108TH CONGRESS REPT. 108–117 " HOUSE OF REPRESENTATIVES ! 1st Session Part 2

SERVICES ACQUISITION REFORM ACT OF 2003

SEPTEMBER 3, 2003.—Committed to the Committee of the Whole House on the State 

of the Union and ordered to be printed 

Mr. SENSENBRENNER, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany H.R. 1837] 

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill 

(H.R. 1837) to improve the Federal acquisition workforce and the 

process for the acquisition of services by the Federal Government, 

and for other purposes, having considered the same, reports favorably thereon with an amendment and recommends that the bill as 

amended do pass.

CONTENTS 

Page 

The Amendment ...................................................................................................... 2

Purpose and Summary ............................................................................................ 2

Background and Need for the Legislation ............................................................. 2

Hearings ................................................................................................................... 3

Committee Consideration ........................................................................................ 3

Vote of the Committee ............................................................................................. 3

Committee Oversight Findings ............................................................................... 3

New Budget Authority and Tax Expenditures ...................................................... 3

Congressional Budget Office Cost Estimate .......................................................... 3

Performance Goals and Objectives ......................................................................... 7

Constitutional Authority Statement ...................................................................... 7

Section-by-Section Analysis and Discussion .......................................................... 7

Changes in Existing Law Made by the Bill, as Reported ..................................... 9

Markup Transcript .................................................................................................. 9

Additional Views ...................................................................................................... 97

2

1 H.R. Rept. No. 108–117, Part I, at 26.

The amendment adopted by this Committee is identical to the 

text reported by the Committee on Government Reform shown in 

their report filed May 19, 2003 (Rept. 108–117, Part 1). 

PURPOSE AND SUMMARY

H.R. 1837, the ‘‘Services Acquisition Reform Act of 2003,’’ (SARA) 

reforms Federal Government acquisition services and creates an acquisition workforce training program. As part of these reforms, the 

bill establishes a program to allow for exchanges of employees on 

a temporary basis between Federal agencies and private sector organizations. Also, the bill extends to the contracting officers of the 

various civilian agencies, including the new Department of Homeland Security, the same powers available to the Department of Defense in their dealings with Federal Prison Industries, Inc. (FPI). 

BACKGROUND AND NEED FOR THE LEGISLATION

The Chairman of the Committee on Government Reform, Representative Tom Davis, introduced H.R. 1837, the ‘‘Services Acquisition Reform Act of 2003,’’ on April 29, 2003. This legislation was 

referred to the Committees on Government Reform and Armed 

Services. The Committee on the Judiciary requested a sequential 

referral. The bill was referred to the Committee on the Judiciary 

for consideration through September 3, 2003. 

The bill would reform how the government buys services and creates an acquisition workforce training program. As the Committee 

on Government Reform reported:

[H.R. 1837, The Services Acquisition Reform Act of 2003 

(SARA),] will provide our acquisition workforce with the 

necessary tools to succeed through a carefully crafted set 

of provisions along with training and insightful management based on results and accountability. SARA is targeted towards the goal of a modern, responsive, flexible, 

market-based acquisition system that will result in the 

government leveraging the best the private sector has to 

offer at fair and reasonable prices. SARA will address 

training of our acquisition workforce to meet the challenges of the new service-oriented economy, it will provide 

for the adoption of business-like acquisition practices within the government, facilitate the acquisition of commercial 

services by building on the prior reforms in the acquisition 

of commercial items and enable our government to access 

cutting-edge technology within today’s commercial environment.1

The Committee on Government Reform reported the bill, as 

amended, favorably on May 19, 2003. The bill as introduced was 

referred to the Committee on the Judiciary because it contains several substantial provisions that fall within the Committee’s subject 

matter jurisdiction pertaining to government ethics and the Federal Tort Claims Act. These provisions apply to an exchange program for government and private sector acquisition employees. The 

details concerning these provisions are set forth in the section by 

section analysis. 

3

Additionally, the bill as reported by the Committee on Government Reform affects FPI. Federal Prison Industries was first authorized in 1934 to create work opportunities for inmates in the 

Federal prison system. Under the FPI program, all Federal agencies are required to purchase products offered by FPI, commonly 

referred to as FPI’s ‘‘mandatory source’’ rule. FPI, rather than the 

buying agency, determines if FPI’s offered product and delivery 

schedule meets the mission needs of the buying agency. Currently, 

FPI, rather than the buying agency, determines the reasonableness 

of FPI’s offered price. The details of the FPI provisions are set forth 

in the section by section analysis. 

HEARINGS

No hearings were held on H.R. 1837 in the Committee on the Judiciary. 

COMMITTEE CONSIDERATION

On July 25, 2003, the Committee met in open session and ordered favorably reported the bill H.R. 1837 with an amendment by 

voice vote, a quorum being present. The amendment consisted of 

the text of the bill as reported by the Committee on Government 

Reform. 

VOTE OF THE COMMITTEE

In compliance with clause 3(b) of Rule XIII of the Rules of the 

House of Representatives, the Committee notes that there were no 

recorded votes during the Judiciary Committee’s consideration of 

H.R. 1837. 

COMMITTEE OVERSIGHT FINDINGS

In compliance with clause 3(c)(1) of Rule XIII of the Rules of the 

House of Representatives, the Committee reports that the findings 

and recommendations of the Committee, based on oversight activities under clause 2(b)(1) of Rule X of the Rules of the House of Representatives, are incorporated in the descriptive portions of this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of Rule XIII of the Rules of the House of Representatives is inapplicable because this legislation does not provide new budgetary authority or increased tax expenditures. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

In compliance with clause 3(c)(3) of Rule XIII of the Rules of the 

House of Representatives, the Committee sets forth, with respect to 

the bill, H.R. 1837, the following estimate and comparison prepared 

by the Director of the Congressional Budget Office under section 

402 of the Congressional Budget Act of 1974:

4

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, July 29, 2003. 

Hon. F. JAMES SENSENBRENNER, Jr., Chairman, 

Committee on the Judiciary, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 1837, the Services Acquisition Reform Act of 2003. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Matthew Pickford, who 

can be reached at 226–2860. 

Sincerely, 

DOUGLAS HOLTZ-EAKIN.

Enclosure

cc: Honorable John Conyers, Jr. 

Ranking Member 

H.R. 1837—Services Acquisition Reform Act of 2003. 

SUMMARY

H.R. 1837 would amend the laws governing how the Federal 

Government procures goods and services. The provisions of the bill 

with the largest budgetary effects would expand the authorized 

uses of share-in-savings (SIS) contracts by Government agencies to 

procure products and services and establish a fund to train Federal 

personnel in acquisition and contracting positions. 

CBO estimates that expanding the use of SIS contracts would increase direct spending by $80 million over the 2004–2008 period 

and by a total of about $450 million over the 2004–2013 period. Enacting the bill would not affect revenues. In addition, CBO estimates that implementing H.R. 1837 would cost $28 million over the 

2004–2008 period for various administrative requirements, including a new advisory panel and council, as well as studies related to 

procurement issues, assuming appropriation of the necessary 

amounts. 

H.R. 1837 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) 

and would not affect the budgets of State, local, or tribal governments. 

ESTIMATED COST TO THE FEDERAL GOVERNMENT

The estimated budgetary impact of H.R. 1837 is shown in the following table. The costs of this legislation fall within budget function 800 (general government).

5

BASIS OF ESTIMATE

For this estimate, CBO assumes H.R. 1837 will be enacted by the 

end of fiscal year 2003. We assume that the necessary amounts will 

be appropriated for each year and that outlays will occur at historical rates for similar programs. 

Share-in-Savings Contracts 

Section 301 would expand the authority for Federal agencies to 

use SIS contracts to acquire goods and services. Currently, the use 

of those contracts is limited to purchasing information technology. 

The bill would allow such contracts to be awarded for up to 10 

years. 

A SIS contract is a contracting and funding strategy whereby a 

service or product required by an agency is provided by a private 

firm without full up-front funding. Instead, payment for this service or product is made by spending some of the estimated annual 

savings generated by the goods or services provided. Under H.R. 

1837, agencies would be authorized to enter into SIS contracts 

without sufficient funds available for the termination cost of the 

contract if sufficient funds are available for the first year’s payment under the contract. The bill would limit the amount of such 

unfunded termination liability to $10 million per contract (or 50 

percent of the termination costs, whichever is less). 

Under current law, agencies are authorized to use a limited pilot 

program to enter into SIS contracts to obtain data and informationprocessing equipment and services. To date, use of the pilot program has been very limited. Because H.R. 1837 would broaden the 

potential use of this contracting mechanism, CBO expects that its 

use would become more widespread as agencies became familiar 

with it. In the mid-1980’s, a similar contracting mechanism, energy-savings performance contracts (ESPCs), was authorized by the 

Congress. Use of ESPCs has accelerated over time, and today Federal agencies enter into around $250 million worth of such contracts a year. Based on the experience with ESPCs, CBO expects 


P:\PARAM\CBO1837.eps
6

that agencies would need a few years to become familiar with SIS 

contracts before use of that type of contract would become common. 

We estimate that agencies would agree to acquire about $115 million in goods and services through SIS contracts over the next 5 

years and that obligations for such acquisitions would grow to $425 

million over the following 5 years. 

Because both ESPC and SIS contracts authorize agencies to commit Federal funds in advance of appropriations, CBO considers the 

execution of such contracts to be a form of direct spending that 

should be reflected in the budget when such contracts are entered 

into and a new Government obligation is made. CBO’s estimate assumes that outlays would be recorded when the services or equipment are provided (similar to the budgetary treatment of lease-purchases of buildings and facilities). 

Spending Subject to Appropriation 

CBO estimates that several sections of the bill would affect 

spending subject to appropriation. The following paragraphs discuss those costs. 

Funding for Acquisition Workforce Training Fund. The bill would 

authorize the establishment of an Acquisition Workforce Training 

Fund. Under the bill, 5 percent of the fees collected by the General 

Services Administration (GSA) from other, nondefense agencies 

that procure goods and services through GSA’s Governmentwide 

contracts would be deposited in the new fund. GSA generates most 

of those fees by charging other Federal agencies approximately 1 

percent of the cost of purchases made through GSA’s supply schedule services and data processing contracts. That fee is designed to 

recover administrative costs incurred by GSA. In 2002, GSA collected $88 million in fees from agencies other than the Department 

of Defense. Thus, CBO estimates that the bill would authorize GSA 

to charge agencies a fee sufficient to establish a $5 million Acquisition Workforce Training Fund each year, as well as continuing to 

cover the administrative costs of GSA’s Governmentwide contracting programs. 

Government-Industry Exchange Program. H.R. 1837 would establish an exchange program for certain types of employees between 

the Federal Government and private-sector employers to promote 

acquisition management skills. The bill would allow the exchange 

of employees for between 6 months and 2 years. Private-sector employers could be reimbursed for all or part of their employees’ assignment with the Federal Government. Alternatively, H.R. 1837 

would allow Federal agencies to accept voluntary employment services from private-sector employees. 

Based on information from GSA and the experience of similar exchange programs, CBO expects that few private-sector employers 

would be willing to part with such employees for extended periods 

of time. Thus, we estimate that this provision would not result in 

significant additional costs to the Government. Any costs for reimbursing private-sector employers would be subject to the availability of appropriated funds. 

Other Costs. H.R. 1837 also would establish a new advisory panel 

to review procurement policies, a Chief Acquisition Officers Council, and a center of excellence in the Office of Federal Procurement 

Policy. The bill would require various implementing regulations to 

7

be issued by GSA, the Office of Personnel Management, and the 

Office of Management and Budget. In addition, the bill would require the General Accounting Office to prepare certain studies for 

the Congress on procurement issues. In total, CBO estimates that 

preforming those responsibilities would cost $1 million per year 

over the 2004–2008 period. 

INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

H.R. 1837 contains no intergovernmental or private-sector mandates as defined in UMRA and would not affect the budgets of 

State, local, or tribal governments. 

PREVIOUS CBO ESTIMATE

On May 14, 2003, CBO transmitted a cost estimate for H.R. 1837 

as ordered reported by the House Committee on Government Reform on May 8, 2003. The two versions of the bill are similar, and 

our cost estimates are identical. 

ESTIMATE PREPARED BY: 

Federal Costs: Matthew Pickford and Lisa Cash Driskill (226–

2860), and 

Matthew Schmit (226–2840) 

Impact on State, Local, and Tribal Governments: Sarah Puro (225–

3220) 

Impact on the Private Sector: Paige Piper/Bach (226–2940) 

ESTIMATE APPROVED BY: 

Peter H. Fontaine 

Deputy Assistant Director for Budget Analysis 

PERFORMANCE GOALS AND OBJECTIVES

The provisions of H.R. 1837 which the Judiciary Committee has 

jurisdiction over does not authorize funding. Therefore, clause 

3(c)(4) of Rule XIII of the Rules of the House of Representatives is 

inapplicable. 

CONSTITUTIONAL AUTHORITY STATEMENT

Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the House 

of Representatives, the Committee finds the authority for this legislation in article I, section 8, of the United States Constitution. 

SECTION-BY-SECTION ANALYSIS AND DISCUSSION

H.R. 1837 was referred to the Judiciary Committee because of its 

jurisdiction over sections 103 and 215. For a description of the 

other provisions of the bill, please refer to the report of the Committee on Government Reform. (H. Rept. No. 108–117, Part I) 

Sec. 103. Government-Industry Exchange Program. 

Section 103 of this bill amends Subpart B of part III of title 5 

of the United States Code by adding Chapter 38—Acquisition Professional Exchange Program. Specifically, section 103 establishes a 

program to allow for exchanges of high performing acquisition employees on a temporary basis between Federal agencies and private 

8

sector organizations. The Committee’s jurisdiction is based on the 

criminal provisions related to the ethics requirements for Federal 

employees. The section has criminal, ethical, and tort provisions 

identical to those included in the Digital Tech Corps Act of 2002, 

which created a government-industry exchange program for hightech managers. 

The purpose of section 103 and the bill generally is to promote 

more efficient and effective government. Section 103 allows an 

agency employee to be assigned to a private sector organization or 

a private sector employee to be assigned to an agency. To be eligible the employee has to be an exceptional performer in the field of 

Federal acquisition and is expected to assume increased acquisition 

management responsibilities within the Federal Government. 

This program benefits the participating agencies by exposing the 

acquisition components of these agencies to the very best practices 

of the private sector. It exposes the private sector participants to 

the special procurement requirements and processes of the Federal 

Government. 

Under this section, public employees who are temporarily sent to 

the private sector would remain under the protections of the Federal Tort Claims Act, a matter which falls within the Committee 

on the Judiciary’s Rule X jurisdiction. Also, under this section, private sector employees who are temporarily sent to the government 

would receive the protections of the Federal Tort Claims Act as 

well as coming under a variety of government ethics statutes, including Title 18 provisions, both matters which fall within the 

Committee on the Judiciary’s Rule X jurisdiction. Private-sector 

employees could still be paid by the private-sector but would be 

considered a Federal employee for most purposes. Federal employees would only be assigned pursuant to a program developed by the 

Office of Federal Procurement Policy and the Office of Personnel 

Management. 

Sec. 215. Products of Federal Prison Industries Procedural Requirements. 

Under FPI’s 1934 authorizing statute, it is the mandatory source 

for purchases by all Federal agencies of the products FPI makes. 

Federal contracting officers must purchase products offered by FPI, 

unless FPI authorizes, through the granting of a ‘‘waiver,’’ solicitation of competitive offers from the private sector. The decision as 

to whether to grant a waiver is made by FPI, rather than the buying agency. FPI determines whether FPI’s offered product and delivery schedule meets the mission needs of the buying agency. FPI, 

rather than the buying agency, determines the reasonableness of 

FPI’s price. 

The only limitation, under current law, is that FPI’s offered price 

cannot exceed the highest price for a comparable item offered to 

the Federal Government by the private sector. FPI, rather than the 

buying agency, makes the determination of comparability. The result is that under FPI’s current authorizing statute, businesses and 

their non-inmate workers, are foreclosed from even being able to 

bid on Federal contract opportunities funded with their tax dollars. 

Section 215 would extend to the contracting officers of the various civilian agencies, including the new Department of Homeland 

Security, the same powers available to the Department of Defense 

9

in its dealings with FPI. It will better enable them to get the ‘‘best 

value’’ for the taxpayer dollars being expended with FPI. Specifically, this section amends Title III of the Federal Property and Administrative Services Act of 1949, which governs procurement by 

the civilian agencies. 

Section 215 will—

(a) make explicit that a contracting officer is fully empowered to determine if a product offered by FPI is ‘‘comparable to products available from the private sector 

that best meet the Department’s needs in terms of 

price, quality, and time of delivery;’’

(b) provide a contracting officer access to the full range of ‘‘market research’’ tools to make the required comparability determination and full discretion on how to 

use such tools;

(c) make explicit that the full range of competitive procurement techniques are available to a contracting officer;

(d) preclude FPI staff from challenging a contracting officer’s determination regarding the comparability of a 

product offered by FPI; and

(e) empower contracting officers to ensure that FPI ‘‘performs its contractual obligations to the same extent as 

any other contractor.’’

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

The bill was referred to this Committee for consideration of 

such provisions of the bill and amendment as fall within the jurisdiction of this Committee pursuant to clause 1(k) of Rule X of the 

Rules of the House of Representatives. The changes made to existing law by the amendment reported by the Committee on Government Reform are shown in the report filed by that Committee 

(Rept. 108–117, Part 1).

MARKUP TRANSCRIPT

BUSINESS MEETING 

FRIDAY, JULY 25, 2003

HOUSE OF REPRESENTATIVES, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 9:40 a.m., in Room 

2141, Rayburn House Office Building, Hon. F. James Sensenbrenner, Jr., [Chairman of the Committee] presiding. 

Chairman SENSENBRENNER. The Committee will be in order. A 

working quorum is present. It is the Chair’s intention to do the 

noncontroversial bills first while Members are staggering in after 

our 3:30 a.m. vote last night. So pursuant to notice, I now call up 

the bill H.R. 1837, the ‘‘Services Acquisition Reform Act of 2003’’

for purposes of markup and move its favorable recommendation to 

the House. 

Without objection, the bill will be considered as read and open 

for amendment at any point, and the text of the bill as reported 

10

by the Committee on Government Reform, which the Members 

have before them, will be considered as read, considered as the 

original text for purposes of amendment and open for amendment 

at any point. 

[The Committee Print showing the text of H.R. 1837, as approved 

by the Committee on Government Reform, follows:]

11 H.L.C.

COMMITTEE PRINT

JULY 23, 2003

Showing the Text of H. R. 1837

As Approved by the Committee on Government Reform

On May 7, 2003

108TH CONGRESS

1ST SESSION H. R. 1837

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

[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,


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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

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

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

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

5 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.

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.


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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

3 meaning given that term in section 4(1) of the Office of

4 Federal Procurement Policy Act (41 U.S.C. 403(1)), un5 less specifically stated otherwise.

6 TITLE I—ACQUISITION

7 WORKFORCE AND TRAINING

8 SEC. 101. DEFINITION OF ACQUISITION.

9 Section 4 of the Office of Federal Procurement Policy

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

11 following:

12 ‘‘(16) The term ‘acquisition’—

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

14 appropriated funds, by contract for purchase or

15 lease, property or services (including construc16 tion) that support the missions and goals of an

17 executive agency, from the point at which the

18 requirements of the executive agency are estab19 lished in consultation with the chief acquisition

20 officer of the executive agency; and


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1 ‘‘(B) includes—

2 ‘‘(i) the process of acquiring property

3 or services that are already in existence, or

4 that must be created, developed, dem5 onstrated, and evaluated;

6 ‘‘(ii) the description of requirements

7 to satisfy agency needs;

8 ‘‘(iii) solicitation and selection of

9 sources;

10 ‘‘(iv) award of contracts;

11 ‘‘(v) contract performance;

12 ‘‘(vi) contract financing:

13 ‘‘(vii) management and measurement

14 of contract performance through final de15 livery and payment; and

16 ‘‘(viii) technical and management

17 functions directly related to the process of

18 fulfilling agency requirements by con19 tract.’’.

20 SEC. 102. ACQUISITION WORKFORCE TRAINING FUND.

21 (a) PURPOSES.—The purposes of this section are to

22 ensure that the Federal acquisition workforce—

23 (1) adapts to fundamental changes in the na24 ture of Federal Government acquisition of property


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1 and services associated with the changing roles of

2 the Federal Government; and

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

4 enable it to contribute effectively in the changing en5 vironment of the 21st century.

6 (b) ESTABLISHMENT OF FUND.—Section 37 of the

7 Office of Federal Procurement Policy Act (41 U.S.C. 433)

8 is amended by adding at the end of subsection (h) the

9 following new paragraph:

10 ‘‘(3) ACQUISITION WORKFORCE TRAINING

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

12 shall establish an acquisition workforce training

13 fund. The Administrator shall manage the fund

14 through the Federal Acquisition Institute to support

15 the training of the acquisition workforce of the exec16 utive agencies other than the Department of De17 fense. The Administrator shall consult with the Ad18 ministrator for Federal Procurement Policy in man19 aging the fund.

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

21 workforce training fund 5 percent of the fees col22 lected by executive agencies under the following con23 tracts:

24 ‘‘(i) Governmentwide task and delivery25 order contracts entered into under sections


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1 2304a and 2304b of title 10, United States

2 Code, or sections 303H and 303I of the Federal

3 Property and Administrative Services Act of

4 1949 (41 U.S.C. 253h and 253i).

5 ‘‘(ii) Governmentwide contracts for the ac6 quisition of information technology as defined

7 in section 11101 of title 40, United States

8 Code, and multiagency acquisition contracts for

9 such technology authorized by section 11314 of

10 such title.

11 ‘‘(iii) Multiple-award schedule contracts

12 entered into by the Administrator of General

13 Services.

14 ‘‘(C) The head of an executive agency that ad15 ministers a contract described in subparagraph (B)

16 shall remit to the General Services Administration

17 the amount required to be credited to the fund with

18 respect to such contract at the end of each quarter

19 of the fiscal year.

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

21 through the Office of Federal Acquisition Policy,

22 shall ensure that funds collected for training under

23 this section are not used for any purpose other than

24 the purpose specified in subparagraph (A).


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

2 addition to funds requested and appropriated for

3 education and training referred to in paragraph (1).

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

5 available until expended.’’.

6 SEC. 103. GOVERNMENT-INDUSTRY EXCHANGE PROGRAM.

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

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

9 following:

10 ‘‘CHAPTER 38—ACQUISITION

11 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.

12 ‘‘§ 3801. Definitions

13 ‘‘For purposes of this chapter—

14 ‘‘(1) the term ‘agency’—

15 ‘‘(A) subject to subparagraph (B), means

16 an executive agency; and

17 ‘‘(B) does not include—

18 ‘‘(i) the General Accounting Office;

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

20 an establishment or a designated Federal

21 entity established under the Inspector Gen22 eral Act of 1978; and


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1 ‘‘(iii) the Defense Contract Audit

2 Agency referred to in section 2313(b) of

3 title 10; and

4 ‘‘(2) the term ‘detail’ means—

5 ‘‘(A) the assignment or loan of an em6 ployee of an agency to a private sector organi7 zation without a change of position from the

8 agency that employs the individual, or

9 ‘‘(B) the assignment or loan of an em10 ployee of a private sector organization to an

11 agency without a change of position from the

12 private sector organization that employs the in13 dividual,

14 whichever is appropriate in the context in which

15 such term is used.

16 ‘‘§ 3802. General provisions

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

18 with the agreement of a private sector organization, and

19 with the consent of the employee concerned, the head of

20 an agency may arrange for the assignment of an employee

21 of the agency to a private sector organization or an em22 ployee of a private sector organization to the agency. An

23 eligible employee is an individual who—

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

25 acquisition management;


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

2 the individual’s current employer; and

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

4 management responsibilities in the future.

5 An employee of an agency shall be eligible to participate

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

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

8 a career or career-conditional appointment or an appoint9 ment of equivalent tenure in the excepted service.

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

11 authority under this chapter shall provide for a written

12 agreement between the agency and the employee con13 cerned regarding the terms and conditions of the employ14 ee’s assignment. In the case of an employee of the agency,

15 the agreement shall—

16 ‘‘(1) require the employee to serve in the civil

17 service, upon completion of the assignment, for a pe18 riod equal to the length of the assignment; and

19 ‘‘(2) provide that, in the event the employee

20 fails to carry out the agreement (except for good and

21 sufficient reason, as determined by the head of the

22 agency from which assigned) the employee shall be

23 liable to the United States for payment of all ex24 penses of the assignment.


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

2 due the United States.

3 ‘‘(c) TERMINATION.—Assignments may be termi4 nated by the agency or private sector organization con5 cerned for any reason at any time.

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

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

8 and may be extended in 3-month increments for a total

9 of not more than 1 additional year, except that no assign10 ment under this chapter may commence after the end of

11 the 5-year period beginning on the date of the enactment

12 of this chapter.

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

14 Procurement Policy, by agreement with the Office of Per15 sonnel Management, may assist in the administration of

16 this chapter, including by maintaining lists of potential

17 candidates for assignment under this chapter, establishing

18 mentoring relationships for the benefit of individuals who

19 are given assignments under this chapter, and publicizing

20 the program.

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

22 under this chapter, an agency shall take into

23 consideration—

24 ‘‘(1) the need to ensure that small business con25 cerns are appropriately represented with respect to


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H.L.C.

1 the assignments described in sections 3803 and

2 3804, respectively; and

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

4 might best be used to help meet the needs of the

5 agency for the training of employees in acquisition

6 management.

7 ‘‘§ 3803. Assignment of employees to private sector or8 ganizations

9 ‘‘(a) IN GENERAL.—An employee of an agency as10 signed to a private sector organization under this chapter

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

12 detail to a regular work assignment in his agency.

13 ‘‘(b) COORDINATION WITH CHAPTER 81.—Notwith14 standing any other provision of law, an employee of an

15 agency assigned to a private sector organization under this

16 chapter is entitled to retain coverage, rights, and benefits

17 under subchapter I of chapter 81, and employment during

18 the assignment is deemed employment by the United

19 States, except that, if the employee or the employee’s de20 pendents receive from the private sector organization any

21 payment under an insurance policy for which the premium

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

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

24 then, the amount of such payment or benefit shall be credVerDate jul 14 2003 12:12 Sep 05, 2003 Jkt 019006 PO 00000 Frm 00021 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1837 HR1837

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1 ited against any compensation otherwise payable under

2 subchapter I of chapter 81.

3 ‘‘(c) REIMBURSEMENTS.—The assignment of an em4 ployee to a private sector organization under this chapter

5 may be made with or without reimbursement by the pri6 vate sector organization for the travel and transportation

7 expenses to or from the place of assignment, subject to

8 the same terms and conditions as apply with respect to

9 an employee of a Federal agency or a State or local gov10 ernment under section 3375, and for the pay, or a part

11 thereof, of the employee during assignment. Any reim12 bursements shall be credited to the appropriation of the

13 agency used for paying the travel and transportation ex14 penses or pay.

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

16 Tort Claims Act and any other Federal tort liability stat17 ute apply to an employee of an agency assigned to a pri18 vate sector organization under this chapter. The super19 vision of the duties of an employee of an agency so as20 signed to a private sector organization may be governed

21 by an agreement between the agency and the organization.

22 ‘‘(e) SMALL BUSINESS CONCERNS.—

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

24 shall take such actions as may be necessary to en25 sure that, of the assignments made under this chapVerDate jul 14 2003 12:12 Sep 05, 2003 Jkt 019006 PO 00000 Frm 00022 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1837 HR1837

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1 ter from such agency to private sector organizations

2 in each year, at least 20 percent are to small busi3 ness concerns.

4 ‘‘(2) DEFINITIONS.—For purposes of this

5 subsection—

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

7 means a business concern that satisfies the

8 definitions and standards specified by the Ad9 ministrator of the Small Business Administra10 tion under section 3(a)(2) of the Small Busi11 ness Act (as from time to time amended by the

12 Administrator);

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

14 month period beginning on the date of the en15 actment of this chapter, and each succeeding

16 12-month period in which any assignments

17 under this chapter may be made; and

18 ‘‘(C) the assignments ‘made’ in a year are

19 those commencing in such year.

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

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

22 shall, within 90 days after the end of such year, sub23 mit a report to the Committees on Government Re24 form and Small Business of the House of Represent25 atives and the Committees on Governmental Affairs


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H.L.C.

1 and Small Business of the Senate. The report shall

2 include—

3 ‘‘(A) the total number of assignments

4 made under this chapter from such agency to

5 private sector organizations in the year;

6 ‘‘(B) of that total number, the number

7 (and percentage) made to small business con8 cerns; and

9 ‘‘(C) the reasons for the agency’s non10 compliance with paragraph (1).

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

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

13 fewer than 5 assignments under this chapter to pri14 vate sector organizations.

15 ‘‘§ 3804. Assignment of employees from private sector

16 organizations

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

18 organization assigned to an agency under this chapter is

19 deemed, during the period of the assignment, to be on de20 tail to such agency.

21 ‘‘(b) TERMS AND CONDITIONS.—An employee of a

22 private sector organization assigned to an agency under

23 this chapter—


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

2 from the private sector organization from which he

3 is assigned;

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

5 to be an employee of the agency for the purposes

6 of—

7 ‘‘(A) chapter 73;

8 ‘‘(B) sections 201, 203, 205, 207, 208,

9 209, 603, 606, 607, 643, 654, 1905, and 1913

10 of title 18;

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

12 title 31;

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

14 other Federal tort liability statute;

15 ‘‘(E) the Ethics in Government Act of

16 1978;

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

18 Code of 1986; and

19 ‘‘(G) section 27 of the Office of Federal

20 Procurement Policy Act;

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

22 or to any other nonpublic information which is of

23 commercial value to the private sector organization

24 from which he is assigned; and


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H.L.C.

1 ‘‘(4) is subject to such regulations as the Presi2 dent may prescribe.

3 The supervision of an employee of a private sector organi4 zation assigned to an agency under this chapter may be

5 governed by agreement between the agency and the private

6 sector organization concerned. Such an assignment may

7 be made with or without reimbursement by the agency for

8 the pay, or a part thereof, of the employee during the pe9 riod of assignment, or for any contribution of the private

10 sector organization to employee benefit systems.

11 ‘‘(c) COORDINATION WITH CHAPTER 81.—An em12 ployee of a private sector organization assigned to an

13 agency under this chapter who suffers disability or dies

14 as a result of personal injury sustained while performing

15 duties during the assignment shall be treated, for the pur16 pose of subchapter I of chapter 81, as an employee as de17 fined by section 8101 who had sustained the injury in the

18 performance of duty, except that, if the employee or the

19 employee’s dependents receive from the private sector or20 ganization any payment under an insurance policy for

21 which the premium is wholly paid by the private sector

22 organization, or other benefit of any kind on account of

23 the same injury or death, then, the amount of such pay24 ment or benefit shall be credited against any compensation

25 otherwise payable under subchapter I of chapter 81.


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1 ‘‘(d) PROHIBITION AGAINST CHARGING CERTAIN

2 COSTS TO THE FEDERAL GOVERNMENT.—A private sec3 tor organization may not charge the Federal Government,

4 as direct or indirect costs under a Federal contract, the

5 costs of pay or benefits paid by the organization to an

6 employee assigned to an agency under this chapter for the

7 period of the assignment.

8 ‘‘§ 3805. Reporting requirement

9 ‘‘(a) IN GENERAL.—The Office of Personnel Manage10 ment shall, not later than April 30 and October 31 of each

11 year, prepare and submit to the Committee on Govern12 ment Reform of the House of Representatives and the

13 Committee on Governmental Affairs of the Senate a semi14 annual report summarizing the operation of this chapter

15 during the immediately preceding 6-month period ending

16 on March 31 and September 30, respectively.

17 ‘‘(b) CONTENT.—Each report shall include, with re18 spect to the 6-month period to which such report relates—

19 ‘‘(1) the total number of individuals assigned

20 to, and the total number of individuals assigned

21 from, each agency during such period;

22 ‘‘(2) a brief description of each assignment in23 cluded under paragraph (1), including—

24 ‘‘(A) the name of the assigned individual,

25 as well as the private sector organization and


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H.L.C.

1 the agency (including the specific bureau or

2 other agency component) to or from which such

3 individual was assigned;

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

5 which the individual was assigned, including the

6 duties and responsibilities and the pay grade or

7 level associated with each; and

8 ‘‘(C) the duration and objectives of the in9 dividual’s assignment; and

10 ‘‘(3) such other information as the Office con11 siders appropriate.

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

13 under subsection (a)—

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

15 and

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

17 Internet.

18 ‘‘(d) AGENCY COOPERATION.—On request of the Of19 fice, agencies shall furnish such information and reports

20 as the Office may require in order to carry out this sec21 tion.

22 ‘‘§ 3806. Regulations

23 ‘‘The Director of the Office of Personnel Manage24 ment shall prescribe regulations for the administration of

25 this chapter.’’.


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

2 of the enactment of this Act, the General Accounting Of3 fice shall prepare and submit to the Committee on Govern4 ment Reform of the House of Representatives and the

5 Committee on Governmental Affairs of the Senate a report

6 on the operation of chapter 38 of title 5, United States

7 Code (as added by this section). Such report shall

8 include—

9 (1) an evaluation of the effectiveness of the pro10 gram established by such chapter; and

11 (2) a recommendation as to whether such pro12 gram should be continued (with or without modifica13 tion) or allowed to lapse.

14 (c) CLERICAL AMENDMENT.—The table of chapters

15 at the beginning of part III of title 5, United States Code,

16 is amended by inserting after the item relating to chapter

17 37 the following:

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

18 (d) COORDINATION WITH ACQUISITION WORKFORCE

19 PROVISIONS OF OFFICE OF FEDERAL PROCUREMENT

20 POLICY ACT.—Section 37 of the Office of Federal Pro21 curement Policy Act (41 U.S.C. 433) is amended by add22 ing at the end the following new subsection:

23 ‘‘(i) AUTHORITY TO DETAIL EMPLOYEES TO NON24 FEDERAL EMPLOYERS.—(1) In carrying out the provi25 sions of this section, the Administrator, by agreement with


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H.L.C.

1 the Director of the Office of Personnel Management, may

2 provide for a program under which a Federal employee

3 may be detailed to a non-Federal employer. The Adminis4 trator, by agreement with the Director of the Office of

5 Personnel Management, shall prescribe regulations for

6 such program, including the conditions for service and du7 ties as the Administrator considers necessary.

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

9 5, United States Code, may not be made unless a program

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

11 is made in accordance with the requirements of such pro12 gram.’’.

13 (e) ETHICS PROVISIONS.—

14 (1) ONE-YEAR RESTRICTION ON CERTAIN COM15 MUNICATIONS.—Section 207(c)(2)(A)(v) of title 18,

16 United States Code, is amended by inserting ‘‘or

17 38’’ after ‘‘chapter 37’’.

18 (2) DISCLOSURE OF CONFIDENTIAL INFORMA19 TION.—Section 1905 of title 18, United States Code,

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

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

22 18, United States Code, is amended—

23 (A) in the subsection heading, by striking

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

25 and


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H.L.C.

1 (B) by inserting ‘‘or 38’’ after ‘‘chapter

2 37’’.

3 (4) RESTRICTION ON DISCLOSURE OF PRO4 CUREMENT INFORMATION.—Section 27 of the Office

5 of Federal Procurement Policy Act (41 U.S.C. 423)

6 is amended in the last sentence of subsection (a)(1)

7 by inserting ‘‘or 38’’ after ‘‘chapter 37’’.

8 (f) TECHNICAL AND CONFORMING AMENDMENTS.—

9 (1) AMENDMENTS TO TITLE 5, UNITED

10 STATES CODE.—Title 5, United States Code, is

11 amended—

12 (A) in section 3111(d), by inserting ‘‘or

13 38’’ after ‘‘chapter 37’’;

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

15 38’’ after ‘‘chapter 37’’.

16 (2) AMENDMENT TO TITLE 18, UNITED STATES

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

18 Code, is amended—

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

20 after ‘‘chapter 37’’; and

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

22 follows:

23 ‘‘(2) For purposes of this subsection, the term

24 ‘agency’—


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H.L.C.

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 Tech4 nology 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 in11 serting ‘‘or 38’’ after ‘‘chapter 37’’.

12 SEC. 104. ACQUISITION WORKFORCE RECRUITMENT PRO13 GRAM.

14 (a) AUTHORITY TO CARRY OUT PROGRAM.—For

15 purposes of sections 3304, 5333, and 5753 of title 5,

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

17 of the United States (including the Secretary of Defense)

18 may determine that certain Federal acquisition positions

19 are ‘‘shortage category’’ positions in order to recruit and

20 appoint directly to positions of employment in the depart21 ment or agency highly qualified persons, such as any per22 son who—

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

24 institution of higher education;


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H.L.C.

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

10 take a personnel action under this section shall be subject

11 to policies prescribed by the Office of Personnel Manage12 ment that govern direct recruitment, including policies re13 quiring appointment of a preference eligible who satisfies

14 the qualification requirements.

15 (c) TERMINATION OF AUTHORITY.—The head of a

16 department or agency may not appoint a person to a posi17 tion of employment under this section after September 30,

18 2007.

19 (d) REPORT.—Not later than March 31, 2007, the

20 Administrator for Federal Procurement Policy shall sub21 mit to Congress a report on the implementation of this

22 section. The report shall include—

23 (1) the Administrator’s assessment of the effi24 cacy of the exercise of the authority provided in this


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H.L.C.

1 section in attracting employees with unusually high

2 qualifications to the acquisition workforce; and

3 (2) any recommendations considered appro4 priate by the Administrator on whether the author5 ity to carry out the program should be extended.

6 SEC. 105. ARCHITECTURAL AND ENGINEERING ACQUISI7 TION WORKFORCE.

8 The Administrator for Federal Procurement Policy,

9 in consultation with the Secretary of Defense, the Admin10 istrator of General Services, and the Director of the Office

11 of Personnel Management, shall develop and implement a

12 plan to ensure that the Federal Government maintains the

13 necessary capability with respect to the acquisition of ar14 chitectural and engineering services to—

15 (1) ensure that Federal Government employees

16 have the expertise to determine agency requirements

17 for such services;

18 (2) establish priorities and programs (including

19 acquisition plans);

20 (3) establish professional standards;

21 (4) develop scopes of work; and

22 (5) award and administer contracts for such

23 services.


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H.L.C.

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 Procure9 ment Policy Act (41 U.S.C. 414) is amended to read as

10 follows:

11 ‘‘SEC. 16. CHIEF ACQUISITION OFFICERS.

12 ‘‘(a) ESTABLISHMENT OF AGENCY CHIEF ACQUISI13 TION OFFICERS.—The head of each executive agency

14 (other than the Department of Defense) shall appoint or

15 designate a non-career employee as Chief Acquisition Offi16 cer for the agency, who shall—

17 ‘‘(1) have acquisition management as that offi18 cial’s primary duty; and

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

20 agency and other agency officials to ensure that the

21 mission of the executive agency is achieved through

22 the management of the agency’s acquisition activi23 ties.


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H.L.C.

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

2 ACQUISITION OFFICERS.—The functions of each Chief Ac3 quisition Officer shall include—

4 ‘‘(1) monitoring the performance of acquisition

5 activities and acquisition programs of the executive

6 agency, evaluating the performance of those pro7 grams on the basis of applicable performance meas8 urements, and advising the head of the executive

9 agency regarding the appropriate business strategy

10 to achieve the mission of the executive agency;

11 ‘‘(2) increasing the use of full and open com12 petition in the acquisition of property and services

13 by the executive agency by establishing policies, pro14 cedures, and practices that ensure that the executive

15 agency receives a sufficient number of sealed bids or

16 competitive proposals from responsible sources to

17 fulfill the Government’s requirements (including per18 formance and delivery schedules) at the best value

19 considering the nature of the property or service

20 procured;

21 ‘‘(3) making acquisition decisions consistent

22 with all applicable laws and establishing clear lines

23 of authority, accountability, and responsibility for

24 acquisition decisionmaking within the executive

25 agency;


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H.L.C.

1 ‘‘(4) managing the direction of acquisition pol2 icy for the executive agency, including implementa3 tion of the unique acquisition policies, regulations,

4 and standards of the executive agency;

5 ‘‘(5) developing and maintaining an acquisition

6 career management program in the executive agency

7 to ensure that there is an adequate professional

8 workforce; and

9 ‘‘(6) as part of the strategic planning and per10 formance evaluation process required under section

11 306 of title 5, United States Code, and sections

12 1105(a)(28), 1115, 1116, and 9703 of title 31,

13 United States Code—

14 ‘‘(A) assessing the requirements estab15 lished for agency personnel regarding knowl16 edge and skill in acquisition resources manage17 ment and the adequacy of such requirements

18 for facilitating the achievement of the perform19 ance goals established for acquisition manage20 ment;

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

22 meeting such requirements, developing strate23 gies and specific plans for hiring, training, and

24 professional development; and


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H.L.C.

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

2 agency on the progress made in improving ac3 quisition management capability.’’.

4 (2) The item relating to section 16 in the table of

5 contents in section 1(b) of such Act is amended to read

6 as follows:

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

7 (b) REFERENCES TO SENIOR PROCUREMENT EXECU8 TIVE.—

9 (1) AMENDMENT TO THE OFFICE OF FEDERAL

10 POLICY ACT.—

11 (A) Subsections (a)(2)(A) and (b) of sec12 tion 20 of the Office of Federal Procurement

13 Policy Act (41 U.S.C. 418(a)(2)(A), (b)) are

14 amended by striking ‘‘senior procurement exec15 utive’’ each place it appears and inserting

16 ‘‘Chief Acquisition Officer’’.

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

18 of the Office of Federal Procurement Policy Act

19 (41 U.S.C. 425(c)(2)(A)(ii)) is amended by

20 striking ‘‘senior procurement executive’’ and in21 serting ‘‘Chief Acquisition Officer’’.

22 (C) Subsection (c) of section 37 of the Of23 fice of Federal Procurement Policy Act (41

24 U.S.C. 433(c)) is amended—


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H.L.C.

1 (i) by striking ‘‘SENIOR PROCURE2 MENT EXECUTIVE’’ in the heading and in3 serting ‘‘CHIEF ACQUISITION OFFICER’’;

4 and

5 (ii) by striking ‘‘senior procurement

6 executive’’ each place it appears and in7 serting ‘‘Chief Acquisition Officer’’.

8 (2) AMENDMENT TO TITLE III OF THE FED9 ERAL PROPERTY AND ADMINISTRATIVE SERVICES

10 ACT OF 1949.—Sections 302C(b) and

11 303(f)(1)(B)(iii) of the Federal Property and Ad12 ministrative Services Act of 1949 (41 U.S.C. 252c,

13 253) are amended by striking ‘‘senior procurement

14 executive’’ each place it appears and inserting

15 ‘‘Chief Acquisition Officer’’.

16 (3) AMENDMENT TO TITLE 10, UNITED STATES

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

18 States Code are amended by striking ‘‘senior pro19 curement executive’’ each place it appears and in20 serting ‘‘Chief Acquisition Officer’’:

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

22 (B) Subsections (d)(2)(B) and (f)(1) of

23 section 2225.

24 (C) Section 2302c(b).

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


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H.L.C.

1 (E) Section 2359a(i).

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

3 procurement executive of a department or agency of

4 the United States in any other provision of law or

5 regulation, document, or record of the United States

6 shall be deemed to be a reference to the Chief Acqui7 sition Officer of the department or agency.

8 (c) TECHNICAL CORRECTION.—Section 1115(a) of

9 title 31, United States Code, is amended by striking ‘‘sec10 tion 1105(a)(29)’’ and inserting ‘‘section 1105(a)(28)’’.

11 SEC. 202. CHIEF ACQUISITION OFFICERS COUNCIL.

12 (a) ESTABLISHMENT OF COUNCIL.—The Office of

13 Federal Procurement Policy Act (41 U.S.C. 403 et seq.)

14 is amended by inserting after section 16 the following new

15 section:

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

17 ‘‘(a) ESTABLISHMENT.—There is established in the

18 executive branch a Chief Acquisition Officers Council.

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

20 shall be as follows:

21 ‘‘(1) The Deputy Director for Management of

22 the Office of Management and Budget, who shall act

23 as Chairman of the Council.

24 ‘‘(2) The Administrator for Federal Procure25 ment Policy.


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H.L.C.

1 ‘‘(3) The chief acquisition officer of each execu2 tive agency.

3 ‘‘(4) The Under Secretary of Defense for Ac4 quisition, Technology, and Logistics.

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

6 United States designated by the Chairman.

7 ‘‘(c) LEADERSHIP; SUPPORT.—(1) The Adminis8 trator for Federal Procurement Policy shall lead the ac9 tivities of the Council on behalf of the Deputy Director

10 for Management.

11 ‘‘(2)(A) The Vice Chairman of the Council shall be

12 selected by the Council from among its members.

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

14 and may serve multiple terms.

15 ‘‘(3) The Administrator of General Services shall pro16 vide administrative and other support for the Council.

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

18 the principal interagency forum for monitoring and im19 proving the Federal acquisition system.

20 ‘‘(e) FUNCTIONS.—The Council shall perform func21 tions that include the following:

22 ‘‘(1) Develop recommendations for the Director

23 of the Office of Management and Budget on Federal

24 acquisition policies and requirements.


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H.L.C.

1 ‘‘(2) Share experiences, ideas, best practices,

2 and innovative approaches related to Federal acqui3 sition.

4 ‘‘(3) Assist the Administrator in the identifica5 tion, development, and coordination of multiagency

6 projects and other innovative initiatives to improve

7 Federal acquisition.

8 ‘‘(4) Promote effective business practices that

9 ensure the timely delivery of best value products to

10 the Federal Government and achieve appropriate

11 public policy objectives.

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

13 openness, and efficiency in the Federal acquisition

14 system.

15 ‘‘(6) Work with the Office of Personnel Man16 agement to assess and address the hiring, training,

17 and professional development needs of the Federal

18 Government related to acquisition.

19 ‘‘(7) Work with the Administrator and the Fed20 eral Acquisition Regulatory Council to promote the

21 business practices referred to in paragraph (4) and

22 other results of the functions carried out under this

23 subsection.’’.


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H.L.C.

1 (b) CLERICAL AMENDMENT.—The table of contents

2 in section 1(b) of such Act is amended by inserting after

3 the item relating to section 16 the following new item:

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

4 SEC. 203. STATUTORY AND REGULATORY REVIEW.

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

6 the date of the enactment of this Act, the Administrator

7 for Federal Procurement Policy shall establish an advisory

8 panel to review laws and regulations regarding the use of

9 commercial practices, performance-based contracting, the

10 performance of acquisition functions across agency lines

11 of responsibility, and the use of Governmentwide con12 tracts.

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

14 at least nine individuals who are recognized experts in ac15 quisition law and Government acquisition policy. In mak16 ing appointments to the panel, the Administrator shall—

17 (1) consult with the Secretary of Defense, the

18 Administrator of General Services, the Committees

19 on Armed Services and Government Reform of the

20 House of Representatives, and the Committees on

21 Armed Services and Governmental Affairs of the

22 Senate, and

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

24 the diverse experiences in the public and private sec25 tors.


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1 (c) DUTIES.—The panel shall—

2 (1) review all Federal acquisition laws and reg3 ulations with a view toward ensuring effective and

4 appropriate use of commercial practices and per5 formance-based contracting; and

6 (2) make any recommendations for the repeal

7 or amendment of such laws or regulations that are

8 considered necessary as a result of such review—

9 (A) to eliminate any provisions in such

10 laws or regulations that are unnecessary for the

11 effective, efficient, and fair award and adminis12 tration of contracts for the acquisition by the

13 Federal Government of goods and services;

14 (B) to ensure the continuing financial and

15 ethical integrity of acquisitions by the Federal

16 Government; and

17 (C) to protect the best interests of the

18 Federal Government.

19 (d) REPORT.—Not later than one year after the es20 tablishment of the panel, the panel shall submit to the Ad21 ministrator and to the Committees on Armed Services and

22 Government Reform of the House of Representatives and

23 the Committees on Armed Services and Governmental Af24 fairs of the Senate a report containing a detailed stateVerDate jul 14 2003 12:12 Sep 05, 2003 Jkt 019006 PO 00000 Frm 00044 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1837 HR1837

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1 ment of the findings, conclusions, and recommendations

2 of the panel.

3 Subtitle B—Other Acquisition

4 Improvements

5 SEC. 211. EXTENSION OF AUTHORITY TO CARRY OUT FRAN6 CHISE FUND PROGRAMS.

7 Section 403(f) of the Federal Financial Management

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

9 is amended by striking ‘‘October 1, 2003’’ and inserting

10 ‘‘October 1, 2006’’.

11 SEC. 212. AGENCY ACQUISITION PROTESTS.

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

13 10, United States Code, is amended by inserting after sec14 tion 2305a the following new section:

15 ‘‘§ 2305b. Protests

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

17 an acquisition of supplies or services by an agency based

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

19 and a decision regarding such alleged violation shall be

20 made by the agency in accordance with this section.

21 ‘‘(b) RESTRICTION ON CONTRACT AWARD PENDING

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

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

24 concerning the acquisition has been submitted under this

25 section and while the protest is pending.


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

2 for the award of the contract may authorize the award

3 of a contract, notwithstanding pending protest under this

4 section, upon making a written finding that urgent and

5 compelling circumstances do not allow for waiting for a

6 decision on the protest.

7 ‘‘(c) RESTRICTION ON CONTRACT PERFORMANCE

8 PENDING DECISION.—(1) Except as provided in para9 graph (2), performance of a contract may not be author10 ized (and performance of the contract shall cease if per11 formance has already begun) in any case in which a pro12 test of the contract award is submitted under this section

13 before the later of—

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

15 contract award; or

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

17 debriefing date offered to an unsuccessful offeror for

18 any debriefing that is requested and, when re19 quested, is required, under section 2305(b)(5) of

20 this title.

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

22 for the award of a contract may authorize performance

23 of the contract notwithstanding a pending protest under

24 this section upon making a written finding that urgent


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H.L.C.

1 and compelling circumstances do not allow for waiting for

2 a decision on the protest.

3 ‘‘(d) DEADLINE FOR DECISION.—The head of an

4 agency shall issue a decision on a protest under this sec5 tion not later than the date that is 20 working days after

6 the date on which the protest is submitted to such head

7 of an agency.

8 ‘‘(e) CONSTRUCTION.—Nothing in this section shall

9 affect the right of an interested party to file a protest with

10 the Comptroller General under subchapter V of chapter

11 35 of title 31 or in the United States Court of Federal

12 Claims.

13 ‘‘(f) DEFINITIONS.—In this section, the terms ‘pro14 test’ and ‘interested party’ have the meanings given such

15 terms in section 3551 of title 31.’’.

16 (2) The table of sections at the beginning of such

17 chapter is amended by inserting after the item relating

18 to section 2305a the following new item:

‘‘2305b. Protests.’’.

19 (b) OTHER AGENCIES.—Title III of the Federal

20 Property and Administrative Services Act of 1949 is

21 amended by inserting after section 303M (41 U.S.C.

22 253m) the following new section:

23 ‘‘SEC. 303N. PROTESTS.

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

25 an acquisition of supplies or services by an executive agenVerDate jul 14 2003 12:12 Sep 05, 2003 Jkt 019006 PO 00000 Frm 00047 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1837 HR1837

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1 cy based on an alleged violation of an acquisition law or

2 regulation, and a decision regarding such alleged violation

3 shall be made by the agency in accordance with this sec4 tion.

5 ‘‘(b) RESTRICTION ON CONTRACT AWARD PENDING

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

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

8 concerning the acquisition has been submitted under this

9 section and while the protest is pending.

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

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

12 the contract, notwithstanding a pending protest under this

13 section, upon making a written finding that urgent and

14 compelling circumstances do not allow for waiting for a

15 decision on the protest.

16 ‘‘(c) RESTRICTION ON CONTRACT PERFORMANCE

17 PENDING DECISION.—(1) Except as provided in para18 graph (2), performance of a contract may not be author19 ized (and performance of the contract shall cease if per20 formance has already begun) in any case in which a pro21 test of the contract award is submitted under this section

22 before the later of—

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

24 contract award; or


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H.L.C.

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

2 debriefing date offered to an unsuccessful offeror for

3 any debriefing that is requested and, when re4 quested, is required, under section 303B(e) of this

5 title.

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

7 for the award of a contract may authorize performance

8 of the contract notwithstanding a pending protest under

9 this section upon making a written finding that urgent

10 and compelling circumstances do not allow for waiting for

11 a decision on the protest.

12 ‘‘(d) DEADLINE FOR DECISION.—The head of an ex13 ecutive agency shall issue a decision on a protest under

14 this section not later than the date that is 20 working

15 days after the date on which the protest is submitted to

16 the executive agency.

17 ‘‘(e) CONSTRUCTION.—Nothing in this section shall

18 affect the right of an interested party to file a protest with

19 the Comptroller General under subchapter V of chapter

20 35 of title 31, United States Code, or in the United States

21 Court of Federal Claims.

22 ‘‘(f) DEFINITIONS.—In this section, the terms ‘pro23 test’ and ‘interested party’ have the meanings given such

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


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1 (c) CONFORMING AMENDMENT.—Section 3553(d)(4)

2 of title 31, United States Code, is amended—

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

4 the end;

5 (2) by striking the period at the end of sub6 paragraph (B) and inserting ‘‘; or’’; and

7 (3) by adding at the end the following new sub8 paragraph:

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

10 regarding such contract that is submitted under sec11 tion 2305b of title 10 or section 303N of the Fed12 eral Property and Administrative Services Act of

13 1949, the date that is 5 days after the date on

14 which a decision on that protest is issued.’’.

15 SEC. 213. IMPROVEMENTS IN CONTRACTING FOR ARCHI16 TECTURAL AND ENGINEERING SERVICES.

17 (a) CLARIFICATION OF DEFINITION OF SURVEYING

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

19 States Code, is amended by adding at the end the fol20 lowing new paragraph:

21 ‘‘(4) SURVEYING AND MAPPING.—The term

22 ‘surveying and mapping’ means services performed

23 by professionals such as surveyors,

24 photogrammetrists, hydrographers, geodesists, or

25 cartographers in the collection, storage, retrieval, or


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H.L.C.

1 dissemination of graphical or digital data to depict

2 natural or manmade physical features, phenomena,

3 or boundaries of the earth and any information re4 lated to such data, including any such data that

5 comprises a survey, map, chart, geographic informa6 tion system, remotely sensed image or data, or an

7 aerial photograph.’’.

8 (2) The Federal Acquisition Regulation shall be re9 vised to include the definition added by subsection (a) of

10 this section.

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

12 States Code, is amended—

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

14 and inserting ‘‘$300,000’’; and

15 (2) by adding at the end the following new

16 paragraph:

17 ‘‘(4) The selection and competition requirements de18 scribed in subsection (a) shall apply to any contract for

19 architectural and engineering services (including surveying

20 and mapping services) that is entered into by the head

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

22 this title).’’.

23 (c) ARCHITECTURAL AND ENGINEERING SERV24 ICES.—Architectural and engineering services (as defined

25 in section 1102 of title 40, United States Code) shall not


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H.L.C.

1 be offered under multiple-award schedule contracts en2 tered into by the Administrator of General Services or

3 under Governmentwide task and delivery-order contracts

4 entered into under sections 2304a and 2304b of title 10,

5 United States Code, or sections 303H and 303I of the

6 Federal Property and Administrative Services Act of 1949

7 (41 U.S.C. 253h and 253i) unless such services—

8 (1) are performed under the direct supervision

9 of a professional engineer licensed in a State; and

10 (2) are awarded in accordance with the selec11 tion procedures set forth in chapter 11 of title 40,

12 United States Code.

13 SEC. 214. AUTHORIZATION OF TELECOMMUTING FOR FED14 ERAL CONTRACTORS.

15 (a) AMENDMENT TO THE FEDERAL ACQUISITION

16 REGULATION.—Not later than 180 days after the date of

17 the enactment of this Act, the Federal Acquisition Regu18 latory Council shall amend the Federal Acquisition Regu19 lation issued in accordance with sections 6 and 25 of the

20 Office of Federal Procurement Policy Act (41 U.S.C. 405

21 and 421) to permit telecommuting by employees of Fed22 eral Government contractors in the performance of con23 tracts entered into with executive agencies.

24 (b) CONTENT OF AMENDMENT.—The regulation

25 issued pursuant to subsection (a) shall, at a minimum,


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H.L.C.

1 provide that solicitations for the acquisition of property

2 or services may not set forth any requirement or evalua3 tion criteria that would—

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

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

6 the offeror to permit the offeror’s employees to tele7 commute; or

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

9 of the inclusion in the offer of a plan of the offeror

10 to permit the offeror’s employees to telecommute,

11 unless the contracting officer concerned first—

12 (A) determines that the requirements of

13 the agency, including the security requirements

14 of the agency, cannot be met if the telecom15 muting is permitted; and

16 (B) documents in writing the basis for that

17 determination.

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

19 date on which the regulation required by subsection (a)

20 is published in the Federal Register, the Comptroller Gen21 eral shall submit to Congress—

22 (1) an evaluation of—

23 (A) the conformance of the regulations

24 with law; and


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H.L.C.

1 (B) the compliance by executive agencies

2 with the regulations; and

3 (2) any recommendations that the Comptroller

4 General considers appropriate.

5 (d) DEFINITION.—In this section, the term ‘‘execu6 tive agency’’ has the meaning given that term in section

7 4 of the Office of Federal Procurement Policy Act (41

8 U.S.C. 403).

9 SEC. 215. PROCEDURAL REQUIREMENTS FOR CIVILIAN

10 AGENCIES RELATING TO PRODUCTS OF FED11 ERAL PRISON INDUSTRIES.

12 Title III of the Federal Property and Administrative

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

14 by adding at the end the following new section:

15 ‘‘SEC. 318. PRODUCTS OF FEDERAL PRISON INDUSTRIES:

16 PROCEDURAL REQUIREMENTS.

17 ‘‘(a) MARKET RESEARCH.—Before purchasing a

18 product listed in the latest edition of the Federal Prison

19 Industries catalog under section 4124(d) of title 18,

20 United States Code, the head of an executive agency shall

21 conduct market research to determine whether the Federal

22 Prison Industries product is comparable to products avail23 able from the private sector that best meet the executive

24 agency’s needs in terms of price, quality, and time of deliv25 ery.


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H.L.C.

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

2 the executive agency determines that a Federal Prison In3 dustries product is not comparable in price, quality, or

4 time of delivery to products available from the private sec5 tor that best meet the executive agency’s needs in terms

6 of price, quality, and time of delivery, the agency head

7 shall use competitive procedures for the procurement of

8 the product or shall make an individual purchase under

9 a multiple award contract. In conducting such a competi10 tion or making such a purchase, the agency head shall

11 consider a timely offer from Federal Prison Industries.

12 ‘‘(c) IMPLEMENTATION BY HEAD OF EXECUTIVE

13 AGENCY.—The head of an executive agency shall ensure

14 that—

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

16 Federal Prison Industries product or service unless

17 a contracting officer of the agency determines that

18 the product or service is comparable to products or

19 services available from the private sector that best

20 meet the agency’s needs in terms of price, quality,

21 and time of delivery; and

22 ‘‘(2) Federal Prison Industries performs its

23 contractual obligations to the same extent as any

24 other contractor for the executive agency.


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H.L.C.

1 ‘‘(d) MARKET RESEARCH DETERMINATION NOT

2 SUBJECT TO REVIEW.—A determination by a contracting

3 officer regarding whether a product or service offered by

4 Federal Prison Industries is comparable to products or

5 services available from the private sector that best meet

6 an executive agency’s needs in terms of price, quality, and

7 time of delivery shall not be subject to review pursuant

8 to section 4124(b) of title 18.

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

10 contractor or potential contractor of an executive agency

11 may not be required to use Federal Prison Industries as

12 a subcontractor or supplier of products or provider of serv13 ices for the performance of a contract of the executive

14 agency by any means, including means such as—

15 ‘‘(A) a contract solicitation provision requiring

16 a contractor to offer to make use of products or

17 services of Federal Prison Industries in the perform18 ance of the contract;

19 ‘‘(B) a contract specification requiring the con20 tractor to use specific products or services (or class21 es of products or services) offered by Federal Prison

22 Industries in the performance of the contract; or

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

24 of products or services of Federal Prison Industries

25 in the performance of the contract.


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H.L.C.

1 ‘‘(2) In this subsection, the term ‘contractor’, with

2 respect to a contract, includes a subcontractor at any tier

3 under the contract.

4 ‘‘(f) PROTECTION OF CLASSIFIED AND SENSITIVE

5 INFORMATION.—The head of an executive agency may not

6 enter into any contract with Federal Prison Industries

7 under which an inmate worker would have access to—

8 ‘‘(1) any data that is classified;

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

10 of—

11 ‘‘(A) surface and subsurface infrastructure

12 providing communications or water or electrical

13 power distribution;

14 ‘‘(B) pipelines for the distribution of nat15 ural gas, bulk petroleum products, or other

16 commodities; or

17 ‘‘(C) other utilities; or

18 ‘‘(3) any personal or financial information

19 about any individual private citizen, including infor20 mation relating to such person’s real property how21 ever described, without the prior consent of the indi22 vidual.

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

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

25 meaning given such term in section 4(5) of the OfVerDate jul 14 2003 12:12 Sep 05, 2003 Jkt 019006 PO 00000 Frm 00057 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1837 HR1837

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1 fice of Federal Procurement Policy Act (41 U.S.C.

2 403(5)).

3 ‘‘(2) The term ‘market research’ means obtain4 ing specific information about the price, quality, and

5 time of delivery of products available in the private

6 sector through a variety of means, which may

7 include—

8 ‘‘(A) contacting knowledgeable individuals

9 in government and industry;

10 ‘‘(B) interactive communication among in11 dustry, acquisition personnel, and customers;

12 and

13 ‘‘(C) interchange meetings or pre-solicita14 tion conferences with potential offerors.’’.

15 TITLE III—CONTRACT

16 INCENTIVES

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

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

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

20 ‘‘§ 2332. Share-in-savings contracts

21 ‘‘(a) AUTHORITY TO ENTER INTO SHARE-IN-SAV22 INGS CONTRACTS.—(1) The head of an agency may enter

23 into a share-in-savings contract in which the Government

24 awards a contract to improve mission-related or adminis25 trative processes or to accelerate the achievement of its


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H.L.C.

1 mission and share with the contractor in savings achieved

2 through contract performance.

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

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

5 not more than five years.

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

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

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

9 to award of the contract that—

10 ‘‘(i) the level of risk to be assumed and the in11 vestment to be undertaken by the contractor is likely

12 to inhibit the government from obtaining the needed

13 performance competitively at a fair and reasonable

14 price if the contract is limited in duration to a pe15 riod of five years or less; and

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

17 continue for a period of time sufficient to generate

18 reasonable benefit for the government.

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

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

21 performance-based contracts that identify objective out22 comes and contain performance standards that will be

23 used to measure achievement and milestones that must

24 be met before payment is made.


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H.L.C.

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

7 chief acquisition officer of the agency shall determine in

8 writing that the terms of the provision are quantifiable

9 and will likely yield value to the Government.

10 ‘‘(5)(A) The head of the agency may retain savings

11 realized through the use of a share-in-savings contract

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

13 of savings paid to the contractor under the contract. Ex14 cept as provided in subparagraph (B), savings shall be

15 credited to the appropriation or fund against which

16 charges were made to 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

25 funds are not made available for the continuation of a


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H.L.C.

1 share-in-savings contract entered into under this section

2 in a subsequent fiscal year, the contract shall be canceled

3 or terminated. The costs of cancellation or termination

4 may be paid 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 ne15 gotiated with the contractor at the time the contract is

16 entered into.

17 ‘‘(3) The head of an agency may enter into share18 in-savings contracts under this section in any given fiscal

19 year even if funds are not made specifically available for

20 the full costs of cancellation or termination of the contract

21 if funds are available and sufficient to make payments

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

23 the following conditions are met regarding the funding of

24 cancellation and termination liability:


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H.L.C.

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 en12 tity 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 reve17 nues.

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

19 a contract under which—

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

21 ‘‘(i) improving the agency’s mission22 related or administrative processes; or

23 ‘‘(ii) accelerating the achievement of

24 agency missions; and


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H.L.C.

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 re6 sult from implementation of the solution;

7 or

8 ‘‘(ii) acceleration of achievement of

9 agency missions.’’.

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

11 Property and Administrative Services Act of 1949 is

12 amended to read as follows:

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

14 ‘‘(a) AUTHORITY TO ENTER INTO SHARE-IN-SAV15 INGS CONTRACTS.—(1) The head of an executive agency

16 may enter into a share-in-savings contract in which the

17 Government awards a contract to improve mission-related

18 or administrative processes or to accelerate the achieve19 ment of its mission and share with the contractor in sav20 ings achieved through contract performance.

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

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

23 not more than five years.

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

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


CP1837.ACB
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H.L.C.

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

2 to award of the contract that—

3 ‘‘(i) the level of risk to be assumed and the in4 vestment to be undertaken by the contractor is likely

5 to inhibit the government from obtaining the needed

6 performance competitively at a fair and reasonable

7 price if the contract is limited in duration to a pe8 riod of five years or less; and

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

10 continue for a period of time sufficient to generate

11 reasonable benefit for the government.

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

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

14 performance-based contracts that identify objective out15 comes and contain performance standards that will be

16 used to measure achievement and milestones that must

17 be met before payment is made.

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

19 this section shall include a provision containing a quantifi20 able baseline that is to be the basis upon which a savings

21 share ratio is established that governs the amount of pay22 ment a contractor is to receive under the contract. Before

23 commencement of performance of such a contract, the

24 chief acquisition officer of the agency shall determine in


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H.L.C.

1 writing that the terms of the provision are quantifiable

2 and will likely yield value to the Government.

3 ‘‘(5)(A) The head of the agency may retain savings

4 realized through the use of a share-in-savings contract

5 under this section that are in excess of the total amount

6 of savings paid to the contractor under the contract. Ex7 cept as provided in subparagraph (B), savings shall be

8 credited to the appropriation or fund against which

9 charges were made to carry out the contract.

10 ‘‘(B) Amounts retained by the agency under this sub11 section shall—

12 ‘‘(i) without further appropriation, remain

13 available until expended; and

14 ‘‘(ii) be applied first to fund any contingent li15 abilities associated with share-in-savings procure16 ments that are not fully funded.

17 ‘‘(b) CANCELLATION AND TERMINATION.—(1) If

18 funds are not made available for the continuation of a

19 share-in-savings contract entered into under this section

20 in a subsequent fiscal year, the contract shall be canceled

21 or terminated. The costs of cancellation or termination

22 may be paid out of—

23 ‘‘(A) appropriations available for the perform24 ance of the contract;


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H.L.C.

1 ‘‘(B) appropriations available for acquisition of

2 the type of property or services procured under the

3 contract, and not otherwise obligated; or

4 ‘‘(C) funds subsequently appropriated for pay5 ments of costs of cancellation or termination, subject

6 to the limitations in paragraph (3).

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

8 or termination of a share-in-savings contract shall be ne9 gotiated with the contractor at the time the contract is

10 entered into.

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

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

13 fiscal year even if funds are not made specifically available

14 for the full costs of cancellation or termination of the con15 tract if funds are available and sufficient to make pay16 ments with respect to the first fiscal year of the contract

17 and the following conditions are met regarding the funding

18 of cancellation and termination liability:

19 ‘‘(A) The amount of unfunded contingent liabil20 ity for the contract does not exceed the lesser of—

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

22 cancellation or termination; or

23 ‘‘(ii) $10,000,000.

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

25 $5,000,000 has been approved by the Director of the


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H.L.C.

1 Office of Management and Budget or the Director’s

2 designee.

3 ‘‘(c) DEFINITIONS—In this section:

4 ‘‘(1) The term ‘contractor’ means a private en5 tity that enters into a contract with an agency.

6 ‘‘(2) The term ‘savings’ means—

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

8 ‘‘(B) savings in time or other benefits real9 ized by the agency, including enhanced reve10 nues.

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

12 a contract under which—

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

14 ‘‘(i) improving the agency’s mission15 related or administrative processes; or

16 ‘‘(ii) accelerating the achievement of

17 agency missions; and

18 ‘‘(B) the head of the agency pays the con19 tractor an amount equal to a portion of the sav20 ings derived by the agency from—

21 ‘‘(i) any improvements in mission-re22 lated or administrative processes that re23 sult from implementation of the solution;

24 or


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1 ‘‘(ii) acceleration of achievement of

2 agency missions.’’.

3 (c) DEVELOPMENT OF INCENTIVES.—The Director

4 of the Office of Management and Budget shall—

5 (1) identify potential opportunities for the use

6 of share-in-savings contracts;

7 (2) provide guidance to executive agencies for

8 determining mutually beneficial savings share ratios

9 and baselines from which savings may be measured;

10 and

11 (3) in consultation with the Committee on Gov12 ernmental Affairs of the Senate, the Committee on

13 Government Reform of the House of Representa14 tives, and executive agencies, develop techniques to

15 permit an executive agency to retain a portion of the

16 savings (after payment of the contractor’s share of

17 the savings) derived from share-in-savings contracts

18 as funds are appropriated to the agency in future

19 fiscal years.

20 (d) REGULATIONS.—Not later than 180 days after

21 the date of the enactment of this Act, the Federal Acquisi22 tion Regulation shall be revised to implement the provi23 sions enacted by this section. Such revisions shall—


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1 (1) provide for the use of competitive proce2 dures in the selection and award of share-in-savings

3 contracts to—

4 (A) ensure the contractor’s share of sav5 ings reflects the risk involved and market condi6 tions; and

7 (B) otherwise yield best value to the gov8 ernment; and

9 (2) allow appropriate regulatory flexibility to fa10 cilitate the use of share-in-savings contracts by exec11 utive agencies, including the use of innovative provi12 sions for technology refreshment and nonstandard

13 Federal Acquisition Regulation contract clauses.

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

15 with executive agencies, the Director of the Office of Man16 agement and Budget shall, not later than 2 years after

17 the completion of the revisions to the Federal Acquisition

18 Regulation under subsection (d), submit to Congress a re19 port containing—

20 (1) a description of the number of share-in-sav21 ings contracts entered into by each executive agency

22 under by this section and the amendments made by

23 this section, and, for each contract identified—

24 (A) the performance acquired;


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1 (B) the total amount of payments made to

2 the contractor; and

3 (C) the total amount of savings or other

4 measurable benefits realized;

5 (2) a description of the ability of agencies to de6 termine the baseline costs of a project against which

7 savings can be measured; and

8 (3) any recommendations, as the Director

9 deems appropriate, regarding additional changes in

10 law that may be necessary to ensure effective use of

11 share-in-savings contracts by executive agencies.

12 (f) DEFINITIONS.—In this section, the terms ‘‘con13 tractor’’, ‘‘savings’’, and ‘‘share-in-savings contract’’ have

14 the meanings given those terms in section 2332 of title

15 10, United States Code, and section 317 of the Federal

16 Property and Administrative Services Act of 1949 (as

17 amended by subsections (a) and (b)).

18 (g) REPEAL OF SUPERSEDED PROVISIONS.—Sub19 sections (c), (d), (e), (f), (g), and (i) of section 210 of

20 the E-Government Act of 2002 (Public Law 107–317; 116

21 Stat. 2936) are repealed.

22 SEC. 302. INCENTIVES FOR CONTRACT EFFICIENCY.

23 (a) INCENTIVES FOR CONTRACT EFFICIENCY.—The

24 Office of Federal Procurement Policy Act (41 U.S.C. 403


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1 et seq.) is amended by adding at the end the following

2 new section:

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

4 SERVICES CONTRACTS.

5 ‘‘(a) OPTIONS FOR SERVICES CONTRACTS.—An op6 tion included in a contract for services to extend the con7 tract by one or more periods may provide that it be exer8 cised on the basis of exceptional performance by the con9 tractor. A contract that contains such an option provision

10 shall include performance standards for measuring per11 formance under the contract, and to the maximum extent

12 practicable be performance-based. Such option provision

13 shall only be exercised in accordance with applicable provi14 sions of law or regulation that set forth restrictions on

15 the duration of the contract containing the option.

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

17 this section, the term ‘performance-based’, with respect to

18 a contract, task order, or contracting, means that the con19 tract, task order, or contracting, respectively, includes the

20 use of performance work statements that set forth con21 tract requirements in clear, specific, and objective terms

22 with measurable outcomes.’’.

23 (b) CLERICAL AND TECHNICAL AMENDMENTS.—(1)

24 The table of contents in section 1(b) of such Act is amend25 ed by striking the last item and inserting the following:


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

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

1 (2) The section before section 41 of such Act (as

2 added by subsection (a)) is redesignated as section 40.

3 TITLE IV—ACQUISITIONS OF

4 COMMERCIAL ITEMS

5 SEC. 401. ADDITIONAL INCENTIVE FOR USE OF PERFORM6 ANCE-BASED CONTRACTING FOR SERVICES.

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

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

9 is amended—

10 (1) by redesignating subsection (b) as sub11 section (c); and

12 (2) by inserting after subsection (a) the fol13 lowing new subsection:

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

15 SERVICES CONTRACTS.—(1) A performance-based con16 tract for the procurement of services entered into by an

17 executive agency or a performance-based task order for

18 services issued by an executive agency may be treated as

19 a contract for the procurement of commercial items if—

20 ‘‘(A) the contract or task order sets forth spe21 cifically each task to be performed and, for each

22 task—

23 ‘‘(i) defines the task in measurable, mis24 sion-related terms; and


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

2 output to be achieved; and

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

4 services to the general public under terms and condi5 tions similar to those offered to the Federal Govern6 ment.

7 ‘‘(2) The regulations implementing this subsection

8 shall require agencies to collect and maintain reliable data

9 sufficient to identify the contracts or task orders treated

10 as contracts for commercial items using the authority of

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

14 ‘‘(3) Not later than two years after the date of the

15 enactment of this subsection, the Director of the Office

16 of Management and Budget shall prepare and submit to

17 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 Represent20 atives a report on the contracts or task orders treated as

21 contracts for commercial items using the authority of this

22 subsection. The report shall include data on the use of

23 such authority both government-wide and for each depart24 ment 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 sub3 section.’’.

4 (b) CENTER OF EXCELLENCE IN SERVICE CON5 TRACTING.—Not later than 180 days after the date of the

6 enactment of this Act, the Administrator for Federal Pro7 curement Policy shall establish a center of excellence in

8 contracting for services. The center of excellence shall as9 sist the acquisition community by identifying, and serving

10 as a clearinghouse for, best practices in contracting for

11 services in the public and private sectors.

12 (c) REPEAL OF SUPERSEDED PROVISION.—Sub13 section (b) of section 821 of the Floyd D. Spence National

14 Defense Authorization Act for Fiscal Year 2001 (as en15 acted into law by Public Law 106–398; 114 Stat. 1654A–

16 218) is repealed.

17 SEC. 402. AUTHORIZATION OF ADDITIONAL COMMERCIAL

18 CONTRACT TYPES.

19 Section 8002(d) of the Federal Acquisition Stream20 lining Act of 1994 (Public Law 103–355; 108 Stat. 3387;

21 41 U.S.C. 264 note) is amended—

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

23 (2) by striking the period at the end of para24 graph (2) and inserting ‘‘; and’’; and


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1 (3) by adding at the end the following new

2 paragraph:

3 ‘‘(3) authority for use of a time and materials

4 contract or a labor-hour contract for the procure5 ment of commercial services that are commonly sold

6 to the general public through such contracts.’’

7 SEC. 403. CLARIFICATION OF COMMERCIAL SERVICES DEF8 INITION.

9 Subparagraph (F) of section 4(12) of the Office of

10 Federal Procurement Policy Act (41 U.S.C. 403(12)(F))

11 is amended—

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

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

14 achieved’’ after ‘‘performed’’.

15 SEC. 404. DESIGNATION OF COMMERCIAL BUSINESS ENTI16 TIES.

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

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

19 section 101, is further amended—

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

21 following new subparagraph:

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

23 by a commercial entity.’’; and

24 (2) by adding at the end the following new

25 paragraph:


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

2 enterprise whose primary customers are other than

3 the Federal Government. In order to qualify as a

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

5 the sales of the enterprise over the past three busi6 ness years must have been made to private sector

7 entities.’’.

8 (b) COLLECTION OF DATA.—Regulations imple9 menting the amendments made by subsection (a) shall re10 quire agencies to collect and maintain reliable data suffi11 cient to identify the contracts entered into or task orders

12 awarded for items or services produced or provided by a

13 commercial entity. The data may be collected using the

14 Federal Procurement Data System or other reporting

15 mechanism.

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

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

18 of the Office of Management and Budget shall prepare

19 and submit to the Committees on Governmental Affairs

20 and on Armed Services of the Senate and the Committees

21 on Government Reform and on Armed Services of the

22 House of Representatives a report on the contracts en23 tered into or task orders awarded for items or services

24 produced or provided by a commercial entity. The report


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1 shall include data on the use of such authority both gov2 ernment-wide and for each department and agency.

3 (d) COMPTROLLER GENERAL REVIEW.—The Comp4 troller General shall review the implementation of the

5 amendments made by subsection (a) to evaluate the effec6 tiveness of such implementation in increasing the avail7 ability of items and services to the Federal Government

8 at fair and reasonable prices.

9 TITLE V—OTHER MATTERS

10 SEC. 501. AUTHORITY TO ENTER INTO CERTAIN PROCURE11 MENT-RELATED TRANSACTIONS AND TO

12 CARRY OUT CERTAIN PROTOTYPE PROJECTS.

13 Title III of the Federal Property and Administrative

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

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

16 the following new section:

17 ‘‘SEC. 319. AUTHORITY TO ENTER INTO CERTAIN TRANS18 ACTIONS FOR DEFENSE AGAINST OR RECOV19 ERY FROM TERRORISM OR NUCLEAR, BIO20 LOGICAL, CHEMICAL, OR RADIOLOGICAL AT21 TACK.

22 ‘‘(a) AUTHORITY.—

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

24 agency who engages in basic research, applied reVerDate jul 14 2003 12:12 Sep 05, 2003 Jkt 019006 PO 00000 Frm 00077 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1837 HR1837

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1 search, advanced research, and development projects

2 that—

3 ‘‘(A) are necessary to the responsibilities of

4 such official’s executive agency in the field of

5 research and development, and

6 ‘‘(B) have the potential to facilitate de7 fense against or recovery from terrorism or nu8 clear, biological, chemical, or radiological at9 tack,

10 may exercise the same authority (subject to the

11 same restrictions and conditions) with respect to

12 such research and projects as the Secretary of De13 fense may exercise under section 2371 of title 10,

14 United States Code, except for subsections (b) and

15 (f) of such section 2371.

16 ‘‘(2) PROTOTYPE PROJECTS.—The head of an

17 executive agency may, under the authority of para18 graph (1), carry out prototype projects that meet the

19 requirements of subparagraphs (A) and (B) of para20 graph (1) in accordance with the requirements and

21 conditions provided for carrying out prototype

22 projects under section 845 of the National Defense

23 Authorization Act for Fiscal Year 1994 (Public Law

24 103–160; 10 U.S.C. 2371 note). In applying the re25 quirements and conditions of that section 845—


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

2 apply with respect to prototype projects carried

3 out under this paragraph; and

4 ‘‘(B) the Director of the Office of Manage5 ment and Budget shall perform the functions of

6 the Secretary of Defense under subsection (d)

7 of that section.

8 ‘‘(3) APPLICABILITY TO SELECTED EXECUTIVE

9 AGENCIES.—

10 ‘‘(A) OMB AUTHORIZATION REQUIRED.—

11 The head of an executive agency may exercise

12 authority under this subsection only if author13 ized by the Director of the Office of Manage14 ment and Budget to do so.

15 ‘‘(B) RELATIONSHIP TO AUTHORITY OF

16 DEPARTMENT OF HOMELAND SECURITY.—The

17 authority under this subsection shall not apply

18 to the Secretary of Homeland Security while

19 section 831 of the Homeland Security Act of

20 2002 (Public Law 107-296; 116 Stat. 2224) is

21 in effect.

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

23 head of an executive agency that is required under sub24 section (h) of section 2371 of title 10, United States Code,

25 as applied to the head of the executive agency by subVerDate jul 14 2003 12:12 Sep 05, 2003 Jkt 019006 PO 00000 Frm 00079 Fmt 6659 Sfmt 6601 E:\HR\OC\HR1837 HR1837

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1 section (a), shall be submitted to the Committee on Gov2 ernmental Affairs of the Senate and the Committee on

3 Government Reform of the House of Representatives.

4 ‘‘(c) REGULATIONS.—The Director of the Office of

5 Management and Budget shall prescribe regulations to

6 carry out this section.’’.

7 SEC. 502. AMENDMENTS RELATING TO FEDERAL EMER8 GENCY PROCUREMENT FLEXIBILITY.

9 (a) REPEAL OF SUNSET FOR AUTHORITIES APPLICA10 BLE TO PROCUREMENTS FOR DEFENSE AGAINST OR RE11 COVERY FROM TERRORISM OR NUCLEAR, BIOLOGICAL,

12 CHEMICAL, OR RADIOLOGICAL ATTACK.—Section 852 of

13 the Homeland Security Act of 2002 (Public Law 107–296;

14 116 Stat. 2235) is amended by striking ‘‘, but only if a

15 solicitation of offers for the procurement is issued during

16 the 1-year period beginning on the date of the enactment

17 of this Act’’.

18 (b) APPLICABILITY OF INCREASED SIMPLIFIED AC19 QUISITION THRESHOLD.—(1) The matter preceding para20 graph (1) of section 853(a) of the Homeland Security Act

21 of 2002 (Public Law 107–296; 116 Stat. 2235) is amend22 ed to read as follows:

23 ‘‘(a) THRESHOLD AMOUNTS.—For a procurement re24 ferred to in section 852, the simplified acquisition thresh25 old referred to in section 4(11) of the Office of Federal


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1 Procurement Policy Act (41 U.S.C. 403(11)) is deemed

2 to be—’’.

3 (2) Subsections (b) and (c) of section 853 of such

4 Act are repealed.

5 (3) The heading of section 853 of such Act is amend6 ed to read as follows:

7 ‘‘SEC. 853. INCREASED SIMPLIFIED ACQUISITION THRESH8 OLD FOR CERTAIN PROCUREMENTS.’’.

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

10 is amended by striking the item relating to section 853

11 and inserting the following:

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

12 (5) Section 18(c)(1) of the Office of Federal Procure13 ment Policy Act (41 U.S.C. 416(c)(1)) is amended—

14 (A) by striking ‘‘or’’ at the end of subpara15 graph (G);

16 (B) by striking the period at the end of sub17 paragraph (H) and inserting ‘‘; or’’; and

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

19 ‘‘(I) the procurement is by the head of an exec20 utive agency pursuant to the special procedures pro21 vided in section 853 of the Homeland Security Act

22 of 2002 (Public Law 107–296).’’.

23 (c) APPLICABILITY OF CERTAIN COMMERCIAL ITEMS

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


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

2 116 Stat. 2236) is amended to read as follows:

3 ‘‘(a) AUTHORITY.—With respect to a procurement re4 ferred to in section 852, the head of an executive agency

5 may deem any item or service to be a commercial item

6 for the purpose of Federal procurement laws.’’.

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

8 amended by striking ‘‘to which any of the provisions of

9 law referred to in subsection (a) are applied’’.

10 (d) EXTENSION OF DEADLINE FOR REVIEW AND RE11 PORT.—Section 857(a) of the Homeland Security Act of

12 2002 (Public Law 107–296; 116 Stat. 2237) is amended

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

14 SEC. 503. AUTHORITY TO MAKE INFLATION ADJUSTMENTS

15 TO SIMPLIFIED ACQUISITION THRESHOLD.

16 Section 4(11) of the Office of Federal Procurement

17 Policy Act (41 U.S.C. 403(11)) is amended by inserting

18 before the period at the end the following: ‘‘, except that

19 such amount may be adjusted by the Administrator every

20 five years to the amount equal to $100,000 in constant

21 fiscal year 2003 dollars (rounded to the nearest

22 $10,000)’’.


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1 SEC. 504. TECHNICAL CORRECTIONS RELATED TO DUPLI2 CATIVE AMENDMENTS.

3 (a) REPEAL OF SUPERSEDED SUBCHAPTER AND RE4 LATED CONFORMING AMENDMENTS.—(1) Subchapter II

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

6 (2) Subchapter III of such chapter is redesignated

7 as subchapter II.

8 (3) Section 3549 of title 44, United States Code, is

9 amended by striking the sentence beginning with ‘‘While

10 this subchapter’’.

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

12 35 of title 44, United States Code, is amended—

13 (A) by striking the items relating to sections

14 3531 through 3538; and

15 (B) by striking the heading ‘‘SUBCHAPTER

16 III—INFORMATION SECURITY’’.

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

18 is repealed, and the table of sections at the beginning of

19 chapter 131 of such title is amended by striking the item

20 relating to such section.

21 (b) CONFORMING AMENDMENTS RELATED TO RE22 PEALS OF SHARE-IN-SAVINGS AND SOLUTIONS-BASED

23 CONTRACTING PILOT PROGRAMS.—(1) Chapter 115 of

24 title 40, United States Code, is repealed.


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

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

3 to chapter 115.

4 (c) AMENDMENTS MADE BY E-GOVERNMENT ACT

5 MADE APPLICABLE.—The following provisions of law

6 shall read as if the amendments made by title X of the

7 Homeland Security Act of 2002 (Public Law 107–296)

8 to such provisions did not take effect:

9 (1) Section 2224 of title 10, United States

10 Code.

11 (2) Sections 20 and 21 of the National Insti12 tute of Standards and Technology Act (15 U.S.C.

13 278g-3 and 278g-4).

14 (3) Sections 11331 and 11332 of title 40,

15 United States Code.

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

17 National Defense Authorization Act for Fiscal Year

18 2001 (Public Law 106–398; 44 U.S.C. 3531 note).

19 (5) Sections 3504(g), 3505, and 3506(g) of

20 title 44, United States Code.

21 (d) CORRECTION OF CROSS REFERENCE.—Section

22 2224(c) of title 10, United States Code, as amended by

23 section 301(c)(1)(B)(iii) of the E-Government Act of 2002

24 (Public Law 107–347; 116 Stat. 2955), is amended by

25 striking ‘‘subchapter III’’ and inserting ‘‘subchapter II’’.


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1 SEC. 505. EXEMPTION FROM LIMITATIONS ON PROCURE2 MENT OF FOREIGN INFORMATION TECH3 NOLOGY THAT IS A COMMERCIAL ITEM.

4 (a) EXEMPTION.—Notwithstanding any other provi5 sion of law, in order to promote Government access to

6 commercial information technology, the restriction on pur7 chasing nondomestic articles, materials, and supplies set

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

9 and the prohibition on acquiring foreign products under

10 section 302(a)(1) of the Trade Agreements Act of 1979

11 (Public Law 96–39; 19 U.S.C. 2512(a)(1)), shall not

12 apply to the acquisition by the Federal Government of in13 formation technology (as defined in section 11101 of title

14 40, United States Code, that is a commercial item (as de15 fined in section 4(12) of the Office of Federal Procure16 ment Policy Act (41 U.S.C. 403(12)).

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

18 United States Code, is amended—

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

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

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

22 equipment,’’ and inserting ‘‘ancillary equipment (in23 cluding imaging peripherals, input, output, and stor24 age devices necessary for security and surveillance),

25 peripheral equipment designed to be controlled by

26 the central processing unit of a computer,’’.


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1 SEC. 506. PROHIBITION ON USE OF QUOTAS.

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

3 this Act, the Office of Management and Budget may not

4 establish, apply, or enforce any numerical goal, target, or

5 quota for subjecting the employees of a department or

6 agency of the Government to public-private competitions

7 or converting such employees or the work performed by

8 such employees to contractor performance under Office of

9 Management and Budget Circular A-76 or any other ad10 ministrative regulation, directive, or policy unless the goal,

11 target, or quota is based on considered research and sound

12 analysis of past activities and is consistent with the stated

13 mission of the department or agency.

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

15 (1) otherwise affect the implementation or en16 forcement of the Government Performance and Re17 sults Act of 1993 (107 Stat. 285); or

18 (2) prevent any agency of the Executive branch

19 from subjecting work performed by Federal employ20 ees or private contractors to public-private competi21 tion or conversions.

22 SEC. 507. PUBLIC DISCLOSURE OF NONCOMPETITIVE CON23 TRACTING FOR THE RECONSTRUCTION OF

24 INFRASTRUCTURE IN IRAQ.

25 (a) DISCLOSURE REQUIRED.—


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1 (1) PUBLICATION AND PUBLIC AVAILABILITY.—

2 The head of an executive agency of the United

3 States that enters into a contract for the repair,

4 maintenance, or construction of infrastructure in

5 Iraq without full and open competition shall publish

6 in the Federal Register or Commerce Business Daily

7 and otherwise make available to the public, not later

8 than 30 days after the date on which the contract

9 is entered into, the following information:

10 (A) The amount of the contract.

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

12 contract.

13 (C) A discussion of how the executive

14 agency identified, and solicited offers from, po15 tential contractors to perform the contract, to16 gether with a list of the potential contractors

17 that were issued solicitations for the offers.

18 (D) The justification and approval docu19 ments on which was based the determination to

20 use procedures other than procedures that pro21 vide for full and open competition.

22 (2) INAPPLICABILITY TO CONTRACTS AFTER

23 FISCAL YEAR 2013.—Paragraph (1) does not apply to

24 a contract entered into after September 30, 2013.

25 (b) CLASSIFIED INFORMATION.—


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

2 an executive agency may—

3 (A) withhold from publication and disclo4 sure under subsection (a) any document that is

5 classified for restricted access in accordance

6 with an Executive order in the interest of na7 tional defense or foreign policy; and

8 (B) redact any part so classified that is in

9 a document not so classified before publication

10 and disclosure of the document under sub11 section (a).

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

13 in which the head of an executive agency withholds

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

15 executive agency shall make available an unredacted

16 version of the document containing that information

17 to the chairman and ranking member of each of the

18 following committees of Congress:

19 (A) The Committee on Governmental Af20 fairs of the Senate and the Committee on Gov21 ernment Reform of the House of Representa22 tives.

23 (B) The Committees on Appropriations of

24 the Senate and House of Representatives.


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1 (C) Each committee that the head of the

2 executive agency determines has legislative ju3 risdiction for the operations of such department

4 or agency to which the information relates.

5 (c) FISCAL YEAR 2003 CONTRACTS.—This section

6 shall apply to contracts entered into on or after October

7 1, 2002, except that, in the case of a contract entered into

8 before the date of the enactment of this Act, subsection

9 (a) shall be applied as if the contract had been entered

10 into on the date of the enactment of this Act.

11 (d) RELATIONSHIP TO OTHER DISCLOSURE LAWS.—

12 Nothing in this section shall be construed as affecting obli13 gations to disclose United States Government information

14 under any other provision of law.

15 (e) DEFINITIONS.—In this section, the terms ‘‘execu16 tive agency’’ and ‘‘full and open competition’’ have the

17 meanings given such terms in section 4 of the Office of

18 Federal Procurement Policy Act (41 U.S.C. 403).

19 SEC. 508. APPLICABILITY OF CERTAIN PROVISIONS TO

20 SOLE SOURCE CONTRACTS FOR ITEMS AND

21 SERVICES TREATED AS COMMERCIAL ITEMS.

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

23 source basis for the procurement of items or services that

24 are treated as or deemed to be commercial items pursuant


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

2 this Act shall be exempt from—

3 (1) cost accounting standards promulgated pur4 suant to section 26 of the Office of Federal Procure5 ment Policy Act (41 U.S.C. 422); and

6 (2) cost or pricing data requirements (com7 monly referred to as truth in negotiating) under sec8 tion 2306a of title 10, United States Code, and sec9 tion 304A of title III of the Federal Property and

10 Administrative Services Act of 1949 (41 U.S.C.

11 254b).

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

13 contract in an amount less than $15,000,000.


CP1837.ADC
91

Chairman SENSENBRENNER. I have a lengthy opening statement 

which will put everybody to sleep, so I would ask unanimous consent that all Members, including the Chair, be able to insert opening statements in the record at this time. 

[The prepared statement of Mr. Sensenbrenner follows:]

PREPARED STATEMENT OF THE HONORABLE F. JAMES SENSENBRENNER, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WISCONSIN, AND CHAIRMAN, COMMITTEE ON THE JUDICIARY

H.R. 1837, the ‘‘Service Acquisition Reform Act of 2003,’’ was introduced by Mr. 

Davis, the Chairman of the Government Reform Committee, to improve Federal acquisition workforce and services. The bill was reported by that Committee and sequentially referred to this Committee because of the ethics and Federal Tort Claims 

Act provisions that relate to an exchange program for public and private sector employees. In addition, the Government Reform Committee added language relating to 

Federal Prison Industries. The Committee received a one-day referral for consideration, which was subsequently extended to July 25, 2003. Because that time is 

about to expire, we are marking this bill up today. 

As the Committee on Government Reform reported ‘‘the Service Acquisition Reform Act of 2003 (SARA), . . . is targeted at the root causes of the dilemma facing 

the government’s acquisition system today: (1) The lack of up-to-date comprehensive 

training for our acquisition professionals; (2) the inability of the current government 

structure to reflect business-like practices by integrating the acquisition function 

into the overall agency mission and facilitating cross-agency acquisitions and information sharing; and (3) the lack of good tools and incentives to encourage the participation of the best commercial firms in the government market.’’

Section 103 of this bill authorizes a government-industry exchange program for 

public and private employees, who specialize in acquisition, to meet these goals. The 

section has criminal, ethical, and tort provisions identical to those that were included in the Digital Tech Corps Act of 2002. That Act created a government-industry exchange program for high tech managers and was reported out of the Judiciary 

Committee on March 20, 2002 and became law in December 2002. 

This bill creates a similar employee exchange program between the Federal Government and the private sector in the acquisition workforce. 

Under H.R. 1837, public employees who are temporarily sent to the private sector 

would remain under the protections of the Federal Tort Claims Act and private sector employees assigned to the government would receive the protections of the Federal Tort Claims Act. 

Private sector employees detailed to Federal agencies for the exchange program, 

would be deemed Federal employees for certain purposes and subject to the same 

ethics rules, revolving door prohibitions and accountability provisions that cover 

Federal employees. 

Additionally, this legislation would extend to the contracting officers of the various Civilian Agencies, including the new Department of Homeland Security, the 

same powers available to DOD in their dealings with Federal Prison Industries, Inc. 

(FPI). 

It will better enable them to get ‘‘best value’’ for the tax-payers dollars being expended with FPI. Specifically, this section amends Title III of the Federal Property 

and Administrative Services Act of 1949, which governs procurement by the Civilian 

Agencies, to make explicit that a contracting officer is fully empowered to determine 

if a product offered by FPI is ‘‘comparable to products available from the private 

sector that best meet the Department’s needs in terms of price, quality, and time 

of delivery.’’

It will provide a contracting officer access to the full range of ‘‘market research’’

tools to make the required comparability determination, make explicit that the full 

range of competitive procurement techniques are available to a contracting officer, 

preclude FPI staff from challenging a contracting officer’s determination regarding 

the comparability of a product offered by FPI, and empower contracting officers to 

ensure that FPI ‘‘performs its contractual obligations to the same extent as any 

other contractor.’’

These provisions are not inconsistent with H.R. 1829 and can operate in conjunction with the provisions of that legislation. 

I support the bill and encourage my colleague to support it as well.

[The prepared statement of Ms. Jackson Lee follows:]

92

PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS

Thank you Chairman Sensenbrenner and Ranking Member Conyers for convening 

this Full Committee Markup opportunity concerning H.R. 1837, the Services Acquisition Reform Act of 2003 (SARA). The purpose of this legislation is to streamline 

the federal government procurement process as to its billion dollar goods and services requirements. While I support this bill and its goal of creating a chief acquisition officer post and establishing a training fund for acquisition of personnel, I regret that some of the amendments that my colleagues offered did not pass with the 

draft we have before us. They suggested ways to facilitate the government’s ability 

to protect against waste, fraud, and abuse in federal contracting. One amendment 

offered by Representative Kucinich proposed to create a comprehensive, government-wide system to track the cost and quality of agency contracting efforts, focusing on contracts entered into as the result of a public-private competition as to Contract Tracking. The other as to the issue of Standing would have given federal employees or their representatives standing to appeal the results of an A–76 decision 

transferring federal jobs to private contractors. In the area of Competition, Representative Van Hollen offered an amendment to require any decision by an agency 

to transfer the performance of a function from federal employees to a contractor to 

be based on the results of a public-private competition process. To distinguish and 

ward against Corporate Expatriates, Representative Sanchez offered an amendment 

to prohibit agencies from entering into any contract with a subsidiary of a publicly 

traded corporation if the corporation is incorporated in a tax haven country but the 

United States is the principal market for the public trading of the corporation’s 

stock. Furthermore, Representative Maloney offered an amendment to allow debarment officials across agencies to share information regarding contractors’ activities. 

Finally, Mr. Maloney also offered an amendment to ensure the bill’s position of 

Chief Acquisition Officer is held by a career professional. All of the above proposals 

would have made a substantive and positive contribution to improving the thrust 

of this bill. 

I share the sentiment of my Democratic Colleagues in bemoaning the potential 

shortfalls of H.R. 1837 in the areas of Contractor Involvement in Federal Acquisition Decisions; ‘‘Share in Savings’’ Contracts; and ‘‘Other Transaction’’ Authority. 

In the area of Contractor Involvement, this bill, as drafted, would give very 

weighty oversight duties of acquisition personnel to the private sector. This provision could give private contractors undue influence over the federal contracting and 

procurement process. I am a staunch advocate of the advancement and increased 

opportunity for small businesses; however, overall control of the process should remain in the hands of the federal government lest we develop a system that fosters 

unfair dealing and unsavory trade practices. 

Section 301 of the bill authorizes a contract type called ‘‘share-in-savings.’’ Under 

these contracts, the contractor agrees to bear the initial project costs until the agency begins to achieve specified savings or enhanced revenues from the work. Payment 

is based on a percentage of the savings or revenues realized by the agency. 

These contracts are largely untested, both in the public and private sector. For 

this reason, after extensive negotiations, the E-Government Act of 2003 (P.L. 107–

347) authorized 15 share-in-savings contracts in military departments and 15 in civilian agencies over a three-year period. The idea was that these 30 contracts would 

serve as pilot projects. 

H.R. 1837 eliminates these carefully negotiated limits and gives all agencies permanent authority to enter into an unlimited number of share-in-savings contracts 

before any of the pilots have even begun. Moreover, SARA eliminates other safeguards in the E-Government Act, such as the requirement that ‘‘share in savings’’

contracts not be used in revenue enhancement. Revenue enhancing contracts raise 

a host of complicated issues, such as ensuring that share-in-savings contracts for 

debt collection do not bring about opportunities for excessive harassment. 

One of the major concerns about these contracts is that they contravene congressional appropriations procedures. For other contracts, agencies must come to Congress for budget authority for the contracts. However, section 301 specifically waives 

this requirement if the government’s potential liability under the contract is $10 

million or less. This removes an important element of oversight and accountability. 

In addition, this legislation, in providing for ‘‘Other Transaction’’ Authority, unfairly allows certain agencies to contract absent the guidance of the procurement 

laws. Section 501 of SARA would extend to all civilian agencies ‘‘other transaction’’

authority for research and development projects related to defense against terrorism. This authority permits agencies to enter into contracts without regard to almost all federal statutes and regulations, including the Federal Acquisition Regulation, the Federal Property Act, the Competition in Contracting Act, the Federal AcVerDate jul 14 2003 12:12 Sep 05, 2003 Jkt 019006 PO 00000 Frm 00092 Fmt 6659 Sfmt 6621 E:\HR\OC\HR1837 HR1837
93

quisition Streamlining Act, and the Federal Grant and Cooperative Agreement Act, 

as well as the Truth in Negotiations Act and Cost Accounting Standards. 

In the recently passed Homeland Security Act, the new Department of Homeland 

Security was given this authority for five years. The effect of the SARA provision 

is to repeal this time limit and to extend use of the authority to all agencies. 

Mr. Chairman and Ranking Member, for the foregoing reasons, I support H.R. 

1837 with reservations as to those areas covered by the amendments of my Democratic Colleagues that were rejected in Committee. Thank you very much for this 

opportunity to provide input.

Chairman SENSENBRENNER. I would point out that this bill has 

been referred to us under a sequential referral which expires today. 

There are some provisions within the jurisdiction of the Committee. 

I have no amendments. Does anybody else have an amendment? 

The gentleman from Virginia Mr. Scott. 

Mr. SCOTT. Mr. Chairman, I have an amendment at the desk. 

Chairman SENSENBRENNER. The clerk will report the amendment. 

The CLERK. Mr. Chairman, I don’t have an amendment. 

Chairman SENSENBRENNER. There is no amendment at the desk. 

The clerk will report the amendment. 

The CLERK. Amendment to H.R. 1837 offered by Mr. Scott of Virginia. Strike section 215 of the bill, page 44, line 9 through page 

48, line 15, and conform the table of contents accordingly. 

[The amendment follows:]

94 H.L.C.

AMENDMENT TO H.R. 1837

OFFERED BY MR. SCOTT OF VIRGINIA

(Page & line nos. refer to Committee Print of 7/23/03)

Strike section 215 of the bill (page 44, line 9,

through page 48, line 15) and conform the table of contents accordingly.


A1837.AAB
95

Chairman SENSENBRENNER. The gentleman from Virginia is recognized for 5 minutes. 

Mr. SCOTT. Mr. Chairman, I won’t take 5 minutes, because I 

think the purpose of the amendment is fairly simple. The bill 

would apply the Department of Defense contract restrictions to the 

rest of the Government contracting—the prison provisions to the 

rest of the Government contracting. 

Already we have seen about 2,000 inmates’ jobs lost. In a few 

minutes, Mr. Chairman, we will be marking up a comprehensive 

prison industries bill. So the provision is duplicative and unnecessary. Moreover, we are the Committee responsible for public safety, 

the safe, orderly and productive operation of our prisons and the 

productive and feeding of the prisoners. So anybody who believes 

that the public is better served by more inmates coming out of prison without more work and real work experience is, I think, speaking—is looking at different numbers than I am. 

I would hope, Mr. Chairman, that we would focus the debate on 

the other bill and take the provision out of this legislation. 

I yield back the balance of my time. 

Chairman SENSENBRENNER. The Chair recognizes himself in opposition to the amendment. 

This amendment should be defeated because it seeks to continue 

during the 5-year transition period the current captive relationship 

of the Federal agencies in which the Federal Prison Industries 

rather than the buying agency determines whether Prison Industries offer product, and delivery schedule meets the buying agency’s 

need; and Prison Industries, rather than the buying agency, determine the reasonableness of the offered price by Federal Prison Industries. 

This amendment would simply continue to allow Federal Prison 

Industries unilaterally to take Federal contracts and thus wasting 

taxpayers’ dollars. It has written, the provision authorizes solesource contract awards to Prison Industries during the 5-year transition period to full and open competition, which is a major concession to the business—by the business-labor coalition supporting 

comprehensive Federal prison industry reform. 

The proponents of this amendment want to deprive the buying 

agency of getting what it needs when it needs it and at a reasonable price, and I urge a no vote on the amendment. 

The question is on the—the gentleman from North Carolina. 

Mr. WATT. Move to strike the last word. 

Chairman SENSENBRENNER. The gentleman is recognized for 5 

minutes. 

Mr. WATT. Mr. Chairman, I don’t get to do this very often, so I 

want to take advantage of it. I just want to agree with the Chairman. 

Chairman SENSENBRENNER. With that, the question is on the 

Scott amendment. Those in favor will say aye. 

Opposed, no. 

The ayes appear—excuse me. The noes appear to have it. The 

noes have it, and the amendment is not agreed to. 

Are there further amendments? 

If not, a reporting quorum is not present. Without objection, the 

previous question is ordered on the motion to report the bill favorably. 

96

[Intervening business.] 

Chairman SENSENBRENNER. A reporting quorum is now present. 

The unfinished business is the motion to report favorably the bill 

H.R. 1837, the ‘‘Services Acquisition Reform Act of 2003,’’ upon 

which the previous question has been ordered on the motion to favorably report the bill. Those in favor will say aye. 

Those opposed, no. 

The ayes appear to have it. The ayes have it. The motion to report favorably is agreed to. 

Without objection, the staff will be authorized to make technical 

and conforming changes. 

Without objection, the Chair is authorized to go to conference 

pursuant to House rules, and all Members will be given 2 days 

under the rules in which to submit additional dissenting and minority or supplemental views. 

(97)

ADDITIONAL VIEWS

I. BILL SUMMARY

Each year the U.S. government spends well over $200 billion 

buying services and goods ranging from sophisticated information 

technology and management services to grass cutting and window 

washing, from paper clips to advanced weapon systems. More than 

half of that $200 billion, over $135 billion, is now spent on services—an increase of about 24 percent since 1990—establishing 

services as the Nation’s largest single spending category. 

The Services Acquisition Reform Act (SARA) affects how the Federal Government procures these Federal goods and services. The 

aim of the legislation is to ‘‘streamline’’ the procurement process by 

remedying the following purported deficiencies: (1) the lack of upto-date comprehensive training for acquisition professionals, (2) the 

inability of the current government structure to reflect businesslike practices by integrating the acquisition function into the overall agency mission and facilitating cross-agency acquisitions and information sharing, and (3) the lack of effective tools and incentives 

to encourage the participation of the best commercial firms in the 

government market. 

A similar SARA was introduced in the 107th Congress as H.R. 

3832 and referred to the Committees on Government Reform and 

Armed Services. No action was taken on the bill in either Committee. Also introduced in the 107th Congress was H.R. 3925, the 

‘‘Digital Tech Corps Act of 2002,’’ which allowed for the exchange 

of mid-level information technology staff between the government 

and private sector. This bill was reported favorably by the Judiciary Committee and passed the House on a voice vote. The bill was 

referred to a Senate Subcommittee and no action was taken. 

In the 108th Congress, the new SARA was reintroduced and referred to the Committees on Government Reform, Armed Services, 

and Judiciary. The Government Reform Committee reported the 

bill favorably on May 7, 2003. However, key amendments on important acquisition issues offered by Democratic members were rejected during markup. In their dissenting views, the Democrats on 

the Committee concluded, ‘‘While we support the goal of streamlining Federal procurement laws, we cannot support SARA in its 

current form. Unfortunately, as reported by the Committee, the bill 

exposes the taxpayer to new forms of waste, fraud, and abuse in 

Federal contracting.’’

II. POLICY CONCERNS

We support the goal of improving the Federal procurement process. Toward this end, the legislation creates a chief acquisition officer and establishes a training fund for acquisition personnel. These 

steps will help promote a professional, well-trained Federal acquisiVerDate jul 14 2003 12:12 Sep 05, 2003 Jkt 019006 PO 00000 Frm 00097 Fmt 6601 Sfmt 6601 E:\HR\OC\HR1837 HR1837
98

tion workforce and we applaud these developments. There are, 

however, a number of significant problems with the legislation. 

There are two problematic sections, both of which fall under the jurisdiction of the Judiciary Committee: 1) Section 103—the government-industry exchange program for acquisition personnel and 2) 

Section 215—procedural requirements for civilian agencies relating 

to products of Federal prison industries. 

A. Section 103

This program is troublesome because it could give private contractors undue influence over the Federal contracting process. In 

effect, industry workers would be making government decisions on 

ensuring that contractors are not overpaid and that the work performed meets Federal standards. Turning these functions over to 

private sector employees is not only irresponsible, but dangerous. 

Even if private sector contractors follow conflict of interest laws 

(which they are subject to in the bill) and do not work on projects 

involving their private employers, their involvement is still inappropriate. They will still be paid by their private employers and are 

expected to return to take on ‘‘increased acquisition management 

responsibilities’’ after the exchange is completed. They will still be 

making decisions concerning the overall industry they are employed in which will include decisions on competing private companies. Only persons who work for the government or are being paid 

by the government should be involved in making decisions about 

how much specific contractors are paid. 

There have been many questions raised in recent months about 

possible ties between current members of the administration and 

certain private companies that contract with the government. How 

can the American people be sure that contracting is handled impartially and objectively when the very companies that benefit are also 

supplying the government decision-makers. The American people 

will only become more suspicious of this process if the bill in its 

current form passes. 

Furthermore, we are concerned that Section 103 of the bill 

amounts to little more than a corporate welfare program for companies that have fallen on leaner times as a result of our ongoing economic recession. Rather than layoff workers in order to decrease 

expenditures, companies will try to temporarily shift their workers 

to government jobs. The expectation will be that those workers will 

return to the company in higher-paying jobs when the economy improves. And while these workers can retain their salaries while 

participating in the exchange program, they may apply for government funding and attempt to save their employers money. 

B. Section 215

Because the Judiciary Committee already passed a comprehensive Federal Prison Industries bill, H.R. 1829, we feel that Section 

215 is unnecessary. The bill would apply the Department of Defense contract restrictions to the rest of government contracting. 

Yet these restrictions have already brought about the loss of nearly 

2,000 inmate jobs. Moreover, we are the Committee responsible for 

public safety and the safe, orderly and productive operation of our 

prisons. Research has shown that inmates who are released from 

99

prison with practical work skills and work experience have a better 

chance of securing employment in the private sector. Prison work 

programs reduce crime and recidivism rates. Section 215 will take 

needed jobs away from inmates and have a negative effect on our 

efforts to fight crime and reduce the prison population. 

During the markup, Rep. Scott offered an amendment to strike 

section 215 of the bill which was defeated by voice vote. 

III. CONCLUSION

In conclusion, we feel that Sections 103 and 215 of the bill should 

be deleted and hope that amendments accomplishing this will be 

ruled in order when the bill comes before the whole House for a 

vote. This will go a long way toward fighting crime, helping our 

prison population, and assuring the American people that government contracting is conducted in an impartial way—free of the 

undue influence of the private companies who stand to benefit. An 

amendment eliminating Section 103 will also remove what we see 

as little more than a government hand-out to contractors who have 

fallen on hard times because of the recession. An amendment eliminating Section 215 will ultimately help reduce our growing prison 

population.

JOHN CONYERS, JR. 

ROBERT C. SCOTT. 

MAXINE WATERS.

Æ