph (2):
`(2) If the contracting officer determines that the number of offerors that
would otherwise be included in the competitive range under paragraph
(1)(A) exceeds the number at which an efficient competition can be
conducted, the contracting officer may limit the number of proposals in the
competitive range, in accordance with the criteria specified in the
solicitation, to the greatest number that will permit an efficient competition
among the offerors rated most highly in accordance with such criteria.'.
SEC. 4104. PREAWARD DEBRIEFINGS.
(a) ARMED SERVICES ACQUISITIONS- Section 2305(b) of title 10,
United States Code, is amended--
(1) by striking out subparagraph (F) of paragraph (5);
(2) by redesignating paragraph (6) as paragraph (9); and
(3) by inserting after paragraph (5) the following new paragraphs:
`(6)(A) When the contracting officer excludes an offeror submitting a
competitive proposal from the competitive range (or otherwise excludes
such an offeror from further consideration prior to the final source
selection decision), the excluded offeror may request in writing, within
three days after the date on which the excluded offeror receives notice of its
exclusion, a debriefing prior to award. The contracting officer shall make
every effort to debrief the unsuccessful offeror as soon as practicable but
may refuse the request for a debriefing if it is not in the best interests of the
Government to conduct a debriefing at that time.
`(B) The contracting officer is required to debrief an excluded offeror in
accordance with paragraph (5) of this section only if that offeror requested
and was refused a preaward debriefing under subparagraph (A) of this
paragraph.
`(C) The debriefing conducted under this subsection shall include--
`(i) the executive agency's evaluation of the significant elements in
the offeror's offer;
`(ii) a summary of the rationale for the offeror's exclusion; and
`(iii) 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.
`(D) The debriefing conducted pursuant to this subsection may not
disclose the number or identity of other offerors and shall not disclose
information about the content, ranking, or evaluation of other offerors'
proposals.
`(7) The contracting officer shall include a summary of any debriefing
conducted under paragraph (5) or (6) in the contract file.
`(8) The Federal Acquisition Regulation shall include a provision
encouraging the use of alternative dispute resolution techniques to provide
informal, expeditious, and inexpensive procedures for an offeror to
consider using before filing a protest, prior to the award of a contract, of
the exclusion of the offeror from the competitive range (or otherwise from
further consideration) for that contract.'.
(b) CIVILIAN AGENCY ACQUISITIONS- Section 303B of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C. 253b) is
amended--
(1) by striking out paragraph (6) of subsection (e);
(2) by redesignating subsections (f), (g), (h), and (i) as subsections
(i), (j), (k), and (l), respectively; and
(3) by inserting after subsection (e) the following new subsections:
`(f)(1) When the contracting officer excludes an offeror submitting a
competitive proposal from the competitive range (or otherwise excludes
such an offeror from further consideration prior to the final source
selection decision), the excluded offeror may request in writing, within 3
days after the date on which the excluded offeror receives notice of its
exclusion, a debriefing prior to award. The contracting officer shall make
every effort to debrief the unsuccessful offeror as soon as practicable but
may refuse the request for a debriefing if it is not in the best interests of the
Government to conduct a debriefing at that time.
`(2) The contracting officer is required to debrief an excluded offeror in
accordance with subsection (e) of this section only if that offeror requested and was refused a preaward debriefing under paragraph (1) of this subsection.
`(3) The debriefing conducted under this subsection shall include--
`(A) the executive agency's evaluation of the significant elements in
the offeror's offer;
`(B) a summary of the rationale for the offeror's exclusion; and
`(C) 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.
`(4) The debriefing conducted pursuant to this subsection may not disclose
the number or identity of other offerors and shall not disclose information
about the content, ranking, or evaluation of other offerors' proposals.
`(g) The contracting officer shall include a summary of any debriefing
conducted under subsection (e) or (f) in the contract file.
`(h) The Federal Acquisition Regulation shall include a provision
encouraging the use of alternative dispute resolution techniques to provide
informal, expeditious, and inexpensive procedures for an offeror to
consider using before filing a protest, prior to the award of a contract, of
the exclusion of the offeror from the competitive range (or otherwise from
further consideration) for that contract.'.
SEC. 4105. DESIGN-BUILD SELECTION PROCEDURES.
(a) ARMED SERVICES ACQUISITIONS- (1) Chapter 137 of title 10,
United States Code, is amended by inserting after section 2305 the
following new section:
`Sec. 2305a. Design-build selection procedures
`(a) AUTHORIZATION- Unless the traditional acquisition approach of
design-bid-build established under the Brooks Architect-Engineers Act (41
U.S.C. 541 et seq.) is used or another acquisition procedure authorized by
law is used, the head of an agency shall use the two-phase selection
procedures authorized in this section for entering into a contract for the
design and construction of a public building, facility, or work when a
determination is made under subsection (b) that the procedures are
appropriate for use.
`(b) CRITERIA FOR USE- A contracting officer shall make a determination whether two-phase selection procedures are appropriate for use for entering into a contract for the design and construction of a public building, facility, or work when the contracting officer anticipates that three or more offers will be received for such contract, design work must be performed before an offeror can develop a price or cost proposal for such contract, the offeror will incur a substantial amount of expense in preparing the offer, and the contracting officer has considered information such as the following:
`(1) The extent to which the project requirements have been
adequately defined.
`(2) The time constraints for delivery of the project.
`(3) The capability and experience of potential contractors.
`(4) The suitability of the project for use of the two-phase selection
procedures.
`(5) The capability of the agency to manage the two-phase selection
process.
`(6) Other criteria established by the agency.
`(c) PROCEDURES DESCRIBED- Two-phase selection procedures
consist of the following:
`(1) The agency develops, either in-house or by contract, a scope of
work statement for inclusion in the solicitation that defines the
project and provides prospective offerors with sufficient
information regarding the Government's requirements (which may
include criteria and preliminary design, budget parameters, and
schedule or delivery requirements) to enable the offerors to submit
proposals which meet the Government's needs. If the agency
contracts for development of the scope of work statement, the
agency shall contract for architectural and engineering services as
defined by and in accordance with the Brooks Architect-Engineers
Act (40 U.S.C. 541 et seq.).
`(2) The contracting officer solicits phase-one proposals that--
`(A) include information on the offeror's--
`(i) technical approach; and
`(ii) technical qualifications; and
`(B) do not include--
`(i) detailed design information; or
`(ii) cost or price information.
`(3) The evaluation factors to be used in evaluating phase-one
proposals are stated in the solicitation and include specialized
experience and technical competence, capability to perform, past
performance of the offeror's team (including the architect-engineer
and construction members of the team) and other appropriate
factors, except that cost-related or price-related evaluation factors
are not permitted. Each solicitation establishes the relative
importance assigned to the evaluation factors and subfactors that
must be considered in the evaluation of phase-one proposals. The
agency evaluates phase-one proposals on the basis of the phase-one
evaluation factors set forth in the solicitation.
`(4) The contracting officer selects as the most highly qualified the
number of offerors specified in the solicitation to provide the
property or services under the contract and requests the selected
offerors to submit phase-two competitive proposals that include
technical proposals and cost or price information. Each solicitation
establishes with respect to phase two--
`(A) the technical submission for the proposal, including
design concepts or proposed solutions to requirements
addressed within the scope of work (or both), and
`(B) the evaluation factors and subfactors, including cost or
price, that must be considered in the evaluations of
proposals in accordance with paragraphs (2), (3), and (4) of
section 2305(a) of this title.
The contracting officer separately evaluates the submissions
described in subparagraphs (A) and (B).
`(5) The agency awards the contract in accordance with section
2305(b)(4) of this title.
`(d) SOLICITATION TO STATE NUMBER OF OFFERORS TO BE
SELECTED FOR PHASE TWO REQUESTS FOR COMPETITIVE
PROPOSALS- A solicitation issued pursuant to the procedures described
in subsection (c) shall state the maximum number of offerors that are to be
selected to submit competitive proposals pursuant to subsection (c)(4). The
maximum number specified in the solicitation shall not exceed 5 unless the
agency determines with respect to an individual solicitation that a specified
number greater than 5 is in the Government's interest and is consistent
with the purposes and objectives of the two-phase selection process.
`(e) REQUIREMENT FOR GUIDANCE AND REGULATIONS- The
Federal Acquisition Regulation shall include guidance--
`(1) regarding the factors that may be considered in determining
whether the two-phase contracting procedures authorized by
subsection (a) are appropriate for use in individual contracting
situations;
`(2) regarding the factors that may be used in selecting contractors;
and
`(3) providing for a uniform approach to be used
Government-wide.'.
(2) The table of sections at the beginning of chapter 137 of such title is
amended by adding after the item relating to section 2305 the following
new item:
`2305a. Design-build selection procedures.'.
(b) CIVILIAN AGENCY ACQUISITIONS- (1) 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 303L the following new section:
`SEC. 303M. DESIGN-BUILD SELECTION PROCEDURES.
`(a) AUTHORIZATION- Unless the traditional acquisition approach of
design-bid-build established under the Brooks Architect-Engineers Act
(title IX of this Act) is used or another acquisition procedure authorized by
law is used, the head of an executive agency shall use the two-phase
selection procedures authorized in this section for entering into a contract
for the design and construction of a public building, facility, or work when
a determination is made under subsection (b) that the procedures are
appropriate for use.
`(b) CRITERIA FOR USE- A contracting officer shall make a
determination whether two-phase selection procedures are appropriate for
use for entering into a contract for the design and construction of a public
building, facility, or work when the contracting officer anticipates that three
or more offers will be received for such contract, design work must be
performed before an offeror can develop a price or cost proposal for such
contract, the offeror will incur a substantial amount of expense in preparing
the offer, and the contracting officer has considered information such as
the following:
`(1) The extent to which the project requirements have been
adequately defined.
`(2) The time constraints for delivery of the project.
`(3) The capability and experience of potential contractors.
`(4) The suitability of the project for use of the two-phase selection
procedures.
`(5) The capability of the agency to manage the two-phase selection
process.
`(6) Other criteria established by the agency.
`(c) PROCEDURES DESCRIBED- Two-phase selection procedures
consist of the following:
`(1) The agency develops, either in-house or by contract, a scope of
work statement for inclusion in the solicitation that defines the
project and provides prospective offerors with sufficient
information regarding the Government's requirements (which may
include criteria and preliminary design, budget parameters, and
schedule or delivery requirements) to enable the offerors to submit
proposals which meet the Government's needs. If the agency
contracts for development of the scope of work statement, the
agency shall contract for architectural and engineering services as
defined by and in accordance with the Brooks Architect-Engineers
Act (40 U.S.C. 541 et seq.).
`(2) The contracting officer solicits phase-one proposals that--
`(A) include information on the offeror's--
`(i) technical approach; and
`(ii) technical qualifications; and
`(B) do not include--
`(i) detailed design information; or
`(ii) cost or price information.
`(3) The evaluation factors to be used in evaluating phase-one
proposals are stated in the solicitation and include specialized
experience and technical competence, capability to perform, past
performance of the offeror's team (including the architect-engineer
and construction members of the team) and other appropriate
factors, except that cost-related or price-related evaluation factors
are not permitted. Each solicitation establishes the relative
importance assigned to the evaluation factors and subfactors that
must be considered in the evaluation of phase-one proposals. The
agency evaluates phase-one proposals on the basis of the phase-one
evaluation factors set forth in the solicitation.
`(4) The contracting officer selects as the most highly qualified the
number of offerors specified in the solicitation to provide the
property or services under the contract and requests the selected
offerors to submit phase-two competitive proposals that include
technical proposals and cost or price information. Each solicitation
establishes with respect to phase two--
`(A) the technical submission for the proposal, including
design concepts or proposed solutions to requirements
addressed within the scope of work (or both), and
`(B) the evaluation factors and subfactors, including cost or
price, that must be considered in the
evaluations of proposals in accordance with subsections (b), (c), and (d) of section
303A.
The contracting officer separately evaluates the submissions
described in subparagraphs (A) and (B).
`(5) The agency awards the contract in accordance with section
303B of this title.
`(d) SOLICITATION TO STATE NUMBER OF OFFERORS TO BE
SELECTED FOR PHASE TWO REQUESTS FOR COMPETITIVE
PROPOSALS- A solicitation issued pursuant to the procedures described
in subsection (c) shall state the maximum number of offerors that are to be
selected to submit competitive proposals pursuant to subsection (c)(4). The
maximum number specified in the solicitation shall not exceed 5 unless the
agency determines with respect to an individual solicitation that a specified
number greater than 5 is in the Government's interest and is consistent
with the purposes and objectives of the two-phase selection process.
`(e) REQUIREMENT FOR GUIDANCE AND REGULATIONS- The
Federal Acquisition Regulation shall include guidance--
`(1) regarding the factors that may be considered in determining
whether the two-phase contracting procedures authorized by
subsection (a) are appropriate for use in individual contracting
situations;
`(2) regarding the factors that may be used in selecting contractors;
and
`(3) providing for a uniform approach to be used
Government-wide.'.
(2) The table of sections at the beginning of such Act is amended by
inserting after the item relating to section 303L the following new item:
`Sec. 303M. Design-build selection procedures.'.
TITLE XLII--COMMERCIAL ITEMS
SEC. 4201. COMMERCIAL ITEM EXCEPTION TO REQUIREMENT FOR
CERTIFIED COST OR PRICING DATA.
(a) ARMED SERVICES ACQUISITIONS- (1) Subsections (b), (c), and
(d) of section 2306a of title 10, United States Code, are amended to read as
follows:
`(b) EXCEPTIONS-
`(1) IN GENERAL- Submission of certified 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; or
`(ii) prices set by law or regulation;
`(B) for the acquisition of a commercial item; or
`(C) 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 exception to the submission of certified
cost or pricing data in paragraph (1)(A) or (1)(B), submission of
certified 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 certified cost or
pricing data may not be required by reason of paragraph
(1)(A) or (1)(B); 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.
`(c) COST OR PRICING DATA ON BELOW-THRESHOLD
CONTRACTS-
`(1) AUTHORITY TO REQUIRE SUBMISSION- Subject to
paragraph (2), when certified 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.
`(2) EXCEPTION- 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 subparagraph
(A) or (B) of subsection (b)(1).
`(3) DELEGATION OF AUTHORITY PROHIBITED- The head
of a procuring activity may not delegate functions under this
paragraph.
`(d) SUBMISSION OF OTHER INFORMATION-
`(1) AUTHORITY TO REQUIRE SUBMISSION- 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 contracting officer shall 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. Except
in the case of a contract or subcontract covered by the exceptions in
subsection (b)(1)(A), the data submitted shall include, at a
minimum, 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 for the procurement.
`(2) LIMITATIONS ON AUTHORITY- The Federal Acquisition
Regulation shall include the following provisions regarding the
types of information that contracting officers may require under
paragraph (1):
`(A) Reasonable limitations on requests for sales data
relating to commercial items.
`(B) A requirement that a contracting officer limit, to the
maximum extent practicable, the scope of any request for
information relating to commercial items from an offeror to
only that information that is in the form regularly
maintained by the offeror in commercial operations.
`(C) A statement that any information received relating to
commercial items that is exempt from disclosure under
section 552(b) of title 5 shall not be disclosed by the Federal
Government.'.
(2) Section 2306a of such title is further amended--
(A) by striking out subsection (h); and
(B) by redesignating subsection (i) as subsection (h).
(b) CIVILIAN AGENCY ACQUISITIONS- (1) Subsections (b), (c) and
(d) of section 304A of the Federal Property and Administrative Services
Act of 1949 (41 U.S.C. 254b) are amended to read as follows:
`(b) EXCEPTIONS-
`(1) IN GENERAL- Submission of certified 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; or
`(ii) prices set by law or regulation;
`(B) for the acquisition of a commercial item; or
`(C) 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 exception to the submission of certified
cost or pricing data in paragraph (1)(A) or (1)(B), submission of
certified 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 certified cost or
pricing data may not be required by reason of paragraph
(1)(A) or (1)(B); 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.
`(c) COST OR PRICING DATA ON BELOW-THRESHOLD
CONTRACTS-
`(1) AUTHORITY TO REQUIRE SUBMISSION- Subject to
paragraph (2), when certified 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.
`(2) EXCEPTION- 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 subparagraph
(A) or (B) of subsection (b)(1).
`(3) DELEGATION OF AUTHORITY PROHIBITED- The head
of a procuring activity may not delegate the functions under this
paragraph.
`(d) SUBMISSION OF OTHER INFORMATION-
`(1) AUTHORITY TO REQUIRE SUBMISSION- 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 contracting officer shall 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. Except
in the case of a contract or subcontract covered by the exceptions in
subsection (b)(1)(A), the data submitted shall include, at a
minimum, 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 for the procurement.
`(2) LIMITATIONS ON AUTHORITY- The Federal Acquisition
Regulation shall include the following provisions regarding the
types of information that contracting officers may require under
paragraph (1):
`(A) Reasonable limitations on requests for sales data
relating to commercial items.
`(B) A requirement that a contracting officer limit, to the
maximum extent practicable, the scope of any request for
information relating to commercial items from an offeror to
only that information that is in the form regularly
maintained by the offeror in commercial operations.
`(C) A statement that any information received relating to
commercial items that is exempt from disclosure under
section 552(b) of title 5 shall not be disclosed by the Federal
Government.'.
(2) Section 304A of such Act is further amended--
(A) by striking out subsection (h); and
(B) by redesignating subsection (i) as subsection (h).
SEC. 4202. APPLICATION OF SIMPLIFIED PROCEDURES TO CERTAIN
COMMERCIAL ITEMS.
(a) ARMED SERVICES ACQUISITIONS- (1) Section 2304(g) of title
10, United States Code, is amended--
(A) in paragraph (1), by striking out `shall provide for special
simplified procedures for purchases of' and all that follows through
the end of the paragraph and inserting in lieu thereof the following:
`shall provide for--
`(A) special simplified procedures for purchases of property and
services for amounts not greater than the simplified acquisition
threshold; and
`(B) special simplified procedures for purchases of property and
services for amounts greater than the simplified acquisition
threshold but not greater than $5,000,000 with respect to which the
contracting officer reasonably expects, based on the nature of the
property or services sought and on market research, that offers will
include only commercial items.'; and
(B) by adding at the end the following new paragraph:
`(4) The head of an agency shall comply with the Federal Acquisition
Regulation provisions referred to in section 31(g) of the Office of Federal
Procurement Policy Act (41 U.S.C. 427).'.
(2) Section 2305 of title 10, United States Code, is amended in subsection
(a)(2) by inserting after `(other than for' the following: `a procurement for
commercial items using special simplified procedures or'.
(b) CIVILIAN AGENCY ACQUISITIONS- (1) Section 303(g) of the
Federal Property and Administrative Services Act of 1949 (41 U.S.C.
253(g)) is amended--
(A) in paragraph (1), by striking out `shall provide for special
simplified procedures for purchases of' and all that follows through
the end of the paragraph and inserting in lieu thereof the following:
`shall provide for--
`(A) special simplified procedures for purchases of property and
services for amounts not greater than the simplified acquisition
threshold; and
`(B) special simplified procedures for purchases of property and
services for amounts greater than the simplified acquisition
threshold but not greater than $5,000,000 with respect to which the
contracting officer reasonably expects, based on the nature of the
property or services sought and on market research, that offers will
include only commercial items.'; and
(B) by adding at the end the following new paragraph:
`(5) An executive agency shall comply with the Federal Acquisition
Regulation provisions referred to in section 31(g) of the Office of Federal
Procurement Policy Act (41 U.S.C. 427).'.
(2) Section 303A of such Act (41 U.S.C. 253a) is amended in subsection
(b) by inserting after `(other than for' the following: `a procurement for
commercial items using special simplified procedures or'.
(c) ACQUISITIONS GENERALLY- Section 31 of the Office of Federal
Procurement Policy Act (41 U.S.C. 427) is amended--
(1) in subsection (a), by striking out `shall provide for special
simplified procedures for purchases of' and all that follows through
the end of the subsection and inserting in lieu thereof the following:
`shall provide for--
`(1) special simplified procedures for purchases of property and
services for amounts not greater than the simplified acquisition
threshold; and
`(2) special simplified procedures for purchases of property and
services for amounts greater than the simplified acquisition
threshold but not greater than $5,000,000 with respect to which the
contracting officer reasonably expects, based on the nature of the
property or services sought and on market research, that offers will
include only commercial items.'; and
(2) by adding at the end the following new subsection:
`(g) SPECIAL RULES FOR COMMERCIAL ITEMS- The Federal
Acquisition Regulation shall provide that, in the case of a purchase of
commercial items using special simplified procedures, an executive
agency--
`(1) shall publish a notice in accordance with section 18 and, as
provided in subsection (b)(4) of such section, permit all responsible
sources to submit a bid, proposal, or quotation (as appropriate)
which shall be considered by the agency;
`(2) may not conduct the purchase on a sole source basis unless the
need to do so is justified in writing and approved in accordance
with section 2304 of title 10, United States Code, or section 303 of
the Federal Property and Administrative Services Act of 1949 (41
U.S.C. 253), as applicable; and
`(3) shall include in the contract file a written description of the
procedures used in awarding the contract and the number of offers
received.'.
(d) SIMPLIFIED NOTICE- (1) Section 18 of the Office of Federal
Procurement Policy Act (41 U.S.C. 416) is amended--
(A) in subsection (a)(6), by inserting before `submission' the
following: `issuance of solicitations and the'; and
(B) in subsection (b)(6), by striking out `threshold--' and inserting
in lieu thereof `threshold, or a contract for the procurement of
commercial items using special simplified procedures--'.
(e) EFFECTIVE DATE- The authority to issue solicitations for purchases
of commercial items in excess of the simplified acquisition threshold
pursuant to the special simplified procedures authorized by section
2304(g)(1) of title 10, United States Code, section 303(g)(1) of the Federal
Property and Administrative Services Act of 1949, and section 31(a) of the
Office of Federal Procurement Policy Act, as amended by this section,
shall expire three years after the date on which such amendments take
effect pursuant to section 4401(b). Contracts may be awarded pursuant to
solicitations that have been issued
before such authority expires, notwithstanding the expiration of such authority.
SEC. 4203. INAPPLICABILITY OF CERTAIN PROCUREMENT LAWS TO
COMMERCIALLY AVAILABLE OFF-THE-SHELF ITEMS.
(a) LAWS LISTED IN THE FAR- The Office of Federal Procurement
Policy Act (41 U.S.C. 401) et seq.) is amended by adding at the end the
following:
`SEC. 35. COMMERCIALLY AVAILABLE OFF-THE-SHELF ITEM
ACQUISITIONS: LISTS OF INAPPLICABLE LAWS IN FEDERAL
ACQUISITION REGULATION.
`(a) LISTS 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 commercially available
off-the-shelf items.
`(2) A provision of law that, pursuant to paragraph (3), is properly
included on a list referred to in paragraph (1) may not be construed as
being applicable to contracts referred to in paragraph (1). Nothing in this
section shall be construed to render inapplicable to such contracts any
provision of law that is not included on such list.
`(3) A provision of law described in subsection (b) shall be included on the
list of inapplicable provisions of law required by paragraph (1) unless the
Administrator for Federal Procurement Policy makes a written
determination that it would not be in the best interest of the United States to
exempt such contracts from the applicability of that provision of law.
Nothing in this section shall be construed as modifying or superseding, or
as being intended to impair or restrict authorities or responsibilities under--
`(A) section 15 of the Small Business Act (15 U.S.C. 644); or
`(B) bid protest procedures developed under the authority of
subchapter V of chapter 35 of title 31, United States Code;
subsections (e) and (f) of section 2305 of title 10, United States
Code; or subsections (h) and (i) of section 303B of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C.
253b).
`(b) COVERED LAW- Except as provided in subsection (a)(3), the list
referred to in subsection (a)(1) shall include each provision of law that, as
determined by the Administrator, imposes on persons who have been
awarded contracts by the Federal Government for the procurement of
commercially available off-the-shelf items Government-unique policies,
procedures, requirements, or restrictions for the procurement of property
or services, except the following:
`(1) A provision of law that provides for criminal or civil penalties.
`(2) A provision of law that specifically refers to this section and
provides that, notwithstanding this section, such provision of law
shall be applicable to contracts for the procurement of commercial
off-the-shelf items.
`(c) DEFINITION- (1) As used in this section, the term `commercially
available off-the-shelf item' means, except as provided in paragraph (2), an
item that--
`(A) is a commercial item (as described in section 4(12)(A));
`(B) is sold in substantial quantities in the commercial marketplace;
and
`(C) is offered to the Government, without modification, in the
same form in which it is sold in the commercial marketplace.
`(2) The term `commercially available off-the-shelf item' does not include
bulk cargo, as defined in section 3 of the Shipping Act of 1984 (46 U.S.C.
App. 1702), such as agricultural products and petroleum products.'.
(b) CLERICAL AMENDMENT- The table of contents in section 1(b) of
such Act is amended by inserting after the item relating to section 34 the
following:
`Sec. 35. Commercially available off-the-shelf item acquisitions:
lists of inapplicable laws in Federal Acquisition Regulation.'.
SEC. 4204. AMENDMENT OF COMMERCIAL ITEMS
DEFINITION.
Section 4(12)(F) of the Office of Federal Procurement Policy Act (41
U.S.C. 403(12)(F)) is amended by inserting `or market' after `catalog'.
SEC. 4205. INAPPLICABILITY OF COST ACCOUNTING STANDARDS
TO CONTRACTS AND SUBCONTRACTS FOR COMMERCIAL ITEMS.
Paragraph (2)(B) of section 26(f) of the Office of Federal Procurement
Policy Act (41 U.S.C. 422(f)) is amended--
(1) by striking out clause (i) and inserting in lieu thereof the
following:
`(i) Contracts or subcontracts for the acquisition of commercial
items.'; and
(2) by striking out clause (iii).
TITLE XLIII--ADDITIONAL REFORM PROVISIONS
Subtitle A--Additional Acquisition Reform Provisions
SEC. 4301. ELIMINATION OF CERTAIN CERTIFICATION
REQUIREMENTS.
(a) ELIMINATION OF CERTAIN STATUTORY CERTIFICATION
REQUIREMENTS- (1) Section 2410b of title 10, United States Code, is
amended in paragraph (2) by striking out `certification and'.
(2) Section 1352(b)(2) of title 31, United States Code, is amended--
(A) by striking out subparagraph (C); and
(B) by inserting `and' after the semicolon at the end of
subparagraph (A).
(3) Section 5152 of the Drug-Free Workplace Act of 1988 (41 U.S.C.
701) is amended--
(A) in subsection (a)(1), by striking out `has certified to the
contracting agency that it will' and inserting in lieu thereof `agrees
to';
(B) in subsection (a)(2), by striking out `contract includes a
certification by the individual' and inserting in lieu thereof
`individual agrees'; and
(C) in subsection (b)(1)--
(i) by striking out subparagraph (A);
(ii) by redesignating subparagraph (B) as subparagraph (A)
and in that subparagraph by striking out `such certification
by failing to carry out'; and
(iii) by redesignating subparagraph (C) as subparagraph (B).
(b) ELIMINATION OF CERTAIN REGULATORY CERTIFICATION
REQUIREMENTS-
(1) CURRENT CERTIFICATION REQUIREMENTS- (A) Not
later than 210 days after the date of the enactment of this Act, the
Administrator for Federal Procurement Policy shall issue for public
comment a proposal to amend the Federal Acquisition Regulation
to remove from the Federal Acquisition Regulation certification
requirements for contractors and offerors that are not specifically
imposed by statute. The Administrator may omit such a
certification requirement from the proposal only if--
(i) the Federal Acquisition Regulatory Council provides the
Administrator with a written justification for the
requirement and a determination that there is no less
burdensome means for administering and enforcing the
particular regulation that contains the certification
requirement; and
(ii) the Administrator approves in writing the retention of
the certification requirement.
(B)(i) Not later than 210 days after the date of the enactment of this
Act, the head of each executive agency that has agency procurement
regulations containing one or more certification requirements for
contractors and offerors that are not specifically imposed by statute
shall issue for public comment a proposal to amend the regulations
to remove the certification requirements. The head of the executive
agency may omit such a certification requirement from the proposal
only if--
(I) the senior procurement executive for the executive
agency provides the head of the executive agency with a
written justification for the requirement and a determination
that there is no less burdensome means for administering
and enforcing the particular regulation that contains the
certification requirement; and
(II) the head of the executive agency approves in writing the
retention of such certification requirement.
(ii) For purposes of clause (i), the term `head of the executive
agency' with respect to a military department means the Secretary
of Defense.
(2) FUTURE CERTIFICATION REQUIREMENTS- (A) Section
29 of the Office of Federal Procurement Policy Act (41 U.S.C.
425) is amended--
(i) by amending the heading to read as follows:
`SEC. 29. CONTRACT CLAUSES AND CERTIFICATIONS.';
(ii) by inserting `(a) NONSTANDARD CONTRACT
CLAUSES- ' before `The Federal Acquisition'; and
(iii) by adding at the end the following new subsection:
`(c) PROHIBITION ON CERTIFICATION REQUIREMENTS- (1) A
requirement for a certification by a contractor or offeror may not be
included in the Federal Acquisition Regulation unless--
`(A) the certification requirement is specifically imposed by statute;
or
`(B) written justification for such certification requirement is
provided to the Administrator for Federal Procurement Policy by
the Federal Acquisition Regulatory Council, and the Administrator
approves in writing the inclusion of such certification requirement.
`(2)(A) A requirement for a certification by a contractor or offeror may not
be included in a procurement regulation of an executive agency unless--
`(i) the certification requirement is specifically imposed by statute;
or
`(ii) written justification for such certification requirement is
provided to the head of the executive agency by the senior
procurement executive of the agency, and the head of the executive
agency approves in writing the inclusion of such certification
requirement.
`(B) For purposes of subparagraph (A), the term `head of the executive
agency' with respect to a military department means the Secretary of
Defense.'.
(B) The item relating to section 29 in the table of contents for the
Office of Federal Procurement Policy Act (contained in section
1(b)) (41 U.S.C. 401 note) is amended to read as follows:
`Sec. 29. Contract clauses and certifications.'.
(c) POLICY OF CONGRESS- Section 29 of the Office of Federal
Procurement Policy Act (41 U.S.C. 425) is further amended by adding
after subsection (a) the following new subsection:
`(b) CONSTRUCTION OF CERTIFICATION REQUIREMENTS- A
provision of law may not be construed as requiring a certification by a
contractor or offeror in a procurement made or to be made by the Federal
Government unless that provision of law specifically provides that such a
certification shall be required.'.
SEC. 4302. AUTHORITIES CONDITIONED ON FACNET
CAPABILITY.
(a) COMMENCEMENT AND EXPIRATION OF AUTHORITY TO
CONDUCT CERTAIN TESTS OF PROCUREMENT
PROCEDURES- Subsection (j) of section 5061 of the Federal
Acquisition Streamlining Act of 1994 (41 U.S.C. 413 note; 108 Stat.
3355) is amended to read as follows:
`(j) COMMENCEMENT AND EXPIRATION OF AUTHORITY- The
authority to conduct a test under subsection (a) in an agency and to award
contracts under such a test shall take effect on January 1, 1997, and shall
expire on January 1, 2001. A contract entered into before such authority
expires in an
agency pursuant to a test shall remain in effect, in accordance with the terms of the
contract, the notwithstanding of expiration the authority to conduct the test under
this section.'.
(b) USE OF SIMPLIFIED ACQUISITION PROCEDURES-
Subsection (e) of section 31 of the Office of Federal Procurement Policy
Act (41 U.S.C. 427) is amended--
(1) by striking out `ACQUISITION PROCEDURES- ' and all that
follows through `(B) The simplified acquisition' in paragraph
(2)(B) and inserting in lieu thereof `ACQUISITION
PROCEDURES- The simplified acquisition'; and
(2) by striking out `pursuant to this section' in the remaining text
and inserting in lieu thereof `pursuant to section 2304(g)(1)(A) of
title 10, United States Code, section 303(g)(1)(A) of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C.
253(g)(1)(A)), and subsection (a)(1) of this section'.
SEC. 4303. INTERNATIONAL COMPETITIVENESS.
(a) ADDITIONAL AUTHORITY TO WAIVE RESEARCH,
DEVELOPMENT, AND PRODUCTION COSTS- Subject to subsection
(b), section 21(e)(2) of the Arms Export Control Act (22 U.S.C.
2761(e)(2)) is amended--
(1) by inserting `(A)' after `(2)'; and
(2) by adding at the end the following new subparagraphs:
`(B) The President may waive the charge or charges which would
otherwise be considered appropriate under paragraph (1)(B) for a particular
sale if the President determines that--
`(i) imposition of the charge or charges likely would result in the
loss of the sale; or
`(ii) in the case of a sale of major defense equipment that is also
being procured for the use of the Armed Forces, the waiver of the
charge or charges would (through a resulting increase in the total
quantity of the equipment purchased from the source of the
equipment that causes a reduction in the unit cost of the equipment)
result in a savings to the United States on the cost of the equipment
procured for the use of the Armed Forces that substantially offsets
the revenue foregone by reason of the waiver of the charge or
charges.
`(C) The President may waive, for particular sales of major defense
equipment, any increase in a charge or charges previously considered
appropriate under paragraph (1)(B) if the increase results from a correction
of an estimate (reasonable when made) of the production quantity base that
was used for calculating the charge or charges for purposes of such
paragraph.'.
(b) CONDITIONS- Subsection (a) shall be effective only if--
(1) the President, in the budget of the President for fiscal year 1997,
proposes legislation that if enacted would be qualifying offsetting
legislation; and
(2) there is enacted qualifying offsetting legislation.
(c) EFFECTIVE DATE- If the conditions in subsection (b) are met, then
the amendments made by subsection (a) shall take effect on the date of the
enactment of qualifying offsetting legislation.
(d) DEFINITIONS- For purposes of this section:
(1) The term `qualifying offsetting legislation' means legislation that
includes provisions that--
(A) offset fully the estimated revenues lost as a result of the
amendments made by subsection (a) for each of the fiscal
years 1997 through 2005;
(B) expressly state that they are enacted for the purpose of
the offset described in subparagraph (A); and
(C) are included in full on the PayGo scorecard.
(2) The term `PayGo scorecard' means the estimates that are made
by the Director of the Congressional Budget Office and the Director
of the Office of Management and Budget under section 252(d) of
the Balanced Budget and Emergency Deficit Control Act of 1985.
SEC. 4304. PROCUREMENT INTEGRITY.
(a) AMENDMENT OF PROCUREMENT INTEGRITY PROVISION-
Section 27 of the Office of Federal Procurement Policy Act (41 U.S.C.
423) is amended to read as follows:
`SEC. 27. RESTRICTIONS ON DISCLOSING AND OBTAINING
CONTRACTOR BID OR PROPOSAL INFORMATION OR SOURCE
SELECTION INFORMATION.
`(a) PROHIBITION ON DISCLOSING PROCUREMENT
INFORMATION- (1) A person described in paragraph (2) shall not, other
than as provided by law, knowingly disclose contractor bid or proposal
information or source selection information before the award of a Federal
agency procurement contract to which the information relates.
`(2) Paragraph (1) applies to any person who--
`(A) is a present or former officer or employee of the United States,
or a person who is acting or has acted for or on behalf of, or who is
advising or has advised the United States with respect to, a Federal
agency procurement; and
`(B) by virtue of that office, employment, or relationship has or had
access to contractor bid or proposal information or source selection
information.
`(b) PROHIBITION ON OBTAINING PROCUREMENT
INFORMATION- A person shall not, other than as provided by law,
knowingly obtain contractor bid or proposal information or source
selection information before the award of a Federal agency procurement
contract to which the information relates.
`(c) ACTIONS REQUIRED OF PROCUREMENT OFFICERS WHEN
CONTACTED BY OFFERORS REGARDING NON-FEDERAL
EMPLOYMENT- (1) If an agency employee who is participating
personally and substantially in a Federal agency procurement for a contract
in excess of the simplified acquisition threshold contacts or is contacted by
a person who is a bidder or offeror in that Federal agency procurement
regarding possible non-Federal employment for that employee, the
employee shall--
`(A) promptly report the contact in writing to the employee's
supervisor and to the designated agency ethics official (or designee)
of the agency in which the employee is employed; and
`(B)(i) reject the possibility of non-Federal employment; or
`(ii) disqualify himself or herself from further personal and
substantial participation in that Federal agency procurement until
such time as the agency has authorized the employee to resume
participation in such procurement, in accordance with the
requirements of section 208 of title 18, United States Code, and
applicable agency regulations on the grounds that--
`(I) the person is no longer a bidder or offeror in that
Federal agency procurement; or
`(II) all discussions with the bidder or offeror regarding
possible non-Federal employment have terminated without
an agreement or arrangement for employment.
`(2) Each report required by this subsection shall be retained by the agency
for not less than two years following the submission of the report. All
such reports shall be made available to the public upon request, except that
any part of a report that is exempt from the disclosure requirements of
section 552 of title 5, United States Code, under subsection (b)(1) of such
section may be withheld from disclosure to the public.
`(3) An employee who knowingly fails to comply with the requirements
of this subsection shall be subject to the penalties and administrative
actions set forth in subsection (e).
`(4) A bidder or offeror who engages in employment discussions with an
employee who is subject to the restrictions of this subsection, knowing that
the employee has not complied with subparagraph (A) or (B) of paragraph
(1), shall be subject to the penalties and administrative actions set forth in
subsection (e).
`(d) PROHIBITION ON FORMER EMPLOYEE'S ACCEPTANCE
OF COMPENSATION FROM CONTRACTOR- (1) A former
employee of a Federal agency may not accept compensation from a
contractor as an employee, officer, director, or consultant of the contractor
within a period of one year after such former employee--
`(A) served, at the time of selection of the contractor or the award
of a contract to that contractor, as the procuring contracting officer,
the source selection authority, a member of the source selection
evaluation board, or the chief of a financial or technical evaluation
team in a procurement in which that contractor was selected for
award of a contract in excess of $10,000,000;
`(B) served as the program manager, deputy program manager, or
administrative contracting officer for a contract in excess of
$10,000,000 awarded to that contractor; or
`(C) personally made for the Federal agency--
`(i) a decision to award a contract, subcontract, modification
of a contract or subcontract, or a task order or delivery order
in excess of $10,000,000 to that contractor;
`(ii) a decision to establish overhead or other rates applicable
to a contract or contracts for that contractor that are valued in
excess of $10,000,000;
`(iii) a decision to approve issuance of a contract payment or
payments in excess of $10,000,000 to that contractor; or
`(iv) a decision to pay or settle a claim in excess of
$10,000,000 with that contractor.
`(2) Nothing in paragraph (1) may be construed to prohibit a former
employee of a Federal agency from accepting compensation from any
division or affiliate of a contractor that does not produce the same or
similar products or services as the entity of the contractor that is
responsible for the contract referred to in subparagraph (A), (B), or (C) of
such paragraph.
`(3) A former employee who knowingly accepts compensation in violation
of this subsection shall be subject to penalties and administrative actions as
set forth in subsection (e).
`(4) A contractor who provides compensation to a former employee
knowing that such compensation is accepted by the former employee in
violation of this subsection shall be subject to penalties and administrative
actions as set forth in subsection (e).
`(5) Regulations implementing this subsection shall include procedures for
an employee or former employee of a Federal agency to request advice
from the appropriate designated agency ethics official regarding whether
the employee or former employee is or would be precluded by this
subsection from accepting compensation from a particular contractor.
`(e) PENALTIES AND ADMINISTRATIVE ACTIONS-
`(1) CRIMINAL PENALTIES- Whoever engages in conduct
constituting a violation of subsection (a) or (b) for the purpose of
either--
`(A) exchanging the information covered by such
subsection for anything of value, or
`(B) obtaining or giving anyone a competitive advantage in
the award of a Federal agency procurement contract,
shall be imprisoned for not more than 5 years or fined as provided
under title 18, United States Code, or both.
`(2) CIVIL PENALTIES- The Attorney General may bring a civil
action in an appropriate United States district court against any
person who engages in conduct constituting a violation of
subsection (a), (b), (c), or (d). Upon proof of such conduct by a
preponderance of the evidence, the person is subject to a civil
penalty. An individual who engages in such conduct is subject to a
civil penalty of not more than $50,000 for each violation plus twice
the amount of compensation which the individual received or
offered for the prohibited conduct. An organization that engages in
such conduct is subject to a civil penalty of not more than $500,000
for each violation plus twice the amount of compensation which the
organization received or offered for the prohibited conduct.
`(3) ADMINISTRATIVE ACTIONS- (A) If a Federal agency
receives information that a contractor or a person has engaged in
conduct constituting a violation of subsection (a), (b), (c), or (d), the
Federal agency shall consider taking one or more of the following
actions, as appropriate:
`(i) Cancellation of the Federal agency procurement, if a
contract has not yet been awarded.
`(ii) Rescission of a contract with respect to which--
`(I) the contractor or someone acting for the
contractor has been convicted for an offense
punishable under paragraph (1), or
`(II) the head of the agency that awarded the contract
has determined, based upon a preponderance of the
evidence, that the contractor or someone acting for
the contractor has engaged in conduct constituting
such an offense.
SEC. 4205. INAPPLICABILITY OF COST ACCOUNTING STANDARDS
TO CONTRACTS AND SUBCONTRACTS FOR COMMERCIAL ITEMS.
Paragraph (2)(B) of section 26(f) of the Office of Federal Procurement
Policy Act (41 U.S.C. 422(f)) is amended--
(1) by striking out clause (i) and inserting in lieu thereof the
following:
`(i) Contracts or subcontracts for the acquisition of commercial
items.'; and
(2) by striking out clause (iii).
TITLE XLIII--ADDITIONAL REFORM PROVISIONS
Subtitle A--Additional Acquisition Reform Provisions
SEC. 4301. ELIMINATION OF CERTAIN CERTIFICATION
REQUIREMENTS.
(a) ELIMINATION OF CERTAIN STATUTORY CERTIFICATION
REQUIREMENTS- (1) Section 2410b of title 10, United States Code, is
amended in paragraph (2) by striking out `certification and'.
(2) Section 1352(b)(2) of title 31, United States Code, is amended--
(A) by striking out subparagraph (C); and
(B) by inserting `and' after the semicolon at the end of
subparagraph (A).
(3) Section 5152 of the Drug-Free Workplace Act of 1988 (41 U.S.C.
701) is amended--
(A) in subsection (a)(1), by striking out `has certified to the
contracting agency that it will' and inserting in lieu thereof `agrees
to';
(B) in subsection (a)(2), by striking out `contract includes a
certification by the individual' and inserting in lieu thereof
`individual agrees'; and
(C) in subsection (b)(1)--
(i) by striking out subparagraph (A);
(ii) by redesignating subparagraph (B) as subparagraph (A)
and in that subparagraph by striking out `such certification
by failing to carry out'; and
(iii) by redesignating subparagraph (C) as subparagraph (B).
(b) ELIMINATION OF CERTAIN REGULATORY CERTIFICATION
REQUIREMENTS-
(1) CURRENT CERTIFICATION REQUIREMENTS- (A) Not
later than 210 days after the date of the enactment of this Act, the
Administrator for Federal Procurement Policy shall issue for public
comment a proposal to amend the Federal Acquisition Regulation
to remove from the Federal Acquisition Regulation certification
requirements for contractors and offerors that are not specifically
imposed by statute. The Administrator may omit such a
certification requirement from the proposal only if--
(i) the Federal Acquisition Regulatory Council provides the
Administrator with a written justification for the
requirement and a determination that there is no less
burdensome means for administering and enforcing the
particular regulation that contains the certification
requirement; and
(ii) the Administrator approves in writing the retention of
the certification requirement.
(B)(i) Not later than 210 days after the date of the enactment of this
Act, the head of each executive agency that has agency procurement
regulations containing one or more certification requirements for
contractors and offerors that are not specifically imposed by statute
shall issue for public comment a proposal to amend the regulations
to remove the certification requirements. The head of the executive
agency may omit such a certification requirement from the proposal
only if--
(I) the senior procurement executive for the executive
agency provides the head of the executive agency with a
written justification for the requirement and a determination
that there is no less burdensome means for administering
and enforcing the particular regulation that contains the
certification requirement; and
(II) the head of the executive agency approves in writing the
retention of such certification requirement.
(ii) For purposes of clause (i), the term `head of the executive
agency' with respect to a military department means the Secretary
of Defense.
(2) FUTURE CERTIFICATION REQUIREMENTS- (A) Section
29 of the Office of Federal Procurement Policy Act (41 U.S.C.
425) is amended--
(i) by amending the heading to read as follows:
`SEC. 29. CONTRACT CLAUSES AND CERTIFICATIONS.';
(ii) by inserting `(a) NONSTANDARD CONTRACT
CLAUSES- ' before `The Federal Acquisition'; and
(iii) by adding at the end the following new subsection:
`(c) PROHIBITION ON CERTIFICATION REQUIREMENTS- (1) A
requirement for a certification by a contractor or offeror may not be
included in the Federal Acquisition Regulation unless--
`(A) the certification requirement is specifically imposed by statute;
or
`(B) written justification for such certification requirement is
provided to the Administrator for Federal Procurement Policy by
the Federal Acquisition Regulatory Council, and the Administrator
approves in writing the inclusion of such certification requirement.
`(2)(A) A requirement for a certification by a contractor or offeror may not
be included in a procurement regulation of an executive agency unless--
`(i) the certification requirement is specifically imposed by statute;
or
`(ii) written justification for such certification requirement is
provided to the head of the executive agency by the senior
procurement executive of the agency, and the head of the executive
agency approves in writing the inclusion of such certification
requirement.
`(B) For purposes of subparagraph (A), the term `head of the executive
agency' with respect to a military department means the Secretary of
Defense.'.
(B) The item relating to section 29 in the table of contents for the
Office of Federal Procurement Policy Act (contained in section
1(b)) (41 U.S.C. 401 note) is amended to read as follows:
`Sec. 29. Contract clauses and certifications.'.
(c) POLICY OF CONGRESS- Section 29 of the Office of Federal
Procurement Policy Act (41 U.S.C. 425) is further amended by adding
after subsection (a) the following new subsection:
`(b) CONSTRUCTION OF CERTIFICATION REQUIREMENTS- A
provision of law may not be construed as requiring a certification by a
contractor or offeror in a procurement made or to be made by the Federal
Government unless that provision of law specifically provides that such a
certification shall be required.'.
SEC. 4302. AUTHORITIES CONDITIONED ON FACNET
CAPABILITY.
(a) COMMENCEMENT AND EXPIRATION OF AUTHORITY TO
CONDUCT CERTAIN TESTS OF PROCUREMENT
PROCEDURES- Subsection (j) of section 5061 of the Federal
Acquisition Streamlining Act of 1994 (41 U.S.C. 413 note; 108 Stat.
3355) is amended to read as follows:
`(j) COMMENCEMENT AND EXPIRATION OF AUTHORITY- The
authority to conduct a test under subsection (a) in an agency and to award
contracts under such a test shall take effect on January 1, 1997, and shall
expire on January 1, 2001. A contract entered into before such authority
expires in an
agency pursuant to a test shall remain in effect, in accordance with the terms of the
contract, the notwithstanding of expiration the authority to conduct the test under
this section.'.
(b) USE OF SIMPLIFIED ACQUISITION PROCEDURES-
Subsection (e) of section 31 of the Office of Federal Procurement Policy
Act (41 U.S.C. 427) is amended--
(1) by striking out `ACQUISITION PROCEDURES- ' and all that
follows through `(B) The simplified acquisition' in paragraph
(2)(B) and inserting in lieu thereof `ACQUISITION
PROCEDURES- The simplified acquisition'; and
(2) by striking out `pursuant to this section' in the remaining text
and inserting in lieu thereof `pursuant to section 2304(g)(1)(A) of
title 10, United States Code, section 303(g)(1)(A) of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C.
253(g)(1)(A)), and subsection (a)(1) of this section'.
SEC. 4303. INTERNATIONAL COMPETITIVENESS.
(a) ADDITIONAL AUTHORITY TO WAIVE RESEARCH,
DEVELOPMENT, AND PRODUCTION COSTS- Subject to subsection
(b), section 21(e)(2) of the Arms Export Control Act (22 U.S.C.
2761(e)(2)) is amended--
(1) by inserting `(A)' after `(2)'; and
(2) by adding at the end the following new subparagraphs:
`(B) The President may waive the charge or charges which would
otherwise be considered appropriate under paragraph (1)(B) for a particular
sale if the President determines that--
`(i) imposition of the charge or charges likely would result in the
loss of the sale; or
`(ii) in the case of a sale of major defense equipment that is also
being procured for the use of the Armed Forces, the waiver of the
charge or charges would (through a resulting increase in the total
quantity of the equipment purchased from the source of the
equipment that causes a reduction in the unit cost of the equipment)
result in a savings to the United States on the cost of the equipment
procured for the use of the Armed Forces that substantially offsets
the revenue foregone by reason of the waiver of the charge or
charges.
`(C) The President may waive, for particular sales of major defense
equipment, any increase in a charge or charges previously considered
appropriate under paragraph (1)(B) if the increase results from a correction
of an estimate (reasonable when made) of the production quantity base that
was used for calculating the charge or charges for purposes of such
paragraph.'.
(b) CONDITIONS- Subsection (a) shall be effective only if--
(1) the President, in the budget of the President for fiscal year 1997,
proposes legislation that if enacted would be qualifying offsetting
legislation; and
(2) there is enacted qualifying offsetting legislation.
(c) EFFECTIVE DATE- If the conditions in subsection (b) are met, then
the amendments made by subsection (a) shall take effect on the date of the
enactment of qualifying offsetting legislation.
(d) DEFINITIONS- For purposes of this section:
(1) The term `qualifying offsetting legislation' means legislation that
includes provisions that--
(A) offset fully the estimated revenues lost as a result of the
amendments made by subsection (a) for each of the fiscal
years 1997 through 2005;
(B) expressly state that they are enacted for the purpose of
the offset described in subparagraph (A); and
(C) are included in full on the PayGo scorecard.
(2) The term `PayGo scorecard' means the estimates that are made
by the Director of the Congressional Budget Office and the Director
of the Office of Management and Budget under section 252(d) of
the Balanced Budget and Emergency Deficit Control Act of 1985.
SEC. 4304. PROCUREMENT INTEGRITY.
(a) AMENDMENT OF PROCUREMENT INTEGRITY PROVISION-
Section 27 of the Office of Federal Procurement Policy Act (41 U.S.C.
423) is amended to read as follows:
`SEC. 27. RESTRICTIONS ON DISCLOSING AND OBTAINING
CONTRACTOR BID OR PROPOSAL INFORMATION OR SOURCE
SELECTION INFORMATION.
`(a) PROHIBITION ON DISCLOSING PROCUREMENT
INFORMATION- (1) A person described in paragraph (2) shall not, other
than as provided by law, knowingly disclose contractor bid or proposal
information or source selection information before the award of a Federal
agency procurement contract to which the information relates.
`(2) Paragraph (1) applies to any person who--
`(A) is a present or former officer or employee of the United States,
or a person who is acting or has acted for or on behalf of, or who is
advising or has advised the United States with respect to, a Federal
agency procurement; and
`(B) by virtue of that office, employment, or relationship has or had
access to contractor bid or proposal information or source selection
information.
`(b) PROHIBITION ON OBTAINING PROCUREMENT
INFORMATION- A person shall not, other than as provided by law,
knowingly obtain contractor bid or proposal information or source
selection information before the award of a Federal agency procurement
contract to which the information relates.
`(c) ACTIONS REQUIRED OF PROCUREMENT OFFICERS WHEN
CONTACTED BY OFFERORS REGARDING NON-FEDERAL
EMPLOYMENT- (1) If an agency employee who is participating
personally and substantially in a Federal agency procurement for a contract
in excess of the simplified acquisition threshold contacts or is contacted by
a person who is a bidder or offeror in that Federal agency procurement
regarding possible non-Federal employment for that employee, the
employee shall--
`(A) promptly report the contact in writing to the employee's
supervisor and to the designated agency ethics official (or designee)
of the agency in which the employee is employed; and
`(B)(i) reject the possibility of non-Federal employment; or
`(ii) disqualify himself or herself from further personal and
substantial participation in that Federal agency procurement until
such time as the agency has authorized the employee to resume
participation in such procurement, in accordance with the
requirements of section 208 of title 18, United States Code, and
applicable agency regulations on the grounds that--
`(I) the person is no longer a bidder or offeror in that
Federal agency procurement; or
`(II) all discussions with the bidder or offeror regarding
possible non-Federal employment have terminated without
an agreement or arrangement for employment.
`(2) Each report required by this subsection shall be retained by the agency
for not less than two years following the submission of the report. All
such reports shall be made available to the public upon request, except that
any part of a report that is exempt from the disclosure requirements of
section 552 of title 5, United States Code, under subsection (b)(1) of such
section may be withheld from disclosure to the public.
`(3) An employee who knowingly fails to comply with the requirements
of this subsection shall be subject to the penalties and administrative
actions set forth in subsection (e).
`(4) A bidder or offeror who engages in employment discussions with an
employee who is subject to the restrictions of this subsection, knowing that
the employee has not complied with subparagraph (A) or (B) of paragraph
(1), shall be subject to the penalties and administrative actions set forth in
subsection (e).
`(d) PROHIBITION ON FORMER EMPLOYEE'S ACCEPTANCE
OF COMPENSATION FROM CONTRACTOR- (1) A former
employee of a Federal agency may not accept compensation from a
contractor as an employee, officer, director, or consultant of the contractor
within a period of one year after such former employee--
`(A) served, at the time of selection of the contractor or the award
of a contract to that contractor, as the procuring contracting officer,
the source selection authority, a member of the source selection
evaluation board, or the chief of a financial or technical evaluation
team in a procurement in which that contractor was selected for
award of a contract in excess of $10,000,000;
`(B) served as the program manager, deputy program manager, or
administrative contracting officer for a contract in excess of
$10,000,000 awarded to that contractor; or
`(C) personally made for the Federal agency--
`(i) a decision to award a contract, subcontract, modification
of a contract or subcontract, or a task order or delivery order
in excess of $10,000,000 to that contractor;
`(ii) a decision to establish overhead or other rates applicable
to a contract or contracts for that contractor that are valued in
excess of $10,000,000;
`(iii) a decision to approve issuance of a contract payment or
payments in excess of $10,000,000 to that contractor; or
`(iv) a decision to pay or settle a claim in excess of
$10,000,000 with that contractor.
`(2) Nothing in paragraph (1) may be construed to prohibit a former
employee of a Federal agency from accepting compensation from any
division or affiliate of a contractor that does not produce the same or
similar products or services as the entity of the contractor that is
responsible for the contract referred to in subparagraph (A), (B), or (C) of
such paragraph.
`(3) A former employee who knowingly accepts compensation in violation
of this subsection shall be subject to penalties and administrative actions as
set forth in subsection (e).
`(4) A contractor who provides compensation to a former employee
knowing that such compensation is accepted by the former employee in
violation of this subsection shall be subject to penalties and administrative
actions as set forth in subsection (e).
`(5) Regulations implementing this subsection shall include procedures for
an employee or former employee of a Federal agency to request advice
from the appropriate designated agency ethics official regarding whether
the employee or former employee is or would be precluded by this
subsection from accepting compensation from a particular contractor.
`(e) PENALTIES AND ADMINISTRATIVE ACTIONS-
`(1) CRIMINAL PENALTIES- Whoever engages in conduct
constituting a violation of subsection (a) or (b) for the purpose of
either--
`(A) exchanging the information covered by such
subsection for anything of value, or
`(B) obtaining or giving anyone a competitive advantage in
the award of a Federal agency procurement contract,
shall be imprisoned for not more than 5 years or fined as provided
under title 18, United States Code, or both.
`(2) CIVIL PENALTIES- The Attorney General may bring a civil
action in an appropriate United States district court against any
person who engages in conduct constituting a violation of
subsection (a), (b), (c), or (d). Upon proof of such conduct by a
preponderance of the evidence, the person is subject to a civil
penalty. An individual who engages in such conduct is subject to a
civil penalty of not more than $50,000 for each violation plus twice
the amount of compensation which the individual received or
offered for the prohibited conduct. An organization that engages in
such conduct is subject to a civil penalty of not more than $500,000
for each violation plus twice the amount of compensation which the
organization received or offered for the prohibited conduct.
`(3) ADMINISTRATIVE ACTIONS- (A) If a Federal agency
receives information that a contractor or a person has engaged in
conduct constituting a violation of subsection (a), (b), (c), or (d), the
Federal agency shall consider taking one or more of the following
actions, as appropriate:
`(i) Cancellation of the Federal agency procurement, if a
contract has not yet been awarded.
`(ii) Rescission of a contract with respect to which--
`(I) the contractor or someone acting for the
contractor has been convicted for an offense
punishable under paragraph (1), or
`(II) the head of the agency that awarded the contract
has determined, based upon a preponderance of the
evidence, that the contractor or someone acting for
the contractor has engaged in conduct constituting
such an offense.
`(iii) Initiation of suspension or debarment proceedings for
the protection of the Government in accordance with
procedures in the Federal Acquisition Regulation.
`(iv) Initiation of adverse personnel action, pursuant to the
procedures in chapter 75 of title 5, United States Code, or
other applicable law or regulation.
`(B) If a Federal agency rescinds a contract pursuant to
subparagraph (A)(ii), the United States is entitled to recover, in
addition to any penalty prescribed by law, the amount expended
under the contract.
`(C) For purposes of any suspension or debarment proceedings
initiated pursuant to subparagraph (A)(iii), engaging in conduct
constituting an offense under subsection (a), (b), (c), or (d) affects
the present responsibility of a Government contractor or
subcontractor.
`(f) DEFINITIONS- As used in this section:
`(1) The term `contractor bid or proposal information' means any of
the following information submitted to a Federal agency as part of
or in connection with a bid or proposal to enter into a Federal
agency procurement contract, if that information has not been
previously made available to the public or disclosed publicly:
`(A) Cost or pricing data (as defined by section 2306a(h) of
title 10, United States Code, with respect to procurements
subject to that section, and section 304A(h) of the Federal
Property and Administrative Services Act of 1949 (41
U.S.C. 254b(h)), with respect to procurements subject to
that section).
`(B) Indirect costs and direct labor rates.
`(C) Proprietary information about manufacturing
processes, operations, or techniques marked by the
contractor in accordance with applicable law or regulation.
`(D) Information marked by the contractor as `contractor
bid or proposal information', in accordance with applicable
law or regulation.
`(2) The term `source selection information' means any of the
following information prepared for use by a Federal agency for the
purpose of evaluating a bid or proposal to enter into a Federal
agency procurement contract, if that information has not been
previously made available to the public or disclosed publicly:
`(A) Bid prices submitted in response to a Federal agency
solicitation for sealed bids, or lists of those bid prices before
public bid opening.
`(B) Proposed costs or prices submitted in response to a
Federal agency solicitation, or lists of those proposed costs
or prices.
`(C) Source selection plans.
`(D) Technical evaluation plans.
`(E) Technical evaluations of proposals.
`(F) Cost or price evaluations of proposals.
`(G) Competitive range determinations that identify
proposals that have a reasonable chance of being selected for
award of a contract.
`(H) Rankings of bids, proposals, or competitors.
`(I) The reports and evaluations of source selection panels,
boards, or advisory councils.
`(J) Other information marked as `source selection
information' based on a case-by-case determination by the
head of the agency, his designee, or the contracting officer
that its disclosure would jeopardize the integrity or
successful completion of the Federal agency procurement to
which the information relates.
`(3) The term `Federal agency' has the meaning provided such term
in section 3 of the Federal Property and Administrative Services
Act of 1949 (40 U.S.C. 472).
`(4) The term `Federal agency procurement' means the acquisition
(by using competitive procedures and awarding a contract) of
goods or services (including construction) from non-Federal
sources by a Federal agency using appropriated funds.
`(5) The term `contracting officer' means a person who, by
appointment in accordance with applicable regulations, has the
authority to enter into a Federal agency procurement contract on
behalf of the Government and to make determinations and findings
with respect to such a contract.
`(6) The term `protest' means a written objection by an interested
party to the award or proposed award of a Federal agency
procurement contract, pursuant to subchapter V of chapter 35 of
title 31, United States Code.
`(g) LIMITATION ON PROTESTS- No person may file a protest against
the award or proposed award of a Federal agency procurement contract
alleging a violation of subsection (a), (b), (c), or (d), nor may the
Comptroller General of the United States consider such an allegation in
deciding a protest, unless that person reported to the Federal agency
responsible for the procurement, no later than 14 days after the person first
discovered the possible violation, the information that the person believed
constitutes evidence of the offense.
`(h) SAVINGS PROVISIONS- This section does not--
`(1) restrict the disclosure of information to, or its receipt by, any
person or class of persons authorized, in accordance with applicable
agency regulations or procedures, to receive that information;
`(2) restrict a contractor from disclosing its own bid or proposal
information or the recipient from receiving that information;
`(3) restrict the disclosure or receipt of information relating to a
Federal agency procurement after it has been canceled by the
Federal agency before contract award unless the Federal agency
plans to resume the procurement;
`(4) prohibit individual meetings between a Federal agency
employee and an offeror or potential offeror for, or a recipient of, a
contract or subcontract under a Federal agency procurement,
provided that unauthorized disclosure or receipt of contractor bid or
proposal information or source selection information does not
occur;
`(5) authorize the withholding of information from, nor restrict its
receipt by, Congress, a committee or subcommittee of Congress,
the Comptroller General, a Federal agency, or an inspector general
of a Federal agency;
`(6) authorize the withholding of information from, nor restrict its
receipt by, the Comptroller General of the United States in the
course of a protest against the award or proposed award of a
Federal agency procurement contract; or
`(7) limit the applicability of any requirements, sanctions, contract
penalties, and remedies established under any other law or
regulation.'.
(b) REPEALS- The following provisions of law are repealed:
(1) Sections 2397, 2397a, 2397b, and 2397c of title 10, United
States Code.
(2) Section 33 of the Federal Energy Administration Act of 1974
(15 U.S.C. 789).
(3) Section 281 of title 18, United States Code.
(4) Subsection (c) of section 32 of the Office of Federal
Procurement Policy Act (41 U.S.C. 428).
(5) The first section 19 of the Federal Nonnuclear Energy Research
and Development Act of 1974 (42 U.S.C. 5918).
(6) Part A of title VI of the Department of Energy Organization Act
and its catchline (42 U.S.C. 7211, 7212, and 7218).
(7) Section 308 of the Energy Research and Development
Administration Appropriation Authorization Act for Fiscal Year
1977 (42 U.S.C. 5816a).
(8) Section 522 of the Energy Policy and Conservation Act (42
U.S.C. 6392).
(c) CLERICAL AMENDMENTS-
(1) The table of sections at the beginning of chapter 141 of title 10,
United States Code, is amended by striking out the items relating to
sections 2397, 2397a, 2397b, and 2397c.
(2) The table of sections at the beginning of chapter 15 of title 18,
United States Code, is amended by striking out the item relating to
section 281.
(3) Section 32 of the Office of Federal Procurement Policy Act (41
U.S.C. 428) is amended by redesignating subsections (d), (e), (f),
and (g) as subsections (c), (d), (e), and (f), respectively.
(4) The table of contents for the Department of Energy
Organization Act is amended by striking out the items relating to
part A of title VI including sections 601 through 603.
(5) The table of contents for the Energy Policy and Conservation
Act is amended by striking out the item relating to section 522.
SEC. 4305. FURTHER ACQUISITION STREAMLINING
PROVISIONS.
(a) PURPOSE OF OFFICE OF FEDERAL PROCUREMENT
POLICY-
(1) REVISED STATEMENT OF PURPOSE- Section 5(a) of the
Office of Federal Procurement Policy Act (41 U.S.C. 404) is
amended to read as follows:
`(a) There is in the Office of Management and Budget an Office of Federal
Procurement Policy (hereinafter referred to as the `Office') to provide
overall direction of Government-wide procurement policies, regulations,
procedures, and forms for executive agencies and to promote economy,
efficiency, and effectiveness in the procurement of property and services
by the executive branch of the Federal Government.'.
(2) REPEAL OF FINDINGS, POLICIES, AND PURPOSES-
Sections 2 and 3 of such Act (41 U.S.C. 401 and 402) are repealed.
(b) REPEAL OF REPORT REQUIREMENT- Section 8 of the Office of
Federal Procurement Policy Act (41 U.S.C. 407) is repealed.
(c) OBSOLETE PROVISIONS-
(1) RELATIONSHIP TO FORMER REGULATIONS- Section
10 of the Office of Federal Procurement Policy Act (41 U.S.C.
409) is repealed.
(2) AUTHORIZATION OF APPROPRIATIONS- Section 11 of
such Act (41 U.S.C. 410) is amended to read as follows:
`SEC. 11. AUTHORIZATION OF APPROPRIATIONS.
`There is authorized to be appropriated for the Office of Federal
Procurement Policy each fiscal year such sums as may be necessary for
carrying out the responsibilities of that office for such fiscal year.'.
(d) CLERICAL AMENDMENTS- The table of contents for the Office of
Federal Procurement Policy Act (contained in section 1(b)) is amended by
striking out the items relating to sections 2, 3, 8, and 10.
SEC. 4306. VALUE ENGINEERING FOR FEDERAL
AGENCIES.
(a) USE OF VALUE ENGINEERING- The Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.), as amended by section
4203, is further amended by adding at the end the following new section:
`SEC. 36. VALUE ENGINEERING.
`(a) IN GENERAL- Each executive agency shall establish and maintain
cost-effective value engineering procedures and processes.
`(b) DEFINITION- As used in this section, the term `value engineering'
means an analysis of the functions of a program, project, system, product,
item of equipment, building, facility, service, or supply of an executive
agency, performed by qualified agency or contractor personnel, directed at
improving performance, reliability, quality, safety, and life cycle costs.'.
(b) CLERICAL AMENDMENT- The table of contents for such Act,
contained in section 1(b), is amended by adding at the end the following
new item:
`Sec. 36. Value engineering.'.
SEC. 4307. ACQUISITION WORKFORCE.
(a) ACQUISITION WORKFORCE- (1) The Office of Federal
Procurement Policy Act (41 U.S.C. 401 et seq.), as amended by section
4306, is further amended by adding at the end the following new section:
`SEC. 37. ACQUISITION WORKFORCE.
`(a) APPLICABILITY- This section does not apply to an executive agency
that is subject to chapter 87 of title 10, United States Code.
`(b) MANAGEMENT POLICIES-
`(1) POLICIES AND PROCEDURES- The head of each
executive agency, after consultation with the Administrator for
Federal Procurement Policy, shall establish policies and procedures
for the effective management (including accession, education,
training, career development, and performance incentives) of the
acquisition workforce of the agency. The development of
acquisition workforce policies under this section shall be carried out
consistent with the merit system principles set forth in section
2301(b) of title 5, United States Code.
`(2) UNIFORM IMPLEMENTATION- The head of each
executive agency shall ensure that, to the maximum extent
practicable, acquisition workforce policies and procedures
established are uniform in their implementation throughout the
agency.
`(3) GOVERNMENT-WIDE POLICIES AND EVALUATION-
The Administrator shall issue policies to promote uniform
implementation of this section by executive agencies, with due
regard for differences in program requirements among agencies
that may be appropriate and warranted in view of the agency
mission. The Administrator shall coordinate with the Deputy
Director for Management of the Office of Management and Budget
to ensure that such policies are consistent with the policies and
procedures established and enhanced system of incentives provided
pursuant to section 5051(c) of the Federal Acquisition Streamlining
Act of 1994 (41 U.S.C. 263 note). The Administrator shall evaluate
the implementation of the provisions of this section by executive
agencies.
`(c) SENIOR PROCUREMENT EXECUTIVE AUTHORITIES AND
RESPONSIBILITIES- Subject to the authority, direction, and control of
the head of an executive agency, the senior procurement executive of the
agency shall carry out all powers, functions, and duties of the head of the
agency with respect to implementation of this section. The senior
procurement executive shall ensure that the policies of the head of the
executive agency established in accordance with this section are
implemented throughout the agency.
`(d) MANAGEMENT INFORMATION SYSTEMS- The Administrator
shall ensure that the heads of executive agencies collect and maintain
standardized information on the acquisition workforce related to
implementation of this section. To the maximum extent practicable, such
data requirements shall conform to standards established by the Office of
Personnel Management for the Central Personnel Data File.
`(e) APPLICABILITY TO ACQUISITION WORKFORCE- The
programs established by this section shall apply to the acquisition
workforce of each executive agency. For purposes of this section, the
acquisition workforce of an agency consists of all employees serving in
acquisition positions listed in subsection (g)(1)(A).
`(f) CAREER DEVELOPMENT-
`(1) CAREER PATHS- The head of each executive agency shall
ensure that appropriate career paths for personnel who desire to
pursue careers in acquisition are identified in terms of the education,
training, experience, and assignments necessary for career
progression to the most senior acquisition positions. The head of
each executive agency shall make information available on such
career paths.
`(2) CRITICAL DUTIES AND TASKS- For each career path, the
head of each executive agency shall identify the critical
acquisition-related duties and tasks in which, at minimum,
employees of the agency in the career path shall be competent to
perform at full performance grade levels. For this purpose, the head
of the executive agency shall provide appropriate coverage of the
critical duties and tasks identified by the Director of the Federal
Acquisition Institute.
`(3) MANDATORY TRAINING AND EDUCATION- For each
career path, the head of each executive agency shall establish
requirements for the completion of course work and related
on-the-job training in the critical acquisition-related duties and tasks
of the career path. The head of each executive agency shall also
encourage employees to maintain the currency of their acquisition
knowledge and generally enhance their knowledge of related
acquisition management disciplines through academic programs
and other self-developmental activities.
`(4) PERFORMANCE INCENTIVES- The head of each
executive agency shall provide for an enhanced system of
incentives for the encouragement of excellence in the acquisition
workforce which rewards performance of employees that
contribute to achieving the agency's performance goals. The system
of incentives shall include provisions that--
`(A) relate 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 (41 U.S.C. 263(b)));
and
`(B) provide 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.
`(g) QUALIFICATION REQUIREMENTS-
`(1) IN GENERAL- (A) Subject to paragraph (2), the
Administrator shall establish qualification requirements, including
education requirements, for the following positions:
`(i) Entry-level positions in the General Schedule
Contracting series (GS-1102).
`(ii) Senior positions in the General Schedule Contracting
series (GS-1102).
`(iii) All positions in the General Schedule Purchasing series
(GS-1105).
`(iv) Positions in other General Schedule series in which
significant acquisition-related functions are performed.
`(B) Subject to paragraph (2), the Administrator shall prescribe the
manner and extent to which such qualification requirements shall
apply to any person serving in a position described in subparagraph
(A) at the time such requirements are established.
`(2) RELATIONSHIP TO REQUIREMENTS APPLICABLE
TO DEFENSE ACQUISITION WORKFORCE- The
Administrator shall establish qualification requirements and make
prescriptions under paragraph (1) that are comparable to those
established for the same or equivalent positions pursuant to chapter
87 of title 10, United States Code, with appropriate modifications.
`(3) APPROVAL OF REQUIREMENTS- The Administrator
shall submit any requirement established or prescription made
under paragraph (1) to the Director of the Office of Personnel
Management for approval. If the Director does not disapprove a
requirement or prescription within 30 days after the date on which
the Director receives it, the requirement or prescription is deemed to
be approved by the Director.
`(h) EDUCATION AND TRAINING-
`(1) FUNDING LEVELS- (A) The head of an executive agency
shall set forth separately the funding levels requested for education
and training of the acquisition workforce in the budget justification
documents submitted in support of the President's budget
submitted to Congress under section 1105 of title 31, United States
Code.
`(B) Funds appropriated for education and training under this
section may not be obligated for any other purpose.
`(2) TUITION ASSISTANCE- The head of an executive agency
may provide tuition reimbursement in education (including a
full-time course of study leading to a degree) in accordance with
section 4107 of title 5, United States Code, for personnel serving in
acquisition positions in the agency.'.
(2) The table of contents for such Act, contained in section 1(b), is
amended by adding at the end the following new item:
`Sec. 37. Acquisition workforce.'.
(b) ADDITIONAL AMENDMENTS- Section 6(d) of the Office of
Federal Procurement Policy Act (41 U.S.C. 405), is amended--
(1) by redesignating paragraphs (6), (7), (8), (9), (10), (11), and
(12) (as transferred by section 4321(h)(1)) as paragraphs (7), (8),
(9), (10), (11), (12), and (13), respectively;
(2) in paragraph (5)--
(A) in subparagraph (A), by striking out `Government-wide
career management programs for a professional
procurement work force' and inserting in lieu thereof `the
development of a professional acquisition workforce
Government-wide'; and
(B) in subparagraph (B)--
(i) by striking out `procurement by the' and inserting
in lieu thereof `acquisition by the';
(ii) by striking out `and' at the end of the
subparagraph; and
(iii) by striking out subparagraph (C) and inserting in
lieu thereof the following:
`(C) collect data and analyze acquisition workforce data
from the Office of Personnel Management, the heads of
executive agencies, and, through periodic surveys, from
individual employees;
`(D) periodically analyze acquisition career fields to identify
critical competencies, duties, tasks, and related academic
prerequisites, skills, and knowledge;
`(E) coordinate and assist agencies in identifying and
recruiting highly qualified candidates for acquisition fields;
`(F) develop instructional materials for acquisition personnel
in coordination with private and public acquisition colleges
and training facilities;
`(G) evaluate the effectiveness of training and career
development programs for acquisition personnel;
`(H) promote the establishment and utilization of academic
programs by colleges and universities in acquisition fields;
`(I) facilitate, to the extent requested by agencies,
interagency intern and training programs; and
`(J) perform other career management or research functions
as directed by the Administrator.'; and
(3) by inserting before paragraph (7) (as so redesignated) the
following new paragraph (6):
`(6) administering the provisions of section 37;'.
SEC. 4308. DEMONSTRATION PROJECT RELATING TO CERTAIN
PERSONNEL MANAGEMENT POLICIES AND PROCEDURES.
(a) COMMENCEMENT- The Secretary of Defense is encouraged to take
such steps as may be necessary to provide for the commencement of a
demonstration project, the purpose of which would be to determine the
feasibility or desirability of one or more proposals for improving the
personnel management policies or procedures that apply with respect to the
acquisition workforce of the Department of Defense.
(b) TERMS AND CONDITIONS-
(1) IN GENERAL- Except as otherwise provided in this
subsection, any demonstration project described in subsection (a)
shall be subject to section 4703 of title 5, United States Code, and
all other provisions of such title that apply with respect to any
demonstration project under such section.
(2) EXCEPTIONS- Subject to paragraph (3), in applying section
4703 of title 5, United States Code, with respect to a demonstration
project described in subsection (a)--
(A) `180 days' in subsection (b)(4) of such section shall be
deemed to read `120 days';
(B) `90 days' in subsection (b)(6) of such section shall be
deemed to read `30 days'; and
(C) subsection (d)(1)(A) of such section shall be
disregarded.
(3) CONDITION- Paragraph (2) shall not apply with respect to a
demonstration project unless it--
(A) involves only the acquisition workforce of the
Department of Defense (or any part thereof); and
(B) commences during the 3-year period beginning on the
date of the enactment of this Act.
(c) DEFINITION- For purposes of this section, the term `acquisition
workforce' refers to the persons serving in acquisition positions within the
Department of Defense, as designated pursuant to section 1721(a) of title
10, United States Code.
SEC. 4309. COOPERATIVE PURCHASING.
(a) DELAY IN OPENING CERTAIN FEDERAL SUPPLY
SCHEDULES TO USE BY STATE, LOCAL, AND INDIAN TRIBAL
GOVERNMENTS- The Administrator of General Services may not use
the authority of section 201(b)(2) of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 481(b)(2)) to provide for
the use of Federal supply schedules of the General Services
Administration until after the later of--
(1) the date on which the 18-month period beginning on the date of
the enactment of this Act expires; or
(2) the date on which all of the following conditions are met:
(A) The Administrator has considered the report of the
Comptroller General required by subsection (b).
(B) The Administrator has submitted comments on such
report to Congress as required by subsection (c).
(C) A period of 30 days after the date of submission of such
comments to Congress has expired.
(b) REPORT- Not later than one year after the date of the enactment of this
Act, the Comptroller General shall submit to the Administrator of General
Services and to Congress a report on the implementation of section 201(b)
of the Federal Property and Administrative Services Act of 1949. The
report shall include the following:
(1) An assessment of the effect on industry, including small
businesses and local dealers, of providing for the use of Federal
supply schedules by the entities described in section 201(b)(2)(A)
of the Federal Property and Administrative Services Act of 1949.
(2) An assessment of the effect on such entities of providing for the
use of Federal supply schedules by them.
(c) COMMENTS ON REPORT BY ADMINISTRATOR- Not later than
30 days after receiving the report of the Comptroller General required by
subsection (b), the Administrator of General Services shall submit to
Congress comments on the report, including the Administrator's
comments on whether the Administrator plans to provide any Federal
supply schedule for the use of any entity described in section 201(b)(2)(A)
of the Federal Property and Administrative Services Act of 1949.
(d) CALCULATION OF 30-DAY PERIOD- For purposes of subsection
(a)(2)(C), the calculation of the 30-day period shall exclude Saturdays,
Sundays, and holidays, and any day on which neither House of Congress
is in session because of an adjournment sine die, a recess of more than 3
days, or an adjournment of more than 3 days.
SEC. 4310. PROCUREMENT NOTICE TECHNICAL
AMENDMENT.
Section 18(c)(1)(E) of the Office of Federal Procurement Policy Act (41
U.S.C. 416(c)(1)(E)) is amended by inserting after `requirements contract'
the following: `, a task order contract, or a delivery order contract'.
SEC. 4311. MICRO-PURCHASES WITHOUT
COMPETITIVE QUOTATIONS.
Section 32(c) of the Office of Federal Procurement Policy Act (41 U.S.C.
428), as redesignated by section 4304(c)(3), is amended by striking out
`the contracting officer' and inserting in lieu thereof `an employee of an
executive agency or a member of the Armed Forces of the United States
authorized to do so'.
Subtitle B--Technical Amendments
SEC. 4321. AMENDMENTS RELATED TO FEDERAL ACQUISITION
STREAMLINING ACT OF 1994.
(a) PUBLIC LAW 103-355- Effective as of October 13, 1994, and as if
included therein as enacted, the Federal Acquisition Streamlining Act of
1994 (Public Law 103-355; 108 Stat. 3243 et seq.) is amended as follows:
(1) Section 1073 (108 Stat. 3271) is amended by striking out
`section 303I' and inserting in lieu thereof `section 303K'.
(2) Section 1202(a) (108 Stat. 3274) is amended by striking out the
closing quotation marks and second period at the end of paragraph
(2)(B) of the subsection inserted by the amendment made by that
section.
(3) Section 1251(b) (108 Stat. 3284) is amended by striking out
`Office of Federal Procurement Policy Act' and inserting in lieu
thereof `Federal Property and Administrative Services Act of 1949'.
(4) Section 2051(e) (108 Stat. 3304) is amended by striking out the
closing quotation marks and second period at the end of subsection
(f)(3) in the matter inserted by the amendment made by that
section.
(5) Section 2101(a)(6)(B)(ii) (108 Stat. 3308) is amended by
replacing `regulation' with `regulations' in the first quoted matter.
(6) Section 2351(a) (108 Stat. 3322) is amended by inserting `(1)'
before `Section 6'.
(7) The heading of section 2352(b) (108 Stat. 3322) is amended by
striking out `PROCEDURES TO SMALL BUSINESS
GOVERNMENT CONTRACTORS- ' and inserting in lieu thereof
`PROCEDURES- '.
(8) Section 3022 (108 Stat. 3333) is amended by striking out `each
place' and all that follows through the end of the section and
inserting in lieu thereof `in paragraph (1) and `, rent,' after `sell' in
paragraph (2).'.
(9) Section 5092(b) (108 Stat. 3362) is amended by inserting `of
paragraph (2)' after `second sentence'.
(10) Section 6005(a) (108 Stat. 3364) is amended by striking out
the closing quotation marks and second period at the end of
subsection (e)(2) of the matter inserted by the amendment made by
that section.
(11) Section 10005(f)(4) (108 Stat. 3409) is amended in the second
matter in quotation marks by striking out `SEC. 5. This Act' and
inserting in lieu thereof `SEC. 7. This title'.
(b) TITLE 10, UNITED STATES CODE- Title 10, United States Code,
is amended as follows:
(1) Section 2220(b) is amended by striking out `the date of the
enactment of the Federal Acquisition Streamlining Act of 1994' and
inserting in lieu thereof `October 13, 1994'.
(2)(A) The section 2247 added by section 7202(a)(1) of Public Law
103-355 (108 Stat. 3379) is redesignated as section 2249.
(B) The item relating to that section in the table of sections at the
beginning of subchapter I of chapter 134 is revised to conform to
the redesignation made by subparagraph (A).
(3) Section 2302(3)(K) is amended by adding a period at the end.
(4) Section 2304(f)(2)(D) is amended by striking out `the Act of
June 25, 1938 (41 U.S.C. 46 et seq.), popularly referred to as the
Wagner-O'Day Act,' and inserting in lieu thereof `the
Javits-Wagner-O'Day Act (41 U.S.C. 46 et seq.),'.
(5) Section 2304(h) is amended by striking out paragraph (1) and
inserting in lieu thereof the following:
`(1) The Walsh-Healey Act (41 U.S.C. 35 et seq.).'.
(6)(A) The section 2304a added by section 848(a)(1) of Public Law
103-160 (107 Stat. 1724) is redesignated as section 2304e.
(B) The item relating to that section in the table of sections at the
beginning of chapter 137 is revised to conform to the redesignation
made by subparagraph (A).
(7) Section 2306a is amended--
(A) in subsection (d)(2)(A)(ii), by inserting `to' after `The
information referred';
(B) in subsection (e)(4)(B)(ii), by striking out the second
comma after `parties'; and
(C) in subsection (i)(3), by inserting `(41 U.S.C. 403(12))'
before the period at the end.
(8) Section 2323 is amended--
(A) in subsection (a)(1)(C), by inserting a closing
parenthesis after `1135d-5(3))' and after `1059c(b)(1))';
(B) in subsection (a)(3), by striking out `(issued under' and
all that follows through `421(c))';
(C) in subsection (b), by inserting `(1)' after `AMOUNT- ';
and
(D) in subsection (i)(3), by adding at the end a subparagraph
(D) identical to the subparagraph (D) set forth in the
amendment made by section 811(e) of Public Law 103-160
(107 Stat. 1702).
(9) Section 2324 is amended--
(A) in subsection (e)(2)(C)--
(i) by striking out `awarding the contract' at the end
of the first sentence; and
(ii) by striking out `title III' and all that follows
through `Act)' and inserting in lieu thereof `the Buy
American Act (41 U.S.C. 10b-1)'; and
(B) in subsection (h)(2), by inserting `the head of the agency
or' after `in the case of any contract if'.
(10) Section 2350b is amended--
(A) in subsection (c)(1)--
(i) by striking out `specifically--' and inserting in lieu
thereof `specifically prescribes--'; and
(ii) by striking out `prescribe' in each of
subparagraphs (A), (B), (C), and (D); and
(B) in subsection (d)(1), by striking out `subcontract to be'
and inserting in lieu thereof `subcontract be'.
(11) Section 2372(i)(1) is amended by striking out `section
2324(m)' and inserting in lieu thereof `section 2324(l)'.
(12) Section 2384(b) is amended--
(A) in paragraph (2)--
(i) by stri