I

104TH CONGRESS

1ST SESSION H. R. 1038

To revise and streamline the acquisition laws of the Federal Government,

and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 24, 1995

Mr. CLINGER (for himself, Mr. SPENCE, and Mr. GILMAN) introduced the following bill; which was referred to the Committee on Government Reform

and Oversight and, in addition, to the Committees on National Security,

International Relations, and the Judiciary, 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

A BILL

To revise and streamline the acquisition laws of the Federal

Government, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Federal Acquisition

5 Reform Act of 1995’’.
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1 SEC. 2. PROCUREMENT INTEGRITY AMENDMENT.

2 (a) AMENDMENT OF PROCUREMENT INTEGRITY PRO3 VISION.—Section 27 of the Office of Federal Procurement

4 Policy Act (41 U.S.C. 423) is amended to read as follows:

5 ‘‘SEC. 27. RESTRICTIONS ON DISCLOSING AND OBTAINING

6 CONTRACTOR BID OR PROPOSAL INFORMA7 TION OR SOURCE SELECTION INFORMATION.

8 ‘‘(a) PROHIBITION ON DISCLOSING PROCUREMENT

9 INFORMATION.—(1) A person described in paragraph (2)

10 shall not, other than as provided by law, knowingly and

11 willfully disclose contractor bid or proposal information or

12 source selection information before the award of a Federal

13 agency procurement contract to which the information re14 lates.

15 ‘‘(2) Paragraph (1) applies to any person who—

16 ‘‘(A) is a present or former officer or employee

17 of the United States, or a person who is acting or

18 has acted for or on behalf of, or who is advising or

19 has advised the United States with respect to, a

20 Federal agency procurement; and

21 ‘‘(B) by virtue of that office, employment, or re22 lationship has or had access to contractor bid or pro23 posal information or source selection information.

24 ‘‘(b) PROHIBITION ON OBTAINING PROCUREMENT

25 INFORMATION.—A person shall not, other than as pro26 vided by law, knowingly and willfully obtain contractor bid
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1 or proposal information or source selection information be2 fore the award of a Federal agency procurement contract

3 to which the information relates.

4 ‘‘(c) PROHIBITION ON DISCLOSING OR OBTAINING

5 PROCUREMENT INFORMATION IN CONNECTION WITH A

6 PROTEST.—(1) A person shall not, other than as provided

7 by law, knowingly and willfully violate the terms of a pro8 tective order described in paragraph (2) by disclosing or

9 obtaining contractor bid or proposal information or source

10 selection information related to the procurement contract

11 concerned.

12 ‘‘(2) Paragraph (1) applies to any protective order

13 issued by the Comptroller General or the board of contract

14 appeals of the General Services Administration in connec15 tion with a protest against the award or proposed award

16 of a Federal agency procurement contract.

17 ‘‘(d) PENALTIES AND ADMINISTRATIVE ACTIONS.—

18 ‘‘(1) CRIMINAL PENALTIES.—

19 ‘‘(A) Whoever engages in conduct con20 stituting an offense under subsection (a), (b),

21 or (c) shall be imprisoned for not more than

22 one year or fined as provided under title 18,

23 United States Code, or both.
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1 ‘‘(B) Whoever engages in conduct con2 stituting an offense under subsection (a), (b),

3 or (c) for the purpose of either—

4 ‘‘(i) exchanging the information cov5 ered by such subsection for anything of

6 value, or

7 ‘‘(ii) obtaining or giving anyone a

8 competitive advantage in the award of a

9 Federal agency procurement contract,

10 shall be imprisoned for not more than five years

11 or fined as provided under title 18, United

12 States Code, or both.

13 ‘‘(2) CIVIL PENALTIES.—The Attorney General

14 may bring a civil action in the appropriate United

15 States district court against any person who engages

16 in conduct constituting an offense under subsection

17 (a), (b), or (c). Upon proof of such conduct by a

18 preponderance of the evidence, the person is subject

19 to a civil penalty. An individual who engages in such

20 conduct is subject to a civil penalty of not more than

21 $50,000 for each violation plus twice the amount of

22 compensation which the individual received or of23 fered for the prohibited conduct. An organization

24 that engages in such conduct is subject to a civil

25 penalty of not more than $500,000 for each violation
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1 plus twice the amount of compensation which the or2 ganization received or offered for the prohibited con3 duct.

4 ‘‘(3) ADMINISTRATIVE ACTIONS.—(A) If a Fed5 eral agency receives information that a contractor or

6 a person has engaged in conduct constituting an of7 fense under subsection (a), (b), or (c), the Federal

8 agency shall consider taking one or more of the fol9 lowing actions, as appropriate:

10 ‘‘(i) Cancellation of the Federal agency

11 procurement, if a contract has not yet been

12 awarded.

13 ‘‘(ii) Rescission of a contract with respect

14 to which—

15 ‘‘(I) the contractor or someone acting

16 for the contractor has been convicted for

17 an offense under subsection (a), (b), or (c),

18 or

19 ‘‘(II) the head of the agency that

20 awarded the contract has determined,

21 based upon clear and convincing evidence,

22 that the contractor or someone acting for

23 the contractor has engaged in conduct con24 stituting such an offense.
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1 ‘‘(iii) Initiation of suspension or debarment

2 proceedings for the protection of the Govern3 ment in accordance with procedures in the Fed4 eral Acquisition Regulation.

5 ‘‘(iv) Initiation of adverse personnel action,

6 pursuant to the procedures in chapter 75 of

7 title 5, United States Code, or other applicable

8 law or regulation.

9 ‘‘(B) If a Federal agency rescinds a contract

10 pursuant to subparagraph (A)(ii), the United States

11 is entitled to recover, in addition to any penalty pre12 scribed by law, the amount expended under the con13 tract.

14 ‘‘(C) For purposes of any suspension or debar15 ment proceedings initiated pursuant to subpara16 graph (A)(iii), engaging in conduct constituting an

17 offense under subsection (a), (b), or (c) affects the

18 present responsibility of a Government contractor or

19 subcontractor.

20 ‘‘(e) DEFINITIONS.—As used in this section:

21 ‘‘(1) The term ‘contractor bid or proposal infor22 mation’ means any of the following information sub23 mitted to a Federal agency as part of or in connec24 tion with a bid or proposal to enter into a Federal

25 agency procurement contract, if that information has
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1 not been previously made available to the public or

2 disclosed publicly:

3 ‘‘(A) Cost or pricing data (as defined by

4 section 2306a(i) of title 10, United States

5 Code, with respect to procurements subject to

6 that section, and section 304A(i) of Federal

7 Property and Administrative Services Act of

8 1949 (41 U.S.C. 254b(i), with respect to pro9 curements subject to that section).

10 ‘‘(B) Indirect costs and direct labor rates.

11 ‘‘(C) Proprietary information about manu12 facturing processes, operations, or techniques

13 marked by the contractor in accordance with

14 applicable law or regulation.

15 ‘‘(D) Information marked by the contrac16 tor as ‘contractor bid or proposal information’,

17 in accordance with applicable law or regulation.

18 ‘‘(2) The term ‘source selection information’

19 means any of the following information prepared for

20 use by a Federal agency for the purpose of evaluat21 ing a bid or proposal to enter into a Federal agency

22 procurement contract, if that information has not

23 been previously made available to the public or dis24 closed publicly:
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1 ‘‘(A) Bid prices submitted in response to a

2 Federal agency solicitation for sealed bids, or

3 lists of those bid prices before public bid open4 ing.

5 ‘‘(B) Proposed costs or prices submitted in

6 response to a Federal agency solicitation, or

7 lists of those proposed costs or prices.

8 ‘‘(C) Source selection plans.

9 ‘‘(D) Technical evaluation plans.

10 ‘‘(E) Technical evaluations of proposals.

11 ‘‘(F) Cost or price evaluations of propos12 als.

13 ‘‘(G) Competitive range determinations

14 that identify proposals that have a reasonable

15 chance of being selected for award of a con16 tract.

17 ‘‘(H) Rankings of bids, proposals, or com18 petitors.

19 ‘‘(I) The reports and evaluations of source

20 selection panels, boards, or advisory councils.

21 ‘‘(J) Other information marked as ‘source

22 selection information’ based on a case-by-case

23 determination by the head of the agency, his

24 designee, or the contracting officer that its dis25 closure would jeopardize the integrity or suc-
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1 cessful completion of the Federal agency pro2 curement to which the information relates.

3 ‘‘(3) The term ‘Federal agency’ has the mean4 ing provided such term in section 3 of the Federal

5 Property and Administrative Services Act of 1949

6 (40 U.S.C. 472).

7 ‘‘(4) The term ‘Federal agency procurement’

8 means the acquisition (by using competitive proce9 dures and awarding a contract) of goods or services

10 (including construction) from non-Federal sources

11 by a Federal agency using appropriated funds.

12 ‘‘(5) The term ‘contracting officer’ means a

13 person who, by appointment in accordance with ap14 plicable regulations, has the authority to enter into

15 a Federal agency procurement contract on behalf of

16 the Government and to make determinations and

17 findings with respect to such a contract.

18 ‘‘(6) The term ‘protest’ means a written objec19 tion by an interested party to the award or proposed

20 award of a Federal agency procurement contract,

21 pursuant to section 111 of the Federal Property and

22 Administrative Services Act of 1949 (40 U.S.C. 759)

23 or subchapter V of chapter 35 of title 31, United

24 States Code.
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1 ‘‘(f) LIMITATION ON PROTESTS.—No person may file

2 a protest against the award or proposed award of a Fed3 eral agency procurement contract alleging an offense

4 under subsection (a), (b), or (c), of this section, nor may

5 the Comptroller General or the board of contract appeals

6 of the General Services Administration consider such an

7 allegation in deciding a protest, unless that person re8 ported to the Federal agency responsible for the procure9 ment information that the person believed constituted evi10 dence of the offense no later than 14 days after the person

11 first discovered the possible offense.

12 ‘‘(g) SAVINGS PROVISIONS.—This section does not—

13 ‘‘(1) restrict the disclosure of information to, or

14 its receipt by, any person or class of persons author15 ized, in accordance with applicable agency regula16 tions or procedures, to receive that information;

17 ‘‘(2) restrict a contractor from disclosing its

18 own bid or proposal information or the recipient

19 from receiving that information;

20 ‘‘(3) restrict the disclosure or receipt of infor21 mation relating to a Federal agency procurement

22 after it has been canceled by the Federal agency be23 fore contract award unless the Federal agency plans

24 to resume the procurement;
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1 ‘‘(4) authorize the withholding of information

2 from, nor restrict its receipt by, Congress, a commit3 tee or subcommittee of Congress, the Comptroller

4 General, a Federal agency, or an inspector general

5 of a Federal agency;

6 ‘‘(5) authorize the withholding of information

7 from, nor restrict its receipt by, any board of con8 tract appeals of a Federal agency or the Comptroller

9 General in the course of a protest against the award

10 or proposed award of a Federal agency procurement

11 contract; or

12 ‘‘(6) limit the applicability of any requirements,

13 sanctions, contract penalties, and remedies estab14 lished under any other law or regulation.’’.

15 (b) REGULATIONS.—(1) Proposed revisions to the

16 Federal Acquisition Regulation to implement this section

17 shall be published in the Federal Register not later than

18 60 days after the date of the enactment of this Act.

19 (2) The proposed regulations described in paragraph

20 (1) shall be made available for public comment for a pe21 riod of not less than 60 days.

22 (3) Final regulations shall be published in the Fed23 eral Register not later than 150 days after the date of

24 the enactment of this Act.
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1 (c) REPEALS.—(1) The following provisions of law

2 are repealed:

3 (A) Sections 2397, 2397a, 2397b, and 2397c of

4 title 10, United States Code.

5 (B) Section 281 of title 18, United States Code.

6 (C) Subsection (c) of section 32 of the Office of

7 Federal Procurement Policy Act (41 U.S.C. 428).

8 (2)(A) The table of sections at the beginning of chap9 ter 141 of title 10, United States Code, is amended by

10 striking the items relating to sections 2397, 2397a, 2397b,

11 and 2397c.

12 (B) The table of sections at the beginning of chapter

13 15 of title 18, United States Code, is amended by striking

14 the item relating to section 281.

15 (C) Section 32 of the Office of Federal Procurement

16 Policy Act (41 U.S.C. 428) is amended by redesignating

17 subsections (d), (e), (f), and (g) as subsections (c), (d),

18 (e), and (f), respectively.

19 SEC. 3. INTERNATIONAL COMPETITIVENESS.

20 (a) REPEAL OF PROVISION RELATING TO RESEARCH,

21 DEVELOPMENT, AND PRODUCTION COSTS.—Section 21(e)

22 of the Arms Export Control Act (22 U.S.C. 2761(e)) is

23 amended—

24 (1) by inserting ‘‘and’’ after the semicolon at

25 the end of paragraph (1)(A);
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1 (2) by striking out subparagraph (B) of para2 graph (1);

3 (3) by redesignating subparagraph (C) of para4 graph (1) as subparagraph (B);

5 (4) by striking out paragraph (2); and

6 (5) by redesignating paragraph (3) as para7 graph (2).

8 (b) EFFECTIVE DATE.—The amendments made by

9 subsection (a) shall be effective with respect to sales agree10 ments pursuant to sections 21 and 22 of the Arms Export

11 Control Act (22 U.S.C. 2761 and 2762) entered into on

12 or after the date of the enactment of this Act.

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