IB 

Union Calendar No. 140

108TH CONGRESS 

1ST SESSION H. R. 1837

[Report No. 108–117, Parts I and II] 

To improve the Federal acquisition workforce and the process for the 

acquisition of services by the Federal Government, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 29, 2003

Mr. TOM DAVIS of Virginia (for himself and Mr. HUNTER) introduced the following bill; which was referred to the Committee on Government Reform, 

and in addition to the Committee on Armed Services, for a period to be 

subsequently determined by the Speaker, in each case for consideration 

of such provisions as fall within the jurisdiction of the committee concerned 

MAY 19, 2003

Reported from the Committee on Government Reform with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

MAY 19, 2003

Referred to the Committee on the Judiciary for a period ending not later than 

May 20, 2003 for consideration of such provisions of the bill and amendment as fall within the jurisdiction of that committee pursuant to clause 

1(k), rule X 

MAY 19, 2003

Referral to the Committee on Armed Services extended for a period ending 

not later than May 20, 2003

MAY 20, 2003

Referral to the Committee on Armed Services and the Judiciary extended for 

a period ending not later than July 25, 2003

JULY 25, 2003

The Committee on Armed Services discharged 
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JULY 25, 2003

Referral to the Committee on the Judiciary extended for a period ending not 

later than September 3, 2003

SEPTEMBER 3, 2003

Reported from the Committee on the Judiciary with an amendment; committed to the Committee of the Whole House on the State of the Union 

and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on April 29, 2003] 

A BILL

To improve the Federal acquisition workforce and the process 

for the acquisition of services by the Federal Government, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Services Acquisition Reform Act of 2003’’. 

6 (b) TABLE OF CONTENTS.—The table of contents for 

7 this Act is as follows:

Sec. 1. Short title; table of contents. 

Sec. 2. Executive agency defined. 

TITLE I—ACQUISITION WORKFORCE AND TRAINING 

Sec. 101. Definition of acquisition. 

Sec. 102. Acquisition workforce training fund. 

Sec. 103. Government-industry exchange program. 

Sec. 104. Acquisition workforce recruitment program. 

Sec. 105. Architectural and engineering acquisition workforce. 
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TITLE II—ADAPTATION OF BUSINESS ACQUISITION 

PRACTICES 

Subtitle A—Adaptation of Business Management Practices 

Sec. 201. Chief Acquisition Officers. 

Sec. 202. Chief Acquisition Officers Council. 

Sec. 203. Statutory and regulatory review. 

Subtitle B—Other Acquisition Improvements 

Sec. 211. Extension of authority to carry out franchise fund programs. 

Sec. 212. Agency acquisition protests. 

Sec. 213. Improvements in contracting for architectural and engineering services. 

Sec. 214. Authorization of telecommuting for Federal contractors. 

Sec. 215. Procedural requirements for civilian agencies relating to products of 

Federal Prison Industries. 

TITLE III—CONTRACT INCENTIVES 

Sec. 301. Share-in-savings initiatives. 

Sec. 302. Incentives for contract efficiency. 

TITLE IV—ACQUISITIONS OF COMMERCIAL ITEMS 

Sec. 401. Preference for performance-based contracting. 

Sec. 402. Authorization of additional commercial contract types. 

Sec. 403. Clarification of commercial services definition. 

Sec. 404. Designation of commercial business entities. 

TITLE V—OTHER MATTERS 

Sec. 501. Authority to enter into certain procurement-related transactions and to 

carry out certain prototype projects. 

Sec. 502. Amendments relating to Federal emergency procurement flexibility. 

Sec. 503. Authority to make inflation adjustments to simplified acquisition 

threshold. 

Sec. 504. Technical corrections related to duplicative amendments. 

Sec. 505. Exemption from limitations on procurement of foreign information 

technology that is a commercial item. 

Sec. 506. Prohibition on use of quotas. 

Sec. 507. Public disclosure of noncompetitive contracting for the reconstruction of 

infrastructure in Iraq. 

Sec. 508. Applicability of certain provisions to sole source contracts for goods and 

services treated as commercial items.

1 SEC. 2. EXECUTIVE AGENCY DEFINED. 

2 In this Act, the term ‘‘executive agency’’ has the mean3 ing given that term in section 4(1) of the Office of Federal 

4 Procurement Policy Act (41 U.S.C. 403(1)), unless specifi5 cally stated otherwise. 
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1 TITLE I—ACQUISITION 

2 WORKFORCE AND TRAINING 

3 SEC. 101. DEFINITION OF ACQUISITION. 

4 Section 4 of the Office of Federal Procurement Policy 

5 Act (41 U.S.C. 403) is amended by adding at the end the 

6 following: 

7 ‘‘(16) The term ‘acquisition’—

8 ‘‘(A) means the process of acquiring, with 

9 appropriated funds, by contract for purchase or 

10 lease, property or services (including construc11 tion) that support the missions and goals of an 

12 executive agency, from the point at which the re13 quirements of the executive agency are estab14 lished in consultation with the chief acquisition 

15 officer of the executive agency; and 

16 ‘‘(B) includes—

17 ‘‘(i) the process of acquiring property 

18 or services that are already in existence, or 

19 that must be created, developed, dem20 onstrated, and evaluated; 

21 ‘‘(ii) the description of requirements to 

22 satisfy agency needs; 

23 ‘‘(iii) solicitation and selection of 

24 sources; 

25 ‘‘(iv) award of contracts;
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1 ‘‘(v) contract performance; 

2 ‘‘(vi) contract financing: 

3 ‘‘(vii) management and measurement 

4 of contract performance through final deliv5 ery and payment; and 

6 ‘‘(viii) technical and management 

7 functions directly related to the process of 

8 fulfilling agency requirements by contract.’’. 

9 SEC. 102. ACQUISITION WORKFORCE TRAINING FUND. 

10 (a) PURPOSES.—The purposes of this section are to en11 sure that the Federal acquisition workforce—

12 (1) adapts to fundamental changes in the nature 

13 of Federal Government acquisition of property and 

14 services associated with the changing roles of the Fed15 eral Government; and 

16 (2) acquires new skills and a new perspective to 

17 enable it to contribute effectively in the changing en18 vironment of the 21st century. 

19 (b) ESTABLISHMENT OF FUND.—Section 37 of the Of20 fice of Federal Procurement Policy Act (41 U.S.C. 433) is 

21 amended by adding at the end of subsection (h) the fol22 lowing new paragraph: 

23 ‘‘(3) ACQUISITION WORKFORCE TRAINING

24 FUND.—(A) The Administrator of General Services 

25 shall establish an acquisition workforce training fund. 
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1 The Administrator shall manage the fund through the 

2 Federal Acquisition Institute to support the training 

3 of the acquisition workforce of the executive agencies 

4 other than the Department of Defense. The Adminis5 trator shall consult with the Administrator for Fed6 eral Procurement Policy in managing the fund. 

7 ‘‘(B) There shall be credited to the acquisition 

8 workforce training fund 5 percent of the fees collected 

9 by executive agencies under the following contracts: 

10 ‘‘(i) Governmentwide task and delivery11 order contracts entered into under sections 2304a 

12 and 2304b of title 10, United States Code, or sec13 tions 303H and 303I of the Federal Property 

14 and Administrative Services Act of 1949 (41 

15 U.S.C. 253h and 253i). 

16 ‘‘(ii) Governmentwide contracts for the ac17 quisition of information technology as defined in 

18 section 11101 of title 40, United States Code, 

19 and multiagency acquisition contracts for such 

20 technology authorized by section 11314 of such 

21 title. 

22 ‘‘(iii) Multiple-award schedule contracts en23 tered into by the Administrator of General Serv24 ices. 
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1 ‘‘(C) The head of an executive agency that ad2 ministers a contract described in subparagraph (B) 

3 shall remit to the General Services Administration 

4 the amount required to be credited to the fund with 

5 respect to such contract at the end of each quarter of 

6 the fiscal year. 

7 ‘‘(D) The Administrator of General Services, 

8 through the Office of Federal Acquisition Policy, shall 

9 ensure that funds collected for training under this sec10 tion are not used for any purpose other than the pur11 pose specified in subparagraph (A). 

12 ‘‘(E) Amounts credited to the fund shall be in 

13 addition to funds requested and appropriated for edu14 cation and training referred to in paragraph (1). 

15 ‘‘(F) Amounts credited to the fund shall remain 

16 available until expended.’’. 

17 SEC. 103. GOVERNMENT-INDUSTRY EXCHANGE PROGRAM. 

18 (a) IN GENERAL.—Subpart B of part III of title 5, 

19 United States Code, is amended by adding at the end the 

20 following: 

21 ‘‘CHAPTER 38—ACQUISITION 

22 PROFESSIONAL EXCHANGE PROGRAM

‘‘Sec. 

‘‘3801. Definitions. 

‘‘3802. General provisions. 

‘‘3803. Assignment of employees to private sector organizations. 

‘‘3804. Assignment of employees from private sector organizations. 

‘‘3805. Reporting requirement. 

‘‘3806. Regulations.
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1 ‘‘§ 3801. Definitions 

2 ‘‘For purposes of this chapter—

3 ‘‘(1) the term ‘agency’—

4 ‘‘(A) subject to subparagraph (B), means an 

5 executive agency; and 

6 ‘‘(B) does not include—

7 ‘‘(i) the General Accounting Office; 

8 ‘‘(ii) an Office of Inspector General of 

9 an establishment or a designated Federal 

10 entity established under the Inspector Gen11 eral Act of 1978; and 

12 ‘‘(iii) the Defense Contract Audit 

13 Agency referred to in section 2313(b) of title 

14 10; and 

15 ‘‘(2) the term ‘detail’ means—

16 ‘‘(A) the assignment or loan of an employee 

17 of an agency to a private sector organization 

18 without a change of position from the agency 

19 that employs the individual, or 

20 ‘‘(B) the assignment or loan of an employee 

21 of a private sector organization to an agency 

22 without a change of position from the private 

23 sector organization that employs the individual, 

24 whichever is appropriate in the context in which such 

25 term is used. 
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1 ‘‘§ 3802. General provisions 

2 ‘‘(a) ASSIGNMENT AUTHORITY.—On request from or 

3 with the agreement of a private sector organization, and 

4 with the consent of the employee concerned, the head of an 

5 agency may arrange for the assignment of an employee of 

6 the agency to a private sector organization or an employee 

7 of a private sector organization to the agency. An eligible 

8 employee is an individual who—

9 ‘‘(1) works in the field of Federal acquisition or 

10 acquisition management; 

11 ‘‘(2) is considered an exceptional performer by 

12 the individual’s current employer; and 

13 ‘‘(3) is expected to assume increased acquisition 

14 management responsibilities in the future. 

15 An employee of an agency shall be eligible to participate 

16 in this program only if the employee is employed at the 

17 GS–11 level or above (or equivalent) and is serving under 

18 a career or career-conditional appointment or an appoint19 ment of equivalent tenure in the excepted service. 

20 ‘‘(b) AGREEMENTS.—Each agency that exercises its 

21 authority under this chapter shall provide for a written 

22 agreement between the agency and the employee concerned 

23 regarding the terms and conditions of the employee’s assign24 ment. In the case of an employee of the agency, the agree25 ment shall—
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1 ‘‘(1) require the employee to serve in the civil 

2 service, upon completion of the assignment, for a pe3 riod equal to the length of the assignment; and 

4 ‘‘(2) provide that, in the event the employee fails 

5 to carry out the agreement (except for good and suffi6 cient reason, as determined by the head of the agency 

7 from which assigned) the employee shall be liable to 

8 the United States for payment of all expenses of the 

9 assignment. 

10 An amount under paragraph (2) shall be treated as a debt 

11 due the United States. 

12 ‘‘(c) TERMINATION.—Assignments may be terminated 

13 by the agency or private sector organization concerned for 

14 any reason at any time. 

15 ‘‘(d) DURATION.—Assignments under this chapter 

16 shall be for a period of between 6 months and 1 year, and 

17 may be extended in 3-month increments for a total of not 

18 more than 1 additional year, except that no assignment 

19 under this chapter may commence after the end of the 5-

20 year period beginning on the date of the enactment of this 

21 chapter. 

22 ‘‘(e) ASSISTANCE.—The Administrator for Federal 

23 Procurement Policy, by agreement with the Office of Per24 sonnel Management, may assist in the administration of 

25 this chapter, including by maintaining lists of potential 
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1 candidates for assignment under this chapter, establishing 

2 mentoring relationships for the benefit of individuals who 

3 are given assignments under this chapter, and publicizing 

4 the program. 

5 ‘‘(f) CONSIDERATIONS.—In exercising any authority 

6 under this chapter, an agency shall take into consider7 ation—

8 ‘‘(1) the need to ensure that small business con9 cerns are appropriately represented with respect to 

10 the assignments described in sections 3803 and 3804, 

11 respectively; and 

12 ‘‘(2) how assignments described in section 3803 

13 might best be used to help meet the needs of the agen14 cy for the training of employees in acquisition man15 agement. 

16 ‘‘§ 3803. Assignment of employees to private sector or17 ganizations 

18 ‘‘(a) IN GENERAL.—An employee of an agency as19 signed to a private sector organization under this chapter 

20 is deemed, during the period of the assignment, to be on 

21 detail to a regular work assignment in his agency. 

22 ‘‘(b) COORDINATION WITH CHAPTER 81.—Notwith23 standing any other provision of law, an employee of an 

24 agency assigned to a private sector organization under this 

25 chapter is entitled to retain coverage, rights, and benefits 
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1 under subchapter I of chapter 81, and employment during 

2 the assignment is deemed employment by the United States, 

3 except that, if the employee or the employee’s dependents 

4 receive from the private sector organization any payment 

5 under an insurance policy for which the premium is wholly 

6 paid by the private sector organization, or other benefit of 

7 any kind on account of the same injury or death, then, the 

8 amount of such payment or benefit shall be credited against 

9 any compensation otherwise payable under subchapter I of 

10 chapter 81. 

11 ‘‘(c) REIMBURSEMENTS.—The assignment of an em12 ployee to a private sector organization under this chapter 

13 may be made with or without reimbursement by the private 

14 sector organization for the travel and transportation ex15 penses to or from the place of assignment, subject to the 

16 same terms and conditions as apply with respect to an em17 ployee of a Federal agency or a State or local government 

18 under section 3375, and for the pay, or a part thereof, of 

19 the employee during assignment. Any reimbursements shall 

20 be credited to the appropriation of the agency used for pay21 ing the travel and transportation expenses or pay. 

22 ‘‘(d) TORT LIABILITY; SUPERVISION.—The Federal 

23 Tort Claims Act and any other Federal tort liability statute 

24 apply to an employee of an agency assigned to a private 

25 sector organization under this chapter. The supervision of 
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1 the duties of an employee of an agency so assigned to a 

2 private sector organization may be governed by an agree3 ment between the agency and the organization. 

4 ‘‘(e) SMALL BUSINESS CONCERNS.—

5 ‘‘(1) IN GENERAL.—The head of each agency 

6 shall take such actions as may be necessary to ensure 

7 that, of the assignments made under this chapter from 

8 such agency to private sector organizations in each 

9 year, at least 20 percent are to small business con10 cerns. 

11 ‘‘(2) DEFINITIONS.—For purposes of this sub12 section—

13 ‘‘(A) the term ‘small business concern’ 

14 means a business concern that satisfies the defi15 nitions and standards specified by the Adminis16 trator of the Small Business Administration 

17 under section 3(a)(2) of the Small Business Act 

18 (as from time to time amended by the Adminis19 trator); 

20 ‘‘(B) the term ‘year’ refers to the 12-month 

21 period beginning on the date of the enactment of 

22 this chapter, and each succeeding 12-month pe23 riod in which any assignments under this chap24 ter may be made; and 
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1 ‘‘(C) the assignments ‘made’ in a year are 

2 those commencing in such year. 

3 ‘‘(3) REPORTING REQUIREMENT.—An agency 

4 which fails to comply with paragraph (1) in a year 

5 shall, within 90 days after the end of such year, sub6 mit a report to the Committees on Government Re7 form and Small Business of the House of Representa8 tives and the Committees on Governmental Affairs 

9 and Small Business of the Senate. The report shall 

10 include—

11 ‘‘(A) the total number of assignments made 

12 under this chapter from such agency to private 

13 sector organizations in the year; 

14 ‘‘(B) of that total number, the number (and 

15 percentage) made to small business concerns; and 

16 ‘‘(C) the reasons for the agency’s noncompli17 ance with paragraph (1). 

18 ‘‘(4) EXCLUSION.—This subsection shall not 

19 apply to an agency in any year in which it makes 

20 fewer than 5 assignments under this chapter to pri21 vate sector organizations. 

22 ‘‘§ 3804. Assignment of employees from private sector 

23 organizations 

24 ‘‘(a) IN GENERAL.—An employee of a private sector 

25 organization assigned to an agency under this chapter is
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1 deemed, during the period of the assignment, to be on detail 

2 to such agency. 

3 ‘‘(b) TERMS AND CONDITIONS.—An employee of a pri4 vate sector organization assigned to an agency under this 

5 chapter—

6 ‘‘(1) may continue to receive pay and benefits 

7 from the private sector organization from which he is 

8 assigned; 

9 ‘‘(2) is deemed, notwithstanding subsection (a), 

10 to be an employee of the agency for the purposes of—

11 ‘‘(A) chapter 73; 

12 ‘‘(B) sections 201, 203, 205, 207, 208, 209, 

13 603, 606, 607, 643, 654, 1905, and 1913 of title 

14 18; 

15 ‘‘(C) sections 1343, 1344, and 1349(b) of 

16 title 31; 

17 ‘‘(D) the Federal Tort Claims Act and any 

18 other Federal tort liability statute; 

19 ‘‘(E) the Ethics in Government Act of 1978; 

20 ‘‘(F) section 1043 of the Internal Revenue 

21 Code of 1986; and 

22 ‘‘(G) section 27 of the Office of Federal Pro23 curement Policy Act; 

24 ‘‘(3) may not have access to any trade secrets or 

25 to any other nonpublic information which is of com-
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1 mercial value to the private sector organization from 

2 which he is assigned; and 

3 ‘‘(4) is subject to such regulations as the Presi4 dent may prescribe. 

5 The supervision of an employee of a private sector organiza6 tion assigned to an agency under this chapter may be gov7 erned by agreement between the agency and the private sec8 tor organization concerned. Such an assignment may be 

9 made with or without reimbursement by the agency for the 

10 pay, or a part thereof, of the employee during the period 

11 of assignment, or for any contribution of the private sector 

12 organization to employee benefit systems. 

13 ‘‘(c) COORDINATION WITH CHAPTER 81.—An em14 ployee of a private sector organization assigned to an agen15 cy under this chapter who suffers disability or dies as a 

16 result of personal injury sustained while performing duties 

17 during the assignment shall be treated, for the purpose of 

18 subchapter I of chapter 81, as an employee as defined by 

19 section 8101 who had sustained the injury in the perform20 ance of duty, except that, if the employee or the employee’s 

21 dependents receive from the private sector organization any 

22 payment under an insurance policy for which the premium 

23 is wholly paid by the private sector organization, or other 

24 benefit of any kind on account of the same injury or death, 

25 then, the amount of such payment or benefit shall be cred-
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1 ited against any compensation otherwise payable under 

2 subchapter I of chapter 81. 

3 ‘‘(d) PROHIBITION AGAINST CHARGING CERTAIN

4 COSTS TO THE FEDERAL GOVERNMENT.—A private sector 

5 organization may not charge the Federal Government, as 

6 direct or indirect costs under a Federal contract, the costs 

7 of pay or benefits paid by the organization to an employee 

8 assigned to an agency under this chapter for the period of 

9 the assignment. 

10 ‘‘§ 3805. Reporting requirement 

11 ‘‘(a) IN GENERAL.—The Office of Personnel Manage12 ment shall, not later than April 30 and October 31 of each 

13 year, prepare and submit to the Committee on Government 

14 Reform of the House of Representatives and the Committee 

15 on Governmental Affairs of the Senate a semiannual report 

16 summarizing the operation of this chapter during the im17 mediately preceding 6-month period ending on March 31 

18 and September 30, respectively. 

19 ‘‘(b) CONTENT.—Each report shall include, with re20 spect to the 6-month period to which such report relates—

21 ‘‘(1) the total number of individuals assigned to, 

22 and the total number of individuals assigned from, 

23 each agency during such period; 

24 ‘‘(2) a brief description of each assignment in25 cluded under paragraph (1), including—
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1 ‘‘(A) the name of the assigned individual, as 

2 well as the private sector organization and the 

3 agency (including the specific bureau or other 

4 agency component) to or from which such indi5 vidual was assigned; 

6 ‘‘(B) the respective positions to and from 

7 which the individual was assigned, including the 

8 duties and responsibilities and the pay grade or 

9 level associated with each; and 

10 ‘‘(C) the duration and objectives of the indi11 vidual’s assignment; and 

12 ‘‘(3) such other information as the Office con13 siders appropriate. 

14 ‘‘(c) PUBLICATION.—A copy of each report submitted 

15 under subsection (a)—

16 ‘‘(1) shall be published in the Federal Register; 

17 and 

18 ‘‘(2) shall be made publicly available on the 

19 Internet. 

20 ‘‘(d) AGENCY COOPERATION.—On request of the Office, 

21 agencies shall furnish such information and reports as the 

22 Office may require in order to carry out this section. 
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1 ‘‘§ 3806. Regulations 

2 ‘‘The Director of the Office of Personnel Management 

3 shall prescribe regulations for the administration of this 

4 chapter.’’. 

5 (b) REPORT.—Not later than 4 years after the date 

6 of the enactment of this Act, the General Accounting Office 

7 shall prepare and submit to the Committee on Government 

8 Reform of the House of Representatives and the Committee 

9 on Governmental Affairs of the Senate a report on the oper10 ation of chapter 38 of title 5, United States Code (as added 

11 by this section). Such report shall include—

12 (1) an evaluation of the effectiveness of the pro13 gram established by such chapter; and 

14 (2) a recommendation as to whether such pro15 gram should be continued (with or without modifica16 tion) or allowed to lapse. 

17 (c) CLERICAL AMENDMENT.—The table of chapters at 

18 the beginning of part III of title 5, United States Code, 

19 is amended by inserting after the item relating to chapter 

20 37 the following:

‘‘38. Acquisition Professional Exchange Program ........................................ 3801’’.

21 (d) COORDINATION WITH ACQUISITION WORKFORCE

22 PROVISIONS OF OFFICE OF FEDERAL PROCUREMENT POL23 ICY ACT.—Section 37 of the Office of Federal Procurement 

24 Policy Act (41 U.S.C. 433) is amended by adding at the 

25 end the following new subsection:
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1 ‘‘(i) AUTHORITY TO DETAIL EMPLOYEES TO NON2 FEDERAL EMPLOYERS.—(1) In carrying out the provisions 

3 of this section, the Administrator, by agreement with the 

4 Director of the Office of Personnel Management, may pro5 vide for a program under which a Federal employee may 

6 be detailed to a non-Federal employer. The Administrator, 

7 by agreement with the Director of the Office of Personnel 

8 Management, shall prescribe regulations for such program, 

9 including the conditions for service and duties as the Ad10 ministrator considers necessary. 

11 ‘‘(2) An assignment described in section 3803 of title 

12 5, United States Code, may not be made unless a program 

13 under paragraph (1) is established, and the assignment is 

14 made in accordance with the requirements of such pro15 gram.’’. 

16 (e) ETHICS PROVISIONS.—

17 (1) ONE-YEAR RESTRICTION ON CERTAIN COMMU18 NICATIONS.—Section 207(c)(2)(A)(v) of title 18, 

19 United States Code, is amended by inserting ‘‘or 38’’ 

20 after ‘‘chapter 37’’. 

21 (2) DISCLOSURE OF CONFIDENTIAL INFORMA22 TION.—Section 1905 of title 18, United States Code, 

23 is amended by inserting ‘‘or 38’’ after ‘‘chapter 37’’. 

24 (3) CONTRACT ADVICE.—Section 207(l) of title 

25 18, United States Code, is amended—
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1 (A) in the subsection heading, by striking 

2 ‘‘DETAILS.—’’ and inserting ‘‘DETAILEES.—’’; 

3 and 

4 (B) by inserting ‘‘or 38’’ after ‘‘chapter 37’’. 

5 (4) RESTRICTION ON DISCLOSURE OF PROCURE6 MENT INFORMATION.—Section 27 of the Office of Fed7 eral Procurement Policy Act (41 U.S.C. 423) is 

8 amended in the last sentence of subsection (a)(1) by 

9 inserting ‘‘or 38’’ after ‘‘chapter 37’’. 

10 (f) TECHNICAL AND CONFORMING AMENDMENTS.—

11 (1) AMENDMENTS TO TITLE 5, UNITED STATES

12 CODE.—Title 5, United States Code, is amended—

13 (A) in section 3111(d), by inserting ‘‘or 38’’ 

14 after ‘‘chapter 37’’; 

15 (B) in section 7353(b)(4), by inserting ‘‘or 

16 38’’ after ‘‘chapter 37’’. 

17 (2) AMENDMENT TO TITLE 18, UNITED STATES

18 CODE.—Section 209(g) of title 18, United States 

19 Code, is amended—

20 (A) in paragraph (1), by inserting ‘‘or 38’’ 

21 after ‘‘chapter 37’’; and 

22 (B) by amending paragraph (2) to read as 

23 follows: 

24 ‘‘(2) For purposes of this subsection, the term ‘agen25 cy’—
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1 ‘‘(A) with respect to assignments under chapter 

2 37 of title 5, means an agency (as defined in section 

3 3701 of title 5) and the Office of the Chief Technology 

4 Officer of the District of Columbia; and 

5 ‘‘(B) with respect to assignments under chapter 

6 38 of title 5, means an agency (as defined by section 

7 3801 of title 5).’’. 

8 (3) ELIGIBILITY FOR THRIFT SAVINGS PLAN.—

9 Section 125(c)(1)(D) of Public Law 100–238 (101 

10 Stat. 1757; 5 U.S.C. 8432 note) is amended by insert11 ing ‘‘or 38’’ after ‘‘chapter 37’’. 

12 SEC. 104. ACQUISITION WORKFORCE RECRUITMENT PRO13 GRAM. 

14 (a) AUTHORITY TO CARRY OUT PROGRAM.—For pur15 poses of sections 3304, 5333, and 5753 of title 5, United 

16 States Code, the head of a department or agency of the 

17 United States (including the Secretary of Defense) may de18 termine that certain Federal acquisition positions are 

19 ‘‘shortage category’’ positions in order to recruit and ap20 point directly to positions of employment in the department 

21 or agency highly qualified persons, such as any person 

22 who—

23 (1) holds a bachelor’s degree from an accredited 

24 institution of higher education; 
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1 (2) holds, from an accredited law school or an 

2 accredited institution of higher education—

3 (A) a law degree; or 

4 (B) a masters or equivalent degree in busi5 ness administration, public administration, or 

6 systems engineering; or 

7 (3) has significant experience with commercial 

8 acquisition practices, terms, and conditions. 

9 (b) REQUIREMENTS.—The exercise of authority to take 

10 a personnel action under this section shall be subject to poli11 cies prescribed by the Office of Personnel Management that 

12 govern direct recruitment, including policies requiring ap13 pointment of a preference eligible who satisfies the quali14 fication requirements. 

15 (c) TERMINATION OF AUTHORITY.—The head of a de16 partment or agency may not appoint a person to a position 

17 of employment under this section after September 30, 2007. 

18 (d) REPORT.—Not later than March 31, 2007, the Ad19 ministrator for Federal Procurement Policy shall submit to 

20 Congress a report on the implementation of this section. The 

21 report shall include—

22 (1) the Administrator’s assessment of the efficacy 

23 of the exercise of the authority provided in this sec24 tion in attracting employees with unusually high 

25 qualifications to the acquisition workforce; and 
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1 (2) any recommendations considered appropriate 

2 by the Administrator on whether the authority to 

3 carry out the program should be extended. 

4 SEC. 105. ARCHITECTURAL AND ENGINEERING ACQUISI5 TION WORKFORCE. 

6 The Administrator for Federal Procurement Policy, in 

7 consultation with the Secretary of Defense, the Adminis8 trator of General Services, and the Director of the Office 

9 of Personnel Management, shall develop and implement a 

10 plan to ensure that the Federal Government maintains the 

11 necessary capability with respect to the acquisition of archi12 tectural and engineering services to—

13 (1) ensure that Federal Government employees 

14 have the expertise to determine agency requirements 

15 for such services; 

16 (2) establish priorities and programs (including 

17 acquisition plans); 

18 (3) establish professional standards; 

19 (4) develop scopes of work; and 

20 (5) award and administer contracts for such 

21 services.
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1 TITLE II—ADAPTATION OF BUSI2 NESS ACQUISITION PRAC3 TICES 

4 Subtitle A—Adaptation of Business 

5 Management Practices 

6 SEC. 201. CHIEF ACQUISITION OFFICERS. 

7 (a) APPOINTMENT OF CHIEF ACQUISITION OFFI8 CERS.—(1) Section 16 of the Office of Federal Procurement 

9 Policy Act (41 U.S.C. 414) is amended to read as follows:

10 ‘‘SEC. 16. CHIEF ACQUISITION OFFICERS. 

11 ‘‘(a) ESTABLISHMENT OF AGENCY CHIEF ACQUISITION

12 OFFICERS.—The head of each executive agency (other than 

13 the Department of Defense) shall appoint or designate a 

14 non-career employee as Chief Acquisition Officer for the 

15 agency, who shall—

16 ‘‘(1) have acquisition management as that offi17 cial’s primary duty; and 

18 ‘‘(2) advise and assist the head of the executive 

19 agency and other agency officials to ensure that the 

20 mission of the executive agency is achieved through 

21 the management of the agency’s acquisition activities. 

22 ‘‘(b) AUTHORITY AND FUNCTIONS OF AGENCY CHIEF

23 ACQUISITION OFFICERS.—The functions of each Chief Ac24 quisition Officer shall include—
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1 ‘‘(1) monitoring the performance of acquisition 

2 activities and acquisition programs of the executive 

3 agency, evaluating the performance of those programs 

4 on the basis of applicable performance measurements, 

5 and advising the head of the executive agency regard6 ing the appropriate business strategy to achieve the 

7 mission of the executive agency; 

8 ‘‘(2) increasing the use of full and open competi9 tion in the acquisition of property and services by the 

10 executive agency by establishing policies, procedures, 

11 and practices that ensure that the executive agency re12 ceives a sufficient number of sealed bids or competi13 tive proposals from responsible sources to fulfill the 

14 Government’s requirements (including performance 

15 and delivery schedules) at the best value considering 

16 the nature of the property or service procured; 

17 ‘‘(3) making acquisition decisions consistent 

18 with all applicable laws and establishing clear lines 

19 of authority, accountability, and responsibility for ac20 quisition decisionmaking within the executive agency; 

21 ‘‘(4) managing the direction of acquisition policy 

22 for the executive agency, including implementation of 

23 the unique acquisition policies, regulations, and 

24 standards of the executive agency; 
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1 ‘‘(5) developing and maintaining an acquisition 

2 career management program in the executive agency 

3 to ensure that there is an adequate professional work4 force; and 

5 ‘‘(6) as part of the strategic planning and per6 formance evaluation process required under section 

7 306 of title 5, United States Code, and sections 

8 1105(a)(28), 1115, 1116, and 9703 of title 31, United 

9 States Code—

10 ‘‘(A) assessing the requirements established 

11 for agency personnel regarding knowledge and 

12 skill in acquisition resources management and 

13 the adequacy of such requirements for facili14 tating the achievement of the performance goals 

15 established for acquisition management; 

16 ‘‘(B) in order to rectify any deficiency in 

17 meeting such requirements, developing strategies 

18 and specific plans for hiring, training, and pro19 fessional development; and 

20 ‘‘(C) reporting to the head of the executive 

21 agency on the progress made in improving ac22 quisition management capability.’’. 

23 (2) The item relating to section 16 in the table of con24 tents in section 1(b) of such Act is amended to read as fol25 lows:

‘‘Sec. 16. Chief Acquisition Officers.’’.
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1 (b) REFERENCES TO SENIOR PROCUREMENT EXECU2 TIVE.—

3 (1) AMENDMENT TO THE OFFICE OF FEDERAL

4 POLICY ACT.—

5 (A) Subsections (a)(2)(A) and (b) of section 

6 20 of the Office of Federal Procurement Policy 

7 Act (41 U.S.C. 418(a)(2)(A), (b)) are amended 

8 by striking ‘‘senior procurement executive’’ each 

9 place it appears and inserting ‘‘Chief Acquisi10 tion Officer’’. 

11 (B) Subsection (c)(2)(A)(ii) of section 29 of 

12 the Office of Federal Procurement Policy Act (41 

13 U.S.C. 425(c)(2)(A)(ii)) is amended by striking 

14 ‘‘senior procurement executive’’ and inserting 

15 ‘‘Chief Acquisition Officer’’. 

16 (C) Subsection (c) of section 37 of the Office 

17 of Federal Procurement Policy Act (41 U.S.C. 

18 433(c)) is amended—

19 (i) by striking ‘‘SENIOR PROCURE20 MENT EXECUTIVE’’ in the heading and in21 serting ‘‘CHIEF ACQUISITION OFFICER’’; 

22 and 

23 (ii) by striking ‘‘senior procurement 

24 executive’’ each place it appears and insert25 ing ‘‘Chief Acquisition Officer’’. 
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1 (2) AMENDMENT TO TITLE III OF THE FEDERAL

2 PROPERTY AND ADMINISTRATIVE SERVICES ACT OF

3 1949.—Sections 302C(b) and 303(f)(1)(B)(iii) of the 

4 Federal Property and Administrative Services Act of 

5 1949 (41 U.S.C. 252c, 253) are amended by striking 

6 ‘‘senior procurement executive’’ each place it appears 

7 and inserting ‘‘Chief Acquisition Officer’’. 

8 (3) AMENDMENT TO TITLE 10, UNITED STATES

9 CODE.—The following sections of title 10, United 

10 States Code are amended by striking ‘‘senior procure11 ment executive’’ each place it appears and inserting 

12 ‘‘Chief Acquisition Officer’’: 

13 (A) Section 133(c)(1). 

14 (B) Subsections (d)(2)(B) and (f)(1) of sec15 tion 2225. 

16 (C) Section 2302c(b). 

17 (D) Section 2304(f)(1)(B)(iii). 

18 (E) Section 2359a(i). 

19 (4) REFERENCES.—Any reference to a senior 

20 procurement executive of a department or agency of 

21 the United States in any other provision of law or 

22 regulation, document, or record of the United States 

23 shall be deemed to be a reference to the Chief Acquisi24 tion Officer of the department or agency.
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1 (c) TECHNICAL CORRECTION.—Section 1115(a) of title 

2 31, United States Code, is amended by striking ‘‘section 

3 1105(a)(29)’’ and inserting ‘‘section 1105(a)(28)’’. 

4 SEC. 202. CHIEF ACQUISITION OFFICERS COUNCIL. 

5 (a) ESTABLISHMENT OF COUNCIL.—The Office of Fed6 eral Procurement Policy Act (41 U.S.C. 403 et seq.) is 

7 amended by inserting after section 16 the following new sec8 tion: 

9 ‘‘SEC. 16A. CHIEF ACQUISITION OFFICERS COUNCIL. 

10 ‘‘(a) ESTABLISHMENT.—There is established in the ex11 ecutive branch a Chief Acquisition Officers Council. 

12 ‘‘(b) MEMBERSHIP.—The members of the Council shall 

13 be as follows: 

14 ‘‘(1) The Deputy Director for Management of the 

15 Office of Management and Budget, who shall act as 

16 Chairman of the Council. 

17 ‘‘(2) The Administrator for Federal Procurement 

18 Policy. 

19 ‘‘(3) The chief acquisition officer of each execu20 tive agency. 

21 ‘‘(4) The Under Secretary of Defense for Acquisi22 tion, Technology, and Logistics. 

23 ‘‘(5) Any other officer or employee of the United 

24 States designated by the Chairman. 
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1 ‘‘(c) LEADERSHIP; SUPPORT.—(1) The Administrator 

2 for Federal Procurement Policy shall lead the activities of 

3 the Council on behalf of the Deputy Director for Manage4 ment. 

5 ‘‘(2)(A) The Vice Chairman of the Council shall be se6 lected by the Council from among its members. 

7 ‘‘(B) The Vice Chairman shall serve a 1-year term, and 

8 may serve multiple terms. 

9 ‘‘(3) The Administrator of General Services shall pro10 vide administrative and other support for the Council. 

11 ‘‘(d) PRINCIPAL FORUM.—The Council is designated 

12 the principal interagency forum for monitoring and im13 proving the Federal acquisition system. 

14 ‘‘(e) FUNCTIONS.—The Council shall perform functions 

15 that include the following: 

16 ‘‘(1) Develop recommendations for the Director of 

17 the Office of Management and Budget on Federal ac18 quisition policies and requirements. 

19 ‘‘(2) Share experiences, ideas, best practices, and 

20 innovative approaches related to Federal acquisition. 

21 ‘‘(3) Assist the Administrator in the identifica22 tion, development, and coordination of multiagency 

23 projects and other innovative initiatives to improve 

24 Federal acquisition. 
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1 ‘‘(4) Promote effective business practices that en2 sure the timely delivery of best value products to the 

3 Federal Government and achieve appropriate public 

4 policy objectives. 

5 ‘‘(5) Further integrity, fairness, competition, 

6 openness, and efficiency in the Federal acquisition 

7 system. 

8 ‘‘(6) Work with the Office of Personnel Manage9 ment to assess and address the hiring, training, and 

10 professional development needs of the Federal Govern11 ment related to acquisition. 

12 ‘‘(7) Work with the Administrator and the Fed13 eral Acquisition Regulatory Council to promote the 

14 business practices referred to in paragraph (4) and 

15 other results of the functions carried out under this 

16 subsection.’’. 

17 (b) CLERICAL AMENDMENT.—The table of contents in 

18 section 1(b) of such Act is amended by inserting after the 

19 item relating to section 16 the following new item:

‘‘Sec. 16A. Chief Acquisition Officers Council.’’.

20 SEC. 203. STATUTORY AND REGULATORY REVIEW. 

21 (a) ESTABLISHMENT.—Not later than 90 days after 

22 the date of the enactment of this Act, the Administrator for 

23 Federal Procurement Policy shall establish an advisory 

24 panel to review laws and regulations regarding the use of 

25 commercial practices, performance-based contracting, the 
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1 performance of acquisition functions across agency lines of 

2 responsibility, and the use of Governmentwide contracts. 

3 (b) MEMBERSHIP.—The panel shall be composed of at 

4 least nine individuals who are recognized experts in acqui5 sition law and Government acquisition policy. In making 

6 appointments to the panel, the Administrator shall—

7 (1) consult with the Secretary of Defense, the Ad8 ministrator of General Services, the Committees on 

9 Armed Services and Government Reform of the House 

10 of Representatives, and the Committees on Armed 

11 Services and Governmental Affairs of the Senate, and 

12 (2) ensure that the members of the panel reflect 

13 the diverse experiences in the public and private sec14 tors. 

15 (c) DUTIES.—The panel shall—

16 (1) review all Federal acquisition laws and regu17 lations with a view toward ensuring effective and ap18 propriate use of commercial practices and perform19 ance-based contracting; and 

20 (2) make any recommendations for the repeal or 

21 amendment of such laws or regulations that are con22 sidered necessary as a result of such review—

23 (A) to eliminate any provisions in such 

24 laws or regulations that are unnecessary for the 

25 effective, efficient, and fair award and adminis-
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1 tration of contracts for the acquisition by the 

2 Federal Government of goods and services; 

3 (B) to ensure the continuing financial and 

4 ethical integrity of acquisitions by the Federal 

5 Government; and 

6 (C) to protect the best interests of the Fed7 eral Government. 

8 (d) REPORT.—Not later than one year after the estab9 lishment of the panel, the panel shall submit to the Admin10 istrator and to the Committees on Armed Services and Gov11 ernment Reform of the House of Representatives and the 

12 Committees on Armed Services and Governmental Affairs 

13 of the Senate a report containing a detailed statement of 

14 the findings, conclusions, and recommendations of the 

15 panel. 

16 Subtitle B—Other Acquisition 

17 Improvements 

18 SEC. 211. EXTENSION OF AUTHORITY TO CARRY OUT FRAN19 CHISE FUND PROGRAMS. 

20 Section 403(f) of the Federal Financial Management 

21 Act of 1994 (Public Law 103–356; 31 U.S.C. 501 note) is 

22 amended by striking ‘‘October 1, 2003’’ and inserting ‘‘Oc23 tober 1, 2006’’.
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1 SEC. 212. AGENCY ACQUISITION PROTESTS. 

2 (a) DEFENSE CONTRACTS.—(1) Chapter 137 of title 

3 10, United States Code, is amended by inserting after sec4 tion 2305a the following new section:

5 ‘‘§ 2305b. Protests

6 ‘‘(a) IN GENERAL.—An interested party may protest 

7 an acquisition of supplies or services by an agency based 

8 on an alleged violation of an acquisition law or regulation, 

9 and a decision regarding such alleged violation shall be 

10 made by the agency in accordance with this section. 

11 ‘‘(b) RESTRICTION ON CONTRACT AWARD PENDING

12 DECISION.—(1) Except as provided in paragraph (2), a 

13 contract may not be awarded by an agency after a protest 

14 concerning the acquisition has been submitted under this 

15 section and while the protest is pending. 

16 ‘‘(2) The head of the acquisition activity responsible 

17 for the award of the contract may authorize the award of 

18 a contract, notwithstanding pending protest under this sec19 tion, upon making a written finding that urgent and com20 pelling circumstances do not allow for waiting for a deci21 sion on the protest. 

22 ‘‘(c) RESTRICTION ON CONTRACT PERFORMANCE

23 PENDING DECISION.—(1) Except as provided in paragraph 

24 (2), performance of a contract may not be authorized (and 

25 performance of the contract shall cease if performance has 

26 already begun) in any case in which a protest of the con-
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1 tract award is submitted under this section before the later 

2 of—

3 ‘‘(A) the date that is 10 days after the date of 

4 contract award; or 

5 ‘‘(B) the date that is five days after an agency 

6 debriefing date offered to an unsuccessful offeror for 

7 any debriefing that is requested and, when requested, 

8 is required, under section 2305(b)(5) of this title. 

9 ‘‘(2) The head of the acquisition activity responsible 

10 for the award of a contract may authorize performance of 

11 the contract notwithstanding a pending protest under this 

12 section upon making a written finding that urgent and 

13 compelling circumstances do not allow for waiting for a de14 cision on the protest. 

15 ‘‘(d) DEADLINE FOR DECISION.—The head of an agen16 cy shall issue a decision on a protest under this section not 

17 later than the date that is 20 working days after the date 

18 on which the protest is submitted to such head of an agency. 

19 ‘‘(e) CONSTRUCTION.—Nothing in this section shall af20 fect the right of an interested party to file a protest with 

21 the Comptroller General under subchapter V of chapter 35 

22 of title 31 or in the United States Court of Federal Claims. 

23 ‘‘(f) DEFINITIONS.—In this section, the terms ‘protest’ 

24 and ‘interested party’ have the meanings given such terms 

25 in section 3551 of title 31.’’.
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1 (2) The table of sections at the beginning of such chap2 ter is amended by inserting after the item relating to section 

3 2305a the following new item:

‘‘2305b. Protests.’’.

4 (b) OTHER AGENCIES.—Title III of the Federal Prop5 erty and Administrative Services Act of 1949 is amended 

6 by inserting after section 303M (41 U.S.C. 253m) the fol7 lowing new section: 

8 ‘‘SEC. 303N. PROTESTS.

9 ‘‘(a) IN GENERAL.—An interested party may protest 

10 an acquisition of supplies or services by an executive agency 

11 based on an alleged violation of an acquisition law or regu12 lation, and a decision regarding such alleged violation shall 

13 be made by the agency in accordance with this section. 

14 ‘‘(b) RESTRICTION ON CONTRACT AWARD PENDING

15 DECISION.—(1) Except as provided in paragraph (2), a 

16 contract may not be awarded by an agency after a protest 

17 concerning the acquisition has been submitted under this 

18 section and while the protest is pending. 

19 ‘‘(2) The head of the acquisition activity responsible 

20 for the award of a contract may authorize the award of 

21 the contract, notwithstanding a pending protest under this 

22 section, upon making a written finding that urgent and 

23 compelling circumstances do not allow for waiting for a de24 cision on the protest. 
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1 ‘‘(c) RESTRICTION ON CONTRACT PERFORMANCE

2 PENDING DECISION.—(1) Except as provided in paragraph 

3 (2), performance of a contract may not be authorized (and 

4 performance of the contract shall cease if performance has 

5 already begun) in any case in which a protest of the con6 tract award is submitted under this section before the later 

7 of—

8 ‘‘(A) the date that is 10 days after the date of 

9 contract award; or 

10 ‘‘(B) the date that is five days after an agency 

11 debriefing date offered to an unsuccessful offeror for 

12 any debriefing that is requested and, when requested, 

13 is required, under section 303B(e) of this title. 

14 ‘‘(2) The head of the acquisition activity responsible 

15 for the award of a contract may authorize performance of 

16 the contract notwithstanding a pending protest under this 

17 section upon making a written finding that urgent and 

18 compelling circumstances do not allow for waiting for a de19 cision on the protest. 

20 ‘‘(d) DEADLINE FOR DECISION.—The head of an execu21 tive agency shall issue a decision on a protest under this 

22 section not later than the date that is 20 working days after 

23 the date on which the protest is submitted to the executive 

24 agency. 
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1 ‘‘(e) CONSTRUCTION.—Nothing in this section shall af2 fect the right of an interested party to file a protest with 

3 the Comptroller General under subchapter V of chapter 35 

4 of title 31, United States Code, or in the United States 

5 Court of Federal Claims. 

6 ‘‘(f) DEFINITIONS.—In this section, the terms ‘protest’ 

7 and ‘interested party’ have the meanings given such terms 

8 in section 3551 of title 31, United States Code.’’.

9 (c) CONFORMING AMENDMENT.—Section 3553(d)(4) of 

10 title 31, United States Code, is amended—

11 (1) in subparagraph (A), by striking ‘‘or’’ at the 

12 end; 

13 (2) by striking the period at the end of subpara14 graph (B) and inserting ‘‘; or’’; and 

15 (3) by adding at the end the following new sub16 paragraph: 

17 ‘‘(C) in the case of a protest of the same matter 

18 regarding such contract that is submitted under sec19 tion 2305b of title 10 or section 303N of the Federal 

20 Property and Administrative Services Act of 1949, 

21 the date that is 5 days after the date on which a deci22 sion on that protest is issued.’’.
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1 SEC. 213. IMPROVEMENTS IN CONTRACTING FOR ARCHI2 TECTURAL AND ENGINEERING SERVICES. 

3 (a) CLARIFICATION OF DEFINITION OF SURVEYING

4 AND MAPPING.—(1) Section 1102 of title 40, United States 

5 Code, is amended by adding at the end the following new 

6 paragraph: 

7 ‘‘(4) SURVEYING AND MAPPING.—The term ‘sur8 veying and mapping’ means services performed by 

9 professionals such as surveyors, photogrammetrists, 

10 hydrographers, geodesists, or cartographers in the col11 lection, storage, retrieval, or dissemination of graph12 ical or digital data to depict natural or manmade 

13 physical features, phenomena, or boundaries of the 

14 earth and any information related to such data, in15 cluding any such data that comprises a survey, map, 

16 chart, geographic information system, remotely sensed 

17 image or data, or an aerial photograph.’’. 

18 (2) The Federal Acquisition Regulation shall be revised 

19 to include the definition added by subsection (a) of this sec20 tion. 

21 (b) TITLE 10.—Section 2855(b) of title 10, United 

22 States Code, is amended—

23 (1) in paragraph (2), by striking ‘‘$85,000’’ and 

24 inserting ‘‘$300,000’’; and 

25 (2) by adding at the end the following new para26 graph:
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1 ‘‘(4) The selection and competition requirements de2 scribed in subsection (a) shall apply to any contract for 

3 architectural and engineering services (including surveying 

4 and mapping services) that is entered into by the head of 

5 an agency (as such term is defined in section 2302 of this 

6 title).’’. 

7 (c) ARCHITECTURAL AND ENGINEERING SERVICES.—

8 Architectural and engineering services (as defined in section 

9 1102 of title 40, United States Code) shall not be offered 

10 under multiple-award schedule contracts entered into by the 

11 Administrator of General Services or under Government12 wide task and delivery-order contracts entered into under 

13 sections 2304a and 2304b of title 10, United States Code, 

14 or sections 303H and 303I of the Federal Property and Ad15 ministrative Services Act of 1949 (41 U.S.C. 253h and 

16 253i) unless such services—

17 (1) are performed under the direct supervision of 

18 a professional engineer licensed in a State; and 

19 (2) are awarded in accordance with the selection 

20 procedures set forth in chapter 11 of title 40, United 

21 States Code. 

22 SEC. 214. AUTHORIZATION OF TELECOMMUTING FOR FED23 ERAL CONTRACTORS. 

24 (a) AMENDMENT TO THE FEDERAL ACQUISITION REG25 ULATION.—Not later than 180 days after the date of the 
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1 enactment of this Act, the Federal Acquisition Regulatory 

2 Council shall amend the Federal Acquisition Regulation 

3 issued in accordance with sections 6 and 25 of the Office 

4 of Federal Procurement Policy Act (41 U.S.C. 405 and 421) 

5 to permit telecommuting by employees of Federal Govern6 ment contractors in the performance of contracts entered 

7 into with executive agencies. 

8 (b) CONTENT OF AMENDMENT.—The regulation issued 

9 pursuant to subsection (a) shall, at a minimum, provide 

10 that solicitations for the acquisition of property or services 

11 may not set forth any requirement or evaluation criteria 

12 that would—

13 (1) render an offeror ineligible to enter into a 

14 contract on the basis of the inclusion of a plan of the 

15 offeror to permit the offeror’s employees to telecom16 mute; or 

17 (2) reduce the scoring of an offer on the basis of 

18 the inclusion in the offer of a plan of the offeror to 

19 permit the offeror’s employees to telecommute, unless 

20 the contracting officer concerned first—

21 (A) determines that the requirements of the 

22 agency, including the security requirements of 

23 the agency, cannot be met if the telecommuting 

24 is permitted; and 
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1 (B) documents in writing the basis for that 

2 determination. 

3 (c) GAO REPORT.—Not later than one year after the 

4 date on which the regulation required by subsection (a) is 

5 published in the Federal Register, the Comptroller General 

6 shall submit to Congress—

7 (1) an evaluation of—

8 (A) the conformance of the regulations with 

9 law; and 

10 (B) the compliance by executive agencies 

11 with the regulations; and 

12 (2) any recommendations that the Comptroller 

13 General considers appropriate. 

14 (d) DEFINITION.—In this section, the term ‘‘executive 

15 agency’’ has the meaning given that term in section 4 of 

16 the Office of Federal Procurement Policy Act (41 U.S.C. 

17 403).

18 SEC. 215. PROCEDURAL REQUIREMENTS FOR CIVILIAN 

19 AGENCIES RELATING TO PRODUCTS OF FED20 ERAL PRISON INDUSTRIES. 

21 Title III of the Federal Property and Administrative 

22 Services Act of 1949 (41 U.S.C. 251 et seq.) is amended 

23 by adding at the end the following new section: 
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1 ‘‘SEC. 318. PRODUCTS OF FEDERAL PRISON INDUSTRIES: 

2 PROCEDURAL REQUIREMENTS. 

3 ‘‘(a) MARKET RESEARCH.—Before purchasing a prod4 uct listed in the latest edition of the Federal Prison Indus5 tries catalog under section 4124(d) of title 18, United States 

6 Code, the head of an executive agency shall conduct market 

7 research to determine whether the Federal Prison Industries 

8 product is comparable to products available from the pri9 vate sector that best meet the executive agency’s needs in 

10 terms of price, quality, and time of delivery. 

11 ‘‘(b) COMPETITION REQUIREMENT.—If the head of the 

12 executive agency determines that a Federal Prison Indus13 tries product is not comparable in price, quality, or time 

14 of delivery to products available from the private sector that 

15 best meet the executive agency’s needs in terms of price, 

16 quality, and time of delivery, the agency head shall use 

17 competitive procedures for the procurement of the product 

18 or shall make an individual purchase under a multiple 

19 award contract. In conducting such a competition or mak20 ing such a purchase, the agency head shall consider a timely 

21 offer from Federal Prison Industries. 

22 ‘‘(c) IMPLEMENTATION BY HEAD OF EXECUTIVE AGEN23 CY.—The head of an executive agency shall ensure that—

24 ‘‘(1) the executive agency does not purchase a 

25 Federal Prison Industries product or service unless a 

26 contracting officer of the agency determines that the 
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1 product or service is comparable to products or serv2 ices available from the private sector that best meet 

3 the agency’s needs in terms of price, quality, and time 

4 of delivery; and 

5 ‘‘(2) Federal Prison Industries performs its con6 tractual obligations to the same extent as any other 

7 contractor for the executive agency. 

8 ‘‘(d) MARKET RESEARCH DETERMINATION NOT SUB9 JECT TO REVIEW.—A determination by a contracting offi10 cer regarding whether a product or service offered by Fed11 eral Prison Industries is comparable to products or services 

12 available from the private sector that best meet an executive 

13 agency’s needs in terms of price, quality, and time of deliv14 ery shall not be subject to review pursuant to section 

15 4124(b) of title 18. 

16 ‘‘(e) PERFORMANCE AS A SUBCONTRACTOR.—(1) A 

17 contractor or potential contractor of an executive agency 

18 may not be required to use Federal Prison Industries as 

19 a subcontractor or supplier of products or provider of serv20 ices for the performance of a contract of the executive agency 

21 by any means, including means such as—

22 ‘‘(A) a contract solicitation provision requiring 

23 a contractor to offer to make use of products or serv24 ices of Federal Prison Industries in the performance 

25 of the contract; 
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1 ‘‘(B) a contract specification requiring the con2 tractor to use specific products or services (or classes 

3 of products or services) offered by Federal Prison In4 dustries in the performance of the contract; or 

5 ‘‘(C) any contract modification directing the use 

6 of products or services of Federal Prison Industries in 

7 the performance of the contract. 

8 ‘‘(2) In this subsection, the term ‘contractor’, with re9 spect to a contract, includes a subcontractor at any tier 

10 under the contract. 

11 ‘‘(f) PROTECTION OF CLASSIFIED AND SENSITIVE IN12 FORMATION.—The head of an executive agency may not 

13 enter into any contract with Federal Prison Industries 

14 under which an inmate worker would have access to—

15 ‘‘(1) any data that is classified; 

16 ‘‘(2) any geographic data regarding the location 

17 of—

18 ‘‘(A) surface and subsurface infrastructure 

19 providing communications or water or electrical 

20 power distribution; 

21 ‘‘(B) pipelines for the distribution of nat22 ural gas, bulk petroleum products, or other com23 modities; or 

24 ‘‘(C) other utilities; or 
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1 ‘‘(3) any personal or financial information 

2 about any individual private citizen, including infor3 mation relating to such person’s real property how4 ever described, without the prior consent of the indi5 vidual. 

6 ‘‘(g) DEFINITIONS.—In this section: 

7 ‘‘(1) The term ‘competitive procedures’ has the 

8 meaning given such term in section 4(5) of the Office 

9 of Federal Procurement Policy Act (41 U.S.C. 

10 403(5)). 

11 ‘‘(2) The term ‘market research’ means obtaining 

12 specific information about the price, quality, and 

13 time of delivery of products available in the private 

14 sector through a variety of means, which may in15 clude—

16 ‘‘(A) contacting knowledgeable individuals 

17 in government and industry; 

18 ‘‘(B) interactive communication among in19 dustry, acquisition personnel, and customers; 

20 and 

21 ‘‘(C) interchange meetings or pre-solicita22 tion conferences with potential offerors.’’. 
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1 TITLE III—CONTRACT 

2 INCENTIVES

3 SEC. 301. SHARE-IN-SAVINGS INITIATIVES. 

4 (a) DEFENSE CONTRACTS.—Section 2332 of title 10, 

5 United States Code, is amended to read as follows: 

6 ‘‘§ 2332. Share-in-savings contracts 

7 ‘‘(a) AUTHORITY TO ENTER INTO SHARE-IN-SAVINGS

8 CONTRACTS.—(1) The head of an agency may enter into 

9 a share-in-savings contract in which the Government 

10 awards a contract to improve mission-related or adminis11 trative processes or to accelerate the achievement of its mis12 sion and share with the contractor in savings achieved 

13 through contract performance. 

14 ‘‘(2)(A) Except as provided in subparagraph (B), a 

15 share-in-savings contract shall be awarded for a period of 

16 not more than five years. 

17 ‘‘(B) A share-in-savings contract may be awarded for 

18 a period greater than five years, but not more than 10 

19 years, if the head of the agency determines in writing prior 

20 to award of the contract that—

21 ‘‘(i) the level of risk to be assumed and the in22 vestment to be undertaken by the contractor is likely 

23 to inhibit the government from obtaining the needed 

24 performance competitively at a fair and reasonable 
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1 price if the contract is limited in duration to a pe2 riod of five years or less; and 

3 ‘‘(ii) the performance to be acquired is likely to 

4 continue for a period of time sufficient to generate 

5 reasonable benefit for the government. 

6 ‘‘(3) Contracts awarded pursuant to the authority of 

7 this section shall, to the maximum extent practicable, be 

8 performance-based contracts that identify objective out9 comes and contain performance standards that will be used 

10 to measure achievement and milestones that must be met 

11 before payment is made. 

12 ‘‘(4) Contracts awarded pursuant to the authority of 

13 this section shall include a provision containing a quantifi14 able baseline that is to be the basis upon which a savings 

15 share ratio is established that governs the amount of pay16 ment a contractor is to receive under the contract. Before 

17 commencement of performance of such a contract, the chief 

18 acquisition officer of the agency shall determine in writing 

19 that the terms of the provision are quantifiable and will 

20 likely yield value to the Government. 

21 ‘‘(5)(A) The head of the agency may retain savings re22 alized through the use of a share-in-savings contract under 

23 this section that are in excess of the total amount of savings 

24 paid to the contractor under the contract. Except as pro25 vided in subparagraph (B), savings shall be credited to the
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1 appropriation or fund against which charges were made to 

2 carry out the contract. 

3 ‘‘(B) Amounts retained by the agency under this sub4 section shall—

5 ‘‘(i) without further appropriation, remain 

6 available until expended; and 

7 ‘‘(ii) be applied first to fund any contingent li8 abilities associated with share-in-savings procure9 ments that are not fully funded. 

10 ‘‘(b) CANCELLATION AND TERMINATION.—(1) If funds 

11 are not made available for the continuation of a share-in12 savings contract entered into under this section in a subse13 quent fiscal year, the contract shall be canceled or termi14 nated. The costs of cancellation or termination may be paid 

15 out of—

16 ‘‘(A) appropriations available for the perform17 ance of the contract; 

18 ‘‘(B) appropriations available for acquisition of 

19 the type of property or services procured under the 

20 contract, and not otherwise obligated; or 

21 ‘‘(C) funds subsequently appropriated for pay22 ments of costs of cancellation or termination, subject 

23 to the limitations in paragraph (3). 

24 ‘‘(2) The amount payable in the event of cancellation 

25 or termination of a share-in-savings contract shall be nego-
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1 tiated with the contractor at the time the contract is entered 

2 into. 

3 ‘‘(3) The head of an agency may enter into share-in4 savings contracts under this section in any given fiscal year 

5 even if funds are not made specifically available for the full 

6 costs of cancellation or termination of the contract if funds 

7 are available and sufficient to make payments with respect 

8 to the first fiscal year of the contract and the following con9 ditions are met regarding the funding of cancellation and 

10 termination liability: 

11 ‘‘(A) The amount of unfunded contingent liabil12 ity for the contract does not exceed the lesser of—

13 ‘‘(i) 50 percent of the estimated costs of a 

14 cancellation or termination; or 

15 ‘‘(ii) $10,000,000. 

16 ‘‘(B) Unfunded contingent liability in excess of 

17 $5,000,000 has been approved by the Director of the 

18 Office of Management and Budget or the Director’s 

19 designee. 

20 ‘‘(c) DEFINITIONS.—In this section: 

21 ‘‘(1) The term ‘contractor’ means a private enti22 ty that enters into a contract with an agency. 

23 ‘‘(2) The term ‘savings’ means—

24 ‘‘(A) monetary savings to an agency; or 
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1 ‘‘(B) savings in time or other benefits real2 ized by the agency, including enhanced revenues. 

3 ‘‘(3) The term ‘share-in-savings contract’ means 

4 a contract under which—

5 ‘‘(A) a contractor provides solutions for—

6 ‘‘(i) improving the agency’s mission-re7 lated or administrative processes; or 

8 ‘‘(ii) accelerating the achievement of 

9 agency missions; and 

10 ‘‘(B) the head of the agency pays the con11 tractor an amount equal to a portion of the sav12 ings derived by the agency from—

13 ‘‘(i) any improvements in mission-re14 lated or administrative processes that result 

15 from implementation of the solution; or 

16 ‘‘(ii) acceleration of achievement of 

17 agency missions.’’. 

18 (b) OTHER CONTRACTS.—Section 317 of the Federal 

19 Property and Administrative Services Act of 1949 is 

20 amended to read as follows: 

21 ‘‘SEC. 317. SHARE-IN-SAVINGS CONTRACTS. 

22 ‘‘(a) AUTHORITY TO ENTER INTO SHARE-IN-SAVINGS

23 CONTRACTS.—(1) The head of an executive agency may 

24 enter into a share-in-savings contract in which the Govern25 ment awards a contract to improve mission-related or ad-
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1 ministrative processes or to accelerate the achievement of 

2 its mission and share with the contractor in savings 

3 achieved through contract performance. 

4 ‘‘(2)(A) Except as provided in subparagraph (B), a 

5 share-in-savings contract shall be awarded for a period of 

6 not more than five years. 

7 ‘‘(B) A share-in-savings contract may be awarded for 

8 a period greater than five years, but not more than 10 

9 years, if the head of the agency determines in writing prior 

10 to award of the contract that—

11 ‘‘(i) the level of risk to be assumed and the in12 vestment to be undertaken by the contractor is likely 

13 to inhibit the government from obtaining the needed 

14 performance competitively at a fair and reasonable 

15 price if the contract is limited in duration to a pe16 riod of five years or less; and 

17 ‘‘(ii) the performance to be acquired is likely to 

18 continue for a period of time sufficient to generate 

19 reasonable benefit for the government. 

20 ‘‘(3) Contracts awarded pursuant to the authority of 

21 this section shall, to the maximum extent practicable, be 

22 performance-based contracts that identify objective out23 comes and contain performance standards that will be used 

24 to measure achievement and milestones that must be met 

25 before payment is made.
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1 ‘‘(4) Contracts awarded pursuant to the authority of 

2 this section shall include a provision containing a quantifi3 able baseline that is to be the basis upon which a savings 

4 share ratio is established that governs the amount of pay5 ment a contractor is to receive under the contract. Before 

6 commencement of performance of such a contract, the chief 

7 acquisition officer of the agency shall determine in writing 

8 that the terms of the provision are quantifiable and will 

9 likely yield value to the Government. 

10 ‘‘(5)(A) The head of the agency may retain savings re11 alized through the use of a share-in-savings contract under 

12 this section that are in excess of the total amount of savings 

13 paid to the contractor under the contract. Except as pro14 vided in subparagraph (B), savings shall be credited to the

15 appropriation or fund against which charges were made to 

16 carry out the contract. 

17 ‘‘(B) Amounts retained by the agency under this sub18 section shall—

19 ‘‘(i) without further appropriation, remain 

20 available until expended; and 

21 ‘‘(ii) be applied first to fund any contingent li22 abilities associated with share-in-savings procure23 ments that are not fully funded. 

24 ‘‘(b) CANCELLATION AND TERMINATION.—(1) If funds 

25 are not made available for the continuation of a share-in-
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1 savings contract entered into under this section in a subse2 quent fiscal year, the contract shall be canceled or termi3 nated. The costs of cancellation or termination may be paid 

4 out of—

5 ‘‘(A) appropriations available for the perform6 ance of the contract; 

7 ‘‘(B) appropriations available for acquisition of 

8 the type of property or services procured under the 

9 contract, and not otherwise obligated; or 

10 ‘‘(C) funds subsequently appropriated for pay11 ments of costs of cancellation or termination, subject 

12 to the limitations in paragraph (3). 

13 ‘‘(2) The amount payable in the event of cancellation 

14 or termination of a share-in-savings contract shall be nego15 tiated with the contractor at the time the contract is entered 

16 into. 

17 ‘‘(3) The head of an executive agency may enter into 

18 share-in-savings contracts under this section in any given 

19 fiscal year even if funds are not made specifically available 

20 for the full costs of cancellation or termination of the con21 tract if funds are available and sufficient to make payments 

22 with respect to the first fiscal year of the contract and the 

23 following conditions are met regarding the funding of can24 cellation and termination liability: 
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1 ‘‘(A) The amount of unfunded contingent liabil2 ity for the contract does not exceed the lesser of—

3 ‘‘(i) 50 percent of the estimated costs of a 

4 cancellation or termination; or 

5 ‘‘(ii) $10,000,000. 

6 ‘‘(B) Unfunded contingent liability in excess of 

7 $5,000,000 has been approved by the Director of the 

8 Office of Management and Budget or the Director’s 

9 designee. 

10 ‘‘(c) DEFINITIONS.—In this section: 

11 ‘‘(1) The term ‘contractor’ means a private enti12 ty that enters into a contract with an agency. 

13 ‘‘(2) The term ‘savings’ means—

14 ‘‘(A) monetary savings to an agency; or 

15 ‘‘(B) savings in time or other benefits real16 ized by the agency, including enhanced revenues. 

17 ‘‘(3) The term ‘share-in-savings contract’ means 

18 a contract under which—

19 ‘‘(A) a contractor provides solutions for—

20 ‘‘(i) improving the agency’s mission-re21 lated or administrative processes; or 

22 ‘‘(ii) accelerating the achievement of 

23 agency missions; and 
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1 ‘‘(B) the head of the agency pays the con2 tractor an amount equal to a portion of the sav3 ings derived by the agency from—

4 ‘‘(i) any improvements in mission-re5 lated or administrative processes that result 

6 from implementation of the solution; or 

7 ‘‘(ii) acceleration of achievement of 

8 agency missions.’’.

9 (c) DEVELOPMENT OF INCENTIVES.—The Director of 

10 the Office of Management and Budget shall—

11 (1) identify potential opportunities for the use of 

12 share-in-savings contracts; 

13 (2) provide guidance to executive agencies for de14 termining mutually beneficial savings share ratios 

15 and baselines from which savings may be measured; 

16 and 

17 (3) in consultation with the Committee on Gov18 ernmental Affairs of the Senate, the Committee on 

19 Government Reform of the House of Representatives, 

20 and executive agencies, develop techniques to permit 

21 an executive agency to retain a portion of the savings 

22 (after payment of the contractor’s share of the sav23 ings) derived from share-in-savings contracts as funds 

24 are appropriated to the agency in future fiscal years. 
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1 (d) REGULATIONS.—Not later than 180 days after the 

2 date of the enactment of this Act, the Federal Acquisition 

3 Regulation shall be revised to implement the provisions en4 acted by this section. Such revisions shall—

5 (1) provide for the use of competitive procedures 

6 in the selection and award of share-in-savings con7 tracts to—

8 (A) ensure the contractor’s share of savings 

9 reflects the risk involved and market conditions; 

10 and 

11 (B) otherwise yield best value to the govern12 ment; and 

13 (2) allow appropriate regulatory flexibility to fa14 cilitate the use of share-in-savings contracts by execu15 tive agencies, including the use of innovative provi16 sions for technology refreshment and nonstandard 

17 Federal Acquisition Regulation contract clauses. 

18 (e) OMB REPORT TO CONGRESS.—In consultation 

19 with executive agencies, the Director of the Office of Man20 agement and Budget shall, not later than 2 years after the 

21 completion of the revisions to the Federal Acquisition Regu22 lation under subsection (d), submit to Congress a report 

23 containing—

24 (1) a description of the number of share-in-sav25 ings contracts entered into by each executive agency
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1 under by this section and the amendments made by 

2 this section, and, for each contract identified—

3 (A) the performance acquired; 

4 (B) the total amount of payments made to 

5 the contractor; and 

6 (C) the total amount of savings or other 

7 measurable benefits realized; 

8 (2) a description of the ability of agencies to de9 termine the baseline costs of a project against which 

10 savings can be measured; and 

11 (3) any recommendations, as the Director deems 

12 appropriate, regarding additional changes in law 

13 that may be necessary to ensure effective use of share14 in-savings contracts by executive agencies. 

15 (f) DEFINITIONS.—In this section, the terms ‘‘con16 tractor’’, ‘‘savings’’, and ‘‘share-in-savings contract’’ have 

17 the meanings given those terms in section 2332 of title 10, 

18 United States Code, and section 317 of the Federal Property 

19 and Administrative Services Act of 1949 (as amended by 

20 subsections (a) and (b)). 

21 (g) REPEAL OF SUPERSEDED PROVISIONS.—Sub22 sections (c), (d), (e), (f), (g), and (i) of section 210 of the 

23 E-Government Act of 2002 (Public Law 107–317; 116 Stat. 

24 2936) are repealed. 
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1 SEC. 302. INCENTIVES FOR CONTRACT EFFICIENCY. 

2 (a) INCENTIVES FOR CONTRACT EFFICIENCY.—The Of3 fice of Federal Procurement Policy Act (41 U.S.C. 403 et 

4 seq.) is amended by adding at the end the following new 

5 section: 

6 ‘‘SEC. 41. INCENTIVES FOR EFFICIENT PERFORMANCE OF 

7 SERVICES CONTRACTS. 

8 ‘‘(a) OPTIONS FOR SERVICES CONTRACTS.—An option 

9 included in a contract for services to extend the contract 

10 by one or more periods may provide that it be exercised 

11 on the basis of exceptional performance by the contractor. 

12 A contract that contains such an option provision shall in13 clude performance standards for measuring performance 

14 under the contract, and to the maximum extent practicable 

15 be performance-based. Such option provision shall only be 

16 exercised in accordance with applicable provisions of law 

17 or regulation that set forth restrictions on the duration of 

18 the contract containing the option. 

19 ‘‘(b) DEFINITION OF PERFORMANCE-BASED.—In this 

20 section, the term ‘performance-based’, with respect to a con21 tract, task order, or contracting, means that the contract, 

22 task order, or contracting, respectively, includes the use of 

23 performance work statements that set forth contract require24 ments in clear, specific, and objective terms with measur25 able outcomes.’’. 
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1 (b) CLERICAL AND TECHNICAL AMENDMENTS.—(1) 

2 The table of contents in section 1(b) of such Act is amended 

3 by striking the last item and inserting the following:

‘‘Sec. 40. Protection of constitutional rights of contractors. 

‘‘Sec. 41. Incentives for efficient performance of services contracts.’’.

4 (2) The section before section 41 of such Act (as added 

5 by subsection (a)) is redesignated as section 40. 

6 TITLE IV—ACQUISITIONS OF 

7 COMMERCIAL ITEMS 

8 SEC. 401. ADDITIONAL INCENTIVE FOR USE OF PERFORM9 ANCE-BASED CONTRACTING FOR SERVICES.

10 (a) OTHER CONTRACTS.—Section 41 of the Office of 

11 Federal Procurement Policy Act, as added by section 302, 

12 is amended—

13 (1) by redesignating subsection (b) as subsection 

14 (c); and 

15 (2) by inserting after subsection (a) the following 

16 new subsection: 

17 ‘‘(b) INCENTIVE FOR USE OF PERFORMANCE-BASED

18 SERVICES CONTRACTS.—(1) A performance-based contract 

19 for the procurement of services entered into by an executive 

20 agency or a performance-based task order for services issued 

21 by an executive agency may be treated as a contract for 

22 the procurement of commercial items if—

23 ‘‘(A) the contract or task order sets forth specifi24 cally each task to be performed and, for each task—
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1 ‘‘(i) defines the task in measurable, mission2 related terms; and 

3 ‘‘(ii) identifies the specific end products or 

4 output to be achieved; and 

5 ‘‘(B) the source of the services provides similar 

6 services to the general public under terms and condi7 tions similar to those offered to the Federal Govern8 ment. 

9 ‘‘(2) The regulations implementing this subsection 

10 shall require agencies to collect and maintain reliable data 

11 sufficient to identify the contracts or task orders treated as 

12 contracts for commercial items using the authority of this 

13 subsection. The data may be collected using the Federal Pro14 curement Data System or other reporting mechanism.

15 ‘‘(3) Not later than two years after the date of the en16 actment of this subsection, the Director of the Office of Man17 agement and Budget shall prepare and submit to the Com18 mittees on Governmental Affairs and on Armed Services of 

19 the Senate and the Committees on Government Reform and 

20 on Armed Services of the House of Representatives a report 

21 on the contracts or task orders treated as contracts for com22 mercial items using the authority of this subsection. The 

23 report shall include data on the use of such authority both 

24 government-wide and for each department and agency. 
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1 ‘‘(4) The authority under this subsection shall expire 

2 10 years after the date of the enactment of this subsection.’’. 

3 (b) CENTER OF EXCELLENCE IN SERVICE CON4 TRACTING.—Not later than 180 days after the date of the 

5 enactment of this Act, the Administrator for Federal Pro6 curement Policy shall establish a center of excellence in con7 tracting for services. The center of excellence shall assist the 

8 acquisition community by identifying, and serving as a 

9 clearinghouse for, best practices in contracting for services 

10 in the public and private sectors. 

11 (c) REPEAL OF SUPERSEDED PROVISION.—Subsection 

12 (b) of section 821 of the Floyd D. Spence National Defense 

13 Authorization Act for Fiscal Year 2001 (as enacted into law 

14 by Public Law 106–398; 114 Stat. 1654A–218) is repealed. 

15 SEC. 402. AUTHORIZATION OF ADDITIONAL COMMERCIAL 

16 CONTRACT TYPES. 

17 Section 8002(d) of the Federal Acquisition Stream18 lining Act of 1994 (Public Law 103–355; 108 Stat. 3387; 

19 41 U.S.C. 264 note) is amended—

20 (1) in paragraph (1), by striking ‘‘and’’; 

21 (2) by striking the period at the end of para22 graph (2) and inserting ‘‘; and’’; and 

23 (3) by adding at the end the following new para24 graph:
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1 ‘‘(3) authority for use of a time and materials 

2 contract or a labor-hour contract for the procurement 

3 of commercial services that are commonly sold to the 

4 general public through such contracts.’’

5 SEC. 403. CLARIFICATION OF COMMERCIAL SERVICES DEFI6 NITION. 

7 Subparagraph (F) of section 4(12) of the Office of Fed8 eral Procurement Policy Act (41 U.S.C. 403(12)(F)) is 

9 amended—

10 (1) by striking ‘‘catalog or’’; and 

11 (2) by inserting ‘‘or specific outcomes to be 

12 achieved’’ after ‘‘performed’’.

13 SEC. 404. DESIGNATION OF COMMERCIAL BUSINESS ENTI14 TIES. 

15 (a) IN GENERAL.—Section 4 of the Office of Federal 

16 Procurement Policy Act (41 U.S.C. 403), as amended by 

17 section 101, is further amended—

18 (1) by adding at the end of paragraph (12) the 

19 following new subparagraph: 

20 ‘‘(I) Items or services produced or provided 

21 by a commercial entity.’’; and 

22 (2) by adding at the end the following new para23 graph: 

24 ‘‘(17) The term ‘commercial entity’ means any 

25 enterprise whose primary customers are other than 
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1 the Federal Government. In order to qualify as a 

2 commercial entity, at least 90 percent (in dollars) of 

3 the sales of the enterprise over the past three business 

4 years must have been made to private sector enti5 ties.’’. 

6 (b) COLLECTION OF DATA.—Regulations imple7 menting the amendments made by subsection (a) shall re8 quire agencies to collect and maintain reliable data suffi9 cient to identify the contracts entered into or task orders 

10 awarded for items or services produced or provided by a 

11 commercial entity. The data may be collected using the Fed12 eral Procurement Data System or other reporting mecha13 nism. 

14 (c) OMB REPORT.—Not later than two years after the 

15 date of the enactment of this subsection, the Director of the 

16 Office of Management and Budget shall prepare and submit 

17 to the Committees on Governmental Affairs and on Armed 

18 Services of the Senate and the Committees on Government 

19 Reform and on Armed Services of the House of Representa20 tives a report on the contracts entered into or task orders 

21 awarded for items or services produced or provided by a 

22 commercial entity. The report shall include data on the use 

23 of such authority both government-wide and for each de24 partment and agency. 
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1 (d) COMPTROLLER GENERAL REVIEW.—The Comp2 troller General shall review the implementation of the 

3 amendments made by subsection (a) to evaluate the effec4 tiveness of such implementation in increasing the avail5 ability of items and services to the Federal Government at 

6 fair and reasonable prices.

7 TITLE V—OTHER MATTERS 

8 SEC. 501. AUTHORITY TO ENTER INTO CERTAIN PROCURE9 MENT-RELATED TRANSACTIONS AND TO 

10 CARRY OUT CERTAIN PROTOTYPE PROJECTS. 

11 Title III of the Federal Property and Administrative 

12 Services Act of 1949 (41 U.S.C. 251 et seq.) as amended 

13 by section 215, is further amended by adding at the end 

14 the following new section: 

15 ‘‘SEC. 319. AUTHORITY TO ENTER INTO CERTAIN TRANS16 ACTIONS FOR DEFENSE AGAINST OR RECOV17 ERY FROM TERRORISM OR NUCLEAR, BIO18 LOGICAL, CHEMICAL, OR RADIOLOGICAL AT19 TACK. 

20 ‘‘(a) AUTHORITY.—

21 ‘‘(1) IN GENERAL.—The head of an executive 

22 agency who engages in basic research, applied re23 search, advanced research, and development projects 

24 that—
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1 ‘‘(A) are necessary to the responsibilities of 

2 such official’s executive agency in the field of re3 search and development, and 

4 ‘‘(B) have the potential to facilitate defense 

5 against or recovery from terrorism or nuclear, 

6 biological, chemical, or radiological attack, 

7 may exercise the same authority (subject to the same 

8 restrictions and conditions) with respect to such re9 search and projects as the Secretary of Defense may 

10 exercise under section 2371 of title 10, United States 

11 Code, except for subsections (b) and (f) of such section 

12 2371. 

13 ‘‘(2) PROTOTYPE PROJECTS.—The head of an ex14 ecutive agency may, under the authority of paragraph 

15 (1), carry out prototype projects that meet the re16 quirements of subparagraphs (A) and (B) of para17 graph (1) in accordance with the requirements and 

18 conditions provided for carrying out prototype 

19 projects under section 845 of the National Defense Au20 thorization Act for Fiscal Year 1994 (Public Law 

21 103–160; 10 U.S.C. 2371 note). In applying the re22 quirements and conditions of that section 845—

23 ‘‘(A) subsection (c) of that section shall 

24 apply with respect to prototype projects carried 

25 out under this paragraph; and 
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1 ‘‘(B) the Director of the Office of Manage2 ment and Budget shall perform the functions of 

3 the Secretary of Defense under subsection (d) of 

4 that section. 

5 ‘‘(3) APPLICABILITY TO SELECTED EXECUTIVE

6 AGENCIES.—

7 ‘‘(A) OMB AUTHORIZATION REQUIRED.—

8 The head of an executive agency may exercise 

9 authority under this subsection only if author10 ized by the Director of the Office of Management 

11 and Budget to do so. 

12 ‘‘(B) RELATIONSHIP TO AUTHORITY OF DE13 PARTMENT OF HOMELAND SECURITY.—The au14 thority under this subsection shall not apply to 

15 the Secretary of Homeland Security while sec16 tion 831 of the Homeland Security Act of 2002 

17 (Public Law 107–296; 116 Stat. 2224) is in ef18 fect. 

19 ‘‘(b) ANNUAL REPORT.—The annual report of the head 

20 of an executive agency that is required under subsection (h) 

21 of section 2371 of title 10, United States Code, as applied 

22 to the head of the executive agency by subsection (a), shall 

23 be submitted to the Committee on Governmental Affairs of 

24 the Senate and the Committee on Government Reform of 

25 the House of Representatives.
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1 ‘‘(c) REGULATIONS.—The Director of the Office of 

2 Management and Budget shall prescribe regulations to 

3 carry out this section.’’. 

4 SEC. 502. AMENDMENTS RELATING TO FEDERAL EMER5 GENCY PROCUREMENT FLEXIBILITY. 

6 (a) REPEAL OF SUNSET FOR AUTHORITIES APPLICA7 BLE TO PROCUREMENTS FOR DEFENSE AGAINST OR RE8 COVERY FROM TERRORISM OR NUCLEAR, BIOLOGICAL, 

9 CHEMICAL, OR RADIOLOGICAL ATTACK.—Section 852 of the 

10 Homeland Security Act of 2002 (Public Law 107–296; 116 

11 Stat. 2235) is amended by striking ‘‘, but only if a solicita12 tion of offers for the procurement is issued during the 1-

13 year period beginning on the date of the enactment of this 

14 Act’’. 

15 (b) APPLICABILITY OF INCREASED SIMPLIFIED ACQUI16 SITION THRESHOLD.—(1) The matter preceding paragraph 

17 (1) of section 853(a) of the Homeland Security Act of 2002 

18 (Public Law 107–296; 116 Stat. 2235) is amended to read 

19 as follows: 

20 ‘‘(a) THRESHOLD AMOUNTS.—For a procurement re21 ferred to in section 852, the simplified acquisition threshold 

22 referred to in section 4(11) of the Office of Federal Procure23 ment Policy Act (41 U.S.C. 403(11)) is deemed to be—’’. 

24 (2) Subsections (b) and (c) of section 853 of such Act 

25 are repealed. 
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1 (3) The heading of section 853 of such Act is amended 

2 to read as follows: 

3 ‘‘SEC. 853. INCREASED SIMPLIFIED ACQUISITION THRESH4 OLD FOR CERTAIN PROCUREMENTS.’’. 

5 (4) The table of contents in section 1(b) of such Act 

6 is amended by striking the item relating to section 853 and 

7 inserting the following:

‘‘Sec. 853. Increased simplified acquisition threshold for certain procurements.’’.

8 (5) Section 18(c)(1) of the Office of Federal Procure9 ment Policy Act (41 U.S.C. 416(c)(1)) is amended—

10 (A) by striking ‘‘or’’ at the end of subparagraph 

11 (G); 

12 (B) by striking the period at the end of subpara13 graph (H) and inserting ‘‘; or’’; and 

14 (C) by adding at the end the following: 

15 ‘‘(I) the procurement is by the head of an execu16 tive agency pursuant to the special procedures pro17 vided in section 853 of the Homeland Security Act of 

18 2002 (Public Law 107–296).’’. 

19 (c) APPLICABILITY OF CERTAIN COMMERCIAL ITEMS

20 AUTHORITIES.—(1) Subsection (a) of section 855 of the 

21 Homeland Security Act of 2002 (Public Law 107–296; 116 

22 Stat. 2236) is amended to read as follows: 

23 ‘‘(a) AUTHORITY.—With respect to a procurement re24 ferred to in section 852, the head of an executive agency 
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1 may deem any item or service to be a commercial item for 

2 the purpose of Federal procurement laws.’’. 

3 (2) Subsection (b)(1) of section 855 of such Act is 

4 amended by striking ‘‘to which any of the provisions of law 

5 referred to in subsection (a) are applied’’. 

6 (d) EXTENSION OF DEADLINE FOR REVIEW AND RE7 PORT.—Section 857(a) of the Homeland Security Act of 

8 2002 (Public Law 107–296; 116 Stat. 2237) is amended 

9 by striking ‘‘2004’’ and inserting ‘‘2006’’. 

10 SEC. 503. AUTHORITY TO MAKE INFLATION ADJUSTMENTS 

11 TO SIMPLIFIED ACQUISITION THRESHOLD. 

12 Section 4(11) of the Office of Federal Procurement Pol13 icy Act (41 U.S.C. 403(11)) is amended by inserting before 

14 the period at the end the following: ‘‘, except that such 

15 amount may be adjusted by the Administrator every five 

16 years to the amount equal to $100,000 in constant fiscal 

17 year 2003 dollars (rounded to the nearest $10,000)’’. 

18 SEC. 504. TECHNICAL CORRECTIONS RELATED TO DUPLICA19 TIVE AMENDMENTS. 

20 (a) REPEAL OF SUPERSEDED SUBCHAPTER AND RE21 LATED CONFORMING AMENDMENTS.—(1) Subchapter II of 

22 chapter 35 of title 44, United States Code, is repealed. 

23 (2) Subchapter III of such chapter is redesignated as 

24 subchapter II. 
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1 (3) Section 3549 of title 44, United States Code, is 

2 amended by striking the sentence beginning with ‘‘While 

3 this subchapter’’. 

4 (4) The table of sections at the beginning of chapter 

5 35 of title 44, United States Code, is amended—

6 (A) by striking the items relating to sections 

7 3531 through 3538; and 

8 (B) by striking the heading ‘‘SUBCHAPTER 

9 III—INFORMATION SECURITY’’. 

10 (5) Section 2224a of title 10, United States Code, is 

11 repealed, and the table of sections at the beginning of chap12 ter 131 of such title is amended by striking the item relating 

13 to such section. 

14 (b) CONFORMING AMENDMENTS RELATED TO REPEALS

15 OF SHARE-IN-SAVINGS AND SOLUTIONS-BASED CON16 TRACTING PILOT PROGRAMS.—(1) Chapter 115 of title 40, 

17 United States Code, is repealed. 

18 (2) The table of chapters at the beginning of subtitle 

19 III of such title is amended by striking the item relating 

20 to chapter 115. 

21 (c) AMENDMENTS MADE BY E-GOVERNMENT ACT

22 MADE APPLICABLE.—The following provisions of law shall 

23 read as if the amendments made by title X of the Homeland 

24 Security Act of 2002 (Public Law 107–296) to such provi25 sions did not take effect: 
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1 (1) Section 2224 of title 10, United States Code. 

2 (2) Sections 20 and 21 of the National Institute 

3 of Standards and Technology Act (15 U.S.C. 278g–3 

4 and 278g–4). 

5 (3) Sections 11331 and 11332 of title 40, United 

6 States Code. 

7 (4) Subtitle G of title X of the Floyd D. Spence 

8 National Defense Authorization Act for Fiscal Year 

9 2001 (Public Law 106–398; 44 U.S.C. 3531 note). 

10 (5) Sections 3504(g), 3505, and 3506(g) of title 

11 44, United States Code. 

12 (d) CORRECTION OF CROSS REFERENCE.—Section 

13 2224(c) of title 10, United States Code, as amended by sec14 tion 301(c)(1)(B)(iii) of the E-Government Act of 2002 

15 (Public Law 107–347; 116 Stat. 2955), is amended by strik16 ing ‘‘subchapter III’’ and inserting ‘‘subchapter II’’. 

17 SEC. 505. EXEMPTION FROM LIMITATIONS ON PROCURE18 MENT OF FOREIGN INFORMATION TECH19 NOLOGY THAT IS A COMMERCIAL ITEM. 

20 (a) EXEMPTION.—Notwithstanding any other provi21 sion of law, in order to promote Government access to com22 mercial information technology, the restriction on pur23 chasing nondomestic articles, materials, and supplies set 

24 forth in the Buy American Act (41 U.S.C. 10a et seq.), and 

25 the prohibition on acquiring foreign products under section
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1 302(a)(1) of the Trade Agreements Act of 1979 (Public Law 

2 96–39; 19 U.S.C. 2512(a)(1)), shall not apply to the acqui3 sition by the Federal Government of information technology 

4 (as defined in section 11101 of title 40, United States Code, 

5 that is a commercial item (as defined in section 4(12) of 

6 the Office of Federal Procurement Policy Act (41 U.S.C. 

7 403(12)).

8 (b) DEFINITION.—Section 11101(6) of title 40, United 

9 States Code, is amended—

10 (1) in subparagraph (A), by inserting after 

11 ‘‘storage,’’ the following: ‘‘analysis, evaluation,’’; and 

12 (2) in subparagraph (B), by striking ‘‘ancillary 

13 equipment,’’ and inserting ‘‘ancillary equipment (in14 cluding imaging peripherals, input, output, and stor15 age devices necessary for security and surveillance), 

16 peripheral equipment designed to be controlled by the 

17 central processing unit of a computer,’’.

18 SEC. 506. PROHIBITION ON USE OF QUOTAS. 

19 (a) IN GENERAL.—After the date of enactment of this 

20 Act, the Office of Management and Budget may not estab21 lish, apply, or enforce any numerical goal, target, or quota 

22 for subjecting the employees of a department or agency of 

23 the Government to public-private competitions or con24 verting such employees or the work performed by such em25 ployees to contractor performance under Office of Manage-
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1 ment and Budget Circular A-76 or any other administra2 tive regulation, directive, or policy unless the goal, target, 

3 or quota is based on considered research and sound analysis 

4 of past activities and is consistent with the stated mission 

5 of the department or agency. 

6 (b) LIMITATIONS.—Subsection (a) shall not—

7 (1) otherwise affect the implementation or en8 forcement of the Government Performance and Results 

9 Act of 1993 (107 Stat. 285); or 

10 (2) prevent any agency of the Executive branch 

11 from subjecting work performed by Federal employees 

12 or private contractors to public-private competition 

13 or conversions.

14 SEC. 507. PUBLIC DISCLOSURE OF NONCOMPETITIVE CON15 TRACTING FOR THE RECONSTRUCTION OF IN16 FRASTRUCTURE IN IRAQ. 

17 (a) DISCLOSURE REQUIRED.—

18 (1) PUBLICATION AND PUBLIC AVAILABILITY.—

19 The head of an executive agency of the United States 

20 that enters into a contract for the repair, mainte21 nance, or construction of infrastructure in Iraq with22 out full and open competition shall publish in the 

23 Federal Register or Commerce Business Daily and 

24 otherwise make available to the public, not later than 
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1 30 days after the date on which the contract is en2 tered into, the following information: 

3 (A) The amount of the contract. 

4 (B) A brief description of the scope of the 

5 contract. 

6 (C) A discussion of how the executive agen7 cy identified, and solicited offers from, potential 

8 contractors to perform the contract, together with 

9 a list of the potential contractors that were 

10 issued solicitations for the offers. 

11 (D) The justification and approval docu12 ments on which was based the determination to 

13 use procedures other than procedures that pro14 vide for full and open competition. 

15 (2) INAPPLICABILITY TO CONTRACTS AFTER FIS16 CAL YEAR 2013.—Paragraph (1) does not apply to a 

17 contract entered into after September 30, 2013. 

18 (b) CLASSIFIED INFORMATION.—

19 (1) AUTHORITY TO WITHHOLD.—The head of an 

20 executive agency may—

21 (A) withhold from publication and disclo22 sure under subsection (a) any document that is 

23 classified for restricted access in accordance with 

24 an Executive order in the interest of national de25 fense or foreign policy; and 
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1 (B) redact any part so classified that is in 

2 a document not so classified before publication 

3 and disclosure of the document under subsection 

4 (a). 

5 (2) AVAILABILITY TO CONGRESS.—In any case 

6 in which the head of an executive agency withholds 

7 information under paragraph (1), the head of such 

8 executive agency shall make available an unredacted 

9 version of the document containing that information 

10 to the chairman and ranking member of each of the 

11 following committees of Congress: 

12 (A) The Committee on Governmental Af13 fairs of the Senate and the Committee on Gov14 ernment Reform of the House of Representatives. 

15 (B) The Committees on Appropriations of 

16 the Senate and House of Representatives. 

17 (C) Each committee that the head of the ex18 ecutive agency determines has legislative juris19 diction for the operations of such department or 

20 agency to which the information relates. 

21 (c) FISCAL YEAR 2003 CONTRACTS.—This section shall 

22 apply to contracts entered into on or after October 1, 2002, 

23 except that, in the case of a contract entered into before 

24 the date of the enactment of this Act, subsection (a) shall 
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1 be applied as if the contract had been entered into on the 

2 date of the enactment of this Act. 

3 (d) RELATIONSHIP TO OTHER DISCLOSURE LAWS.—

4 Nothing in this section shall be construed as affecting obli5 gations to disclose United States Government information 

6 under any other provision of law. 

7 (e) DEFINITIONS.—In this section, the terms ‘‘executive 

8 agency’’ and ‘‘full and open competition’’ have the mean9 ings given such terms in section 4 of the Office of Federal 

10 Procurement Policy Act (41 U.S.C. 403).

11 SEC. 508. APPLICABILITY OF CERTAIN PROVISIONS TO SOLE 

12 SOURCE CONTRACTS FOR ITEMS AND SERV13 ICES TREATED AS COMMERCIAL ITEMS. 

14 (a) IN GENERAL.—No contract awarded on a sole 

15 source basis for the procurement of items or services that 

16 are treated as or deemed to be commercial items pursuant 

17 to the amendments made by section 401, 404, or 502 of this 

18 Act shall be exempt from—

19 (1) cost accounting standards promulgated pur20 suant to section 26 of the Office of Federal Procure21 ment Policy Act (41 U.S.C. 422); and 

22 (2) cost or pricing data requirements (commonly 

23 referred to as truth in negotiating) under section 

24 2306a of title 10, United States Code, and section 
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1 304A of title III of the Federal Property and Admin2 istrative Services Act of 1949 (41 U.S.C. 254b). 

3 (b) LIMITATION.—This section shall not apply to any 

4 contract in an amount less than $15,000,000.
Union Calendar No. 140

108TH CONGRESS 

1ST SESSION H. R. 1837

[Report No. 108–117, Parts I and II] 

A BILL

To improve the Federal acquisition workforce and 

the process for the acquisition of services by the Federal Government, and for other purposes. 

SEPTEMBER 3, 2003

Reported from the Committee on the Judiciary with an 

amendment; committed to the Committee of the Whole House on the State of the Union and ordered to be printed