I

104TH CONGRESS

1ST SESSION H. R. 1670

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

to reorganize the mechanisms for resolving Federal procurement disputes,

and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

MAY 18, 1995

Mr. CLINGER (for himself, Mr. SPENCE, Mr. HORN, Mr. ZELIFF, Mr. BLUTE,

Mr. DAVIS, Mr. SCARBOROUGH, Mr. LEWIS of California, Mr. TATE, Mr.

TIAHRT, Mr. FLANAGAN, Mr. BASS, and Mr. CHAMBLISS) introduced the

following bill; which was referred to the Committee on Government Reform and Oversight, and in addition to the Committees on National Security and the Judiciary, for a period to be subsequently determined by the

Speaker, in each case for consideration of such provisions as fall within

the jurisdiction of the committee concerned

A BILL

To revise and streamline the acquisition laws of the Federal

Government, to reorganize the mechanisms for resolving

Federal procurement disputes, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

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

5 Reform Act of 1995’’.
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1 SEC. 2. TABLE OF CONTENTS.

2 The table of contents for this Act is as follows:

Sec. 1. Short title.

Sec. 2. Table of contents.

TITLE I—COMPETITION

Sec. 101. Improvement of competition requirements.

Sec. 102. Definition relating to competition requirements.

Sec. 103. Contract solicitation amendments.

Sec. 104. Preaward debriefings.

Sec. 105. Contract types.

Sec. 106. Contractor performance.

TITLE II—COMMERCIAL ITEMS

Sec. 201. Commercial item exception to requirement for cost or pricing data

and information limitations.

Sec. 202. Application of simplified procedures to commercial items.

Sec. 203. Amendment to definition of commercial items.

Sec. 204. Inapplicability of cost accounting standards to contracts and subcontracts for commercial items.

TITLE III—ADDITIONAL REFORM PROVISIONS

Sec. 301. Government reliance on the private sector.

Sec. 302. Elimination of certain certification requirements.

Sec. 303. Amendment to commencement and expiration of authority to conduct

certain tests of procurement procedures.

Sec. 304. International competitiveness.

Sec. 305. Procurement integrity.

Sec. 306. Further acquisition streamlining provisions.

TITLE IV—STREAMLINING OF DISPUTE RESOLUTION

Subtitle A—General Provisions

Sec. 401. Definitions.

Subtitle B—Establishment of the United States Board of Contract Appeals

Sec. 411. Establishment.

Sec. 412. Membership.

Sec. 413. Chairman.

Sec. 414. Rulemaking authority.

Sec. 415. Litigation authority.

Sec. 416. Seal of Board.

Sec. 417. Authorization of appropriations.

Subtitle C—Functions of United States Board of Contract Appeals

Sec. 421. Alternative dispute resolution services.

Sec. 422. Alternative dispute resolution of disputes and protests submitted to

Board.

Sec. 423. Contract disputes.

Sec. 424. Protests.
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Sec. 425. Applicability to contracts for commercial items.

Subtitle D—Repeal of Other Statutes Authorizing Administrative Protests

Sec. 431. Repeals.

Subtitle E—Transfers and Transitional, Savings, and Conforming Provisions

Sec. 441. Transfer and allocation of appropriations and personnel.

Sec. 442. Terminations and savings provisions.

Sec. 443. Contract dispute authority of Board.

Sec. 444. References to agency boards of contract appeals.

Sec. 445. Conforming amendments.

Subtitle F—Effective Date; Interim Appointment and Rules

Sec. 451. Effective date.

Sec. 452. Interim appointment.

Sec. 453. Interim rules.

TITLE V—EFFECTIVE DATES AND IMPLEMENTATION

Sec. 501. Effective date and applicability.

Sec. 502. Implementing regulations.

1 TITLE I—COMPETITION

2 SEC. 101. IMPROVEMENT OF COMPETITION REQUIRE3 MENTS.

4 (a) ARMED SERVICES ACQUISITIONS.—(1) Section

5 2304 of title 10, United States Code, is amended to read

6 as follows:

7 ‘‘§ 2304. Contracts: competition requirements

8 ‘‘(a) MAXIMUM PRACTICABLE COMPETITION.—Ex9 cept as provided in subsections (b), (c), and (e) and except

10 in the case of procurement procedures otherwise expressly

11 authorized by statute, the head of an agency in conducting

12 a procurement for property or services—

13 ‘‘(1) shall obtain maximum practicable competi14 tion through the use of competitive procedures con15 sistent with the need to efficiently fulfill the Govern-
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1 ment’s requirements in accordance with this chapter

2 and the Federal Acquisition Regulation; and

3 ‘‘(2) shall use the competitive procedure or

4 combination of competitive procedures that is best

5 suited under the circumstances of the procurement.

6 ‘‘(b) EXCLUSION OF PARTICULAR SOURCE.—The

7 head of an agency may provide for the procurement of

8 property or services covered by this chapter using competi9 tive procedures but excluding a particular source in order

10 to establish or maintain an alternative source or sources

11 of supply for that property or service. The Federal Acqui12 sition Regulation shall set forth the circumstances under

13 which a particular source may be excluded pursuant to

14 this subsection.

15 ‘‘(c) EXCLUSION OF CONCERNS OTHER THAN SMALL

16 BUSINESS CONCERNS AND CERTAIN OTHER ENTITIES.—

17 The head of an agency may provide for the procurement

18 of property or services covered by this section using com19 petitive procedures, but excluding concerns other than

20 small business concerns in furtherance of sections 9 and

21 15 of the Small Business Act (15 U.S.C. 638, 644) and

22 concerns other than small business concerns, historically

23 Black colleges and universities, and minority institutions

24 in furtherance of section 2323 of this title.
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1 ‘‘(d) PROCEDURES OTHER THAN COMPETITIVE PRO2 CEDURES.—Procedures other than competitive procedures

3 may be used for purchasing property and services only

4 when the use of competitive procedures is not feasible or

5 appropriate. Each procurement using procedures other

6 than competitive procedures (other than a procurement

7 for commercial items or a procurement in an amount not

8 greater than the simplified acquisition threshold) shall be

9 justified in writing and approved in accordance with the

10 Federal Acquisition Regulation.

11 ‘‘(e) SIMPLIFIED PROCEDURES.—(1) In order to pro12 mote efficiency and economy in contracting and to avoid

13 unnecessary burdens for agencies and contractors, the

14 Federal Acquisition Regulation shall provide for special

15 simplified procedures for purchases of property and serv16 ices for amounts not greater than the simplified acquisi17 tion threshold.

18 ‘‘(2) A proposed purchase or contract for an amount

19 above the simplified acquisition threshold may not be di20 vided into several purchases or contracts for lesser

21 amounts in order to use the simplified procedures required

22 by paragraph (1).

23 ‘‘(3) In using simplified procedures, the head of an

24 agency shall ensure that competition is obtained to the ex-
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1 tent practicable consistent with the particular Government

2 requirement.

3 ‘‘(f) CERTAIN CONTRACTS.—For the purposes of the

4 following laws, purchases or contracts awarded after using

5 procedures other than sealed-bid procedures shall be treat6 ed as if they were made with sealed-bid procedures:

7 ‘‘(1) The Walsh-Healey Act (41 U.S.C. 35–45).

8 ‘‘(2) The Act entitled ‘‘An Act relating to the

9 rate of wages for laborers and mechanics employed

10 on public buildings of the United States and the

11 District of Columbia by contractors and subcontrac12 tors, and for other purposes’’, approved March 3,

13 1931 (commonly referred to as the ‘‘Davis-Bacon

14 Act’’) (40 U.S.C. 276a–276a–5).’’.

15 (2) Chapter 137 of title 10, United States Code, is

16 amended by inserting before section 2305 a new section—

17 (A) the designation and heading for which is as

18 follows:

19 ‘‘§ 2304f. Merit-based selection’’;

20 and

21 (B) the text of which consists of subsection (j)

22 of section 2304 of such title, as in effect on the day

23 before the date of the enactment of this Act, modi24 fied—
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1 (i) by striking out the subsection designa2 tion and the subsection heading;

3 (ii) in paragraphs (2)(A), (3), and (4), by

4 striking out ‘‘subsection’’ and inserting in lieu

5 thereof ‘‘section’’ each place it appears;

6 (iii) in paragraph (2)(C), by striking out

7 ‘‘paragraph (1)’’ and inserting in lieu thereof

8 ‘‘subsection (a)’’;

9 (iv) by redesignating paragraphs (1), (2),

10 (3), and (4) as subsections (a), (b), (c), and

11 (d), respectively; and

12 (v) in subsection (b) (as so redesignated),

13 by redesignating subparagraphs (A), (B), and

14 (C) as paragraphs (1), (2), and (3), respec15 tively.

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

17 chapter is amended by inserting before the item relating

18 to section 2305 the following new item:

‘‘2304f. Merit-based selection.’’.

19 (b) CIVILIAN AGENCY ACQUISITIONS.—(1) Section

20 303 of the Federal Property and Administrative Services

21 Act of 1949 (41 U.S.C. 253) is amended to read as fol22 lows:

23 ‘‘SEC. 303. CONTRACTS: COMPETITION REQUIREMENTS.

24 ‘‘(a) MAXIMUM PRACTICABLE COMPETITION.—Ex25 cept as provided in subsections (b), (c), and (e) and except
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1 in the case of procurement procedures otherwise expressly

2 authorized by statute, an executive agency in conducting

3 a procurement for property or services—

4 ‘‘(1) shall obtain maximum practicable competi5 tion through the use of competitive procedures con6 sistent with the need to efficiently fulfill the Govern7 ment’s requirements in accordance with this chapter

8 and the Federal Acquisition Regulation; and

9 ‘‘(2) shall use the competitive procedure or

10 combination of competitive procedures that is best

11 suited under the circumstances of the procurement.

12 ‘‘(b) EXCLUSION OF PARTICULAR SOURCE.—An ex13 ecutive agency may provide for the procurement of prop14 erty or services covered by this chapter using competitive

15 procedures but excluding a particular source in order to

16 establish or maintain an alternative source or sources of

17 supply for that property or service. The Federal Acquisi18 tion Regulation shall set forth the circumstances under

19 which a particular source may be excluded pursuant to

20 this subsection.

21 ‘‘(c) EXCLUSION OF CONCERNS OTHER THAN SMALL

22 BUSINESS CONCERNS AND CERTAIN OTHER ENTITIES.—

23 An executive agency may provide for the procurement of

24 property or services covered by this section using competi25 tive procedures, but excluding concerns other than small
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1 business concerns in furtherance of sections 9 and 15 of

2 the Small Business Act (15 U.S.C. 638, 644) and con3 cerns other than small business concerns, historically

4 Black colleges and universities, and minority institutions

5 in furtherance of section 7102 of the Federal Acquisition

6 Streamlining Act of 1994 (15 U.S.C. 644 note).

7 ‘‘(d) PROCEDURES OTHER THAN COMPETITIVE PRO8 CEDURES.—Procedures other than competitive procedures

9 may be used for purchasing property and services only

10 when the use of competitive procedures is not feasible or

11 appropriate. Each procurement using procedures other

12 than competitive procedures (other than a procurement

13 for commercial items or a procurement in an amount not

14 greater than the simplified acquisition threshold) shall be

15 justified in writing and approved in accordance with the

16 Federal Acquisition Regulation.

17 ‘‘(e) SIMPLIFIED PROCEDURES.—(1) In order to pro18 mote efficiency and economy in contracting and to avoid

19 unnecessary burdens for agencies and contractors, the

20 Federal Acquisition Regulation shall provide for special

21 simplified procedures for purchases of property and serv22 ices for amounts not greater than the simplified acquisi23 tion threshold.

24 ‘‘(2)(A) The Administrator of General Services shall

25 prescribe regulations that provide special simplified proce-
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1 dures for acquisitions of leasehold interests in real prop2 erty at rental rates that do not exceed the simplified acqui3 sition threshold.

4 ‘‘(B) For purposes of subparagraph (A), the rental

5 rate or rates under a multiyear lease do not exceed the

6 simplified acquisition threshold if the average annual

7 amount of the rent payable for the period of the lease does

8 not exceed the simplified acquisition threshold.

9 ‘‘(3) A proposed purchase or contract or for an

10 amount above the simplified acquisition threshold may not

11 be divided into several purchases or contracts for lesser

12 amounts in order to use the simplified procedures required

13 by paragraph (1).

14 ‘‘(4) In using simplified procedures, an executive

15 agency shall ensure that competition is obtained to the ex16 tent practicable consistent with the particular Government

17 requirement.’’.

18 (2) Title III of the Federal Property and Administra19 tive Services Act of 1949 (41 U.S.C. 251 et seq.) is

20 amended by inserting after section 303L a new section—

21 (A) the designation and heading for which is as

22 follows:

23 ‘‘SEC. 303M. MERIT-BASED SELECTION.’’;

24 and
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1 (B) the text of which consists of subsection (h)

2 of section 303 of such Act, as in effect on the day

3 before the date of the enactment of this Act, modi4 fied—

5 (i) by striking out the subsection designa6 tion and the subsection heading;

7 (ii) in paragraphs (2)(A), (3), and (4), by

8 striking out ‘‘subsection’’ and inserting in lieu

9 thereof ‘‘section’’ each place it appears;

10 (iii) in paragraph (2)(C), by striking out

11 ‘‘paragraph (1)’’ and inserting in lieu thereof

12 ‘‘subsection (a)’’;

13 (iv) by redesignating paragraphs (1), (2),

14 (3), and (4) as subsections (a), (b), (c), and

15 (d), respectively; and

16 (v) in subsection (b) (as so redesignated),

17 by redesignating subparagraphs (A), (B), and

18 (C) as paragraphs (1), (2), and (3), respec19 tively.

20 (3) The table of contents for the Federal Property

21 and Administrative Services Act of 1949 (contained in sec22 tion 1(b)) is amended—

23 (A) by striking out the item relating to section

24 303 and inserting in lieu thereof the following:

‘‘Sec. 303. Contracts: competition requirements.’’; and
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1 (B) by inserting after the item relating to sec2 tion 303L the following new item:

‘‘Sec. 303M. Merit-based selection.’’.

3 (c) REVISIONS TO PROCUREMENT NOTICE PROVI4 SIONS.—Section 18 of the Office of Federal Procurement

5 Policy Act (41 U.S.C. 416) is amended—

6 (1) in subsection (a)—

7 (A) in subparagraph (B) of paragraph

8 (1)—

9 (i) by striking out ‘‘subsection (f)—’’

10 and all that follows through the end of the

11 subparagraph and inserting in lieu thereof

12 ‘‘subsection (b); and’’; and

13 (ii) by inserting after ‘‘property or

14 services’’ the following: ‘‘for a price ex15 pected to exceed $10,000 but not to exceed

16 $25,000’’;

17 (B) by striking out paragraph (4); and

18 (C) by redesignating paragraphs (5) and

19 (6) as paragraphs (4) and (5), respectively; and

20 (2) in subsection (b)(4)—

21 (A) by striking out ‘‘all’’; and

22 (B) by striking out ‘‘(as appropriate)

23 which shall be considered by the agency’’.
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1 (d) REPEAL OF DUPLICATIVE PROVISIONS.—Section

2 8 of the Small Business Act (15 U.S.C. 637) is amend3 ed—

4 (1) by striking out subsections (e), (f), (g), (h),

5 and (i); and

6 (2) by redesignating subsection (j) as sub7 section (e).

8 (e) EXECUTIVE AGENCY RESPONSIBILITIES.—(1)

9 Section 16 of the Office of Federal Procurement Policy

10 Act (41 U.S.C. 414) is amended—

11 (A) by striking out ‘‘achieve’’ in the matter pre12 ceding paragraph (1) and inserting in lieu thereof

13 ‘‘promote’’; and

14 (B) by amending paragraph (1) to read as fol15 lows:

16 ‘‘(1) to implement maximum practicable com17 petition in the procurement of property or services

18 by the executive agency by establishing policies, pro19 cedures, and practices that are consistent with the

20 need to efficiently fulfill the Government’s require21 ments;’’.

22 (2) Section 20 of such Act (41 U.S.C. 418) is amend23 ed in subsection (a)(2)(A) by striking out ‘‘serving in a

24 position authorized for such executive agency on the date
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1 of enactment of the Competition in Contracting Act of

2 1984’’.

3 SEC. 102. DEFINITION RELATING TO COMPETITION RE4 QUIREMENTS.

5 (a) DEFINITION.—Paragraph (6) of section 4 of the

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

7 is amended to read as follows:

8 ‘‘(6) The term ‘maximum practicable competi9 tion’, when used with respect to a procurement,

10 means that a maximum number of responsible or

11 verified sources (consistent with the particular Gov12 ernment requirement) are permitted to submit

13 sealed bids or competitive proposals on the procure14 ment.’’.

15 (b) CONFORMING AMENDMENTS.—

16 (1) OFFICE OF FEDERAL PROCUREMENT POL17 ICY ACT.—The Office of Federal Procurement Policy

18 Act is further amended—

19 (A) in section 4(5), by striking out ‘‘full

20 and open’’ and inserting ‘‘maximum prac21 ticable’’; and

22 (B) in section 20, by striking out ‘‘full and

23 open’’ and inserting in lieu thereof ‘‘maximum

24 practicable’’ each place it appears in subsection
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1 (b)(1), subsection (b)(3)(A), subsection

2 (b)(4)(C), and subsection (c);

3 (2) TITLE 10.—Title 10, United States Code, is

4 amended—

5 (A) in section 2302(2), by striking out

6 ‘‘pursuant to full and open competition’’ and in7 serting in lieu thereof ‘‘using maximum prac8 ticable competition’’;

9 (B) in section 2323(e)(3), by striking out

10 ‘‘less than full and open’’ and inserting in lieu

11 thereof ‘‘procedures other than’’; and

12 (C) in each of the following sections, by

13 striking out ‘‘full and open’’ and inserting in

14 lieu thereof ‘‘maximum practicable’’:

15 (i) Section 2302(3).

16 (ii) Section 2305(a)(1)(A)(i).

17 (iii) Section 2305(a)(1)(A)(iii).

18 (iv) Section 2323(i)(3)(A).

19 (3) FEDERAL PROPERTY AND ADMINISTRATIVE

20 SERVICES ACT.—Title III of the Federal Property

21 and Administrative Services Act of 1949 (41 U.S.C.

22 251 et seq.) is amended—

23 (A) in section 309(b), by striking out

24 ‘‘pursuant to full and open competition’’ and in-
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1 serting in lieu thereof ‘‘using maximum prac2 ticable competition’’; and

3 (B) in each of the following sections, by

4 striking out ‘‘full and open’’ and inserting in

5 lieu thereof ‘‘maximum practicable’’:

6 (i) Section 303A(a)(1)(A).

7 (ii) Section 303A(a)(1)(C).

8 (iii) Section 304B(a)(2)(B).

9 (iv) Section 309(c)(4).

10 (4) OTHER LAWS.—(A) Section 7102 of the

11 Federal Acquisition Streamlining Act of 1994 (108

12 Stat. 3367; 15 U.S.C. 644 note) is amended in sub13 section (a)(1)(A) by striking out ‘‘less than full and

14 open competition’’ and inserting in lieu thereof ‘‘pro15 cedures other than competitive procedures’’.

16 (B) Section 15(l) of the Small Business Act (15

17 U.S.C. 644(l)) is amended in paragraph (1) and in

18 paragraph (2)(A) by striking out ‘‘full and open’’

19 and inserting in lieu thereof ‘‘maximum practicable’’

20 each place it appears.

21 SEC. 103. CONTRACT SOLICITATION AMENDMENTS.

22 (a) ARMED SERVICES ACQUISITIONS.—Section 2305

23 of title 10, United States Code, is amended—

24 (1) in subsection (a)(1)—

25 (A) by striking out subparagraph (B); and
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1 (B) by redesignating subparagraph (C) as

2 subparagraph (B) and in that subparagraph by

3 striking out ‘‘subparagraphs (A) and (B)’’ and

4 inserting in lieu thereof ‘‘subparagraph (A)’’;

5 and

6 (2) in subsection (b)(4)(A)(i), by striking out

7 ‘‘all’’ and inserting in lieu thereof ‘‘the’’.

8 (b) CIVILIAN AGENCY ACQUISITIONS.—(1) Section

9 303A of the Federal Property and Administrative Services

10 Act of 1949 (41 U.S.C. 253a) is amended—

11 (A) by striking out paragraph (2); and

12 (B) by redesignating paragraph (3) as para13 graph (2) and in that paragraph by striking out

14 ‘‘paragraphs (1) and (2)’’ and inserting in lieu

15 thereof ‘‘paragraph (1)’’.

16 (2) Section 303B(d)(1)(A) of such Act (41 U.S.C.

17 253b) is amended by striking out ‘‘all’’ and inserting in

18 lieu thereof ‘‘the’’.

19 SEC. 104. PREAWARD DEBRIEFINGS.

20 (a) ARMED SERVICES ACQUISITIONS.—Section

21 2305(b) of title 10, United States Code, is amended—

22 (1) by striking out subparagraph (F) of para23 graph (5);

24 (2) by redesignating paragraph (6) as para25 graph (8); and
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1 (3) by inserting after paragraph (5) the follow2 ing new paragraphs:

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

4 an offeror submitting a competitive proposal from

5 the competitive range (or otherwise excludes such an

6 offeror from further consideration prior to the final

7 source selection decision), the excluded offeror may

8 request in writing, within three days after the date

9 on which the excluded offeror receives notice of its

10 exclusion, a debriefing prior to award. The contract11 ing officer shall make every effort to debrief the un12 successful offeror as soon as practicable and may

13 refuse the request for a debriefing if it is not in the

14 best interests of the Government to conduct a de15 briefing at that time.

16 ‘‘(B) The contracting officer is required to de17 brief an excluded offeror in accordance with para18 graph (5) of this section only if that offeror re19 quested and was refused a preaward debriefing

20 under subparagraph (A) of this paragraph.

21 ‘‘(C) The debriefing conducted under this sub22 section shall include—

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

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

2 offeror’s exclusion; and

3 ‘‘(iii) reasonable responses to relevant

4 questions posed by the debriefed offeror as to

5 whether source selection procedures set forth in

6 the solicitation, applicable regulations, and

7 other applicable authorities were followed by the

8 executive agency.

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

10 subsection may not disclose the number or identity

11 of other offerors and shall not disclose information

12 about the content, ranking, or evaluation of other

13 offerors’ proposals.

14 ‘‘(7) The contracting officer shall include a

15 summary of any debriefing conducted under para16 graph (5) or (6) in the contract file.’’.

17 (b) CIVILIAN AGENCY ACQUISITIONS.—Section 303B

18 of the Federal Property and Administrative Services Act

19 of 1949 (41 U.S.C. 253b) is amended—

20 (1) by striking out paragraph (6) of subsection

21 (e);

22 (2) by redesignating subsections (f), (g), (h),

23 and (i) as subsections (h), (i), (j), and (k), respec24 tively; and
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1 (3) by inserting after subsection (e) the follow2 ing new subsections:

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

4 offeror submitting a competitive proposal from the com5 petitive range (or otherwise excludes such an offeror from

6 further consideration prior to the final source selection de7 cision), the excluded offeror may request in writing, within

8 3 days after the date on which the excluded offeror re9 ceives notice of its exclusion, a debriefing prior to award.

10 The contracting officer shall make every effort to debrief

11 the unsuccessful offeror as soon as practicable and may

12 refuse the request for a debriefing if it is not in the best

13 interests of the Government to conduct a debriefing at

14 that time.

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

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

17 section only if that offeror requested and was refused a

18 preaward debriefing under paragraph (1) of this sub19 section.

20 ‘‘(3) The debriefing conducted under this subsection

21 shall include—

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

23 significant elements in the offeror’s offer;

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

25 offeror’s exclusion; and
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1 ‘‘(C) reasonable responses to relevant questions

2 posed by the debriefed offeror as to whether source

3 selection procedures set forth in the solicitation, ap4 plicable regulations, and other applicable authorities

5 were followed by the executive agency.

6 ‘‘(4) The debriefing conducted pursuant to this sub7 section may not disclose the number or identity of other

8 offerors and shall not disclose information about the con9 tent, ranking, or evaluation of other offerors’ proposals.

10 ‘‘(g) The contracting officer shall include a summary

11 of the any debriefing conducted under subsection (e) or

12 (f) in the contract file.’’.

13 SEC. 105. CONTRACT TYPES.

14 (a) ARMED SERVICES ACQUISITIONS.—(1) Section

15 2306 of title 10, United States Code, is amended—

16 (A) by inserting before the period at the end of

17 subsection (a) the following: ‘‘, based on market con18 ditions, established commercial practice (if any) for

19 the product or service being acquired, and sound

20 business judgment’’;

21 (B) by striking out subsections (b), (d), (e), (f),

22 and (h); and

23 (C) by redesignating subsection (g) as sub24 section (b).
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1 (2) The heading of such section is amended to read

2 as follows:

3 ‘‘§ 2306. Contract types’’.

4 (b) CIVILIAN AGENCY ACQUISITIONS.—(1) Section

5 304 of the Federal Property and Administrative Services

6 Act of 1949 (41 U.S.C. 254) is amended—

7 (A) by inserting before the period at the end of

8 the first sentence of subsection (a) the following: ‘‘,

9 based on market conditions, established commercial

10 practice (if any) for the product or service being ac11 quired, and sound business judgment’’; and

12 (B) by striking out ‘‘Every contract award’’ in

13 the second sentence of subsection (a) and all that

14 follows through the end of the section.

15 (2) The heading of such section is amended to read

16 as follows:

17 ‘‘SEC. 304. CONTRACT TYPES.’’.

18 (c) CONFORMING REPEALS.—(1) Sections 4540,

19 7212, and 9540 of title 10, United States Code, are re20 pealed.

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

22 433 of such title is amended by striking out the item relat23 ing to section 4540.
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1 (3) The table of sections at the beginning of chapter

2 631 of such title is amended by striking out the item relat3 ing to section 7212.

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

5 933 of such title is amended by striking out the item relat6 ing to section 9540.

7 (d) CIVIL WORKS AUTHORITY.—(1) Chapter 137 of

8 title 10, United States Code, is amended by adding at the

9 end the following new section:

10 ‘‘§ 2332. Contracts for architectural and engineering

11 services and construction design

12 ‘‘The Secretary of Defense and the Secretaries of the

13 military departments may enter into contracts for archi14 tectural and engineering services in connection with a mili15 tary construction or family housing project or for other

16 Department of Defense or military department purposes.

17 Such contracts shall be awarded in accordance with the

18 Brooks Architect-Engineers Act (40 U.S.C. 541 et seq.).’’.

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

20 137 of such title is amended by adding at the end the

21 following new item:

‘‘2332. Contracts for architectural and engineering services and construction design.’’.

22 (3) Section 2855 of such title is repealed. The table

23 of sections at the beginning of chapter 169 of such title
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1 is amended by striking out the item relating to such sec2 tion.

3 SEC. 106. CONTRACTOR PERFORMANCE.

4 (a) REQUIREMENT FOR SYSTEM.—The Office of Fed5 eral Procurement Policy Act (41 U.S.C. 401 et seq.) is

6 amended by adding at the end the following new section:

7 ‘‘SEC. 35. CONTRACTOR PERFORMANCE.

8 ‘‘(a) VERIFICATION AUTHORIZED.—The Federal Ac9 quisition Regulation shall provide a contractor verification

10 system for the procurement of particular property or serv11 ices that are procured by executive agencies on a repetitive

12 basis. Under the system, the head of an executive agen13 cy—

14 ‘‘(1) shall use competitive procedures to verify

15 contractors as eligible for contracts to furnish such

16 property or services; and

17 ‘‘(2) shall award verifications on the basis of

18 the relative efficiency and effectiveness of the busi19 ness practices, level of quality, and demonstrated

20 contract performance of the responding contractors

21 with regard to the particular property or services.

22 ‘‘(b) PROCUREMENT FROM VERIFIED CONTRAC23 TORS.—The Federal Acquisition Regulation shall provide

24 procedures under which the head of an executive agency

25 may enter into a contract for a procurement of property
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1 or services referred to in subsection (a) on the basis of

2 a competition among contractors verified with respect to

3 such property or services pursuant to that subsection.

4 ‘‘(c) TERMINATION OF VERIFICATION.—The Federal

5 Acquisition Regulation shall provide procedures under

6 which the head of an executive agency—

7 ‘‘(1) may provide for the termination of a ver8 ification awarded a contractor under this section

9 upon the expiration of a period specified by the head

10 of an executive agency; and

11 ‘‘(2) may revoke a verification awarded a con12 tractor under this section upon a determination that

13 the quality of performance of the contractor does not

14 meet standards applied by the head of the executive

15 agency as of the time of the revocation decision.’’.

16 (b) REPEALS.—Section 2319 of title 10, United

17 States Code, is repealed. Section 303C of the Federal

18 Property and Administrative Services Act of 1949 (41

19 U.S.C. 253c) is repealed.

20 (c) CLERICAL AMENDMENTS.—(1) The table of con21 tents for the Office of Federal Procurement Policy Act

22 (contained in section 1(b)) is amended by adding at the

23 end the following new item:

‘‘Sec. 35. Contractor performance.’’.
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1 (2) The table of sections at the beginning of chapter

2 137 of title 10, United States Code, is amended by strik3 ing out the item relating to section 2319.

4 (3) The table of contents for the Federal Property

5 and Administrative Services Act of 1949 (contained in sec6 tion 1(b)) is amended by striking out the item relating

7 to section 303C.

8 TITLE II—COMMERCIAL ITEMS

9 SEC. 201. COMMERCIAL ITEM EXCEPTION TO REQUIRE10 MENT FOR COST OR PRICING DATA AND IN11 FORMATION LIMITATIONS.

12 (a) ARMED SERVICES ACQUISITIONS.—(1) Sub13 sections (b), (c), and (d) of section 2306a of title 10,

14 United States Code, are amended to read as follows:

15 ‘‘(b) EXCEPTIONS.—

16 ‘‘(1) IN GENERAL.—Submission of cost or pric17 ing data shall not be required under subsection (a)

18 in the case of a contract, a subcontract, or modifica19 tion of a contract or subcontract—

20 ‘‘(A) for which the price agreed upon is

21 based on—

22 ‘‘(i) adequate price competition; or

23 ‘‘(ii) prices set by law or regulation;

24 ‘‘(B) for the acquisition of a commercial

25 item; or
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1 ‘‘(C) in an exceptional case when the head

2 of the procuring activity, without delegation, de3 termines that the requirements of this section

4 may be waived and justifies in writing the rea5 sons for such determination.

6 ‘‘(2) MODIFICATIONS OF CONTRACTS AND SUB7 CONTRACTS FOR COMMERCIAL ITEMS.—In the case

8 of a modification of a contract or subcontract for a

9 commercial item that is not covered by the exception

10 on the submission of cost or pricing data in para11 graph (1)(A) or (1)(B), submission of cost or pricing

12 data shall not be required under subsection (a) if—

13 ‘‘(A) the contract or subcontract being

14 modified is a contract or subcontract for which

15 submission of cost or pricing data may not be

16 required by reason of paragraph (1)(A) or

17 (1)(B); and

18 ‘‘(B) the modification would not change

19 the contract or subcontract, as the case may be,

20 from a contract or subcontract for the acquisi21 tion of a commercial item to a contract or sub22 contract for the acquisition of an item other

23 than a commercial item.

24 ‘‘(c) AUTHORITY TO REQUIRE COST OR PRICING

25 DATA ON BELOW-THRESHOLD CONTRACTS.—(1) Subject
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1 to paragraph (2), when cost or pricing data are not re2 quired to be submitted by subsection (a) for a contract,

3 subcontract, or modification of a contract or subcontract,

4 such data may nevertheless be required to be submitted

5 by the head of the procuring activity, but only if the head

6 of the procuring activity determines that such data are

7 necessary for the evaluation by the agency of the reason8 ableness of the price of the contract, subcontract, or modi9 fication of a contract or subcontract. In any case in which

10 the head of the procuring activity requires such data to

11 be submitted under this subsection, the head of the pro12 curing activity shall justify in writing the reason for such

13 requirement.

14 ‘‘(2) The head of the procuring activity may not re15 quire certified cost or pricing data to be submitted under

16 this paragraph for any contract or subcontract, or modi17 fication of a contract or subcontract, covered by the excep18 tions in subparagraph (A) or (B) of subsection (b)(1).

19 ‘‘(3) The head of a procuring activity may not dele20 gate functions under this paragraph.

21 ‘‘(d) LIMITATIONS ON OTHER INFORMATION.—The

22 Federal Acquisition Regulation shall include the following:

23 ‘‘(1) Provisions concerning the types of infor24 mation that contracting officers may consider in de25 termining whether the price of a procurement to the
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1 Government is fair and reasonable when certified

2 cost or pricing data are not required to be submitted

3 under this section, including appropriate information

4 on the prices at which the same item or similar

5 items have previously been sold that is adequate for

6 evaluating the reasonableness of the price of the pro7 posed contract or subcontract for the procurement.

8 ‘‘(2) Reasonable limitations on requests for

9 sales data relating to commercial items.

10 ‘‘(3) A requirement that a contracting officer

11 shall, to the maximum extent practicable, limit the

12 scope of any request for information relating to com13 mercial items from an offeror to only that informa14 tion that is in the form regularly maintained by the

15 offeror in commercial operations.

16 ‘‘(4) A statement that any information received

17 relating to commercial items that is exempt from

18 disclosure under section 552(b) of title 5 shall not

19 be disclosed by the Federal Government.’’.

20 (2) Section 2306a of such title is further amended—

21 (A) by striking out subsection (h); and

22 (B) by redesignating subsection (i) as sub23 section (h).

24 (3) Section 2375 of title 10, United States Code, is

25 amended by striking out subsection (c).
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1 (b) CIVILIAN AGENCY ACQUISITIONS.—(1) Sub2 sections (b), (c), and (d) of section 304A of the Federal

3 Property and Administrative Services Act of 1949 (41

4 U.S.C. 254b) are amended to read as follows:

5 ‘‘(b) EXCEPTIONS.—

6 ‘‘(1) IN GENERAL.—Submission of cost or pric7 ing data shall not be required under subsection (a)

8 in the case of a contract, a subcontract, or a modi9 fication of a contract or subcontract—

10 ‘‘(A) for which the price agreed upon is

11 based on—

12 ‘‘(i) adequate price competition; or

13 ‘‘(ii) prices set by law or regulation;

14 ‘‘(B) for the acquisition of a commercial

15 item; or

16 ‘‘(C) in an exceptional case when the head

17 of the procuring activity, without delegation, de18 termines that the requirements of this section

19 may be waived and justifies in writing the rea20 sons for such determination.

21 ‘‘(2) MODIFICATIONS OF CONTRACTS AND SUB22 CONTRACTS FOR COMMERCIAL ITEMS.—In the case

23 of a modification of a contract or subcontract for a

24 commercial item that is not covered by the exception

25 on the submission of cost or pricing data in para-
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1 graph (1)(A) or (1)(B), submission of cost or pricing

2 data shall not be required under subsection (a) if—

3 ‘‘(A) the contract or subcontract being

4 modified is a contract or subcontract for which

5 submission of cost or pricing data may not be

6 required by reason of paragraph (1)(A) or

7 (1)(B); and

8 ‘‘(B) the modification would not change

9 the contract or subcontract, as the case may be,

10 from a contract or subcontract for the acquisi11 tion of a commercial item to a contract or sub12 contract for the acquisition of an item other

13 than a commercial item.

14 ‘‘(c) AUTHORITY TO REQUIRE COST OR PRICING

15 DATA ON BELOW-THRESHOLD CONTRACTS.—(1) Subject

16 to paragraph (2), when cost or pricing data are not re17 quired to be submitted by subsection (a) for a contract,

18 subcontract, or modification of a contract or subcontract,

19 such data may nevertheless be required to be submitted

20 by the head of the procuring activity, but only if the head

21 of the procuring activity determines that such data are

22 necessary for the evaluation by the agency of the reason23 ableness of the price of the contract, subcontract, or modi24 fication of a contract or subcontract. In any case in which

25 the head of the procuring activity requires such data to
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1 be submitted under this subsection, the head of the pro2 curing activity shall justify in writing the reason for such

3 requirement.

4 ‘‘(2) The head of the procuring activity may not re5 quire certified cost or pricing data to be submitted under

6 this paragraph for any contract or subcontract, or modi7 fication of a contract or subcontract, covered by the excep8 tions in subparagraph (A) or (B) of subsection (b)(1).

9 ‘‘(3) The head of a procuring activity may not dele10 gate the functions under this paragraph.

11 ‘‘(d) LIMITATIONS ON OTHER INFORMATION.—The

12 Federal Acquisition Regulation shall include the following:

13 ‘‘(1) Provisions concerning the types of infor14 mation that contracting officers may consider in de15 termining whether the price of a procurement to the

16 Government is fair and reasonable when certified

17 cost or pricing data are not required to be submitted

18 under this section, including appropriate information

19 on the prices at which the same item or similar

20 items have previously been sold that is adequate for

21 evaluating the reasonableness of the price of the pro22 posed contract or subcontract for the procurement.

23 ‘‘(2) Reasonable limitations on requests for

24 sales data relating to commercial items.
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1 ‘‘(3) A requirement that a contracting officer

2 shall, to the maximum extent practicable, limit the

3 scope of any request for information relating to com4 mercial items from an offeror to only that informa5 tion that is in the form regularly maintained by the

6 offeror in commercial operations.

7 ‘‘(4) A statement that any information received

8 relating to commercial items that is exempt from

9 disclosure under section 552(b) of title 5 shall not

10 be disclosed by the Federal Government.’’.

11 (2) Section 304A of such Act is further amended—

12 (A) by striking out subsection (h); and

13 (B) by redesignating subsection (i) as sub14 section (h).

15 SEC. 202. APPLICATION OF SIMPLIFIED PROCEDURES TO

16 COMMERCIAL ITEMS.

17 (a) ARMED SERVICES ACQUISITIONS.—Section

18 2304(e)(1) of title 10, United States Code, as added by

19 section 101(a), is amended by inserting after ‘‘special sim20 plified procedures’’ the following: ‘‘for purchases of com21 mercial items and’’.

22 (b) CIVILIAN AGENCY ACQUISITIONS.—Section

23 303(e)(1) of the Federal Property and Administrative

24 Services Act of 1949 (41 U.S.C. 253), as added by section

25 101(b), is amended by inserting after ‘‘special simplified
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1 procedures’’ the following: ‘‘for purchases of commercial

2 items and’’.

3 (c) SIMPLIFIED NOTICE.—Section 18 of the Office

4 of Federal Procurement Policy Act (41 U.S.C. 416) is

5 amended in subsection (a)(5) (as redesignated by section

6 101(d))—

7 (1) by striking out ‘‘limited’’; and

8 (2) by inserting before ‘‘submission’’ the follow9 ing: ‘‘issuance of solicitations and the’’.

10 SEC. 203. AMENDMENT TO DEFINITION OF COMMERCIAL

11 ITEMS.

12 Section 4(12)(F) of the Office of Federal Procure13 ment Policy Act (41 U.S.C. 403(12)(F)) is amended by

14 striking out ‘‘catalog’’.

15 SEC. 204. INAPPLICABILITY OF COST ACCOUNTING STAND16 ARDS TO CONTRACTS AND SUBCONTRACTS

17 FOR COMMERCIAL ITEMS.

18 Subparagraph (B) of section 26(f)(2) of the Office

19 of Federal Procurement Policy Act (41 U.S.C. 422(f)(2))

20 is amended—

21 (1) by striking out clause (i) and inserting in

22 lieu thereof the following:

23 ‘‘(i) Contracts or subcontracts for the acquisi24 tion of commercial items.’’; and

25 (2) by striking out clause (iii).
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1 TITLE III—ADDITIONAL REFORM

2 PROVISIONS

3 SEC. 301. GOVERNMENT RELIANCE ON THE PRIVATE

4 SECTOR.

5 (a) GOVERNMENT RELIANCE ON THE PRIVATE SEC6 TOR.—The Office of Federal Procurement Policy Act (41

7 U.S.C. 401 et seq.) is amended by inserting after section

8 16 the following new section:

9 ‘‘SEC. 17. GOVERNMENT RELIANCE ON THE PRIVATE

10 SECTOR.

11 ‘‘It has been and continues to be the policy of the

12 Federal Government to rely on commercial sources to sup13 ply the products and services the Federal Government

14 needs.’’.

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

16 for the Office of Federal Procurement Policy Act (con17 tained in section 1(b)) is amended by inserting after the

18 item relating to section 16 the following new item:

‘‘Sec. 17. Government reliance on the private sector.’’.

19 SEC. 302. ELIMINATION OF CERTAIN CERTIFICATION RE20 QUIREMENTS.

21 (a) ELIMINATION OF CERTAIN STATUTORY CERTIFI22 CATION REQUIREMENTS.—(1)(A) Section 2410 of title 10,

23 United States Code, is amended—
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1 (i) in the heading, by striking out ‘‘: certifi2 cation’’; and

3 (ii) in subsection (a)—

4 (I) in the heading, by striking out ‘‘CER5 TIFICATION’’;

6 (II) by striking out ‘‘unless’’ and all that

7 follows through ‘‘that—’’ and inserting in lieu

8 thereof ‘‘unless—’’; and

9 (III) in paragraph (2), by striking out ‘‘to

10 the best of that person’s knowledge and belief’’.

11 (B) The item relating to section 2410 in the table

12 of sections at the beginning of chapter 141 of such title

13 is amended to read as follows:

‘‘Sec. 2410. Requests for equitable adjustment or other relief.’’.

14 (2) Section 2410b of title 10, United States Code,

15 is amended in paragraph (2) by striking out ‘‘certification

16 and’’.

17 (3) Section 1352(b)(2) of title 31, United States

18 Code, is amended—

19 (A) by striking out subparagraph (C); and

20 (B) by inserting ‘‘and’’ after the semicolon at

21 the end of subparagraph (A).

22 (4) Section 5152 of the Drug-Free Workplace Act of

23 1988 (41 U.S.C. 701) is amended—
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1 (A) in subsection (a)(1), by striking out ‘‘has

2 certified to the contracting agency that it will’’ and

3 inserting in lieu thereof ‘‘agrees to’’;

4 (B) in subsection (a)(2), by striking out ‘‘con5 tract includes a certification by the individual’’ and

6 inserting in lieu thereof ‘‘individual agrees’’; and

7 (C) in subsection (b)(1)—

8 (i) by striking out subparagraph (A);

9 (ii) by redesignating subparagraph (B) as

10 subparagraph (A) and in that subparagraph by

11 striking out ‘‘such certification by failing to

12 carry out’’; and

13 (iii) by redesignating subparagraph (C) as

14 subparagraph (B).

15 (b) ELIMINATION OF CERTAIN REGULATORY CER16 TIFICATION REQUIREMENTS.—

17 (1) CURRENT CERTIFICATION REQUIRE18 MENTS.—Not later than 210 days after the date of

19 the enactment of this Act, any certification required

20 of contractors or offerors by the Federal Acquisition

21 Regulation or an executive agency procurement reg22 ulation that is not specifically imposed by statute

23 shall be removed by the Administrator for Federal

24 Procurement Policy from the Federal Acquisition

25 Regulation or such agency regulation unless—
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1 (A) written justification for such certifi2 cation is provided to the Administrator by the

3 Federal Acquisition Regulatory Council (in the

4 case of a certification in the Federal Acquisition

5 Regulation) or the head of an executive agency

6 (in the case of a certification in an executive

7 agency procurement regulation); and

8 (B) the Administrator approves in writing

9 the retention of such certification.

10 (2) FUTURE CERTIFICATION REQUIREMENTS.—

11 (A) Section 29 of the Office of Federal Procurement

12 Policy Act (41 U.S.C. 425) is amended—

13 (i) by amending the heading to read as fol14 lows:

15 ‘‘SEC. 22. CONTRACT CLAUSES AND CERTIFICATIONS.’’;

16 (ii) by inserting ‘‘(a) NONSTANDARD CON17 TRACT CLAUSES.—’’ before ‘‘The Federal Ac18 quisition’’; and

19 (iii) by adding at the end the following new

20 subsection:

21 ‘‘(b) PROHIBITION ON CERTIFICATION REQUIRE22 MENTS.—A requirement for a certification by a contractor

23 or offeror may not be included in the Federal Acquisition

24 Regulation or an executive agency procurement regulation

25 unless—
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1 ‘‘(1) the certification is specifically imposed by

2 statute; or

3 ‘‘(2) written justification for such certification

4 is provided to the Administrator for Federal Pro5 curement Policy by the Federal Acquisition Regu6 latory Council (in the case of a certification in the

7 Federal Acquisition Regulation) or the head of an

8 executive agency (in the case of a certification in an

9 executive agency procurement regulation), and the

10 Administrator approves in writing the inclusion of

11 such certification.’’.

12 (B) The item relating to section 29 in the table

13 of contents for the Office of Federal Procurement

14 Policy Act (contained in section 1(b)) (41 U.S.C.

15 401 note) is amended to read as follows:

‘‘Sec. 29. Contract clauses and certifications.’’.

16 SEC. 303. AMENDMENT TO COMMENCEMENT AND EXPIRA17 TION OF AUTHORITY TO CONDUCT CERTAIN

18 TESTS OF PROCUREMENT PROCEDURES.

19 Subsection (j) of section 5061 of the Federal Acquisi20 tion Streamlining Act of 1994 (41 U.S.C. 413 note) is

21 amended to read as follows:

22 ‘‘(j) COMMENCEMENT AND EXPIRATION OF AUTHOR23 ITY.—The authority to conduct a test under subsection

24 (a) in an agency and to award contracts under such a test

25 shall take effect on August 1, 1995, and shall expire on
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1 August 1, 2000. Contracts entered into before such au2 thority expires in an agency pursuant to a test shall re3 main in effect, notwithstanding the expiration of the au4 thority to conduct the test under this section.’’.

5 SEC. 304. INTERNATIONAL COMPETITIVENESS.

6 (a) REPEAL OF PROVISION RELATING TO RESEARCH,

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

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

9 amended—

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

11 the end of paragraph (1)(A);

12 (2) by striking out subparagraph (B) of para13 graph (1);

14 (3) by redesignating subparagraph (C) of para15 graph (1) as subparagraph (B);

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

17 (5) by redesignating paragraph (3) as para18 graph (2).

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

20 subsection (a) shall be effective with respect to sales agree21 ments pursuant to sections 21 and 22 of the Arms Export

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

23 or after the date of the enactment of this Act.
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1 SEC. 305. PROCUREMENT INTEGRITY.

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

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

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

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

8 ‘‘(a) PROHIBITION ON DISCLOSING PROCUREMENT

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

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

11 willfully disclose contractor bid or proposal information or

12 source selection information before the award of a Federal

13 agency procurement contract to which the information

14 relates.

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

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

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

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

19 has advised the United States with respect to, a

20 Federal agency procurement; and

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

24 ‘‘(b) PROHIBITION ON OBTAINING PROCUREMENT

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

3 to which the information relates.

4 ‘‘(c) PROHIBITION ON DISCLOSING OR OBTAINING

5 PROCUREMENT INFORMATION IN CONNECTION WITH A

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

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

9 obtaining contractor bid or proposal information or source

10 selection information related to the procurement contract

11 concerned.

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

13 issued by the Comptroller General or the board of contract

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

16 of a Federal agency procurement contract.

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

18 ‘‘(1) CRIMINAL PENALTIES.—

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

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

22 one year or fined as provided under title 18,

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

3 or (c) for the purpose of either—

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

6 value, or

7 ‘‘(ii) obtaining or giving anyone a

8 competitive advantage in the award of a

9 Federal agency procurement contract,

10 shall be imprisoned for not more than five years

11 or fined as provided under title 18, United

12 States Code, or both.

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

14 may bring a civil action in the appropriate United

15 States district court against any person who engages

16 in conduct constituting an offense under subsection

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

18 preponderance of the evidence, the person is subject

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

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

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

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

24 that engages in such conduct is subject to a civil

25 penalty of not more than $500,000 for each violation
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1 plus twice the amount of compensation which the

2 organization received or offered for the prohibited

3 conduct.

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

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

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

10 ‘‘(i) Cancellation of the Federal agency

11 procurement, if a contract has not yet been

12 awarded.

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

14 to which—

15 ‘‘(I) the contractor or someone acting

16 for the contractor has been convicted for

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

18 or

19 ‘‘(II) the head of the agency that

20 awarded the contract has determined,

21 based upon clear and convincing evidence,

22 that the contractor or someone acting for

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

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

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

6 pursuant to the procedures in chapter 75 of

7 title 5, United States Code, or other applicable

8 law or regulation.

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

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

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

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

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

18 present responsibility of a Government contractor or

19 subcontractor.

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

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

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

2 disclosed publicly:

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

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

5 Code, with respect to procurements subject to

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

7 Property and Administrative Services Act of

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

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

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

13 marked by the contractor in accordance with

14 applicable law or regulation.

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

17 in accordance with applicable law or regulation.

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

19 means any of the following information prepared for

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

22 procurement contract, if that information has not

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

2 Federal agency solicitation for sealed bids, or

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

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

6 response to a Federal agency solicitation, or

7 lists of those proposed costs or prices.

8 ‘‘(C) Source selection plans.

9 ‘‘(D) Technical evaluation plans.

10 ‘‘(E) Technical evaluations of proposals.

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

13 ‘‘(G) Competitive range determinations

14 that identify proposals that have a reasonable

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

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

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

20 selection panels, boards, or advisory councils.

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

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

23 determination by the head of the agency, his

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

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

5 Property and Administrative Services Act of 1949

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

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

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

10 (including construction) from non-Federal sources

11 by a Federal agency using appropriated funds.

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

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

15 a Federal agency procurement contract on behalf of

16 the Government and to make determinations and

17 findings with respect to such a contract.

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

20 award of a Federal agency procurement contract,

21 pursuant to title IV of the Federal Acquisition Re22 form Act of 1995.

23 ‘‘(f) LIMITATION ON PROTESTS.—No person may file

24 a protest against the award or proposed award of a Fed25 eral agency procurement contract alleging an offense
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1 under subsection (a), (b), or (c), of this section, nor may

2 the Comptroller General or the board of contract appeals

3 of the General Services Administration consider such an

4 allegation in deciding a protest, unless that person re5 ported to the Federal agency responsible for the procure6 ment information that the person believed constituted evi7 dence of the offense no later than 14 days after the person

8 first discovered the possible offense.

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

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

11 its receipt by, any person or class of persons author12 ized, in accordance with applicable agency regula13 tions or procedures, to receive that information;

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

15 own bid or proposal information or the recipient

16 from receiving that information;

17 ‘‘(3) restrict the disclosure or receipt of infor18 mation relating to a Federal agency procurement

19 after it has been canceled by the Federal agency be20 fore contract award unless the Federal agency plans

21 to resume the procurement;

22 ‘‘(4) authorize the withholding of information

23 from, nor restrict its receipt by, Congress, a commit24 tee or subcommittee of Congress, the Comptroller
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1 General, a Federal agency, or an inspector general

2 of a Federal agency;

3 ‘‘(5) authorize the withholding of information

4 from, nor restrict its receipt by, any board of con5 tract appeals of a Federal agency or the Comptroller

6 General in the course of a protest against the award

7 or proposed award of a Federal agency procurement

8 contract; or

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

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

12 (b) REPEALS.—The following provisions of law are

13 repealed:

14 (1) Sections 2397, 2397a, 2397b, and 2397c of

15 title 10, United States Code.

16 (2) Section 33 of the Federal Energy Adminis17 tration Act of 1974 (15 U.S.C. 789).

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

19 (4) Subsection (c) of section 32 of the Office of

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

21 (5) The first section 19 of the Federal Non22 nuclear Energy Research and Development Act of

23 1974 (42 U.S.C. 5918).

24 (c) CLERICAL AMENDMENTS.—
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1 (1) The table of sections at the beginning of

2 chapter 141 of title 10, United States Code, is

3 amended by striking out the items relating to sec4 tions 2397, 2397a, 2397b, and 2397c.

5 (2) The table of sections at the beginning of

6 chapter 15 of title 18, United States Code, is

7 amended by striking out the item relating to section

8 281.

9 (3) Section 32 of the Office of Federal Procure10 ment Policy Act (41 U.S.C. 428) is amended by re11 designating subsections (d), (e), (f), and (g) as sub12 sections (c), (d), (e), and (f), respectively.

13 SEC. 306. FURTHER ACQUISITION STREAMLINING PROVI14 SIONS.

15 (a) PURPOSE OF OFFICE OF FEDERAL PROCURE16 MENT POLICY.—(1) Section 5(a) of the Office of Federal

17 Procurement Policy Act (41 U.S.C. 404) is amended to

18 read as follows:

19 ‘‘(a) To promote economy, efficiency, and effective20 ness in the procurement of property and services by the

21 executive branch of the Federal Government, there shall

22 be an Office of Federal Procurement Policy (hereinafter

23 referred to as the ‘Office’) in the Office of Management

24 and Budget to provide overall direction of Government-
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1 wide procurement policies, regulations, procedures, and

2 forms for executive agencies.’’.

3 (2) Sections 2 and 3 of such Act (41 U.S.C. 401 and

4 402) are repealed.

5 (b) REPEAL OF REPORT REQUIREMENT.—Section 8

6 of the Office of Federal Procurement Policy Act (41

7 U.S.C. 407) is repealed.

8 (c) REPEAL OF OBSOLETE PROVISIONS.—(1) Sec9 tions 10 and 11 of the Office of Federal Procurement Pol10 icy Act (41 U.S.C. 409 and 410) are repealed.

11 (d) CLERICAL AMENDMENTS.—The table of contents

12 for the Office of Federal Procurement Policy Act (con13 tained in section 1(b)) is amended by striking out the

14 items relating to sections 2, 3, 8, 10, and 11.

15 TITLE IV—STREAMLINING OF

16 DISPUTE RESOLUTION

17 Subtitle A—General Provisions

18 SEC. 401. DEFINITIONS.

19 In this title:

20 (1) The term ‘‘Board’’ means the United States

21 Board of Contract Appeals.

22 (2) The term ‘‘Board judge’’ means a member

23 of the United States Board of Contract Appeals.

24 (3) The term ‘‘Chairman’’ means the Chairman

25 of the United States Board of Contract Appeals.
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1 (4) The term ‘‘executive agency’’ has the mean2 ing given by section 2(2) of the Contract Disputes

3 Act of 1978 (41 U.S.C. 601(2)).

4 (5) The term ‘‘alternative means of dispute res5 olution’’ has the meaning given by section 571(3) of

6 title 5, United States Code.

7 (6) The term ‘‘protest’’ means a written objec8 tion by an interested party to any of the following:

9 (A) A solicitation or other request by an

10 executive agency for offers for a contract for

11 the procurement of property or services.

12 (B) The cancellation of such a solicitation

13 or other request.

14 (C) An award or proposed award of such

15 a contract.

16 (D) A termination or cancellation of an

17 award of such a contract, if the written objec18 tion contains an allegation that the termination

19 or cancellation is based in whole or in part on

20 improprieties concerning the award of the con21 tract.

22 (7) The term ‘‘interested party’’, with respect

23 to a contract or a solicitation or other request for of24 fers, means an actual or prospective bidder or

25 offeror whose direct economic interest would be af-
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1 fected by the award of the contract or by failure to

2 award the contract.

3 (8) The term ‘‘prevailing party’’, with respect

4 to a determination of the Board under subsection

5 424(b) that a decision of a contracting officer vio6 lates a statute or regulation, means a party that

7 demonstrated such violation.

8 Subtitle B—Establishment of the

9 United States Board of Contract

10 Appeals

11 SEC. 411. ESTABLISHMENT.

12 There is established in the executive branch of the

13 Government an independent establishment to be known as

14 the United States Board of Contract Appeals.

15 SEC. 412. MEMBERSHIP.

16 (a) APPOINTMENT.—(1) The Board shall consist of

17 Board judges appointed by the Chairman, without regard

18 to political affiliation and solely on the basis of the profes19 sional qualifications required to perform the duties and

20 responsibilities of a Board judge, from a register of appli21 cants maintained by the Board.

22 (2) The members of the Board shall be selected and

23 appointed to serve in the same manner as administrative

24 law judges appointed pursuant to section 3105 of title 5,

25 United States Code, with an additional requirement that
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1 such members shall have had not fewer than five years’

2 experience in public contract law.

3 (3) Notwithstanding paragraph (2), the following

4 persons shall be considered qualified to serve as Board

5 judges:

6 (A) Any full-time member of an agency board

7 of contract appeals serving as such on the day before

8 the effective date of this title.

9 (B) Any person serving on the day before the

10 effective date of this title in a position at a level of

11 assistant general counsel or higher with authority

12 delegated from the Comptroller General to decide

13 bid protests under subchapter V of chapter 35 of

14 title 31, United States Code.

15 (b) REMOVAL.—Members of the Board shall be sub16 ject to removal in the same manner as administrative law

17 judges, as provided in section 7521 of title 5, United

18 States Code.

19 (c) COMPENSATION.—Compensation for the Chair20 man and all other members of the Board shall be deter21 mined under section 5273a of title 5, United States Code.

22 SEC. 413. CHAIRMAN.

23 (a) DESIGNATION.—(1) The Chairman shall be des24 ignated by the President to serve for a term of five years.

25 The President shall select the Chairman from among sit-
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1 ting Board judges each of whom has had at least five years

2 of service—

3 (A) as a member of an agency board of contract

4 appeals; or

5 (B) in a position at a level of assistant general

6 counsel or higher with authority delegated from the

7 Comptroller General to decide bid protests under

8 subchapter V of chapter 35 of title 31, United

9 States Code (as in effect on the day before the effec10 tive date of this title).

11 (2) A Chairman may continue to serve after the expi12 ration of the Chairman’s term until a successor has taken

13 office. A Chairman may be reappointed any number of

14 times.

15 (b) RESPONSIBILITIES.—The Chairman shall be re16 sponsible on behalf of the Board for the executive and ad17 ministrative operation of the Board, including functions

18 of the Board with respect to the following:

19 (1) The selection, appointment, and fixing of

20 the compensation of such personnel, pursuant to

21 part III of title 5, United States Code, as the Chair22 man considers necessary or appropriate, including a

23 Clerk of the Board, a General Counsel, and clerical

24 and legal assistance for Board judges.
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1 (2) The supervision of personnel employed by or

2 assigned to the Board, and the distribution of work

3 among such personnel.

4 (3) The response to any request that may be

5 made by Congress or the Office of Management and

6 Budget.

7 (4) The allocation of funds among the various

8 functions of the Board.

9 (5) The entering into and performance of such

10 contracts, leases, cooperative agreements, or other

11 similar transactions with public agencies and private

12 organizations and persons, and the making of such

13 payments, as the Chairman considers necessary or

14 appropriate to carry out functions vested in the

15 Board.

16 (6) The operation of an Office of the Clerk of

17 the Board, including the receipt of all filings made

18 with the Board, the assignment of cases, and the

19 maintenance of all records of the Board.

20 (7) The acquisition, operation, and maintenance

21 of such automatic data processing resources as may

22 be needed by the Board.

23 (8) The prescription of such rules and regula24 tions as the Chairman considers necessary or appro-
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1 priate for the administration and management of the

2 Board.

3 (c) VICE CHAIRMEN.—The Chairman may designate

4 up to four other Board judges as Vice Chairmen. The

5 Chairman may divide the Board into two or more divi6 sions, and, if such division is made, shall assign a Vice

7 Chairman to head each division. The Vice Chairmen, in

8 the order designated by the Chairman, shall act in the

9 place and stead of the Chairman during the absence of

10 the Chairman.

11 SEC. 414. RULEMAKING AUTHORITY.

12 (a) IN GENERAL.—The Board may establish—

13 (1) such procedural rules and regulations as are

14 necessary to the exercise of its functions, including

15 internal rules for the assignment of cases; and

16 (2) statements of policy of general applicability

17 with respect to its functions.

18 (b) PROHIBITION ON REVIEW BY OTHER AGENCY OR

19 PERSON.—Rules and regulations established by the Board

20 (including forms which are a part thereof) shall not be

21 subject to review by any other agency or person (including

22 the Administrator of Information and Regulatory Affairs,

23 pursuant to chapter 35 of title 44, United States Code)

24 in advance of publication.
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1 SEC. 415. LITIGATION AUTHORITY.

2 Except as provided in section 518 of title 28, United

3 States Code, relating to litigation before the Supreme

4 Court, attorneys designated by the Chairman may appear

5 for, and represent the Board in, any civil action brought

6 in connection with any function carried out by the Board.

7 SEC. 416. SEAL OF BOARD.

8 The Chairman shall cause a seal of office to be made

9 for the Board of such design as the Board shall approve.

10 Judicial notice shall be taken of such seal.

11 SEC. 417. AUTHORIZATION OF APPROPRIATIONS.

12 There are authorized to be appropriated for fiscal

13 year 1997 and each succeeding fiscal year such sums as

14 may be necessary to carry out the provisions of this title

15 and to enable the Board to perform its functions. Funds

16 appropriate pursuant to this section shall remain available

17 until expended.

18 Subtitle C—Functions of United

19 States Board of Contract Appeals

20 SEC. 421. ALTERNATIVE DISPUTE RESOLUTION SERVICES.

21 (a) REQUIREMENT TO PROVIDE SERVICES UPON RE22 QUEST.—The Board shall provide alternative means of

23 dispute resolution for any disagreement regarding a con24 tract or prospective contract upon the request of all par25 ties to the disagreement.
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1 (b) PERSONNEL QUALIFIED TO ACT.—Each Board

2 judge and each attorney employed by the Board shall be

3 considered to be qualified to act for the purpose of con4 ducting alternative means of dispute resolution under this

5 section.

6 (c) SERVICES TO BE PROVIDED WITHOUT

7 CHARGE.—Any services provided by the Board or any

8 Board judge or employee pursuant to this section shall be

9 provided without charge.

10 (d) RECUSAL OF CERTAIN PERSONNEL UPON RE11 QUEST.—In the event that a matter which is presented

12 to the Board for alternative means of dispute resolution,

13 pursuant to this section, later becomes the subject of for14 mal proceedings before the Board, any Board judge or em15 ployee who was involved in the alternative means shall,

16 if requested by any party to the formal proceeding, take

17 no part in that proceeding.

18 SEC. 422. ALTERNATIVE DISPUTE RESOLUTION OF DIS19 PUTES AND PROTESTS SUBMITTED TO

20 BOARD.

21 With reasonable promptness after the submission to

22 the Board of a contract dispute under section 423 or a

23 bid protest under section 424, a Board judge to whom the

24 contract dispute or protest is assigned shall request the

25 parties to meet with a Board judge, or an attorney em-
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1 ployed by the Board, for the purpose of attempting to re2 solve the dispute or protest through alternative means of

3 dispute resolution. Formal proceedings in the appeal shall

4 then be suspended until such time as any party or a Board

5 judge to whom the dispute or protest is assigned deter6 mines that alternative means of dispute resolution are not

7 appropriate for resolution of the dispute or protest.

8 SEC. 423. CONTRACT DISPUTES.

9 The Board shall have jurisdiction as provided by sec10 tion 8(a) of the Contract Disputes Act of 1978 (41 U.S.C.

11 601–613).

12 SEC. 424. PROTESTS.

13 (a) REVIEW REQUIRED UPON REQUEST.—Upon re14 quest of an interested party in connection with any pro15 curement conducted by any executive agency, the Board

16 shall review, as provided in this section, any decision by

17 a contracting officer alleged to violate a statute or regula18 tion. The authority of the Board to conduct such review

19 shall include the authority to review regulations to deter20 mine their consistency with applicable statutes. A decision

21 or order of the Board pursuant to this section shall not

22 be subject to interlocutory appeal or review.

23 (b) STANDARD OF REVIEW.—In deciding a protest,

24 the Board may consider all evidence that is relevant to

25 the decision under protest. It shall accord a presumption
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1 of correctness to all facts found and determinations made

2 by the contracting officer whose decision is being pro3 tested. The protester may rebut this presumption by show4 ing, by a preponderance of the evidence, that a finding

5 or determination was incorrect. The Board may find that

6 a decision by a contracting officer violates a statute or

7 regulation for any of the reasons stated in section 706(2)

8 of title 5, United States Code.

9 (c) DETERMINATION OF WHETHER TO SUSPEND AU10 THORITY TO CONDUCT PROCUREMENT IN PROTEST

11 FILED BEFORE CONTRACT AWARD.—(1) When a protest

12 under this section is filed before the award of a contract

13 in a protested procurement, the Board, at the request of

14 an interested party and within 10 days after the submis15 sion of the protest, shall hold a hearing to determine

16 whether the Board should suspend the authority of the

17 executive agency involved (or its head) to conduct such

18 procurement until the Board can decide the protest.

19 (2) The Board shall suspend the authority of the ex20 ecutive agency (or its head) unless the agency concerned

21 establishes that—

22 (A) absent action by the Board, contract award

23 is likely to occur within 30 days after the hearing;

24 and
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1 (B) urgent and compelling circumstances which

2 significantly affect interests of the United States will

3 not permit waiting for the decision of the Board.

4 (3) A suspension under paragraph (2) shall not pre5 clude the executive agency concerned from continuing the

6 procurement process up to but not including award of the

7 contract unless the Board determines such action is not

8 in the best interests of the United States.

9 (d) DETERMINATION OF WHETHER TO SUSPEND

10 AUTHORITY TO CONDUCT PROCUREMENT IN PROTEST

11 FILED AFTER CONTRACT AWARD.—(1) If, with respect

12 to an award of a contract, the Board receives notice of

13 a protest under this section within the period described

14 in paragraph (2), the Board shall, at the request of an

15 interested party, hold a hearing to determine whether the

16 Board should suspend the authority of the executive agen17 cy involved (or its head) to conduct such procurement

18 until the Board can decide the protest.

19 (2) The period referred to in paragraph (1) is the

20 period beginning on the date on which the contract is

21 awarded and ending at the end of the later of—

22 (A) the tenth day after the date of contract

23 award; or
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1 (B) the fifth day after the debriefing date of2 fered to an unsuccessful offeror for any debriefing

3 that is requested and, when requested, is required.

4 (3) The Board shall hold the requested hearing with5 in 5 days after the date of the filing of the protest or,

6 in the case of a request for debriefing, within 5 days after

7 the later of the date of the filing of the protest or the

8 date of the debriefing.

9 (4) The Board shall suspend the procurement author10 ity of the executive agency involved (or its head) to acquire

11 any goods or services under the contract which are not

12 previously delivered and accepted unless such agency es13 tablishes that urgent and compelling circumstances which

14 significantly affect interests of the United States will not

15 permit waiting for the decision of the Board.

16 (e) PROCEDURES.—

17 (1) PROCEEDINGS AND DISCOVERY.—The

18 Board shall conduct proceedings and allow such dis19 covery as may be required for the expeditious, fair,

20 and reasonable resolution of the protest. The Board

21 shall limit discovery to material which is relevant to

22 the grounds of protest or to such affirmative de23 fenses as the executive agency involved, or any inter24 venor supporting the agency, may raise.
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1 (2) PRIORITY.—Subject to any deadlines im2 posed pursuant to section 9(a) of the Contract Dis3 putes Act of 1978 (41 U.S.C. 608(a)), the Board

4 shall give priority over contract disputes and alter5 native dispute services to protests filed under this

6 section. Except as provided in paragraph (3), the

7 Board shall issue its final decision within 65 days

8 after the date of the filing of the protest, unless the

9 Chairman determines that the specific and unique

10 circumstances of the protest require a longer period,

11 in which case the Board shall issue such decision

12 within the longer period determined by the Chair13 man. An amendment that adds a new ground of pro14 test should be resolved, to the maximum extent prac15 ticable, within the time limits established for resolu16 tion of the initial protest.

17 (3) THRESHOLD.—Any protest in which the an18 ticipated value of the contract award that will result

19 from the protested procurement, as estimated by the

20 executive agency involved, is less than $1,000,000

21 shall be considered under simplified rules of proce22 dure. These rules shall provide that discovery in

23 such protests shall be in writing only. Such protests

24 shall be decided by a single Board judge, whose deci25 sion shall be final and conclusive and shall not be set
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1 aside except in cases of fraud. The Board shall issue

2 its final decision in each such protest within 35 days

3 after the date of the filing of the protest.

4 (4) CALCULATION OF TIME FOR ADR.—In cal5 culating time for purposes of paragraph (2) or (3)

6 of this subsection, any days during which proceed7 ings are suspended for the purpose of attempting to

8 resolve the protest by alternative means of dispute

9 resolution, up to a maximum of 20 days, shall not

10 be counted.

11 (5) DISMISSAL OF FRIVOLOUS PROTESTS.—The

12 Board may dismiss a protest that the Board deter13 mines is frivolous or which, on its face, does not

14 state a valid basis for protest.

15 (6) PAYMENT OF COSTS FOR FRIVOLOUS PRO16 TESTS.—(A) If the Board expressly finds that a pro17 test or a portion of a protest is frivolous or does not

18 state on its face a valid basis for protest, the Board

19 shall recommend that the protester or other inter20 ested party who joins the protest be liable to the

21 United States for payment of the costs described in

22 subparagraph (B) unless—

23 (i) special circumstances would make such

24 payment unjust; or
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1 (ii) the protester obtains documents or

2 other information after the protest is filed with

3 the Board that establishes that the protest or

4 a portion of the protest is frivolous or does not

5 state on its face a valid basis for protest, and

6 the protester then promptly withdraws the pro7 test or portion of the protest.

8 (B) The costs referred to in subparagraph (A)

9 are all of the costs incurred by the United States of

10 reviewing the protest, or of reviewing that portion of

11 the protest for which the finding is made, including

12 the fees and other expenses (as defined in section

13 2412(d)(2)(A) of title 28, United States Code) in14 curred by the United States in defending the pro15 test.

16 (f) DECISIONS AND CORRECTIVE ACTIONS ON PRO17 TESTS.—(1) In making a decision on protests filed under

18 this section, the Board shall accord due weight to the goals

19 of economic and efficient procurement, and shall take due

20 account of the rule of prejudicial error.

21 (2) If the Board determines that a decision of a con22 tracting officer violates a statute or regulation, the Board

23 may order the agency (or its head) to take such corrective

24 action as the Board considers appropriate. Corrective ac25 tion includes recommending that the Federal agency—
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1 (A) refrain from exercising any of its options

2 under the contract;

3 (B) recompete the contract immediately;

4 (C) issue a new solicitation;

5 (D) terminate the contract;

6 (E) award a contract consistent with the re7 quirements of such statute and regulation;

8 (F) implement any combination of recommenda9 tions under subparagraphs (A), (B), (C), (D), and

10 (E); or

11 (G) implement such other recommendations as

12 the Board determines to be necessary in order to

13 promote compliance with procurement statutes and

14 regulations.

15 (3) If the Board orders corrective action after the

16 contract award, the affected contract shall be presumed

17 valid as to all goods or services delivered and accepted

18 under the contract before the corrective action was

19 ordered.

20 (4) Any agreement that provides for the dismissal of

21 a protest and involves a direct or indirect expenditure of

22 appropriated funds shall be submitted to the Board and

23 shall be made a part of the public record (subject to any

24 protective order considered appropriate by the Board) be25 fore dismissal of the protest.
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1 (g) AUTHORITY TO DECLARE ENTITLEMENT TO

2 COSTS.—(1)(A) Whenever the Board determines that a

3 decision of a contracting officer violates a statute or regu4 lation, it may, in accordance with section 1304 of title 31,

5 United States Code, further declare an appropriate pre6 vailing party to be entitled to the costs of—

7 (i) filing and pursuing the protest, including

8 reasonable attorneys’ fees and consultant and expert

9 witness fees, and

10 (ii) bid and proposal preparation.

11 (B) No party (other than a small business concern

12 (within the meaning of section 3(a) of the Small Business

13 Act)) may be declared entitled under this paragraph to

14 costs for—

15 (i) consultants and expert witness fees that ex16 ceed the highest rate of compensation for expert wit17 nesses paid by the Federal Government, or

18 (ii) attorneys’ fees that exceed $150 per hour

19 unless the Board, on a case by case basis, deter20 mines that an increase in the cost of living or a spe21 cial factor, such as the limited availability of quali22 fied attorneys for the proceedings involved, justifies

23 a higher fee.

24 (2) Payment of amounts due from an agency under

25 paragraph (1) or under the terms of a settlement agree-
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1 ment under subsection (e)(4) shall be made from the ap2 propriation made by section 1304 of title 31, United

3 States Code, for the payment of judgments. The executive

4 agency concerned shall reimburse that appropriation ac5 count out of funds available for the procurement.

6 (h) APPEALS.—The final decision of the Board may

7 be appealed as set forth in section 8(d)(1) of the Contract

8 Disputes Act of 1978 by the head of the executive agency

9 concerned and by any interested party, including inter10 ested parties who intervene in any protest filed under this

11 section.

12 (i) ADDITIONAL RELIEF.—Nothing contained in this

13 section shall affect the power of the Board to order any

14 additional relief which it is authorized to provide under

15 any statute or regulation.

16 (j) NONEXCLUSIVITY OF REMEDIES.—Nothing con17 tained in this section shall affect the right of any inter18 ested party to file a protest with the contracting agency

19 or to file an action in the United States Court of Federal

20 Claims or in a United States district court.

21 SEC. 425. APPLICABILITY TO CONTRACTS FOR COMMER22 CIAL ITEMS.

23 Notwithstanding section 34 of the Office of Federal

24 Procurement Policy Act (41 U.S.C. 430), the authority
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1 conferred on the Board by this title is applicable to con2 tracts for the procurement of commercial items.

3 Subtitle D—Repeal of Other Stat4 utes Authorizing Administrative

5 Protests

6 SEC. 431. REPEALS.

7 (a) GSBCA PROVISIONS.—Subsection (f) of the

8 Brooks Automatic Data Processing Act (section 111 of the

9 Federal Property and Administrative Services Act of

10 1949; 40 U.S.C. 759) is repealed.

11 (b) GAO PROVISIONS.—Subchapter V of chapter 35

12 of title 31, United States Code (31 U.S.C. 3551–3556)

13 is repealed.

14 Subtitle E—Transfers and Transi15 tional, Savings, and Conforming

16 Provisions

17 SEC. 441. TRANSFER AND ALLOCATION OF APPROPRIA18 TIONS AND PERSONNEL.

19 (a) TRANSFER.—The personnel employed in connec20 tion with, and the assets, liabilities, contracts, property,

21 records, and unexpended balance of appropriations, au22 thorizations, allocations, and other funds employed, held,

23 used, arising from, available to, or to be made available

24 in connection with the functions vested by law in the

25 Comptroller General pursuant to subchapter V of chapter
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1 35 of title 31, United States Code, and in the boards of

2 contract appeals established pursuant to section 8 of the

3 Contract Disputes Act of 1978 (41 U.S.C. 607) (as in ef4 fect on the day before the effective date of this Act), shall

5 be transferred to the Board for appropriate allocation by

6 the Chairman.

7 (b) EFFECT ON PERSONNEL.—Personnel transferred

8 pursuant to this title shall not be separated or reduced

9 in classification or compensation for one year after such

10 transfer, except for cause.

11 (c) REGULATIONS.—(1) The Board shall prescribe

12 regulations for the release of competing employees in a

13 reduction in force that gives due effect to—

14 (A) efficiency or performance ratings;

15 (B) military preference; and

16 (C) tenure of employment.

17 (2) In prescribing the regulations, the Board shall

18 provide for military preference in the same manner as set

19 forth in subchapter I of chapter 35 of title 5, United

20 States Code.

21 SEC. 442. TERMINATIONS AND SAVINGS PROVISIONS.

22 (a) TERMINATION OF BOARDS OF CONTRACT AP23 PEALS.—On the effective date of this title, the boards of

24 contract appeals established pursuant to section 8 of the

25 Contract Disputes Act of 1978 (41 U.S.C. 607) (as in ef-
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1 fect on the day before the effective date of this Act) shall

2 terminate.

3 (b) SAVINGS PROVISION FOR CONTRACT DISPUTE

4 MATTERS PENDING BEFORE BOARDS.—The provisions of

5 this title shall not affect any proceedings (other than bid

6 protests pending before the board of contract appeals of

7 the General Services Administration) pending on the effec8 tive date of this Act before any board of contract appeals

9 described in subsection (a). Such proceedings shall be con10 tinued by the Board, and orders which were issued in any

11 such proceeding by any board of contract appeals shall

12 continue in effect until modified, terminated, superseded,

13 or revoked by the Board, by a court of competent jurisdic14 tion, or by operation of law.

15 (c) BID PROTEST TRANSITION PROVISIONS.—(1) No

16 protest may be submitted to the Comptroller General pur17 suant to section 3553(a) of title 31, United States Code,

18 or to the board of contract appeals for the General Serv19 ices Administration pursuant to the Brooks Automatic

20 Data Processing Act (40 U.S.C. 759) on or after the effec21 tive date of this Act.

22 (2) The provisions repealed by section 401 shall con23 tinue to apply to proceedings pending on the effective date

24 of this title before the board of contract appeals of the

25 General Services Administration and the Comptroller Gen-
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1 eral pursuant to those provisions, until the board or the

2 Comptroller General determines such proceedings have

3 been completed.

4 SEC. 443. CONTRACT DISPUTE AUTHORITY OF BOARD.

5 (a) Section 2 of the Contract Disputes Act of 1978

6 (41 U.S.C. 601) is amended by striking out paragraph (6)

7 and inserting in lieu thereof the following:

8 ‘‘(6) the term ‘Board’ means the United States

9 Board of Contract Appeals; and’’.

10 (b) Section 6(c) of the Contract Disputes Act of 1978

11 (41 U.S.C. 605(c)) is amended—

12 (1) in paragraph (4)—

13 (A) by striking out ‘‘the agency board of

14 contract appeals’’ and inserting in lieu thereof

15 ‘‘the United States Board of Contract Ap16 peals’’; and

17 (B) by striking out ‘‘the board’’ and insert18 ing in lieu thereof ‘‘the Board’’; and

19 (2) in paragraph (6)—

20 (A) by striking out ‘‘an agency board of

21 contract appeals’’ and inserting in lieu thereof

22 ‘‘the United States Board of Contract Ap23 peals’’; and

24 (B) by striking out ‘‘agency board’’ and in25 serting in lieu thereof ‘‘the Board’’.
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1 (c) Section 7 of the Contract Disputes Act of 1978

2 (41 U.S.C. 606) is amended by striking out ‘‘an agency

3 board of contract appeals’’ and inserting in lieu thereof

4 ‘‘the United States Board of Contract Appeals’’.

5 (d) Section 8 of the Contract Disputes Act of 1978

6 (41 U.S.C. 607) is amended—

7 (1) by amending the heading to read as follows:

8 ‘‘UNITED STATES BOARD OF CONTRACT APPEALS’’;

9 (2) by striking out subsections (a), (b), and (c);

10 (3) in subsection (d)—

11 (A) by striking out the first sentence and

12 inserting in lieu thereof the following:

13 ‘‘The United States Board of Contract Appeals shall have

14 jurisdiction to decide any appeal from a decision of a con15 tracting officer of any executive agency relative to a con16 tract made by that agency.’’; and

17 (B) in the second sentence, by striking out

18 ‘‘the agency board’’ and inserting in lieu thereof

19 ‘‘the Board’’;

20 (4) in subsection (e), by striking out ‘‘An agen21 cy board’’ and inserting in lieu thereof ‘‘The United

22 States Board of Contract Appeals’’;

23 (5) in subsection (f), by striking out ‘‘each

24 agency board’’ and inserting in lieu thereof ‘‘the

25 United States Board of Contract Appeals’’;

26 (6) in subsection (g)—
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1 (A) in the first sentence of paragraph (1),

2 by striking out ‘‘an agency board of contract

3 appeals’’ and inserting in lieu thereof ‘‘the

4 United States Board of Contract Appeals’’;

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

6 (C) by redesignating paragraph (3) as

7 paragraph (2);

8 (7) by striking out subsections (h) and (i); and

9 (8) by redesignating subsections (d), (e), (f),

10 and (g) (as amended) as subsections (a), (b), (c),

11 and (d), respectively.

12 (e) Section 9 of the Contract Disputes Act of 1978

13 (41 U.S.C. 608) is amended—

14 (1) in subsection (a), by striking out ‘‘each

15 agency board’’ and inserting in lieu thereof ‘‘the

16 United States Board of Contract Appeals’’; and

17 (2) in subsection (b), by striking out ‘‘the agen18 cy board’’ and inserting in lieu thereof ‘‘the Board’’.

19 (f) Section 10 of the Contract Disputes Act of 1978

20 (41 U.S.C. 609) is amended—

21 (1) in subsection (a)—

22 (A) in the first sentence of paragraph

23 (1)—
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1 (i) by striking out ‘‘Except as pro2 vided in paragraph (2), and in’’ and insert3 ing in lieu thereof ‘‘In’’; and

4 (ii) by striking out ‘‘an agency board’’

5 and inserting in lieu thereof ‘‘the United

6 States Board of Contract Appeals’’;

7 (B) by striking out paragraph (2); and

8 (C) by redesignating paragraph (3) as

9 paragraph (2), and in that paragraph, by strik10 ing out ‘‘or (2)’’;

11 (2) in subsection (b), by striking out ‘‘any

12 agency board’’ and ‘‘the agency board’’ and inserting

13 in lieu of each ‘‘the Board’’;

14 (3) in subsection (c), by striking out ‘‘an agen15 cy board’’ and ‘‘the agency board’’ and inserting in

16 lieu of each ‘‘the Board’’; and

17 (4) in subsection (d), by striking out ‘‘one or

18 more agency boards’’ and ‘‘or among the agency

19 boards involved’’ and inserting in lieu of each ‘‘the

20 Board’’.

21 (g) Section 11 of the Contract Disputes Act of 1978

22 (41 U.S.C. 610) is amended—

23 (1) in the first sentence, by striking out ‘‘an

24 agency board of contract appeals’’ and inserting in
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1 lieu thereof ‘‘the United States Board of Contract

2 Appeals’’; and

3 (2) in the second sentence, by striking out ‘‘the

4 agency board through the Attorney General; or upon

5 application by the board of contract appeals of the

6 Tennessee Valley Authority’’ and inserting in lieu

7 thereof ‘‘the Board’’.

8 (h) Section 13 of the Contract Disputes Act of 1978

9 (41 U.S.C. 612) is amended—

10 (1) in subsection (b), by striking out ‘‘an agen11 cy board of contract appeals’’ and inserting in lieu

12 thereof ‘‘the United States Board of Contract Ap13 peals’’; and

14 (2) in subsection (d)(2), by striking out ‘‘by the

15 board of contract appeals for’’ and inserting in lieu

16 thereof ‘‘by the Board from’’.

17 SEC. 444. REFERENCES TO AGENCY BOARDS OF CONTRACT

18 APPEALS.

19 Any reference to an agency board of contract appeals

20 in any provision of law or in any rule, regulation, or other

21 paper of the United States shall be treated as referring

22 to the United States Board of Contract Appeals.

23 SEC. 445. CONFORMING AMENDMENTS.

24 (a) TITLE 5.—Section 5372a of title 5, United States

25 Code, is amended—
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1 (1) in subsection (a)(1), by striking out ‘‘an

2 agency board of contract appeals appointed under

3 section 8 of the Contract Disputes Act of 1978’’ and

4 inserting in lieu thereof ‘‘the United States Board of

5 Contract Appeals’’;

6 (2) in subsection (a)(2), by striking out ‘‘an

7 agency board of contract appeals established pursu8 ant to section 8 of the Contract Disputes Act of

9 1978’’ and inserting in lieu thereof ‘‘the United

10 States Board of Contract Appeals’’; and

11 (3) in subsection (b), by striking out ‘‘an ap12 peals board’’ each place it appears and inserting in

13 lieu thereof ‘‘the appeals board’’.

14 (b) TITLE 10.—(1) Section 2305(e) of title 10,

15 United States Code, is amended—

16 (A) in paragraph (1), by striking out ‘‘sub17 chapter V of chapter 35 of title 31’’ and inserting

18 in lieu thereof ‘‘title IV of the Federal Acquisition

19 Reform Act of 1995’’; and

20 (B) by striking out paragraph (3).

21 (2) Section 2305(f) of such title is amended—

22 (A) in paragraph (1), by striking out ‘‘in sub23 paragraphs (A) through (F) of subsection (b)(1) of

24 section 3554 of title 31’’ and inserting in lieu there-
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1 of ‘‘section 424(f)(2) of the Federal Acquisition Re2 form Act of 1995’’; and

3 (B) in paragraph (2), by striking out ‘‘para4 graph (1) of section 3554(c) of title 31’’ and insert5 ing in lieu thereof ‘‘section 424(g)(1)(A) of the Fed6 eral Acquisition Reform Act of 1995’’.

7 (c) FEDERAL PROPERTY AND ADMINISTRATIVE

8 SERVICES ACT OF 1949.—(1) Section 303B(h) of the

9 Federal Property and Administrative Services Act of 1949

10 (41 U.S.C. 253b(h)) is amended—

11 (A) in paragraph (1), by striking out ‘‘sub12 chapter V of chapter 35 of title 31’’ and inserting

13 in lieu thereof ‘‘title IV of the Federal Acquisition

14 Reform Act of 1995’’; and

15 (B) by striking out paragraph (3).

16 (2) Section 303B(i) of such Act (41 U.S.C. 253b(i))

17 is amended—

18 (A) in paragraph (1), by striking out ‘‘in sub19 paragraphs (A) through (F) of subsection (b)(1) of

20 section 3554 of title 31’’ and inserting in lieu there21 of ‘‘section 424(f)(2) of the Federal Acquisition Re22 form Act of 1995’’; and

23 (B) in paragraph (2), by striking out ‘‘para24 graph (1) of section 3554(c) of title 31’’ and insert-
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1 ing in lieu thereof ‘‘section 424(g)(1)(A) of the Fed2 eral Acquisition Reform Act of 1995’’.

3 Subtitle F—Effective Date; Interim

4 Appointment and Rules

5 SEC. 451. EFFECTIVE DATE.

6 This title shall take effect on October 1, 1996.

7 SEC. 452. INTERIM APPOINTMENT.

8 The Board judge serving as chairman of the board

9 of contract appeals of the General Services Administration

10 on the date of the enactment of this Act shall serve as

11 Chairman during the two-year period beginning on the ef12 fective date of this title, unless such individual resigns

13 such position or the position otherwise becomes vacant be14 fore the expiration of such period. The authority vested

15 in the President by section 413 shall take effect upon the

16 expiration of such two-year period or on the date such po17 sition is vacated, whichever occurs earlier.

18 SEC. 453. INTERIM RULES.

19 (a) RULES OF PROCEDURE.—Until such date as the

20 Board promulgates rules of procedure, the rules of proce21 dure of the board of contract appeals of the General Serv22 ices Administration, as in effect on the effective date of

23 this Act, shall be the rules of procedure of the Board.

24 (b) RULES REGARDING BOARD JUDGES.—Until such

25 date as the Board promulgates rules governing the estab-
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1 lishment and maintenance of a register of eligible appli2 cants and the selection of Board judges, the rules of the

3 Armed Services Board of Contract Appeals governing the

4 establishment and maintenance of a register of eligible ap5 plicants and the selection of board members shall be the

6 rules of the Board governing the establishment and main7 tenance of a register of eligible applicants and the selec8 tion of Board judges, except that any provisions of the

9 rules of the Armed Services Board of Contract Appeals

10 that authorize any individual other than the chairman of

11 such board to select a Board judge shall have no effect.

12 TITLE V—EFFECTIVE DATES

13 AND IMPLEMENTATION

14 SEC. 501. EFFECTIVE DATE AND APPLICABILITY.

15 (a) EFFECTIVE DATE.—Except as otherwise provided

16 in this Act, this Act and the amendments made by this

17 Act shall take effect on the date of the enactment of this

18 Act.

19 (b) APPLICABILITY OF AMENDMENTS.—(1) An

20 amendment made by this Act shall apply, in the manner

21 prescribed in the final regulations promulgated pursuant

22 to section 502 to implement such amendment, with respect

23 to any solicitation that is issued, any unsolicited proposal

24 that is received, and any contract entered into pursuant
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1 to such a solicitation or proposal, on or after the date de2 scribed in paragraph (3).

3 (2) An amendment made by this Act shall also apply,

4 to the extent and in the manner prescribed in the final

5 regulations promulgated pursuant to section 502 to imple6 ment such amendment, with respect to any matter related

7 to—

8 (A) a contract that is in effect on the date de9 scribed in paragraph (3);

10 (B) an offer under consideration on the date

11 described in paragraph (3); or

12 (C) any other proceeding or action that is ongo13 ing on the date described in paragraph (3).

14 (3) The date referred to in paragraphs (1) and (2)

15 is the date specified in such final regulations. The date

16 so specified shall be October 1, 1996, or any earlier date

17 that is not within 30 days after the date on which such

18 final regulations are published.

19 SEC. 502. IMPLEMENTING REGULATIONS.

20 (a) PROPOSED REVISIONS.—Proposed revisions to

21 the Federal Acquisition Regulation and such other pro22 posed regulations (or revisions to existing regulations) as

23 may be necessary to implement this Act shall be published

24 in the Federal Register not later than 210 days after the

25 date of the enactment of this Act.
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1 (b) PUBLIC COMMENT.—The proposed regulations

2 described in subsection (a) shall be made available for

3 public comment for a period of not less than 60 days.

4 (c) FINAL REGULATIONS.—Final regulations shall be

5 published in the Federal Register not later than 330 days

6 after the date of enactment of this Act.

7 (d) MODIFICATIONS.—Final regulations promulgated

8 pursuant to this section to implement an amendment

9 made by this Act may provide for modification of an exist10 ing contract without consideration upon the request of the

11 contractor.

12 (e) SAVINGS PROVISIONS.—(1) Nothing in this Act

13 shall be construed to affect the validity of any action taken

14 or any contract entered into before the date specified in

15 the regulations pursuant to section 501(b)(3) except to the

16 extent and in the manner prescribed in such regulations.

17 (2) Except as specifically provided in this Act, noth18 ing in this Act shall be construed to require the renegoti19 ation or modification of contracts in existence on the date

20 of the enactment of this Act.

21 (3) Except as otherwise provided in this Act, a law

22 amended by this Act shall continue to be applied according

23 to the provisions thereof as such law was in effect on the

24 day before the date of the enactment of this Act until—
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1 (A) the date specified in final regulations imple2 menting the amendment of that law (as promulgated

3 pursuant to this section); or

4 (B) if no such date is specified in regulations,

5 October 1, 1996.

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