I

104TH CONGRESS

1ST SESSION H. R. 1388

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

and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

APRIL 4, 1995

Mr. CLINGER (for himself, Mrs. COLLINS of Illinois, Mr. SPENCE, and Mr.

DELLUMS) (all by request) introduced the following bill; which was referred to the Committee on Government Reform and Oversight, and in

addition to the Committees on National Security, the Judiciary, Small

Business, Science, and International Relations, 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 Improvement Act of 1995’’.

6 SEC. 2. TABLE OF CONTENTS.

7 The table of contents of this Act is as follows:

TITLE I—CONTRACT FORMATION
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Subtitle A—Competition Statutes

PART I—ARMED SERVICES ACQUISITIONS

SUBPART A—COMPETITION REQUIREMENTS

Sec. 1001. Delegation of authorities and conforming amendments.

Sec. 1002. Modification of approval levels.

Sec. 1003. Advisory and assistance services defined.

SUBPART B—PLANNING, SOLICITATION, EVALUATION, AND AWARD

Sec. 1011. Evolving solicitations.

Sec. 1012. Competitive range determinations.

Sec. 1013. Preaward debriefings.

Sec. 1014. Two-phase selection procedures.

SUBPART C—KINDS OF CONTRACTS

Sec. 1021. Repeal of fee limitations.

PART II—CIVILIAN AGENCY ACQUISITIONS.

SUBPART A—COMPETITION REQUIREMENTS

Sec. 1051. Delegation of authorities and conforming amendments.

Sec. 1052. Modification of approval levels.

Sec. 1053. Advisory and assistance services defined.

Sec. 1054. Continued occupancy of leased space.

SUBPART B—PLANNING, SOLICITATION, EVALUATION, AND AWARD

Sec. 1061. Evolving solications.

Sec. 1062. Competitive range determinations.

Sec. 1063. Preaward debriefings.

Sec. 1064. Two-phase selections procedures.

SUBPART C—KINDS OF CONTRACTS

Sec. 1071. Repeal of fee limitiations.

PART III—ACQUISITIONS GENERALLY

Sec. 1091. Repeal of duplicative approval authority provision.

Sec. 1092. Repeal of annual competition report.

Sec. 1093. Review of regulators for consistency with Federal acquisition regulation.

Sec. 1094. Repeal biannual report on procurement regulatory activity.

Subtitle B—Truth In Negotiations

PART I—ARMED SERVICES ACQUISITIONS

Sec. 1101. Required regulations.

PART II—CIVILIAN AGENCY ACQUISITIONS

Sec. 1151. Required regulations.

Sec. 1152. Clarification of status of certain Federal employees health benefits

contracts.
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Subtitle C—Procurement Protests

PART I—PROTESTS TO THE COMPTROLLER GENERAL

Sec. 1201. GAO requirement to rule on dispositive motions.

Sec. 1202. Frivolous protests.

Sec. 1203. Decisions on protests.

Sec. 1204. Award of costs.

Sec. 1205. Availability of funds pending administrative procedure.

PART II—PROTESTS IN THE FEDERAL COURTS

Sec. 1211. Jurisdiction of the United States Court of Federal Claims.

PART III—PROTESTS IN PROCUREMENTS OF AUTOMATIC DATA PROCESSING

Sec. 1431. Decisions on protests.

Sec. 1432. Interlocutory appeals.

Sec. 1433. Suspension of procurement pending protest.

Sec. 1434. Dispositive motions.

Sec. 1435. Frivolous protests.

Sec. 1436. Award of costs.

PART IV—GENERAL

Sec. 1441. Protests of procurements made through the Federal acquisition

computer network under the simplified acquisition threshold.

Sec. 1442. Offeror statements to refrain from protesting procurements.

Sec. 1443. Sense of Congress on agency resolution of protests.

Subtitle D—Policy, Definitions, and Other Matters

Sec. 1551. Repeal of multi-year limitation on inspection, maintenance, and repair.

Sec. 1552. Public utilities services.

Sec. 1553. Contracting for guards, elevator operators, messengers, and

custodians.

TITLE II—CONTRACT ADMINISTRATION

Subtitle A—Contract Payment

PART I—ARMED SERVICES ACQUISITIONS

Sec. 2001. Vestiture of title.

PART II—CIVILIAN AGENCY ACQUISITIONS

Sec. 2051. Vestiture of title.

Subtitle B—Cost Principles

PART I—CIVILIAN AGENCY ACQUISITIONS

Sec. 2101. Applicability of cost principles.

PART II—ACQUISITIONS GENERALLY

Sec. 2151. Allowable contract costs.
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Subtitle C—Claims and Disputes

Sec. 2251. Divestiture of District Courts of dispute jurisdiction.

Sec. 2252. Contract Disputes Act improvement.

Subtitle D—Miscellaneous

Sec. 2301. Accounting for advisory and assistance services.

Sec. 2302. Waivers from cancellation of funds.

TITLE III—COMMERCIAL ITEMS

Sec. 3001. Commercial items.

TITLE IV—SIMPLIFIED ACQUISITION THRESHOLD

Subtitle A—Threshold Defined

Sec. 4001. Simplified acquisition threshold defined.

Subtitle B—Inapplicability of Laws to Acquisitions At or Below the

Simplified Acquisition Threshold

Sec. 4101. Miller Act.

Subtitle C—Simplified Procedures

Sec. 4201. Repeal of duplicative authority for simplified acquisition purchases.

Sec. 4202. Amendment to conform procurement notice posting thresholds.

Sec. 4203. Exemption from wait period when using detailed synopsis.

Sec. 4204. Exemption from synopsizing requirements.

Sec. 4205. Repeal of duplicative procurement notice provision.

Sec. 4206. Technical amendments.

Subtitle D—Micro-Purchase Procedures

Sec. 4301. Micro-purchases.

TITLE V—ACQUISITION MANAGEMENT

Subtitle A—Pilot Programs

Sec. 5001. Acquisition research demonstration projects.

Subtitle B—Miscellaneous

Sec. 5051. Administrative procedures, Department of Energy.

TITLE VI—OTHER PROCUREMENT-RELATED MATTERS

Subtitle A—Standards of Conduct/Ethics

Sec. 6001. Disclosing and obtaining contractor bid or proposal information or

source selection information.

Sec. 6002. Repeals.

Sec. 6003. Conforming amendments.

Subtitle B—Additional Amendments

Sec. 6051. Inapplicability of prohibition on gratuities.
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Subtitle C—Intellectual Property

Sec. 6101. Technology innovation.

Sec. 6102. Employee activities.

Sec. 6103. Exception to prohibition on copyright protection for works of the

United States Government.

Sec. 6104. Patent rights in inventions made with Federal assistance.

TITLE VII—SMALL BUSINESS AND SOCIOECONOMIC LAWS

Subtitle A—Small Business Laws

Sec. 7001. Direct contracting with section 8(a) companies.

Sec. 7002. Small business subcontracting plans.

Sec. 7003. Reporting requirement on number of small business subcontract

awards.

Sec. 7004. Repeal of small business competitiveness demonstration program.

Sec. 7005. Repeal of program for manufacturing contracts through manufacturing application and education centers.

Sec. 7006. Repeal of pilot program for very small business concerns.

Subtitle B—Socioeconomic Laws

Sec. 7101. Repeal of Walsh-Healey Public Contracts Act.

Sec. 7102. Procurement report—Resource Conservation and Recovery Act.

Sec. 7103. Requirements for certification and verification.

TITLE VIII—DEFENSE INTERNATIONAL TRADE

Sec. 8001. Competitiveness of United States companies.

1 TITLE I—CONTRACT FORMATION

2 Subtitle A—Competition Statutes

3 PART I—ARMED SERVICES ACQUISITIONS

4 Subpart A—Competition Requirements

5 SEC. 1001. DELEGATION OF AUTHORITIES AND CONFORM6 ING AMENDMENTS.

7 (a) COMPETITION REQUIREMENTS.—Section 2304 of

8 title 10, United States Code, is amended—

9 (1) in subsection (b) by striking ‘‘the head of

10 an agency’’ in each place that it appears and insert11 ing in lieu thereof ‘‘the head of the contracting ac12 tivity’’;
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1 (2) in subsection (c) by striking out ‘‘the head

2 of an agency’’ in the first sentence and inserting in

3 lieu thereof ‘‘an executive agency’’;

4 (3) in subsection (c)(7) by striking out ‘‘head of

5 the agency’’ and inserting in lieu thereof ‘‘head of

6 the contracting activity’’; and

7 (4) in subsection (d)(2) by striking out ‘‘head

8 of an agency’’ and inserting in lieu therefor ‘‘head

9 of the contracting activity’’.

10 (b) FORMATION PROCEDURES.—Section 2305 of title

11 10, United States Code, is amended by striking out ‘‘the

12 head of an agency’’ or ‘‘the head of the agency’’ in each

13 place that it appears and inserting in lieu thereof ‘‘the

14 contracting officer’’.

15 (c) KINDS OF CONTRACTS.—Subsection (a) of section

16 2306 of title 10, United States Code, is amended to read

17 as follows:

18 ‘‘(a) The cost-plus percentage-of-cost system of con19 tracting may not be used. Subject to the limitation in the

20 preceding sentence, the other provisions of this section,

21 and other applicable provisions of law, an agency, in

22 awarding contracts under this chapter after using proce23 dures other than sealed-bid procedures, may enter into

24 any kind of contract that the agency considers will pro25 mote the best interests of the United States.’’.
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1 (d) COST OR PRICING DATA.—Section 2306a of title

2 10, United States Code, is amended—

3 (1) in subsection (b)(1)(B) by striking out

4 ‘‘when the head of the procuring activity, without

5 delegation,’’ and inserting in lieu thereof ‘‘when the

6 contracting officer’’; and

7 (2) in subsection (g) by striking the words ‘‘the

8 head of’’.

9 (e) ENCOURAGEMENT OF NEW COMPETITORS.—Sec10 tion 2319 of title 10, United States Code is amended—

11 (1) by striking out ‘‘the head of an agency’’ or

12 ‘‘the head of the agency’’ in each place that it ap13 pears and inserting the lieu thereof ‘‘the contracting

14 officer’’;

15 (2) by striking out subparagraph (A) of sub16 section (c)(2) and inserting in lieu thereof the fol17 lowing:

18 ‘‘(A) Except as provided in subparagraph

19 (B), if it is unreasonable to specify the stand20 ards for qualification which a prospective

21 offeror or its product must satisfy, a determina22 tion to that effect shall be submitted to the

23 head of the contracting activity. After consider24 ing the determination and the facts supporting

25 it, the head of the contracting activity may
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1 waive the requirements of clauses (2) through

2 (6) of subsection (b) for up to two years with

3 respect to the item subject to the qualification

4 requirement.’’; and

5 (3) by adding a new subsection (g) to read as

6 follows:

7 ‘‘(g) The contracting officer need not prepare the jus8 tification required by subsection (b)(1) nor the determina9 tion required by subsection (f) if, in the prior fiscal year,

10 the agency either obligated 75 percent or more of its con11 tract dollars available for competition or awarded 95 per12 cent or more of its contract actions available for competi13 tion using competitive procedures.’’.

14 SEC. 1002. MODIFICATION OF APPROVAL LEVELS.

15 (a) APPROVAL OF JUSTIFICATIONS.—Section

16 2304(f)(1)(B) of title 10, United States Code is amended

17 to read as follows:

18 ‘‘(f)(1)(B) the justification is approved—

19 ‘‘(i) in the case of a contract for an amount ex20 ceeding $500,000 (but equal to or less and

21 $5,000,000) by the competition advocate for the pro22 curing activity (without further delegation) or by an

23 official referred to in (ii), (iii), or (iv);

24 ‘‘(ii) in the case of a contract for an amount ex25 ceeding $5,000,000 (but equal to or less than
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1 $115,000,000), by the head of the procuring activity

2 (or the head of the procuring activity’s delegate des3 ignated pursuant to paragraph (6)(A));

4 ‘‘(iii) in the case of a contract for amount ex5 ceeding $115,000,000 (but equal to or less than

6 $500,000,000), by the senior procuring executive of

7 the agency designated pursuant to section 16(3) of

8 the Office of Federal Procurement Policy Act (41

9 U.S.C. 414(3)) or the senior procurement executive’s

10 delegate designated pursuant to paragraph (6)(B),

11 or in the case of the Under Secretary of Defense for

12 Acquisition, acting in his capacity as the senior pro13 curement executive for the Department of Defense;

14 the Under Secretary’s delegate designated pursuant

15 to paragraph (6)(C);

16 ‘‘(iv) in the case of a contract for amount ex17 ceeding $500,000,000, by the senior procuring exec18 utive of the agency designated pursuant to section

19 16(3) of the Office of Federal Procurement Policy

20 Act (41 U.S.C. 414(3)) (without further delegation)

21 or in the case of the Under Secretary of Defense for

22 Acquisition, acting in his capacity as the senior pro23 curement executive for the Department of Defense,

24 the Under Secretary’s delegate designated pursuant

25 to paragraph (6)(C); and’’.
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1 (b) EXCEPTION.—Section 2304(f)(1) of title 10,

2 United States Code, is further amended by adding at the

3 end the following:

4 ‘‘(D) The justification required by paragraph

5 (1)(A) is not required to be approved as under para6 graph (1)(B) if the agency obligated 75 percent or

7 more of its contract dollars available for competition

8 or awarded 95 percent or more of its contract ac9 tions available for competition during the previous

10 fiscal year using competitive procedures.’’.

11 SEC. 1003. ADVISORY AND ASSISTANCE SERVICES DEFINED.

12 (a) DEFINITION.—Section 2304b(i) of title 10,

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

14 ‘‘(i) Advisory and Assistance Services Defined.

15 ‘‘In this section:

16 ‘‘(1) the term ‘‘advisory and assistance serv17 ices’’ means the following services when provided by

18 nongovernmental sources:

19 ‘‘(A) Management and professional support

20 services.

21 ‘‘(B) Studies, analysis, and evaluations.

22 ‘‘(C) Engineering and technical services.

23 ‘‘(2) In paragraph (1), such term does not in24 clude the following services:
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1 ‘‘(A) Routine automated data processing

2 telecommunications services unless such services

3 are an integral part of a contract for the pro4 curement of advisory and assistance services.

5 ‘‘(B) Architectural and engineering serv6 ices, as defined in section 901 of the Brooks

7 Architect-Engineers Act (40 U.S.C. 541).

8 ‘‘(C) Research on basic mathematics or

9 medical, biological, physical, social, psycho10 logical, or other phenomena.’’.

11 (b) TECHNICAL AMENDMENT.—Section 2304a(f) of

12 title 10 is amended by striking ‘‘section 1105(g) of title

13 31’’ and inserting in lieu thereof ‘‘section 2304b(i) of title

14 10’’.

15 Subpart B—Planning, Solicitation,

16 Evaluation, and Award

17 SEC. 1011. EVOLVING SOLICITATIONS.

18 Subsection (a) of section 2305 of title 10, United

19 States Code, is amended—

20 (1) by redesignating paragraph (5) as para21 graph (6); and

22 (2) by inserting after paragraph (4) the follow23 ing paragraph (5):

24 ‘‘(5) When purchasing commercial items under

25 this subpart, nothing in this or any other Act shall
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1 be construed to prohibit an agency from adding, de2 leting, or tailoring evaluation factors or specifica3 tions at any time up until the issuance of a request

4 for final offers.’’.

5 SEC. 1012. COMPETITIVE RANGE DETERMINATIONS.

6 Paragraph (4) of section 2305(b) of title 10, United

7 States Code, is amended by—

8 (1) redesignating subparagraphs (B) and (C) as

9 subparagraphs (C) and (D) respectively;

10 (2) striking out ‘‘(B)’’ in subparagraph (D) and

11 inserting in lieu thereof ‘‘(C)’’; and

12 (3) inserting after subparagraph (A) the follow13 ing:

14 ‘‘(B) If the contracting officer determines

15 that the number of offerors that would other16 wise be included in the competitive range under

17 subparagraph (A)(i) exceeds the number at

18 which an efficient competition can be con19 ducted, the contracting officer may limit the

20 number of offerors in the competitive range to

21 the greatest number of competitors that will

22 permit an efficient award; provided that when

23 the competition is limited for this purpose, the

24 number of offerors may not be limited to less

25 than three.’’.
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1 SEC. 1013. PREAWARD DEBRIEFINGS.

2 Section 2305(b) of title 10, United States Code, is

3 amended—

4 (1) by redesignating paragraph (6) as para5 graph (7); and

6 (2) inserting after paragraph (5) the following

7 new paragraph (6):

8 ‘‘(6)(A) When the contracting officer excludes

9 an offeror submitting a competitive proposal from

10 the competitive range (or otherwise excludes such an

11 offeror from further consideration prior to the final

12 source selection decision), the excluded offeror may

13 request in writing, within 3 days after the date on

14 which the excluded offeror receives notice of its ex15 clusion, a debriefing prior to award. The contracting

16 officer shall either debrief the unsuccessful offeror as

17 soon as is practicable or refuse the request.

18 ‘‘(B) The contracting officer is required to de19 brief an excluded offeror in accordance with para20 graph (5) of this section only if that offeror re21 quested and was refused a preaward debriefing

22 under subparagraph (A) of this paragraph.

23 ‘‘(C) The debriefing conducted under this sub24 section shall include—

25 ‘‘(i) the executive agency’s evaluation of

26 the significant factors in the offeror’s offer;
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1 ‘‘(ii) a summary of the rationale for the

2 offeror’s exclusion, including the reason or rea3 sons it was determined not to have a reasonable

4 chance of being selected for contract award or

5 other reason or reasons it was excluded; and

6 ‘‘(iii) reasonable responses to relevant

7 questions posed by the debriefed offeror as to

8 whether source selection procedures set forth in

9 the solicitation, applicable regulations, and

10 other applicable authorities were followed by the

11 executive agency.

12 ‘‘(D) The debriefing conducted pursuant to this

13 subsection may not disclose the number or identity

14 of other offerors and shall not disclose information

15 about the content, ranking, or evaluation of other

16 offerors’ proposals.

17 ‘‘(E) The contracting officer shall include a

18 summary of the debriefing in the contract file.’’.

19 SEC. 1014. TWO-PHASE SELECTION PROCEDURES.

20 (a) PROCEDURES AUTHORIZED.—Chapter 137 of

21 title 10, United States Code, is amended by inserting after

22 section 2305 the following new section:

23 ‘‘§ 12305a. Two-phase selection procedures

24 ‘‘(a) AUTHORIZATION.—The contracting officer may

25 use the two-phase selection procedures authorized herein
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1 for acquiring the design and construction of a public build2 ing, facility, or work when the criteria for use in sub3 section (b) are met. The two-phase selection procedures

4 authorized herein may also be used for entering into a con5 tract for the acquisition of property or services other than

6 construction services when the criteria described in sub7 section (b) are met.

8 ‘‘(b) CRITERIA FOR USE.—The contracting officer

9 shall make a determination whether the authorized two10 phase selection procedures are appropriate for use when

11 the contracting officer anticipates that three or more of12 fers will be received for such contract, design work must

13 be performed before an offeror can develop a price or cost

14 proposal for such contract, the offeror will incur a sub15 stantial amount of expense in preparing the offer, and

16 after considering in individual situations information such

17 as the following:

18 ‘‘(1) The extent to which the project require19 ments have been adequately defined.

20 ‘‘(2) The time constraints for delivery of the

21 project.

22 ‘‘(3) The capability and experience of potential

23 contractors.

24 ‘‘(4) The suitability of the project for use of the

25 two-phase selection procedures.
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1 ‘‘(5) The capability of the agency to manage

2 the two-phase selection process.

3 ‘‘(6) Other criteria established by the agency.

4 ‘‘(c) PROCEDURES DESCRIBED.—Two-phase selec5 tion procedures consist of the following:

6 ‘‘(1) The agency shall develop, either in-house

7 or by contract, a scope of work defining the project

8 for inclusion in the solicitation that provides pro9 spective offerors with sufficient information regard10 ing the Government’s requirements which may in11 clude criteria and preliminary conceptual design,

12 budget parameters and schedule or delivery require13 ments to enable the offerors to submit proposals

14 which meet the Government’s needs. When the two15 phase selection procedure is used for design and con16 struction of a public building, facility, or work and

17 the agency contracts for development of the scope of

18 work, the agency shall contract for architectural/en19 gineering services as defined by and in accordance

20 with section 541 and the following of title 40,

21 United States Code.

22 ‘‘(2) The contracting officer solicits phase-one

23 proposals that—

24 ‘‘(A) include information on the offeror’s—

25 ‘‘(i) technical approach; and
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1 ‘‘(ii) technical qualifications; and

2 ‘‘(B) do not include—

3 ‘‘(i) detailed design information; or

4 ‘‘(ii) cost or price information.

5 ‘‘(3) The evaluation factors to be used in evalu6 ating phase one proposals shall be stated in the so7 licitation and include specialized experience and

8 technical competence, capability to perform, past

9 performance of the offeror’s team (including the ar10 chitect-engineer and construction members of the

11 team if the project is for the construction of a public

12 building, facility or work) and other appropriate fac13 tors, except that cost-related or price-related evalua14 tion factors are not permitted. Each solicitation shall

15 establish the relative importance assigned to the

16 evaluation factors and subfactors that must be con17 sidered in the evaluation of phase one proposals. The

18 agency evaluates phase one proposals on the basis of

19 the phase one evaluation factors set forth in the

20 solicitation.

21 ‘‘(4) The contracting officer selects as the most

22 highly qualified the number of offerors specified in

23 the solicitation to provide the property or services

24 under the contract and requests the selected offerors

25 to submit phase-two competitive proposals that in-
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1 clude technical proposals and cost or price informa2 tion. Each solicitation shall establish with respect to

3 phase two—

4 ‘‘(A) the technical submission requirements

5 for the proposal, including design concepts and/

6 or proposed solutions to requirements addressed

7 within the scope of work, and

8 ‘‘(B) the evaluation factors and subfactors,

9 including cost or price, that must be considered

10 in the evaluation of proposals in accordance

11 with section 2305(b)(4).

12 ‘‘(5) The agency awards the contract in accord13 ance with section 2305(b)(4) of this title.

14 ‘‘(d) SOLICITATION TO STATE NUMBER OF

15 OFFERORS TO BE SELECTED FOR PHASE TWO RE16 QUESTS FOR COMPETITIVE PROPOSALS.—A solicitation

17 issued pursuant to subsection (c) shall state the maximum

18 number of offerors that are to be selected to submit com19 petitive proposals pursuant to subsection (c)(4). The maxi20 mum number specified in the solicitation shall not exceed

21 five unless the agency head determines with respect to an

22 individual solicitation that a specified number greater than

23 five is in the Government’s interest and is consistent with

24 the purposes and objectives of the two-phase selection

25 process.
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1 ‘‘(e) STIPENDS AUTHORIZED.—The head of an exec2 utive agency is authorized to provide a stipend to competi3 tors that are selected to submit phase two proposals and

4 that submit proposals that meet the requirements of the

5 solicitation but are not selected for the award.

6 ‘‘(f) REQUIREMENT FOR GUIDANCE AND REGULA7 TIONS.—The Federal Acquisition Regulatory Council, es8 tablished by section 25(a) of the Office of Federal Pro9 curement Policy Act (41 U.S.C. 421(a)), shall provide

10 guidance and promulgate regulations—

11 ‘‘(1) regarding the factors that may be consid12 ered in determining whether the two-phase contract13 ing procedures authorized by subsection (a) are ap14 propriate for use in individual contracting situations;

15 ‘‘(2) regarding the factors that may be used in

16 selecting contractors;

17 ‘‘(3) providing for a uniform approach to be

18 used government-wide; and

19 ‘‘(4) regarding criteria to be used in determin20 ing whether the payment of a stipend is appropriate

21 and for determining the amount of the stipend.’’.

22 (b) CLERICAL AMENDMENT.—The table of sections

23 at the beginning of such chapter is amended by inserting

24 after the item relating to section 2305 the following:

‘‘Sec. 2305a. Two-phase selection procedures.’’.
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1 Subpart C—Kinds of Contracts

2 SEC. 1021. REPEAL OF FEE LIMITATIONS.

3 (a) REPEALS.—(1) Subsection (d) of section 2306 of

4 title 10, United States Code, is repealed.

5 (2) Sections 4540, 7212, and 9540 of title 10, United

6 States Code, are repealed.

7 ‘‘(b) CLERICAL AMENDMENTS.—(1) The table of sec8 tions at the beginning of chapter 433 of title 10, United

9 States Code, is amended by striking out the item relating

10 to section 4540.

11 (2) The table of sections at the beginning of chapter

12 631 of title 10, United States Code, is amended by strik13 ing out the item relating to section 7212.

14 (3) The table of sections at the beginning of chapter

15 933 of title 10, United States Code, is amended by strik16 ing out the item relating to section 9540.

17 (c) CIVIL WORKS AUTHORITY.—Section 2855 of title

18 10, United States Code, is amended to read as follows:

19 ‘‘§ 2855 Law applicable to contracts for architectural

20 and engineering services and construc21 tion design

22 ‘‘(a) The Secretary of Defense and Secretaries of the

23 military departments may contract for architectural and

24 engineering services in connection with a military con25 struction or family housing project or for other Depart26 ment of Defense or military department purposes.
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1 ‘‘(b) Contracts for architectural and engineering serv2 ices entered into pursuant to subsection (a) shall be

3 awarded in accordance with title IX of the Federal Prop4 erty and Administrative Services Act of 1949 (40 U.S.C.

5 541 et seq.).’’.

6 PART II—CIVILIAN AGENCY ACQUISITIONS

7 Subpart A—Competition Requirements

8 SEC. 1051. DELEGATION OF AUTHORITIES AND CONFORM9 ING AMENDMENTS.

10 (a) COMPETITION REQUIREMENTS.—Section 303 of

11 the Federal Property and Administrative Services Act of

12 1949 (41 U.S.C. 253) is amended—

13 (1) in section (b)(1) by striking ‘‘the agency

14 head’’ and inserting in lieu thereof ‘‘the head of the

15 contracting activity’’;

16 (2) in section (c)(7) by striking ‘‘head of the ex17 ecutive agency’’ and inserting in lieu thereof ‘‘head

18 of the contracting activity’’; and

19 (3) in section (d)(2) by striking ‘‘head of an ex20 ecutive agency’’ and inserting in lieu thereof ‘‘head

21 of the contracting activity’’.

22 (b) EVALUATION AND AWARD.—Section 303B of the

23 Federal Property and Administrative Services Act of 1949

24 (41 U.S.C. 253b) is amended by striking out ‘‘the head

25 of an executive agency’’, ‘‘the head of an agency’’ or ‘‘the
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1 agency head’’ in each place that it appears and inserting

2 in lieu thereof ‘‘the contracting officer’’.

3 (c) ENCOURAGEMENT OF NEW COMPETITION.—Sec4 tion 303C of the Federal Property and Administrative

5 Services Act of 1949 (41 U.S.C. 253c) is amended—

6 (1) by striking out ‘‘the head of an executive

7 agency’’, ‘‘agency head’’, in each place that it ap8 pears and inserting ‘‘‘contracting officer’’ in lieu

9 thereof and also striking out ‘‘the head of an agen10 cy’’ or ‘‘the head of the agency’’ in each place that

11 it appears and inserting in lieu thereof ‘‘the con12 tracting officer’’;

13 (2) by striking out paragraph (2) in subsection

14 (c) and inserting in lieu thereof the following:

15 ‘‘(2) Except as provided in subparagraph (3), if

16 it is unreasonable to specify the standards for quali17 fication which a prospective offeror or its product

18 must satisfy, a determination to that effect shall be

19 submitted to the head of the contracting activity.

20 After considering the determination and the facts

21 supporting it, the head of the contracting activity

22 may waiver the requirements of clauses (2) through

23 (5) of subsection (b) for up to two years with respect

24 to the item subject to the qualification require25 ment.’’; and
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1 (3) by adding a new paragraph (g) to read as

2 follows:

3 ‘‘(g) The contracting officer need not prepare the jus4 tification required by subsection (b)(1) nor the determina5 tion required by subsection (f) if, in the prior fiscal year,

6 the agency either obligated 75 percent of more of its con7 tract dollars available for competition or awarded 95 per8 cent or more of its contract actions available for competi9 tion using competitive procedures.’’.

10 (d) COST OR PRICING DATA.—Section

11 304A(b)(1)(B) of the Federal Property and Administra12 tive Services Act of 1949 is amended by striking out

13 ‘‘when the head of the procuring activity, without delega14 tion,’’ and inserting in lieu thereof ‘‘when the contracting

15 officer’’.

16 ‘‘(e) PRICE REDUCTIONS.—Subsection

17 304A(e)(1)(A) of the Federal Property and Administrative

18 Services Act of 1949 is amended by striking out ‘‘head

19 of the executive agency’’ and in lieu thereof inserting ‘‘con20 tracting officer’’.

21 SEC. 1052. MODIFICATION OF APPROVAL LEVELS.

22 Section 303(f) of the Federal Property and Adminis23 trative Services Act of 1949 (41 U.S.C. 253) is amend24 ed—
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1 (1) in paragraph (1)(B)(i) by deleting

2 ‘‘$100,000 (but equal to or less than $1,000,000)’’

3 and inserting in lieu thereof ‘‘$500,000 (but equal

4 to or less than $10,000,000)’’;

5 (2) in paragraph (1)(B)(ii) by deleting

6 ‘‘$1,000,000 (but equal to or less than $10,000,000)

7 and inserting in lieu thereof ‘‘$10,000,000 (but

8 equal to or less than $50,000,000)’’;

9 (3) in paragraph (1)(B)(iii) by deleting

10 ‘‘$10,000,000’’ and inserting in lieu thereof

11 ‘‘$50,000,000’’; and

12 (4) by adding at the end a new paragraph (6)

13 to read as follows:

14 ‘‘(6) The justification required by paragraph

15 (1)(A) is not required to be approved under para16 graph (1)(B) if the agency obligated 75 percent or

17 more of its contract dollars available for competition

18 or awarded 95 percent or more of its contract ac19 tions available for competition during the previous

20 fiscal year using competitive procedures.’’.

21 SEC. 1053. ADVISORY AND ASSISTANCE SERVICES DEFINED.

22 (a) DEFINITION.—Subsection (i) of section 303I(i) of

23 the Federal Property and Administrative Services Act of

24 1949 is amended to read as follows:
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1 ‘‘(i) ADVISORY AND ASSISTANCE SERVICES DE2 FINED.—In this section—

3 ‘‘(1) the term ‘advisory and assistance services’

4 means the following services when provided by non5 governmental sources:

6 ‘‘(A) Management and professional support

7 services.

8 ‘‘(B) Studies, analysis, and evaluations.

9 ‘‘(C) Engineering and technical services.

10 ‘‘(2) In paragraph (1), such term does not in11 clude the following services:

12 ‘‘(A) Routine automated data processing

13 telecommunications services unless such services

14 are an integral part of a contract for the pro15 curement of advisory and assistance services.

16 ‘‘(B) Architectural and engineering serv17 ices, as defined in section 901 of the Brooks

18 Architect-Engineers Act (40 U.S.C. 541).

19 ‘‘(C) Research on basic mathematics or

20 medical, biological, physical, social, psycho21 logical, or other phenomena.’’.

22 (b) TECHNICAL AMENDMENT.—Section 303H(f) of

23 title 41 is amended by striking ‘‘section 1105(g) of title

24 31’’ and inserting in lieu thereof ‘‘section 303I(i) of title

25 41’’.
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1 SEC. 1054. CONTINUED OCCUPANCY OF LEASED SPACE.

2 Section 303(d) of the Federal Property and Adminis3 trative Services Act of 1949 (41 U.S.C. 253(d)) is amend4 ed—

5 (1) by redesignating paragraph (2) as para6 graph (3); and

7 (2) by inserting after paragraph (1) the follow8 ing new paragraph (2):

9 ‘‘(2)(A) For the purposes of applying subsection

10 (c)(1) in the case of a follow-on lease to be entered

11 into for the purpose of providing for continued occu12 pancy of particular space in leased real property by

13 a Federal agency, space may be treated as being

14 available from only the lessor of such space and may

15 be acquired through the use of other than competi16 tive procedures (without the justification otherwise

17 required by subsection (f)) if a written determination

18 is made by the contracting officer that—

19 ‘‘(i) the occupying agency has a continuing

20 need for the space;

21 ‘‘(ii) the space meets the needs of the

22 agency; and

23 ‘‘(iii) the lessor is willing to continue to

24 provide the space at a fair market price deter25 mined by the contracting officer on the basis of

26 a market survey or an appraisal conducted in
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1 accordance with generally accepted real prop2 erty appraisal standards.

3 ‘‘(B) The authority under subparagraph (A) to

4 use procedures other than competitive procedures to

5 enter into a follow-on lease may be exercised not

6 more than once to provide for continued occupancy

7 of particular space in real property by a particular

8 Federal agency. The period of such follow-on lease

9 may not exceed 5 years provided, however, the total

10 lease period of the base lease and follow-on lease

11 shall not exceed 20 years.

12 ‘‘(C) Nothing in this paragraph may be con13 strued to prohibit the use of procedures other than

14 competitive procedures to enter into a follow-on lease

15 of real property for continued occupancy of particu16 lar space in real property by a Federal agency when

17 an exception set forth in subsection (c) applies and

18 the use of such procedures is justified and approved

19 in accordance with subsection (f).’’.

20 Subpart B—Planning, Solicitation, Evaluation, and

21 Award

22 SEC. 1061. EVOLVING SOLICITATIONS.

23 Section 303A of the Federal Property and Admin24 istrative Services Act of 1949 (41 U.S.C. 253a) is

25 amended—
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1 (1) by redesignating subsection (e) as sub2 section (f); and

3 (2) by inserting after subsection (d) the follow4 ing new subsection (e):

5 ‘‘(e) When purchasing commercial items under this

6 subpart, nothing in this or any other Act shall be con7 strued to prohibit an agency from adding, deleting, or tai8 loring evaluation factors or specifications at any time up

9 until the issuance of a request for final offers.’’.

10 SEC. 1062. COMPETITIVE RANGE DETERMINATIONS.

11 Subsection (d) of section 303B of the Federal Prop12 erty and Administrative Services Act of 1949 (41 U.S.C.

13 253b), is amended—

14 (1) by redesignating paragraph (2) as para15 graph (3); and

16 (2) by inserting after subparagraph (1) the fol17 lowing:

18 ‘‘(2) If the contracting officer determines that

19 the number of offerors that would otherwise be in20 cluded in the competitive range under subparagraph

21 (1)(A) exceeds the number at which an efficient

22 competition can be conducted, the contracting officer

23 may limit the number of offerors in the competitive

24 range to the greatest number of competitors that

25 will permit an efficient award; provided that when
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1 the competition is limited for this purpose, the num2 ber of offerors may not be limited to less than

3 three.’’.

4 SEC. 1063. PREAWARD DEBRIEFINGS.

5 Section 303B of the Federal Property and Adminis6 trative Services Act of 1949 (41 U.S.C. 253b) is amend7 ed—

8 (1) by redesignating subsections (f) and (g) as

9 subsections (g) and (h), respectively; and

10 (2) by inserting after subsection (e) the follow11 ing new subsection (f):

12 ‘‘(f)(1) When the contracting officer excludes an

13 offeror submitting a competitive proposal from the com14 petitive range (or otherwise excludes such an offeror from

15 further consideration prior to the final source selection de16 cision), the excluded offeror may request in writing, within

17 3 days after the date on which the excluded offeror re18 ceives notice of its exclusion, a debriefing prior to award.

19 The contracting officer shall either debrief the unsuccess20 ful offeror as soon as is practicable or refuse the request.

21 ‘‘(2) The contracting officer is required to debrief an

22 excluded offeror in accordance with subsection (e) of this

23 section only if that offeror requested and was refused a

24 preaward debriefing under paragraph (1) of this sub25 section.
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1 ‘‘(3) The debriefing conducted under this subsection

2 shall include—

3 ‘‘(A) the executive agency’s evaluation of the

4 significant factors in the offeror’s offer;

5 ‘‘(B) a summary of the rationale for the

6 offeror’s exclusion, including the reason or reasons it

7 was determined not to have a reasonable chance of

8 being selected for contract award or other reason or

9 reasons it was excluded; and

10 ‘‘(C) reasonable responses to relevant questions

11 posed by the debriefed offeror as to whether source

12 selection procedures set forth in the solicitation, ap13 plicable regulations, and other applicable authorities

14 were followed by the executive agency.

15 ‘‘(4) The debriefing conducted pursuant to this sub16 section may not disclose the number or identity of other

17 offerors and shall not disclose information about the con18 tent, ranking, or evaluation of other offerors’ proposals.

19 ‘‘(5) The contracting officer shall include a summary

20 of the debriefing in the contract file.’’.

21 SEC. 1064. TWO-PHASE SELECTION PROCEDURES.

22 (a) PROCEDURES AUTHORIZED.—Title III of the

23 Federal Property and Administrative Services Act of 1949

24 (41 U.S.C. 251 et seq.), is amended by inserting after sec25 tion 303L the following new section:
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1 ‘‘§ 303M. Two-phase selection procedures

2 ‘‘(a) AUTHORIZATION.—The contracting officer may

3 use the two-phase selection procedures authorized herein

4 for acquiring the design and construction of a public build5 ing, facility, or work when the criteria for use in sub6 section (b) are met. The two-phase selection procedures

7 authorized herein may also be used for entering into a con8 tract for the acquisition of property or services other than

9 construction services when the criteria described in sub10 section (b) are met.

11 ‘‘(b) CRITERIA FOR USE.—The contracting officer

12 shall make a determination whether the authorized two13 phase selection procedures are appropriate for use when

14 the contracting officer anticipates that three or more of15 fers will be received for such contract, design work must

16 be performed before an offeror can develop a price or cost

17 proposal for such contract, the offeror will incur a sub18 stantial amount of expense in preparing the offer, and

19 after considering in individual situations information such

20 as the following:

21 ‘‘(1) The extent to which the project require22 ments have been adequately defined.

23 ‘‘(2) The time constraints for delivery of the

24 project.

25 ‘‘(3) The capability and experience of potential

26 contractors.
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1 ‘‘(4) The suitability of the project for use of the

2 two-phase selection procedures.

3 ‘‘(5) The capability of the agency to manage

4 the two-phase selection process.

5 ‘‘(6) Other criteria established by the agency.

6 ‘‘(c) PROCEDURES DESCRIBED.—Two-phase selec7 tion procedures consist of the following:

8 ‘‘(1) The agency shall develop, either in-house

9 or by contract, a scope of work defining the project

10 for inclusion in the solicitation that provides pro11 spective offerors with sufficient information regard12 ing the Government’s requirements which may in13 clude criteria and preliminary conceptual design,

14 budget parameters and schedule or delivery require15 ments to enable the offerors to submit proposals

16 which meet the Government’s needs. When the two17 phase selection procedure is used for design and con18 struction of a public building, facility, or work and

19 the agency contracts for development of the scope of

20 work, the agency shall contract for architectural/en21 gineering services as defined by and in accordance

22 with section 541 and the following of title 40,

23 United States Code.

24 ‘‘(2) The contracting officer solicits phase-one

25 proposals that—
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1 ‘‘(A) include information on the offeror’s—

2 ‘‘(i) technical approach; and

3 ‘‘(ii) technical qualifications; and

4 ‘‘(B) do not include—

5 ‘‘(i) detailed design information; or

6 ‘‘(ii) cost or price information.

7 ‘‘(3) The evaluation factors to be used in evalu8 ating phase one proposals shall be stated in the so9 licitation and include specialized experience and

10 technical competence, capability to perform, past

11 performance of the offeror’s team (including the ar12 chitect-engineer and construction members of the

13 team if the project is for the construction of a public

14 building, facility or work) and other appropriate fac15 tors, except that cost-related or price-related evalua16 tion factors are not permitted. Each solicitation shall

17 establish the relative importance assigned to the

18 evaluation factors and subfactors that must be con19 sidered in the evaluation of phase one proposals. The

20 agency evaluates phase one proposals on the basis of

21 the phase one evaluation factors set forth in the

22 solicitation.

23 ‘‘(4) The contracting officer selects as the most

24 highly qualified the number of offerors specified in

25 the solicitation to provide the property or services
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1 under the contract and requests the selected offerors

2 to submit phase-two competitive proposals that in3 clude technical proposals and cost or price informa4 tion. Each solicitation shall establish with respect to

5 phase two—

6 ‘‘(A) the technical submission requirements

7 for the proposal, including design concepts and/

8 or proposed solutions to requirements addressed

9 within the scope of work, and

10 ‘‘(B) the evaluation factors and subfactors,

11 including cost or price, that must be considered

12 in the evaluation of proposals in accordance

13 with section 303B(d).

14 ‘‘(5) The agency awards the contract in accord15 ance with section 303B of this title.

16 ‘‘(d) SOLICITATION TO STATE NUMBER OF

17 OFFERORS TO BE SELECTED FOR PHASE TWO RE18 QUESTS FOR COMPETITIVE PROPOSALS.—A solicitation

19 issued pursuant to subsection (c) shall state the maximum

20 number of offerors that are to be selected to submit com21 petitive proposals pursuant to subsection (c)(4). The maxi22 mum number specified in the solicitation shall not exceed

23 five unless the agency head determines with respect to an

24 individual solicitation that a specified number greater than

25 five is in the Government’s interest and is consistent with
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1 the purposes and objectives of the two-phase selection

2 process.

3 ‘‘(e) STIPENDS AUTHORIZED.—The head of an exec4 utive agency is authorized to provide a stipend to competi5 tors that are selected to submit phase two proposals and

6 that submit proposals that meet the requirements of the

7 solicitation but are not selected for the award.

8 ‘‘(f) REQUIREMENT FOR GUIDANCE AND REGULA9 TIONS.—The Federal Acquisition Regulatory Council, es10 tablished by section 25(a) of the Office of Federal Pro11 curement Policy Act (41 U.S.C. 421(a)), shall provide

12 guidance and promulgate regulations—

13 ‘‘(1) regarding the factors that may be consid14 ered in determining whether the two-phase contract15 ing procedures authorized by subsection (a) are ap16 propriate for use in individual contracting situations;

17 ‘‘(2) regarding the factors that may be used in

18 selecting contractors;

19 ‘‘(3) providing for a uniform approach to be

20 used government-wide; and

21 ‘‘(4) regarding criteria to be used in determin22 ing whether the payment of a stipend is appropriate

23 and for determining the amount of the stipend.’’.

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

25 in the first section of such Act, is amended by inserting
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1 after the item relating to section 303L the following new

2 item:

‘‘Sec. 303M. Two-phase selection procedures.’’.

3 Subpart C—Kinds of Contracts

4 SEC. 1071. REPEAL OF FEE LIMITATIONS.

5 Section 304(b) of the Federal Property and Adminis6 trative Services Act of 1949 (41 U.S.C. 254(b)) is amend7 ed in the first sentence by—

8 (1) striking out the comma after ‘‘used’’ and in9 serting in lieu thereof a period; and

10 (2) striking out ‘‘and in the case of a cost-plus11 a-fixed-fee contract’’ and all that follows through the

12 end of the sentence.

13 PART III—ACQUISITIONS GENERALLY

14 SEC. 1091. REPEAL OF DUPLICATIVE APPROVAL AUTHOR15 ITY PROVISION.

16 Section 8 of the Small Business Act (15 U.S.C. 637)

17 is amended—

18 (1) by deleting subsection (h); and

19 (2) by redesignating subsections (i) and (j) as

20 (h) and (i) respectively.

21 SEC. 1092. REPEAL OF ANNUAL COMPETITIVE REPORT.

22 Section 20 of the Office of Federal Procurement Pol23 icy Act (41 U.S.C. 418) is amended by—

24 (1) striking ‘‘and’’ at the end of paragraph

25 (b)(3)(B);
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1 (2) striking (b)(4) in its entirety; and

2 (3) redesignating paragraphs (b) (5), (6), and

3 (7) as (b) (4), (5), and (6).

4 SEC. 1093. REVIEW OF REGULATIONS FOR CONSISTENCY

5 WITH FEDERAL ACQUISITION REGULATION.

6 Subsections 25(c) (4), (5), and (6) of the Office of

7 Federal Procurement Policy Act (41 U.S.C. 421(c) (4),

8 (5), and (6)) are repealed.

9 SEC. 1094. REPEAL BIANNUAL REPORT ON PROCUREMENT

10 REGULATORY ACTIVITY.

11 Subsection (g) of section 25 of the Office of Federal

12 Procurement Policy Act (41 U.S.C. 421(g)) is repealed.

13 Subtitle B—Truth in Negotiations

14 PART I—ARMED SERVICES ACQUISITIONS

15 SEC. 1101. REQUIRED REGULATIONS.

16 Subsection 2306a(h) of title 10, United States Code,

17 is amended—

18 (1) in the first sentence by striking ‘‘that

19 offerors must submit for a contracting officer to’’

20 and substituting in lieu thereof ‘‘that the contracting

21 officer should’’; and

22 (2) in the second sentence by striking ‘‘at a

23 minimum, shall’’ in the last sentence and inserting

24 in lieu thereof ‘‘may’’.
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1 PART II—CIVILIAN AGENCY ACQUISITIONS

2 SEC. 1151. REQUIRED REGULATIONS.

3 Section 304A(h) of the Federal Property and Admin4 istrative Services Act of 1949 (41 U.S.C. 254a(h)) is

5 amended—

6 (1) in the first sentence by striking ‘‘that

7 offerors must submit for a contracting officer to’’

8 and substituting in lieu thereof ‘‘that the contracting

9 officer should’’; and

10 (2) in the second sentence by striking ‘‘at a

11 minimum, shall’’ in the last sentence and inserting

12 in lieu thereof ‘‘may’’.

13 SEC. 1152. CLARIFICATION OF STATUS OF CERTAIN FED14 ERAL EMPLOYEES HEALTH BENEFITS CON15 TRACTS.

16 Section 304A(b)(1)(A(ii) of the Federal Property and

17 Administrative Services Act of 1949 (41 U.S.C.

18 254a(b)(1)(A)(ii)) is amended by inserting ‘‘(other than

19 a contract for health benefits under section 8903(4) of

20 title 5, United States Code)’’ after ‘‘public’’.
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1 Subtitle C—Procurement Protests

2 PART I—PROTESTS TO THE COMPTROLLER

3 GENERAL

4 SEC. 1201. GAO REQUIREMENT TO RULE ON DISPOSITIVE

5 MOTIONS.

6 (a) Subparagraph (b)(2)(A) of section 3553 of title

7 31, United States Code, is amended to read as follows:

8 ‘‘(A) within 35 days after the later of the

9 date of the agency’s receipt of (i) the notice re10 quired by paragraph (b)(1) of this section, or

11 (ii) notification that the Comptroller General

12 has denied a motion to dismiss filed by the

13 agency in accordance with the limitations of

14 section 3554(a)(5)(A) of this title;’’.

15 (b) Subparagraph (b)(2)(C) of section 3553 of title

16 31, United States Code, is amended to read as follows:

17 ‘‘(C) in a case determined by the Comp18 troller General to be suitable for the express op19 tion under section 3554(a)(2) of this title, with20 in 20 days after the later of (i) the date of the

21 Federal agency’s receipt of that determination,

22 or (ii) notification that the Comptroller General

23 has denied a motion to dismiss filed by the

24 agency pursuant to section 3554(a)(5)(A) of

25 this title;’’.
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1 (c) Paragraph (b)(3) of section 3553 of title 31, Unit2 ed States Code, is amended to read as follows:

3 ‘‘(3) A Federal agency need not submit a report

4 to the Comptroller General pursuant to paragraph

5 (2) of this subsection if the agency is sooner notified

6 by the Comptroller General that the protest con7 cerned has been dismissed under section 3554(a) (4)

8 or (5) of this title.’’.

9 (d) Paragraph (a)(1) of section 3554 of title 31,

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

11 ‘‘(a)(1) To the maximum extent possible, the Comp12 troller General shall provide for the inexpensive and expe13 ditious resolution of protests under this subchapter. Ex14 cept as provided under paragraph (2) of this subsection,

15 the Comptroller General shall issue a final decision con16 cerning a protest 125 days after the later of (i) the date

17 the protest is submitted to the Comptroller General, or

18 (ii) the date that the Comptroller General issues a ruling

19 which denies a motion to dismiss filed by the agency in

20 accordance with the limitations of section 3554(a)(5)(A)

21 of this title;’’.

22 (e) Subparagraph (a)(2) of section 3554 of title 31,

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

24 ‘‘(2) The Comptroller General shall, by regula25 tion prescribed pursuant to section 3555 of this title,
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1 establish an express option for deciding those pro2 tests which the Comptroller General determines suit3 able for resolution within 65 days after the later of

4 (i) the date the protest is submitted to the Comp5 troller General, or (ii) the date that the Comptroller

6 General issues a ruling which denies a motion to dis7 miss filed by the agency in accordance with the limi8 tations of section 3554(a)(5)(A) of this title;’’.

9 (f) The following new subparagraph is added after

10 section 3554(a)(4) of title 31, United States Code:

11 ‘‘(5)(A) The Comptroller General shall, within

12 20 days of receipt, resolve motions made by a Fed13 eral agency to dismiss the protest if—

14 ‘‘(i) the motion is filed with the Comptrol15 ler General within 5 days after the Federal

16 agency receives notification of the protest pur17 suant to section 3553(b)(1) of this chapter and

18 the agency certifies that copies of the motion

19 have been served on all interested parties by

20 hand or electronically, or

21 ‘‘(ii) the motion asserts one or more of the

22 following:

23 ‘‘(I) The protest should be dismissed

24 pursuant to paragraph (a)(4) of this sub25 section.
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1 ‘‘(II) The protester is not an inter2 ested party.

3 ‘‘(III) The protest is not timely.

4 ‘‘(IV) The protest does not allege req5 uisite prejudice.

6 ‘‘(V) The protest is otherwise

7 dismissable under Comptroller General

8 rules.

9 ‘‘(B) The Comptroller General shall consider

10 the comments of interested parties on motions filed

11 by Federal agencies pursuant to paragraph

12 (a)(5)(A) of this subsection if the comments are re13 ceived by the Comptroller General within 5 days

14 after the date the Federal agencies motion is filed

15 with the Comptroller General.

16 ‘‘(C) Motions of Federal agencies asserting the

17 grounds described in paragraph (a)(5)(A)(ii) which

18 are not filed with the Comptroller General within 5

19 days after the Federal agency receives notification of

20 the protest pursuant to section 3553(b)(1) of this

21 chapter may be resolved by the Comptroller General

22 in the final decision on the protest.’’.
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1 SEC. 1202. FRIVOLOUS PROTESTS.

2 Section 3554 of title 31, United States Code, is

3 amended by inserting the following new paragraph ‘‘(5)’’

4 at the end of subsection (a):

5 ‘‘(5) If the Comptroller General expressly finds

6 that a protest or a portion of a protest is frivolous

7 or has not been brought or pursued in good faith,

8 the Comptroller may recommend that the protester,

9 or other interested party who joins the protest, be

10 liable to the United States for payment of all or that

11 portion of the United States costs, for which such a

12 finding is made, of reviewing the protest, including

13 the fees and other expenses (as defined in section

14 2412(d)(2)(A) of title 28, United States) Code in15 curred by the United States in defending the pro16 test. The Federal Acquisition Regulation shall pro17 vide guidance under which the head of an agency

18 may initiate action to obtain such costs, unless (1)

19 special circumstances would make such payment un20 just, or (2) the protester obtains documents or other

21 information for the first time, after the protest is

22 filed with the Comptroller General, which establishes

23 that the protest or a portion is frivolous or has not

24 been brought in good faith and the protester then

25 promptly withdraws the protest or portion of the

26 protest.’’.
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1 SEC. 1203. DECISIONS ON PROTESTS.

2 Subsection (b) of section 3554 of title 31, United

3 States Code, is amended in paragraph (1) to read as

4 follows:

5 ‘‘(1) With respect to a solicitation for a con6 tract, or a proposed award or the award of a con7 tract, protested under this chapter, the Comptroller

8 General shall review the agency’s decision based on

9 the agency record and shall determine that decision

10 is unlawful only if the interested party establishes

11 substantial prejudice and either (i) that the decision

12 was obtained in violation of procedures required by

13 law or regulation, or (ii) that the decision was arbi14 trary or capricious. However, protests that are based

15 on contracting officer decisions to cancel a solicita16 tion or terminate an award, where the decision is

17 based on a reasonable belief that there was a defect

18 in the source selection process, may be sustained

19 only upon clear and convincing showing that the

20 contracting officer’s decision was an abuse of discre21 tion. The agency record shall consist of all informa22 tion relied upon by the agency in making the deci23 sion and any information furnished by the agency

24 explaining or justifying the agency decision. The

25 agency record shall not be supplemented except as

26 necessary to substantially demonstrate bad faith by
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1 the agency. Based upon this review, if the Comptrol2 ler General determines that the solicitation, pro3 posed award, or award was unlawful, the Comptrol4 ler General shall recommend that the Federal

5 agency—’’.

6 SEC. 1204. AWARD OF COSTS.

7 Section 3554 of title 31, United States Code, is

8 amended in subsection (c)—

9 (1) by redesignating paragraphs (3) and (4) as

10 paragraphs (4) and (5) respectively; and

11 (2) by inserting after paragraph (2) the follow12 ing new paragraph (3):

13 ‘‘(3) No party may be paid pursuant to a rec14 ommendation made under paragraph (1) unless that

15 party has provided the agency a reasonable oppor16 tunity to provide relief pusuant to an established

17 agency administrative procedure for resolution of

18 protests where such procedure would provide for re19 view by a senior agency official and where such pro20 cedure would toll protest stay periods during the

21 pendency of agency review.’’.

22 SEC. 1205. AVAILABILITY OF FUNDS PENDING ADMINISTRA23 TIVE PROCEDURE.

24 (a) IN GENERAL.—Section 1558 of title 31, United

25 States Code, is amended to read as follows:
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1 ‘‘§ 1558. Availability of funds following resolution of a

2 formal protest or challenge

3 ‘‘(a) Notwithstanding section 1552 of this title or any

4 other provision of law, funds available to an agency for

5 obligation for a contract at the time a protest or challenge

6 is filed in connection with a solicitation for, proposed

7 award of, or award of such contract, shall remain available

8 for obligation for 125 calendar days after the date on

9 which the final ruling is made on the protest or challenge.

10 A ruling is considered final on the date on which the time

11 allowed for filing an appeal or request for reconsideration

12 has expired, or the date on which a decision is rendered

13 on such an appeal or request, whichever is later.

14 ‘‘(b) Subsection (a) applies with respect to—

15 ‘‘(1) any protest filed under subchapter V of

16 chapter 35 of this title or under section 111(f) of

17 the Federal Property and Administrative Services

18 Act of 1949 (40 U.S.C. 759(f)); or

19 ‘‘(2) any administrative or judicial proceeding

20 challenging a solicitation for a contract, a proposed

21 award or the award of a contract, or the eligibility

22 of an awardee or potential awardee of a contract,

23 that has the effect of precluding an Executive agen24 cy from making an award of a contract or proceed25 ing with the procurement.’’.
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1 (b) CLERICAL AMENDMENT.—The table of sections

2 at the beginning of chapter 15 of title 31, United States

3 Code, is amended by amending the item relating to section

4 1558 to read as follows:

‘‘1558. Availability of funds following resolution of a formal protest or challenge.’’.

5 PART II—PROTESTS IN THE FEDERAL COURTS

6 SEC. 1211. JURISDICTION OF THE UNITED STATES COURT

7 OF FEDERAL CLAIMS.

8 (a) CLAIMS AGAINST THE UNITED STATES.—Section

9 1491 of title 28, United States Code, is amended—

10 (1) by amending the section heading to read as

11 follows:

12 ‘‘§ 1491. Claims against United States generally; bid

13 protests; actions involving Tennessee Val14 ley Authority’’;

15 (2) by redesignating subsection (b) as sub16 section (d);

17 (3) by redesignating subsection (a)(2) as sub18 section (b);

19 (4) by redesignating subsection (a)(1) as sub20 section (a);

21 (5) by striking subsection (a)(3);

22 (6) in subsection (a) (as redesignated by sub23 section (a)(4)), by inserting ‘‘CLAIMS AGAINST THE

24 UNITED STATES.—’’after ‘‘(a)’’;
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1 (7) in subsection (b) (as redesignated by sub2 section (a)(3)), by inserting ‘‘REMEDY AND RE3 LIEF.—’’ after ‘‘(b)’’; and

4 (8) by inserting after subsection (b) (as redesig5 nated by subsection (a)(3)) the following new sub6 section:

7 ‘‘(c) BID PROTESTS.—(1) The United States Court

8 of Federal Claims shall have exclusive judicial jurisdiction

9 of any action by an interested party objecting to a solicita10 tion by a Federal agency for bids or proposals for a pro11 posed contract or to a proposed award or the award of

12 a contract or to any finding under 31 U.S.C.

13 3553(c)(2)(A) or (d)(2)(A) to award or continue perform14 ance of a contract notwithstanding a protest. The court

15 shall have jurisdiction of any such action whether suit is

16 instituted before or after the contract is awarded. To af17 ford relief in such an action, the court may award such

18 relief as it deems proper, including declaratory and injunc19 tive relief. In exercising this jurisdiction, the court shall

20 give due regard to the interests of national defense and

21 national security and the need for expeditious resolution

22 of the action. The district courts shall have no jurisdiction

23 of any such action.

24 ‘‘(2) The court shall review the agency’s decision

25 based on the agency record and shall determine that deci-
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•HR 1388 IH

1 sion is unlawful only if the interested party established

2 substantial prejudice and either (i) that the decision was

3 obtained in violation of procedures required by law or reg4 ulation, or (ii) that the decision was arbitrary or capri5 cious. However, protests that are based on contracting of6 ficer decisions to cancel a solicitation or terminate an

7 award, where the decision is based on a reasonable belief

8 that there was a defect in the source selection process,

9 may be sustained only upon clear and convincing showing

10 that the contracting officer’s decision was an abuse of dis11 cretion. The agency record shall consist of all information

12 relied upon by the agency in making the decision and any

13 information furnished by the agency explaining or justify14 ing the agency decision. The agency record shall not be

15 supplemented except as necessary to substantially dem16 onstrate bad faith by the agency.

17 ‘‘(3) The term ‘interested party’ shall have the mean18 ing given in section 3551 in title 31.’’.

19 (9) in subsection (d) (as redesignated by sub20 section (a)(2)), by inserting ‘‘TENNESSEE VALLEY

21 AUTHORITY.—’’after ‘‘(d)’’.

22 (b) JUDGMENTS, AWARDS, AND COMPROMISE SET23 TLEMENTS.—Section 1304(a)(3)(A) of title 31 is amended

24 by inserting ‘‘1491,’’ after ‘‘section’’.
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1 (c) NONEXCLUSIVITY OF REMEDIES; MATTERS IN2 CLUDED IN AGENCY RECORD.—Section 3556 of title 31,

3 United States Code is amended by striking out the first

4 sentence and inserting in lieu thereof the following new

5 sentence: ‘‘This subchapter does not give the Comptroller

6 General exclusive jurisdiction over protests, and nothing

7 contained in this subchapter shall affect the right of any

8 interested party to file a protest with the contracting agen9 cy or to file an action in the United States Court of Fed10 eral Claims.’’.

11 (d) CONFORMING AMENDMENT IN BROOKS ACT.—

12 Section 111(f)(6)(C) of the Federal Property and Admin13 istrative Services Act of 1949 (40 U.S.C. 759(f)(6)(C))

14 is amended by striking out ‘‘a district court of the United

15 States or the United States Claims Court.’’ and inserting

16 in lieu thereof ‘‘the United States Court of Federal

17 Claims.’’.

18 PART III—PROTESTS IN PROCUREMENT OF

19 AUTOMATIC DATA PROCESSING

20 SEC. 1431. DECISIONS ON PROTESTS

21 Section 111 (f) of the Federal Property and Adminis22 trative Services Act of 1949, (40 U.S.C. 759(f)) is amend23 ed in paragraph (1) by deleting the second sentence and

24 inserting in lieu thereof the following: ‘‘The Board shall

25 review the agency’s decision based on the agency record
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•HR 1388 IH

1 and shall determine that decision is unlawful only if the

2 interested party establishes substantial prejudice and ei3 ther (i) that the decision was obtained in violation of pro4 cedures required by law or regulation, or (ii) that the deci5 sion was arbitrary or capricious. However, protests that

6 are based on contracting officer decisions to cancel a solic7 itation or terminate an award, where the decision is based

8 on a reasonable belief that there was a defect in the source

9 selection process, may be sustained only upon clear and

10 convincing showing that the contracting officer’s decision

11 was an abuse of discretion. The agency record shall consist

12 of all information relied upon by the agency in making

13 the decision and any information furnished by the agency

14 explaining or justifying the agency decision. The agency

15 record shall not be supplemented except as necessary to

16 substantially demonstrate bad faith by the agency.’’.

17 SEC. 1432. INTERLOCUTORY APPEALS.

18 Section 111(f) of the Federal Property and Adminis19 trative Services Act of 1949 (40 U.S.C. 759(f)) is amend20 ed—

21 (1) in section (1) by striking out the fourth sen22 tence; and

23 (2) in section (6) by adding a new paragraph

24 (D) to read as follows:
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1 ‘‘(D) A written determination by the

2 Board that—

3 ‘‘(i) the procurement is subject to this

4 section; or

5 ‘‘(ii) the protest is timely filed in ac6 cordance with this section; or

7 ‘‘(iii) the party filing the protest is an

8 ‘interested party’ in accordance with the

9 definition contained in this section is sub10 ject to an interlocutory appeal by the head

11 of the Federal agency concerned and by

12 any interested party, including interested

13 parties who intervene in any protest filed

14 under this subsection. The interlocutory

15 appeal must be taken within 10 days of the

16 Board’s written determination. Upon prop17 er agency motion, the Court of Appeals for

18 the Federal Circuit may stay the Board’s

19 proceedings.’’.

20 SEC. 1433. SUSPENSION OF PROCUREMENT PENDING PRO21 TEST.

22 Section 111(f) of the Federal Property and Adminis23 trative Services Act of 1949 (40 U.S.C. 759(f)) is amend24 ed—
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•HR 1388 IH

1 (1) in clause (ii) of subparagraph (2)(B) by

2 substituting the word ‘‘agency’’ for the word

3 ‘‘board’’; and

4 (2) in paragraph (3) by striking out subpara5 graph (B) and inserting in lieu thereof the following:

6 ‘‘(B) The Board shall suspend the procure7 ment authority of the Administrator or the Ad8 ministrator’s delegation of procurement author9 ity to acquire goods and services under the con10 tract which are not previously delivered and ac11 cepted unless the head of the contracting activ12 ity makes a written finding that contract per13 formance will be in the best interest of the

14 United States.’’.

15 SEC. 1434. DISPOSITIVE MOTIONS.

16 Section 111(f)(4)(A) of the Federal Property and

17 Administrative Services Act of 1949 (40 U.S.C.

18 759(f)(4)(A)) is amended at the end by adding the follow19 ing sentence: ‘‘If the Board receives timely filed dispositive

20 motions, the Board shall decide such motions in writing

21 as soon as practicable, but in any event, not later than

22 the date established for the hearing on the merits.’’.
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1 SEC. 1435. FRIVOLOUS PROTESTS.

2 Section 111(f) of the Federal Property and Adminis3 trative Services Act of 1949 (40 U.S.C. 759) is amended

4 by adding the following after subparagraph (f)(4)(C):

5 ‘‘(D) If the board expressly finds that a

6 protest or a portion of a protest is frivolous,

7 has not been brought or pursued in good faith,

8 or does not state on its face a valid basis for

9 protest, the protester or other interested party,

10 who joins the protest, shall be liable to the

11 United States for payment of, and the board

12 shall direct payment for all or that portion of

13 the United States costs, for which such a find14 ing is made, of reviewing the protest including

15 the fees and other expenses (as defined in sec16 tion 2412(d)(2)(A) of title 28) incurred by the

17 United States in defending the protest, unless

18 (1) special circumstances would make such pay19 ment unjust, or (2) the protester obtains docu20 ments or other information after the protest is

21 filed with the board, which establishes that the

22 protest or a portion of the protest is frivolous

23 or has not been brought in good faith, and the

24 protester then promptly withdraws the protest

25 or portion of the protest.’’.
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1 SEC. 1436. AWARD OF COSTS.

2 Section 111(f)(5) of the Federal Property and Ad3 ministrative Services Act of 1949 (40 U.S.C. 759(f)(5))

4 is amended—

5 (1) by inserting ‘‘(i)’’ after ‘‘(C)’’; and

6 (2) by inserting after subparagraph (i) the fol7 lowing new subparagraph (ii):

8 ‘‘(ii) No party may be paid pursuant to a

9 decision made under subparagraph (C)(i) unless

10 that party has provided the agency a reasonable

11 opportunity to provide relief pursuant to an es12 tablished agency administrative procedure for

13 resolution of protests where such procedure

14 would provide for review by a senior agency of15 ficial and where such procedure would toll pro16 test stay periods during the pendency of agency

17 review.’’.

18 PART IV—GENERAL

19 SEC. 1441. PROTESTS OF PROCUREMENTS MADE THROUGH

20 THE FEDERAL ACQUISITION COMPUTER NET21 WORK UNDER THE SIMPLIFIED ACQUISITION

22 THRESHOLD.

23 The Office of Federal Procurement Policy Act (41

24 U.S.C. 401 et seq.) is amended by adding the following

25 new section:
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1 ‘‘SEC. 35. PROTESTS OF PROCUREMENTS UNDER THE SIM2 PLIFIED ACQUISITION THRESHOLD.

3 ‘‘(a) PROTESTS.—A protest, other than to the pro4 curing agency, is not authorized in connection with the

5 award or proposed award of any procurement in an

6 amount not exceeding the simplified acquisition threshold

7 if conducted through a system with interim FACNET ca8 pability certified pursuant to section 30A(a)(1) or with full

9 FACNET capability certified pursuant to section

10 30A(a)(2);

11 ‘‘(b) DEFINITION.—For purposes of this section, the

12 term ‘simplified acquisition threshold’ has the meaning

13 given such term in section 4(11)(A) of this Act.

14 ‘‘(c) INAPPLICABILITY.—The provisions of this sec15 tion shall not apply to protests regarding business size or

16 status as defined in sections 8 and 15 of the Small Busi17 ness Act.’’.

18 SEC. 1442. OFFEROR STATEMENTS TO REFRAIN FROM PRO19 TESTING PROCUREMENTS.

20 The Office of Federal Procurement Policy Act (41

21 U.S.C. 401 et seq.) is amended by adding the following

22 new section:

23 ‘‘SEC. 36. OFFEROR STATEMENTS TO REFRAIN FROM PRO24 TESTING PROCUREMENTS.

25 ‘‘(a) STATEMENTS NOT TO PROTEST.—An offeror

26 may include in an offer a statement that the offeror will
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1 not file a procurement protest with any judicial, legisla2 tive, or executive body, other than the agency issuing the

3 solicitation, except with respect to an agency determina4 tion favoring an offeror who has not made such statement

5 in its offer. Any protest filed in violation of such statement

6 shall be dismissed.

7 ‘‘(b) TREATMENT OF STATEMENTS NOT TO PRO8 TEST IN EVALUATION OF OFFERS.—The inclusion or non9 inclusion in an offer of a statement by an offeror agreeing

10 not to protest the award or proposed award of a contract

11 shall not be considered by an agency in evaluating the

12 proposal. The notice of award required by section

13 416(a)(1)(C) may include information about statements

14 provided by offerors.’’.

15 SEC. 1443. SENSE OF CONGRESS ON AGENCY RESOLUTION

16 OF PROTESTS.

17 It is the sense of Congress that executive agencies

18 should consider the establishment, by the head of the

19 agency, of agency administrative remedial procedures for

20 the resolution of protests as a discretionary alternative to

21 protest fora outside the agency. It is further the sense of

22 Congress that during the pendency of such procedures,

23 protest stay periods should be tolled.
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1 Subtitled D—Policy, Definitions, and Other

2 Matters

3 SEC. 1551. REPEAL OF MULTI-YEAR LIMITATION ON IN4 SPECTION, MAINTENANCE, AND REPAIR.

5 Section 210 of the Federal Property and Administra6 tive Act of 1949, as amended, (40 U.S.C. 490) is amend7 ed—

8 (1) by deleting paragraph (14); and

9 (2) by redesignating paragraphs (15, (16), (17),

10 (18), and (19) as (14), (15), (16), (17), and (18) re11 spectively.

12 SEC. 1552. PUBLIC UTILITIES SERVICES.

13 Section 210(a) of the Federal Property and Adminis14 trative Services Act of 1949 (40 U.S.C. 490) as amended

15 by section 1551 is further amended by adding at the end

16 the following:

17 ‘‘(19) accept and pay for public utility service

18 from an entity which is a monopoly providing serv19 ices under a tariff at the lowest applicable rates ap20 proved or set by a Federal, State or local govern21 mental body in accordance with the terms and condi22 tions of such tariff, without entering into a con23 tract.’’.
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1 SEC. 1553. CONTRACTING FOR GUARDS, ELEVATOR OPERA2 TORS, MESSENGERS, AND CUSTODIANS.

3 Section 210(a) of the Federal Property and Adminis4 trative Services Act of 1949, as amended (40 U.S.C. 490),

5 is amended to add the following section (1):

6 ‘‘(l) Notwithstanding any other provision of law,

7 funds appropriated pursuant to section 210(f) of the Fed8 eral Property and Administrative Services Act of 1949,

9 as amended, shall be available for the procurement by con10 tract for the services of guards, elevator operators, mes11 sengers, and custodians without limitation.’’.

12 TITLE II—CONTRACT ADMINISTRATION

13 Subtitle A—Contract Payment

14 PART I—ARMED SERVICES ACQUISITIONS

15 SEC. 2001. VESTITURE OF TITLE.

16 Section 2307(e) of title 10, United States Code, is

17 amended by inserting after paragraph (3) the following

18 new paragraph:

19 ‘‘(4) When payments have been made under

20 subsection (a), title to parts, materials, inventory,

21 work in progress, and other property, hereinafter

22 collectively referred to as property, shall vest in the

23 United States. Vestiture shall be immediately upon

24 the date of the contract for property acquired or

25 produced before that date. Otherwise, vestiture shall

26 occur when the property is or should have been allo-
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1 cable or properly chargeable to the contract. Title

2 shall vest in the United States regardless of any

3 prior or subsequently asserted security interest in

4 the property. This right to take title may be waived

5 by the head of the agency for an individual acquisi6 tion or a class of acquisitions or by the Federal Ac7 quisition Regulation for a class of acquisitions gov8 ernmentwide.’’.

9 PART II—CIVILIAN AGENCY ACQUISITIONS

10 SEC. 2051. VESTITURE OF TITLE.

11 Section 305(e) of the Federal Property and Adminis12 trative Services Act of 1949 (41 U.S.C. 255) is amended

13 by inserting after subsection (3) the following new sub14 section (4):

15 ‘‘(4) When payments have been made under

16 subsection (a), title to parts, materials, inventory,

17 work in progress, and other property, hereinafter

18 collectively referred to as property, shall vest in the

19 United States. Vestiture shall be immediately upon

20 the date of the contract for property acquired or

21 produced before that date. Otherwise, vestiture shall

22 occur when the property is or should have been allo23 cable or properly chargeable to the contract. Title

24 shall vest in the United States regardless of any

25 prior or subsequently asserted security interest in
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1 the property. This right to take title may be waived

2 by the head of the agency for an individual acquisi3 tion or a class of acquisitions or by the Federal Ac4 quisition Regulation for a class of acquisitions gov5 ernmentwide.’’.

6 Subtitle B—Cost Principles

7 PART I—CIVILIAN AGENCY ACQUISITIONS

8 SEC. 2101. APPLICABILITY OF COST PRINCIPLES.

9 Section 306 of the Federal Property and Administra10 tive Services Act of 1949 (41 U.S.C. 256) is amended in

11 subsection (l)(1) by inserting ‘‘a contract for health bene12 fits under section 8903(1)–(3) of title 5, United States

13 Code, and’’ after ‘‘means’’.

14 PART II—ACQUISITIONS GENERALLY

15 SEC. 2151. ALLOWABLE CONTRACT COSTS.

16 (a) PROTEST COSTS.—The Federal Acquisition Reg17 ulation shall identify those costs incurred in preparation,

18 filing, or pursuit of a protest, including attorneys’ fees and

19 consultant and expert witness fees which are unallowable,

20 in whole or in part, under covered contracts.

21 (b) COVERED CONTRACT DEFINED.—The term ‘‘cov22 ered contract’’ has the meaning given such term in section

23 2324(l) of title 10, United States Code, and section 306(l)

24 of the Federal Property and Administrative Services Act

25 of 1949.
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1 Subtitle C—Claims and Disputes

2 SEC. 2251. DIVESTITURE OF DISTRICT COURTS OF DISPUTE

3 JURISDICTION.

4 Section 1346(a)(2) of title 28, United States Code,

5 is amended to read as follows:

6 ‘‘(2) Any other civil action or claim against the

7 United States, not exceeding $10,000 in amount,

8 founded either upon the Constitution, or any Act of

9 Congress, or any regulation of an executive depart10 ment, or upon any express or implied contract with

11 the United States, or for liquidated or unliquidated

12 damages in cases not sounding in tort, except that

13 the district courts shall not have jurisdiction over

14 any civil action or claim against the United States

15 or any Federal entity which relates in any manner

16 to a contract subject to the Contract Disputes Act

17 of 1978, including, but not limited to, a claim which

18 seeks to establish the existence or nonexistence of

19 such a contract with the United States, seeks to es20 tablish that an existing contract subject to the Con21 tract Disputes Act is void, or seeks to determine and

22 construe the terms of such a contract. This excep23 tion bars the district courts from exercising any ju24 risdiction of the above-described civil actions or

25 claims pursuant to section 1331, 1334 of title 28,
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1 United States Code, or any other provision of law in2 cluding any provision giving a Federal entity the

3 right to sue or be sued in its own name.’’.

4 SEC. 2252. CONTRACT DISPUTES ACT IMPROVEMENT

5 Section 10(a)(3) of the Contract Disputes Act of

6 1978 (41 U.S.C. 609(a)(3)) is amended by striking out

7 ‘‘twelve months’’ each place it appears and inserting in

8 lieu thereof in each instance ‘‘ninety days’’.

9 Subtitle D—Miscellaneous

10 SEC. 2301. ACCOUNTING FOR ADVISORY AND ASSISTANCE

11 SERVICES.

12 Section 1105 of title 31, United States Code, is

13 amended by striking subsection (g).

14 SEC. 2302. WAIVERS FROM CANCELLATION OF FUNDS.

15 Notwithstanding section 1552(a) of title 31, United

16 States Code, (1) funding appropriated for satellite on-orbit

17 incentive fees will remain available for obligation until the

18 fee is earned, and (2) funding appropriated for Shipbuild19 ing and Conversion, Navy, and for other government ship20 building appropriations, available for engineering services,

21 tests, evaluations, and other such budgeted work that

22 must be performed in the final stage of ship construction

23 shall be available for obligation until the purpose for which

24 such monies were appropriated is satisfied.
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1 TITLE III—COMMERCIAL ITEMS

2 SEC. 3001. COMMERCIAL ITEMS.

3 Section 4(12)(F) of the Office of Federal Procure4 ment Policy Act (41 U.S.C. 403(12)(F)) is amended to

5 read as follows:

6 ‘‘(F) Services offered and sold competitively, in

7 substantial quantities, in the commercial market8 place based on established prices for specific tasks

9 performed and under standard commercial terms

10 and conditions.’’.

11 TITLE IV—SIMPLIFIED ACQUISITION

12 THRESHOLD

13 Subtitle A—Threshold Defined

14 SEC. 4001. SIMPLIFIED ACQUISITION THRESHOLD DE15 FINED.

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

17 Policy Act (41 U.S.C. 403(11)) is amended to read as fol18 lows:

19 ‘‘(11) The term ‘simplified acquisition thresh20 old’ means:

21 ‘‘(A) $100,000; or

22 ‘‘(B) $1,000,000 for the acquisition of

23 services, including construction, when the pro24 curement is conducted as a small business set25 aside and if supply items are expected to con-
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1 stitute less than 20 percent of the total value

2 of the contract.’’.

3 Subtitle B—Inapplicability of Laws to Acqui4 sitions at or Below the Simplified Acqui5 sition Threshold

6 SEC. 4101. MILLER ACT.

7 Section 4104(b)(2) of the Federal Acquisition

8 Streamlining Act of 1994 is repealed.

9 Subtitle C—Simplified Procedures

10 SEC. 4201. REPEAL OF DUPLICATIVE AUTHORITY FOR SIM11 PLIFIED ACQUISITION PURCHASES.

12 Section 31 of the Office of Federal Procurement Pol13 icy Act is amended—

14 (1) by striking out subsections (a), (b), and (c);

15 (2) by redesignating subsections (d), (e), and

16 (f) as (a), (b), and (c) respectively; and

17 (3) in subsection (b) as redesignated by striking

18 out ‘‘pursuant to this section’’ in paragraphs (1) and

19 (2) and inserting in lieu thereof ‘‘pursuant to section

20 2304(g) of title 10 and section 253(g) of title 41,

21 United States Code.’’.

22 SEC. 4202. AMENDMENT TO CONFORM PROCUREMENT NO23 TICE POSTING THRESHOLDS.

24 Section 18(a)(1)(B) of the Office of Federal Procure25 ment Policy Act (41 U.S.C. 416(a)(1)(B)) is amended—
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1 (1) by inserting, after the word ‘‘contract’’ the

2 following: ‘‘expected to exceed $10,000 but not to

3 exceed $25,000’’ and

4 (2) by deleting subparagraphs (i) and (ii) en5 tirely.

6 SEC. 4203. EXEMPTION FROM WAIT PERIOD WHEN USING

7 DETAILED SYNOPSIS.

8 (A) WAIT PERIODS.—Paragraph (3)(A) of section

9 18(a) of the Office of Federal Procurement Policy Act (41

10 U.S.C. 416(a)(3)) is amended by adding ‘‘except when the

11 notice includes a description of the item(s) to be acquired

12 along with all other information necessary for the offeror

13 to prepare an offer’’ after ‘‘published by the Secretary of

14 Commerce’’.

15 (b) LIMITATION.—Subsection (a) shall not apply to

16 the extent the President determines it is inconsistent with

17 any international agreement to which the United States

18 is a party.

19 SEC. 4204. EXEMPTION FROM SYNOPSIZING REQUIRE20 MENTS.

21 (a) EXEMPTION.—Subsection (c) of section 18 of the

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

23 416(c)(1)), is amended—
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1 (1) in paragraph (1)(A) by striking ‘‘for an

2 amount not greater than the simplified acquisition

3 threshold and is’’; and

4 (2) in paragraph (1)(B)(i) by striking ‘‘for an

5 amount not greater than $250,000 and is’’.

6 (b) RESPONSE TIMES.—Such subsection is further

7 amended by adding at the end the following new para8 graph (4):

9 ‘‘(4) In all procurements accomplished by in10 terim or full FACNET, contracting officers shall

11 provide a reasonable period within which for con12 tractors to respond to the solicitation commensurate

13 with the complexity of the procurement.’’.

14 (c) LIMITATIONS.—Subsections (a) and (b) shall not

15 apply to the extent the President determines it is incon16 sistent with any international agreement to which the

17 United States is a party.

18 SEC. 4205. REPEAL OF DUPLICATIVE PROCUREMENT NO19 TICE PROVISION.

20 Section 8 of the Small Business Act (15 U.S.C. 637)

21 is amended—

22 (1) by striking out subsections (e), (f), and (g);

23 (2) by redesignating subsections (h) and (i) as

24 redesignated by section 1091 as subsections (e) and

25 (f) respectively; and
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1 (3) in subsection (e), as redesignated, by strik2 ing ‘‘under subsection (e)’’ and inserting in lieu

3 thereof ‘‘pursuant to section 18 of the Office of Fed4 eral Procurement Policy Act (41 U.S.C. 416)’’.

5 SEC. 4206. TECHNICAL AMENDMENTS.

6 (a) Section 18 of the Office of Federal Procurement

7 Policy Act (41 U.S.C. 416) is amended in subparagraph

8 (c)(1)(E) by inserting, ‘‘a task order contract, or a deliv9 ery order contract’’ after ‘‘requirements contract’’.

10 Subtitle D—Micro-Purchase Procedures

11 SEC. 4301. MICRO-PURCHASES.

12 Section 32(d) of the Office of Federal Procurement

13 Policy Act (42 U.S.C. 428) is amended by striking out

14 ‘‘the contracting officer determines that the price for the

15 purchase is’’ and inserting in lieu thereof ‘‘if the price for

16 the purchase is considered’’.

17 TITLE V—ACQUISITION MANAGEMENT

18 Subtitle A—Pilot Programs

19 SEC. 5001. ACQUISITION RESEARCH DEMONSTRATION

20 PROJECTS.

21 Section 15 of the Office of Federal Procurement Pol22 icy Act (41 U.S.C. 413) is amended to read as follows:

23 ‘‘SEC. 15. ACQUISITION DEMONSTRATION PROJECTS.

24 ‘‘(a) The Administrator may authorize agencies in

25 consultation with agency heads to conduct and evaluate
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1 test programs to determine whether a specified change in

2 acquisition policies or procedures would result in improved

3 Federal acquisition management. The conduct of a test

4 program shall not be limited by any lack of specific au5 thority under this section to take the action contemplated

6 or by any law, rule or regulation that is inconsistent with

7 the test program or that impedes its full implementation.

8 To the extent necessary, the Administrator may waive any

9 provision of law, rule or regulation necessary to implement

10 a demonstration project successfully.

11 ‘‘(b) Before conducting any test program, the Agency

12 participating in the program shall develop a plan for the

13 project which identifies—

14 ‘‘(1) the purposes of the project;

15 ‘‘(2) the methodology, duration, and anticipated

16 costs;

17 ‘‘(3) the methodology and criteria for evalua18 tion;

19 ‘‘(4) a specific description of any aspect of the

20 project for which the lack of specific authority exists;

21 and

22 ‘‘(5) a specific citation to any provision of law,

23 rule or regulation which, if not waived under this

24 section, would prohibit the conduct of the project or

25 any part of the project as proposed.
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1 ‘‘(c) Unless a longer time period for a demonstration

2 project is approved by the Administrator and the reasons

3 for the extension are described in the plan in accordance

4 with section (b) above, each demonstration project shall

5 terminate before the end of the five year period beginning

6 on the date on which the project takes effect, except that

7 the project may continue beyond the date to the extent

8 necessary to validate the results of the project.

9 ‘‘(d) The Administrator or the Agency head may ter10 minate any project if he determines that the project is no

11 longer in the best interests of the public or the Federal

12 Government.

13 ‘‘(e) The Administrator shall provide for an evalua14 tion of the results of each demonstration project and its

15 impact on improving public management.

16 ‘‘(f) The head of an agency may submit a test plan

17 that specifies the use of adequate competition when con18 ducting an acquisition that is a recompetition for a con19 tinuing requirement where the agency head certifies that

20 the incumbent contractor has met or exceeded the cost,

21 schedule, and performance requirements established in the

22 current contract.

23 ‘‘(g) The Administrator shall prescribe regulations as

24 are necessary to carry out the purpose of this section.
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1 ‘‘(h) A program to test procurement methods and

2 procedures under this section may not be carried out un3 less approved by the heads of the executive agencies se4 lected to carry out such programs.’’.

5 Subtitle B—Miscellaneous

6 SEC. 5051. ADMINISTRATIVE PROCEDURES, DEPARTMENT

7 OF ENERGY.

8 ‘‘Section 501(b)(3) of the Department of Energy Or9 ganization Act (42 U.S.C. 7191(b)(3)) is amended to read

10 as follows:

11 ‘‘For purposes of this title, the exception from the

12 requirements of section 553 of title 5, United States Code,

13 provided by subsection (a)(2) of such section with respect

14 to grants or loans shall not be available.’’.

15 TITLE VI—OTHER PROCUREMENT16 RELATED MATTERS

17 Subtitle A—Standards of Conduct/Ethics

18 SEC. 6001. DISCLOSING AND OBTAINING CONTRACTOR BID

19 OR PROPOSAL INFORMATION OR SOURCE SE20 LECTION INFORMATION.

21 (a) Section 27 of the Office of Federal Procurement

22 Policy Act (41 U.S.C. 423) is amended—

23 (1) by repealing subsections (a) through (e) and

24 (g) through (p);
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1 (2) by amending subsection (f) by striking the

2 words ‘‘RESTRICTIONS RESULTING FROM PRO3 CUREMENT ACTIVITIES OF PROCUREMENT OFFI4 CIALS.—’’ and by redesignating subsection (f) as

5 subsection (i); and

6 (3) by adding the following before subsection

7 (i):

8 ‘‘SEC. 27. DISCLOSING AND OBTAINING CONTRACTOR BID

9 OR PROPOSAL INFORMATION OR SOURCE SE10 LECTION INFORMATION AND RESTRICTIONS

11 RESULTING FROM PROCUREMENT ACTIVI12 TIES OF PROCUREMENT OFFICIALS.

13 ‘‘(a) A present or former officer or employee of the

14 United States, or a person who is acting or has acted for

15 or on behalf of or who is advising or has advised the Unit16 ed States with respect to a Federal agency procurement

17 and who—

18 ‘‘(1) by virtue of that office, employment, or re19 lationship has or had access to contractor bid or pro20 posal information or source selection information,

21 and

22 ‘‘(2) other than as provided by law, knowingly

23 discloses that information before the award of a

24 Federal agency procurement contract to which the
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1 information relates, is subject to the penalties and

2 administrative actions set forth in subsection (d).

3 ‘‘(b) Whoever, other than as provided by law, know4 ingly obtains contractor bid or proposal information or

5 source selection information before the award of a Federal

6 agency procurement contract to which the information re7 lates, is subject to the penalties and administrative actions

8 set forth in subsection (d).

9 ‘‘(c) Whoever, other than as provided by law, know10 ingly violates the terms of a protective order, issued by

11 the Comptroller General or the board of contract appeals

12 of the General Services Administration in connection with

13 a protest against the award or proposed award of a Fed14 eral agency procurement contract, by disclosing or obtain15 ing contractor bid or proposal information or source selec16 tion information is subject to the penalties and adminis17 trative actions set forth in subsection (d).

18 ‘‘(d) The penalties and administrative actions for an

19 offense under subsection (a), (b), or (c), are as follows:

20 ‘‘(1) CRIMINAL PENALTIES.—

21 ‘‘(A) Whoever engages in the conduct con22 stituting the offense shall be imprisoned for not

23 more than one year or fined in the amount set

24 forth in section 3571 of title 18, United States

25 Code, or both.
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1 ‘‘(B) Whoever engages in the conduct con2 stituting the offense for the purpose of either—

3 ‘‘(i) exchanging the information cov4 ered by subsections (a), (b), and (c), for

5 anything of value, or

6 ‘‘(ii) obtaining or giving anyone a

7 competitive advantage in the award of a

8 Federal agency procurement contract, shall

9 be imprisoned for not more than 15 years

10 or fined in the amount set forth in section

11 3571 of title 18, United States Code, or

12 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. If a Federal agen5 cy receives information that a contractor or a person

6 has engaged in conduct constituting an offense

7 under subsection (a), (b), or (c), the Federal agency

8 shall consider one or more of the following actions,

9 as appropriate:

10 ‘‘(A) Canceling the Federal agency pro11 curement when a contract has not been award12 ed;

13 ‘‘(B) Declaring void and rescinding a con14 tract in relation to which there has been ei15 ther—

16 ‘‘(i) a conviction for an offense under

17 subsection (a), (b), or (c), committed by

18 the contractor or someone acting for the

19 contractor, or

20 ‘‘(ii) a determination by the head of

21 the agency based upon a preponderance of

22 the evidence that the contractor or some23 one acting for the contractor has engaged

24 in such conduct.
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1 If such action is taken, the United States is en2 titled to recover in addition to any penalty pre3 scribed by law, the amount expended under the

4 contract;

5 ‘‘(C) Initiating suspension or debarment

6 proceedings for the protection of the Govern7 ment in accordance with procedures in the Fed8 eral Acquisition Regulation. In this regard, en9 gaging in conduct constituting an offense under

10 subsection (a), (b), or (c), affects the present

11 responsibility of a Government contractor or

12 subcontractor; or

13 ‘‘(D) Initiating adverse personnel action,

14 pursuant to the procedures in chapter 75 of

15 title 5, United States Code, or other applicable

16 law or regulation.

17 ‘‘(e) For purposes of this section:

18 ‘‘(1) The term ‘contracting officer’ means a

19 person who, by appointment in accordance with ap20 plicable regulations, has the authority to enter a

21 Federal agency procurement contract on behalf of

22 the Government and to make determinations and

23 findings with respect to such a contract.

24 ‘‘(2) The term ‘contractor bid or proposal infor25 mation’ means the following information submitted
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1 to a Federal agency as part of or in connection with

2 a bid or proposal to enter into a Federal agency pro3 curement contract, if that information has not been

4 previously made available to the public or disclosed

5 publicly;

6 ‘‘(A) Cost or pricing data;

7 ‘‘(B) Indirect costs and direct labor rates;

8 ‘‘(C) Proprietary information about manu9 facturing processes, operations, or techniques

10 marked by the contractor in accordance with

11 applicable law or regulation; or

12 ‘‘(D) Information marked by the contrac13 tor as ‘contractor bid or proposal information,’

14 in accordance with applicable law or regulation.

15 ‘‘(3) The term ‘Federal agency’ has the mean16 ing given that term in section 3 of the Federal Prop17 erty and Administrative Services Act (40 U.S.C.

18 472).

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

20 means the competitive acquisition by contract of

21 supplies or services (including construction) from

22 non-Federal sources by a Federal agency using ap23 propriated funds.

24 ‘‘(5) The term ‘protest’ means a written objec25 tion by an interested party to the award or proposed
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1 award of a Federal agency procurement contract,

2 pursuant to section 111 of the Federal Property and

3 Administrative Services Act (40 U.S.C. 759) or sub4 chapter V of chapter 35 of title 31, United States

5 Code.

6 ‘‘(6) The term ‘source selection information’

7 means the following information prepared for use by

8 a Federal agency for the purpose of evaluating a bid

9 or proposal to enter into a Federal agency procure10 ment contract, if that information has not been pre11 viously made available to the public or disclosed pub12 licly:

13 ‘‘(A) Bid prices submitted in response to a

14 Federal agency solicitation for sealed bids or

15 lists of those bid prices prior to public bid open16 ing;

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

18 response to a Federal agency solicitation or lists

19 of those proposed costs or prices;

20 ‘‘(C) Source selection plans;

21 ‘‘(D) Technical evaluation plans;

22 ‘‘(E) Technical evaluations of proposals;

23 ‘‘(F) Cost or price evaluations of propos24 als;
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•HR 1388 IH

1 ‘‘(G) Competitive range determinations

2 which identify proposals that have a reasonable

3 chance of being selected for award of a con4 tract;

5 ‘‘(H) Rankings of bids, proposals, or com6 petitors;

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

8 selection panels or boards or advisory councils;

9 or

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

11 selection information’ based upon a case-by-case

12 determination by the head of the agency, his

13 designee, or the contracting officer that its dis14 closure would jeopardize the integrity or suc15 cessful completion of the Federal agency pro16 curement to which the information relates.

17 ‘‘(f) No person may file a protest against the award

18 or proposed award of a Federal agency procurement con19 tract alleging an offense under subsection (a), (b), or (c),

20 of this section, nor may the Comptroller General or the

21 board of contract appeals of the General Services Adminis22 tration consider such an allegation in deciding such a pro23 test, unless that person reported information to the Fed24 eral agency responsible for the procurement that he be-
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1 lieved constituted evidence of the offense no later than ten

2 working days after he first discovered the possible offense.

3 ‘‘(g) This section does not—

4 ‘‘(1) restrict the disclosure of information to or

5 its receipt by any person or class of persons author6 ized, in accordance with applicable agency regula7 tions or procedures, to receive that information;

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

9 own bid or proposal information or the recipient

10 from receiving that information;

11 ‘‘(3) restrict the disclosure or receipt of infor12 mation relating to the Federal agency procurement

13 after it has been canceled by the Federal agency

14 prior to contract award unless the Federal agency

15 plans on resuming the procurement;

16 ‘‘(4) authorize the withholding of information

17 from nor restrict its receipt by the Congress, a com18 mittee or subcommittee thereof, the Comptroller

19 General, a Federal agency, or an Inspector General

20 of a Federal agency;

21 ‘‘(5) authorize the withholding of information

22 from nor restrict its receipt by the Court of Federal

23 Claims, any board of contract appeals of a Federal

24 agency or the Comptroller General in the course of
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1 a protest against the award or proposed award of a

2 Federal agency procurement contract;

3 ‘‘(6) prohibit individual meetings between an

4 agency employee and a competitor for or recipient of

5 a contract or subcontract under a Federal agency

6 procurement, provided that unauthorized disclosure

7 or receipt of contractor bid or proposal information

8 or source selection information does not occur; or

9 ‘‘(7) limit the applicability of the requirements,

10 sanctions, contract penalties, and remedies estab11 lished under any other law or regulation.

12 ‘‘(h) This section does not apply to the conduct of

13 a Federal agency procurement for an amount not greater

14 than the simplified acquisition threshold as defined in sec15 tion 4(11).’’.

16 ‘‘(b) Government-wide regulations and guidelines

17 deemed appropriate to carry out this Act shall be issued

18 in the Federal Acquisition Regulation by the Department

19 of Defense, the General Services Administration, and the

20 National Aeronautics and Space Administration, in coordi21 nation with the Federal Acquisition Regulatory Council.

22 SEC. 6002. REPEALS.

23 Subsection 32(c) of the Office of Federal Procure24 ment Policy Act (41 U.S.C. 28(c)) is repealed.
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1 SEC. 6003. CONFORMING AMENDMENTS.

2 Section 32 of the Office of Federal Procurement Pol3 icy Act is amended by redesignating subsections (d), (e),

4 (f), and (g) as (c), (d), (e), and (f).

5 Subtitle B—Additional Amendments

6 SEC. 6051. INAPPLICABILITY OF PROHIBITION ON GRATU7 ITIES.

8 Section 2207 of title 10, United States Code, is

9 amended—

10 (1) by inserting ‘‘in excess of the simplified ac11 quisition threshold (as defined in section 4(11) of

12 the Office of Federal Procurement Policy Act (41

13 U.S.C. 403(11))’’ after ‘‘may not be spent under a

14 contract’’; and

15 (2) by inserting ‘‘or for commercial items as de16 fined in section 4(12) of the Office of Federal Pro17 curement Policy Act (41 U.S.C. 403(12))’’ after ‘‘a

18 contract for personal services’’.

19 Subtitle C—Intellectual Property

20 SEC. 6101. TECHNOLOGY INNOVATION.

21 (a) COOPERATIVE RESEARCH AND DEVELOPMENT

22 AGREEMENTS.—Section 12 of the Stevenson-Wydler

23 Technology Innovation Act of 1980 (15 U.S.C. 3710a) is

24 amended—

25 (1) in subsection (a)(1), by striking out ‘‘(in26 cluding licensees of inventions owned by the Federal
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1 agency);’’ and inserting in lieu thereof ‘‘(including li2 censees of inventions or copyrights owned by the

3 Federal agency);’’ and further by deleting ‘‘and’’;

4 (2) by adding ‘‘and’’ at the end of paragraph

5 (2);

6 (3) in subsection (a), by adding at the end the

7 following new paragraph:

8 ‘‘(3) to negotiate licensing agreements following

9 the criteria set forth in section 209 of title 35 or

10 under other authorities (in the case of a Govern11 ment-owned, contractor-operated laboratory, subject

12 to subsection (c) of this section) for copyrights

13 owned by the Government pursuant to subsection

14 (h) or copyrights that may be voluntarily assigned to

15 the Government.’’;

16 (4) in subsection (b), by amending paragraphs

17 (2) and (3) to read as follows:

18 ‘‘(2) grant or agree to grant in advance, to a

19 collaborating party, patent and copyright licenses or

20 assignments, or options thereto, in any invention

21 made or computer programs prepared in whole or in

22 part by a laboratory employee under the agreement,

23 retaining a nonexclusive, nontransferable, irrev24 ocable, paid-up license to practice the invention and

25 exercise all rights under the copyright or have the
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1 invention practiced and have all rights under any

2 copyright for the computer program exercised

3 throughout the world by or on behalf of the Govern4 ment and such other rights as the Federal labora5 tory deems appropriate; provided in agreements hav6 ing as a primary purpose the research, development

7 or utilization of products or services for the commer8 cial market, agencies may limit the retained govern9 ment license under any copyright for a computer

10 program, reserving, however, at a minimum, the

11 paid-up, worldwide right in the government to repro12 duce, prepare derivative works, and to distribute to

13 other United States agencies and their contractors

14 for government purposes;

15 ‘‘(3) waive, subject to reservation by the Gov16 ernment of a nonexclusive, irrevocable, paid-up li17 cense to practice the invention and exercise all rights

18 under any copyright or have the invention practiced

19 and all rights under any copyright exercised

20 throughout the world by or on behalf of the Govern21 ment, in advance, in whole or in part, any right of

22 ownership which the Federal Government may have

23 to any subject invention made or copyrighted work

24 prepared under the agreement by a collaborating

25 party or employee of a collaborating party; provided
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1 in agreements having as a primary purpose the re2 search, development or utilization of products or

3 services for the commercial market, agencies may

4 limit the retained government license under any

5 copyright for a computer program, reserving, how6 ever, at a minimum, the paid-up, worldwide right in

7 the government to reproduce, prepare derivative

8 works, and to distribute to other United States

9 agencies and their contractors for government pur10 poses;’’;

11 (5) by amending subsection (b)(5) to read as

12 follows:

13 ‘‘(5) to the extent consistent with any applica14 ble agency requirements and standards of conduct,

15 permit employees or former employees of the labora16 tory to participate in efforts to commercialize inven17 tions they made or copyrighted works they prepared

18 while in the service of the United States, notwith19 standing that such employees may have received roy20 alties pursuant to section 3710c of title 15; pro21 vided, however, that such inventor or author did not

22 personally and substantially participate in the selec23 tion of the collaborating party to the cooperative re24 search and development agreement or in the negotia25 tion of the licensing agreement. A Government-
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1 owned, contractor-operated laboratory that enters

2 into a cooperative research and development agree3 ment under subsection (a)(1) of this section may use

4 or obligate royalties or other income accruing to

5 such laboratory under such agreement with respect

6 to any invention or copyrighted work only (i) for

7 payments to inventors and authors; (ii) for the pur8 poses described in section 3710(a)(1)(B) (i), (ii),

9 and (iv) of this title; and (iii) for scientific research

10 and development consistent with the research and

11 development missions and objectives of the labora12 tory.’’;

13 (6) in subsection (d), by striking out ‘‘DEFINI14 TIONS.—As used in this section—’’ and inserting in

15 lieu thereof:

16 ‘‘(d) DEFINITIONS.—As used in sections 12, 13, 14,

17 and 15 of the Stevenson-Wydler Technology Innovation

18 Act of 1980, (15 U.S.C. 3710a, 3710b, 3710c, and

19 3710d)—’’

20 (7) in subsection (d), by adding at the end the

21 following new paragraphs:

22 ‘‘(5) the term ‘Computer Program’ means a

23 computer program as defined in section 101 of title

24 17, United States Code and includes instructions

25 necessary to use the program, but does not include
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1 data, data bases, data base retrieval programs or

2 other programs which directly support the dissemi3 nation of Government information; and

4 ‘‘(6) the term ‘Author’ includes a Federal offi5 cer or employee who has prepared a copyrighted

6 work as part of that person’s official duties as a

7 work made for hire and any person who has as8 signed his or her rights in a copyright to the United

9 States.’’;

10 (8) by adding at the end the following new sub11 section:

12 ‘‘(h) COPYRIGHT OF COMPUTER PROGRAMS.—Each

13 Federal agency may claim copyright on behalf of the Unit14 ed States as owner in any computer program prepared by

15 employees of the United States Government in the course

16 of work under, or related to, a cooperative research and

17 development agreement entered into under the authority

18 of subsection (a)(1) of this section, or under any other

19 equivalent authority and may grant or agree to grant in

20 advance to a collaborating party, licenses or assignments

21 for such copyrights, or options thereto, retaining a

22 nonexclusive, nontransferable, irrevocable, paid-up license

23 to exercise all rights under any copyright for computer

24 program throughout the world by or on behalf of the Gov25 ernment and such other rights as the Federal agency
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1 deems appropriate; provided in agreements having as a

2 primary purpose the research, development or utilization

3 of products or services for the commercial market, agen4 cies may limit the retained Government license under any

5 copyright for a computer program, reserving, however, at

6 a minimum, the paid-up, worldwide right in the Govern7 ment to reproduce, prepare derivative works, and to dis8 tribute to other United States agencies and their contrac9 tors for government purposes.’’.

10 (b) DISTRIBUTION OF ROYALTIES RECEIVED BY

11 FEDERAL AGENCIES.—Section 14 of the Stevenson12 Wydler Technology Innovation Act of 1980 (15 U.S.C.

13 3710c) is amended to read as follows:

14 ‘‘SEC. 1354. DISTRIBUTION OF ROYALTIES RECEIVED BY

15 FEDERAL AGENCIES.

16 ‘‘(a) IN GENERAL.—(1) Except as provided in para17 graphs (2) and (4), royalties or other income received by

18 a Federal agency from the licensing or assignment of in19 ventions or copyrights under agreements entered into by

20 Government-operated Federal laboratories under section

21 12 of this Act, and inventions or copyrights of Govern22 ment-operated Federal laboratories licensed under section

23 207 of title 35, United States Code, or under any other

24 provision of law, shall be retained by the agency whose
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1 laboratory produced the invention or copyrighted work and

2 shall be disposed of as follows:

3 ‘‘(A)(i) The head of the agency shall pay at

4 least 15 percent of the royalties or other income the

5 agency receives on account of any invention or copy6 right to the inventor or the author (or co-inventors

7 or co-authors) if the inventor or author (or each

8 such co-inventor or co-author) has assigned his or

9 her rights in the invention or copyrighted work to

10 the United States or, in the case of a copyrighted

11 work, if the work was made for hire by an officer

12 or employee of the United States Government.

13 ‘‘(ii) An agency may promulgate, in accordance

14 with section 553 of title 5, United States Code, reg15 ulations providing for an alternative program for

16 sharing royalties with inventors or authors under

17 clause (i). Such regulations must—

18 ‘‘(I) guarantee a fixed minimum payment

19 to each such inventor or author each year that

20 the agency receives royalties from that inven21 tor’s invention or author’s copyrighted work;

22 ‘‘(II) provide a percentage royalty share to

23 each such inventor or author, each year that

24 the agency receives royalties from that inven-
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1 tor’s invention or author’s copyrighted work in

2 excess of a threshold amount;

3 ‘‘(III) provide that total payments to all

4 such inventors or authors shall equal at least

5 15 percent of total agency royalties in any given

6 fiscal year; and

7 ‘‘(IV) provide appropriate incentives from

8 royalties for those laboratory employees who

9 contribute substantially to the technical devel10 opment of a licensed invention or copyrighted

11 work between the time of the filing of the pat12 ent application and the licensing of the inven13 tion or copyrighted work.

14 ‘‘(iii) An agency that has published its intention

15 to promulgate regulations under clause (ii) may elect

16 not to pay inventors or authors under clause (i) until

17 the expiration of two years after October 20, 1986,

18 or until the date of the promulgation of such regula19 tions, whichever is earlier. If an agency makes such

20 an election and after two years the regulations have

21 not been promulgated, the agency shall make pay22 ments (in accordance with clause (i)) of at least 15

23 percent of the royalties involved, retroactive to Octo24 ber 20, 1986. If promulgation of the regulations oc25 curs within two years after October 20, 1986, pay-
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1 ments shall be made in accordance with such regula2 tions, retroactive to October 20, 1986. The agency

3 shall retain its royalties until the inventor’s or au4 thor’s portion is paid under either clause (i) or (ii).

5 Such royalties shall not be transferred to the agen6 cy’s Government-operated laboratories under sub7 paragraph (B) and shall not revert to the Treasury

8 pursuant to paragraph (2) as a result of any delay

9 caused by rule making under this subparagraph.

10 ‘‘(B) The balance of the royalties or other in11 come shall be transferred by the agency to its Gov12 ernment-operated laboratories, with the majority

13 share of the royalties or other income from any in14 vention or copyright going to the laboratory where

15 the invention occurred or copyrighted work was pre16 pared; and the funds so transferred to any such lab17 oratory may be used or obligated by that laboratory

18 during the fiscal year in which they are received or

19 during the succeeding fiscal year—

20 ‘‘(i) for payment of expenses incidental to the

21 administration and licensing of inventions or copy22 rights by that laboratory or by the agency with re23 spect to inventions which occurred or copyrighted

24 work prepared at that laboratory, including the fees

25 or other costs for the services of other agencies, per-
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1 sons, or organizations for invention or copyright

2 management and licensing services;

3 ‘‘(ii) to reward scientific, engineering, and tech4 nical employees of that laboratory, including pay5 ments to inventors and developers of sensitive or

6 classified technology, regardless of whether the tech7 nology has commercial applications; and

8 ‘‘(iii) to further scientific exchange among the

9 Government-operated laboratories of the agency; or

10 ‘‘(iv) for education and training of employees

11 consistent with the research and development mis12 sion and objectives of the agency, and for other ac13 tivities that increase the licensing potential for

14 transfer of the technology of the laboratories of the

15 agency. Any of such funds not so sued or obligated

16 by the end of the fiscal year succeeding the fiscal

17 year in which they are received shall be paid into the

18 Treasury of the United States.

19 ‘‘(2) If, after payments to inventors or authors under

20 paragraph (1), the royalties received by an agency in any

21 fiscal year exceed 5 percent of the budget of the Govern22 ment-operated laboratories of the agency for that year, 75

23 percent of such excess shall be paid to the Treasury of

24 the United States and the remaining 25 percent may be

25 used or obligated for the purposes described in clauses (i)
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1 and (ii) of paragraph (1)(B) during that fiscal year or the

2 succeeding fiscal year. Any funds not so obligated shall

3 be paid into the Treasury of the United States.

4 ‘‘(3) Any payment made to an employee under this

5 section shall be in addition to the regular pay of the em6 ployee and to any other awards made to the employee, and

7 shall not affect the entitlement of the employee to any reg8 ular pay, annuity, or award to which he is otherwise enti9 tled or for which he is otherwise eligible or limit the

10 amount thereof. Any payment made to an inventor or au11 thor as such shall continue after the inventor or author

12 leaves the laboratory or agency. Payments made under

13 this section shall not exceed $100,000 per year to any one

14 person, unless the President approves a larger award (with

15 the excess over $100,000 being treated as a Presidential

16 award under section 4504 of title 5, United States Code).

17 ‘‘(4) A Federal agency receiving royalties or other in18 come as a result of invention, or copyright, management

19 services performed for another Federal agency or labora20 tory under section 207 of title 35, United States Code,

21 may retain such royalties or income to the extent required

22 to offset the payment of royalties to inventors or authors

23 under clause (i) of paragraph (1)(A), costs and expenses

24 incurred under clause (i) of paragraph (1)(B), and the

25 cost of foreign patenting or copyrighting and maintenance
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1 for any invention or copyright of the other agency. All roy2 alties and other income remaining after payment of the

3 royalties, costs, and expenses described in the preceding

4 sentence shall be transferred to the agency for which the

5 services were performed, for distribution in accordance

6 with clauses (i) and (ii) of paragraph (1)(B).

7 ‘‘(b) CERTAIN ASSIGNMENTS.—If the invention or

8 copyright involved was one assigned to the Federal agen9 cy—

10 ‘‘(1) by a contractor, grantee, or participant in

11 a cooperative agreement with the agency; or

12 ‘‘(2) by an employee of the agency who was not

13 working in the laboratory at the time the invention

14 was made or copyrightable work prepared, the agen15 cy unit that was involved in such assignment shall

16 be considered to be a laboratory for purposes of this

17 section.

18 ‘‘(c) REPORTS.—In making their annual budget sub19 missions Federal agencies shall submit, to the appropriate

20 authorization and appropriation committees of both

21 Houses of Congress, summaries of the amount of royalties

22 or other income received and expenditures made (including

23 inventor or author awards) under this section.’’.
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1 SEC. 6102. EMPLOYEE ACTIVITIES.

2 Section 15 of the Stevenson-Wydler Technology Inno3 vation Act of 1980 (15 U.S.C. 3710d) is amended—

4 (1) by redesignating subsections (b) and (c) as

5 subsections (c) and (d) respectively; and

6 (2) by inserting after subsection (a) the follow7 ing new subsection:

8 ‘‘(b) RIGHTS TO COMPUTER PROGRAMS PREPARED

9 BY GOVERNMENT EMPLOYEES.—(1) A computer program

10 prepared by an officer or employee of the United State

11 Government as part of that person’s official duties shall

12 be a ‘work made for hire’ as defined in subparagraph (1)

13 of section 101 of title 17, United States Code, and the

14 United States Government shall obtain all rights, title,

15 and interest therein as ‘author’ in accordance with section

16 201(b) of title 17, United States Code, unless otherwise

17 provided in paragraph (2).

18 ‘‘(2) If a Federal agency has the right of ownership

19 to a computer program for which the agency does not in20 tend to copyright or otherwise promote the commercializa21 tion of such computer program, the agency may agree to

22 allow the author to acquire title to copyright, subject to

23 the reservation of a nonexclusive, nontransferable, irrev24 ocable, paid-up license to exercise all rights under the

25 copyright by or on behalf of the Government throughout

26 the world, as such other reservations deemed necessary to
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1 assure distribution and utilization of the computer pro2 gram.’’.

3 SEC. 6103. EXCEPTION TO PROHIBITION ON COPYRIGHT

4 PROTECTION FOR WORKS OF THE UNITED

5 STATES GOVERNMENT.

6 Section 105 of title 17, United States Code, is

7 amended to read as follows:

8 ‘‘§ 105. Subject matter of copyright: United States

9 Government works

10 ‘‘Copyright protection under this title is not available

11 for any work of the United States Government, except as

12 provided in section 12 of the Stevenson-Wydler Tech13 nology Innovation Act of 1980 (15 U.S.C. 3710a), but the

14 United States is not precluded from receiving and holding

15 copyrights transferred to it by assignment, bequest, or

16 otherwise.’’.

17 SEC. 6104. PATENT RIGHTS IN INVENTIONS MADE WITH

18 FEDERAL ASSISTANCE.

19 Subsection 202(c) of title 35, United States Code, is

20 amended by amending paragraphs (2) and (3) to read as

21 follows:

22 ‘‘(2) That the contractor make a written elec23 tion within two years after disclosure to the Federal

24 agency (or such additional time as may be approved

25 by the Federal agency) whether to retain title to a
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1 subject invention in the United States and in any

2 foreign countries; provided, that, if a contractor

3 elects to retain title in the United States, the elec4 tion to retain title in any foreign country may be de5 layed until six months after filing the United States

6 patent application; and provided further, that, in

7 any case where publication, or sale, or public use has

8 initiated the one year statutory period within which

9 a patent application must be filed in the United

10 States, the period for election may be shortened by

11 the Federal agency to a date that is not more than

12 four months prior to the end of the statutory period;

13 and that the Federal Government may, after notice

14 to the contractor, receive title to any subject inven15 tion in which the contractor does not elect to retain

16 title.

17 ‘‘(3) That a contractor agrees to file a patent

18 application on a subject invention in—

19 ‘‘(A) the United States within one year

20 after the written election to retain title in the

21 United States (or such additional time as may

22 be approved by the Federal agency), but, in any

23 event, prior to any statutory bar, and that the

24 Federal Government may, after notice to the

25 contractor, receive title to any subject invention
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1 on which a patent application has not been filed

2 within the above required time period; and

3 ‘‘(B) each elected foreign country, or to file

4 an international application, within four months

5 after the written election to retain title in the

6 foreign country, but, in any event, prior to any

7 bar due to publication, public use or sale of the

8 invention, (or such additional time as may be

9 approved by the Federal agency), and that the

10 Federal Government may, after notice to the

11 contractor, receive title to any subject invention

12 on which a foreign patent or international ap13 plication has not been filed within the above re14 quired time period.’’.

15 TITLE VII—SMALL BUSINESS AND

16 SOCIOECONOMIC LAWS

17 Subtitle A—Small Business Laws

18 SEC. 7001. DIRECT CONTRACTING WITH SECTION 8(A) COM19 PANIES.

20 Section 8(a) of the Small Business Act (15 U.S.C.

21 637(a)) is amended—

22 (1) in paragraph (1), by adding at the end the

23 following new subparagraph:

24 ‘‘(E) to delegate to any department, agen25 cy, or officer thereof having procurement pow-
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1 ers any of the authorities contained in this sub2 section so that an award or a contract can be

3 made by the procurement officer directly to an

4 eligible Program participant. Such delegation

5 may be made generally to specific departments,

6 agencies, or officers or may be made on a case7 by-case basis in the discretion of the Adminis8 tration. Any such delegation may be revoked by

9 the Administrator, except that any revocation

10 shall not be effective as to any procurement

11 where a solicitation has been issued prior to the

12 revocation.’’; and

13 (2) by amending paragraph (3)(A) to read as

14 follows:

15 ‘‘(A) Any Program participant selected to

16 perform a contract to be let noncompetitively

17 pursuant to this subsection shall, when prac18 ticable, participate in any negotiation of the

19 terms and conditions of such contract. When

20 authority has been delegated to a department

21 or agency, the Administration may also partici22 pate in any negotiation of the terms and condi23 tions of a contract when requested to partici24 pate by either the Program participant or the

25 procurement officer.’’.
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1 SEC. 7002. SMALL BUSINESS SUBCONTRACTING PLANS.

2 Section 8 of the Small Business Act, Public Law 85–

3 536, 72 Stat. 395, as amended (15 U.S.C. 637), is amend4 ed—

5 (1) in subsection (c) by deleting ‘‘[Reserved].’’

6 and inserting the following in lieu thereof:

7 ‘‘(c) Provision of Utility Services under Tariff with8 out entering into Contracts; Small business subcontracting

9 plans. It is the policy of the United States that small busi10 ness concerns, small business concerns owned and con11 trolled by socially and economically disadvantaged individ12 uals and small business concerns owned and controlled by

13 women shall have a maximum practicable opportunity to

14 participate in the provision of public utility services to

15 Federal agencies under section 210(a)(19) of the Federal

16 Property and Administrative Services Act of 1949. Any

17 public utility that provides utility services in excess of

18 $500,000 to the Federal Government in a twelve month

19 period shall, within 60 days thereafter, submit a small

20 business subcontracting plan to the agency receiving the

21 service for approval. If multiple agencies are receiving

22 service, the plans shall be submitted to the General Serv23 ices Administration. The plan shall include the same basic

24 elements as required by subsection (d)(6).’’; and

25 (2) by inserting, at the end of subsection

26 8(d)(7), the following: ‘‘or to State or local govern-
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1 ments acting as contractors if the state or local gov2 ernment provides a description of its own similar

3 program and the contracting officer makes a deter4 mination, after consultation with the Administration,

5 that the State or local program serves the same pur6 pose as the Federal plan outlined in paragraph (6)’’.

7 SEC. 7003. REPORTING REQUIREMENT ON NUMBER OF

8 SMALL BUSINESS SUBCONTRACT AWARDS.

9 Section 15 of the Small Business Act (15 U.S.C. 644)

10 is amended in subsection (h)(2)—

11 (1) by striking out ‘‘number and’’ in paragraph

12 (E); and

13 (2) by amending paragraph (F) to read as fol14 lows:

15 ‘‘(F) The number and dollar value of prime

16 contracts and the dollar value of subcontracts

17 awarded to small business concerns owned and

18 controlled by women.’’.

19 SEC. 7004. REPEAL OF SMALL BUSINESS COMPETITIVENESS

20 DEMONSTRATION PROGRAM.

21 (a) REPEAL.—The Small Business Competitiveness

22 Demonstration Program Act of 1988, as amended (15

23 U.S.C. 644 note) is repealed.

24 (b) CONFORMING AMENDMENT.—Section 15 of the

25 Small Business Act (15 U.S.C. 644) is amended—
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1 (1) by redesignating subsection 15(a) as

2 15(a)(1);

3 (2) by adding to subsection 15(a) the following

4 new paragraph:

5 ‘‘(2) Each contract opportunity in construction,

6 refuse and related services, and non-nuclear ship repair

7 that has an anticipated value greater than the simplified

8 acquisition threshold shall be solicited on an unrestricted

9 basis. If an agency fails to attain at least a 40 percent

10 small business participation rate in the above industries,

11 subsequent contract opportunities should be solicited

12 through a competition restricted to eligible small business

13 concerns pursuant to section 15(a) of the Small Business

14 Act (15 U.S.C. 644(a)) to the extent necessary for such

15 agency to attain the above rate. Nothing in this paragraph

16 shall be construed as precluding an award of a contract

17 under the authority of subsection 8(a) of this Act, section

18 2323 of title 10, United States Code, or section 7102 of

19 the Federal Acquisition Streamlining Act of 1994.’’.

20 (3) by striking out the words, ‘‘section 712 of the

21 Business Opportunity Development Reform Act of

22 1988 (Public Law 100–656; 15 U.S.C. 644 note)’’

23 in subsection (j)(3).
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1 SEC. 7005. REPEAL OF PROGRAM FOR MANUFACTURING

2 CONTRACTS THROUGH MANUFACTURING AP3 PLICATION AND EDUCATION CENTERS.

4 Section 303 of the Public Law 103–403 is repealed.

5 SEC. 7006. REPEAL OF PILOT PROGRAM FOR VERY SMALL

6 BUSINESS CONCERNS.

7 Section 304 of Public Law 103–403 is repealed.

8 Subtitle B—Socioeconomic Laws

9 SEC. 7101. REPEAL OF WALSH-HEALEY PUBLIC CONTRACTS

10 ACT.

11 The Act of June 30, 1936 (41 U.S.C. 35 through

12 45), commonly known as the Walsh-Healey Act, is re13 pealed.

14 SEC. 7102. PROCUREMENT REPORT—RESOURCE CON15 SERVATION AND RECOVERY ACT.

16 Section 6002(g) of the Resource Conservation and

17 Recovery Act (42 U.S.C. 6962(g)) is amended—

18 (1) in the second sentence by inserting a period

19 after ‘‘resources’’ and striking all that follows; and

20 (2) by inserting the following new third sen21 tence: ‘‘Every two years beginning in 1996, the Ad22 ministrator shall report to Congress on actions taken

23 by Federal agencies and the progress made in the

24 implementation of this section, including compliance

25 with subsection (d) of this section.’’.
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1 SEC. 7103. REQUIREMENTS FOR CERTIFICATION AND VER2 IFICATION.

3 Section 6962 of title 42, United States Code (42

4 U.S.C. 6962), is amended—

5 (1) by striking subparagraph (3) of paragraph

6 (c) in its entirety; and

7 (2) by adding ‘‘and’’ at the end of paragraph

8 (B), in subsection (i)(2), striking paragraph (C) in

9 its entirety, and redesignating paragraph (D) as

10 paragraph (C).

11 TITLE VIII—DEFENSE INTERNATIONAL

12 TRADE

13 SEC. 8001. COMPETITIVENESS OF UNITED STATES COMPA14 NIES.

15 Section 2761 of title 22, United States Code, is

16 amended—

17 (a) by adding the word ‘‘and’’ to the end of

18 subparagraph (e)(1)(A);

19 (b) by striking out subparagraph (e)(1)(B) in

20 its entirety;

21 (c) by redesignating the existing subparagraph

22 (e)(1)(C) as (e)(1)(B);

23 (d) by striking out paragraph (e)(2) in its en24 tirety; and
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1 (e) by redesignating the existing paragraph

2 (e)(3) as (e)(2).

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