IB

104TH CONGRESS

1ST SESSION H. R. 1670

[Report No. 104–222, Part I]

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 Kentucky, 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

AUGUST 1, 1995

Additional sponsors: Mr. WATTS of Oklahoma, Mr. MCKEON, Mr. MORAN,

and Mr. FOX of Pennsylvania

AUGUST 1, 1995

Reported from the Committee on Government Reform and Oversight with an

amendment

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

AUGUST 1, 1995

Referral to the Committees on National Security and the Judiciary extended

for a period ending not later than August 2, 1995

AUGUST 2, 1995

Referral to the Committees on National Security and the Judiciary extended

for a period ending not later than October 2, 1995

[For text of introduced bill, see copy of bill as introduced on May 18, 1995]
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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’’.

6 SEC. 2. TABLE OF CONTENTS.

7 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. Definitions 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.

Sec. 307. Justification of major defense acquisition programs not meeting goals.

Sec. 308. Enhanced performance incentives for acquisition workforce.

Sec. 309. Results oriented acquisition program cycle.
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Sec. 310. Rapid contracting goal.

Sec. 311. Encouragement of multiyear contracting.

Sec. 312. Contractor share of gains and losses from cost, schedule, and performance experience.

Sec. 313. Phase funding of defense acquisition programs.

Sec. 314. Improved Department of Defense contract payment procedures.

Sec. 315. Consideration of past performance in assignment to acquisition positions.

Sec. 316. Additional Department of Defense pilot programs.

Sec. 317. Value engineering for Federal agencies.

Sec. 318. Acquisition workforce.

TITLE IV—STREAMLINING OF DISPUTE RESOLUTION

Subtitle A—General Provisions

Sec. 401. Definitions.

Subtitle B—Establishment of Civilian and Defense Boards of Contract Appeals

Sec. 411. Establishment.

Sec. 412. Membership.

Sec. 413. Chairman.

Sec. 414. Rulemaking authority.

Sec. 415. Authorization of appropriations.

Subtitle C—Functions of Defense and Civilian Boards of Contract Appeals

Sec. 421. Alternative dispute resolution services.

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

boards

Sec. 423. Contract disputes.

Sec. 424. Protests.

Sec. 425. Applicability to certain contracts.

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 disputes authority of boards.

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.
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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) COMPETITION.—(1) Except as provided in sub9 sections (b), (c), and (e) and except in the case of procure10 ment procedures otherwise expressly authorized by statute,

11 the head of an agency in conducting a procurement for

12 property or services—

13 ‘‘(A) shall obtain full and open competition—

14 ‘‘(i) that provides open access, and

15 ‘‘(ii) that is consistent with the need to effi16 ciently fulfill the Government’s requirements,

17 through the use of competitive procedures in accord18 ance with this chapter and the Federal Acquisition

19 Regulation; and

20 ‘‘(B) shall use the competitive procedure or com21 bination of competitive procedures that is best suited

22 under the circumstances of the procurement.

23 ‘‘(2) In determining the competitive procedure appro24 priate under the circumstances, the head of an agency—

25 ‘‘(A) shall solicit sealed bids if—
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1 ‘‘(i) time permits the solicitation, submis2 sion, and evaluation of sealed bids;

3 ‘‘(ii) the award will be made on the basis

4 of price and other price-related factors;

5 ‘‘(iii) it is not necessary to conduct discus6 sions with the responding sources about their

7 bids; and

8 ‘‘(iv) there is a reasonable expectation of re9 ceiving more than one sealed bid; and

10 ‘‘(B) shall request competitive proposals if sealed

11 bids are not appropriate under clause (A).

12 ‘‘(b) EXCLUSION OF PARTICULAR SOURCE.—The head

13 of an agency may provide for the procurement of property

14 or services covered by this chapter using competitive proce15 dures but excluding a particular source in order to establish

16 or maintain an alternative source or sources of supply for

17 that property or service. The Federal Acquisition Regula18 tion shall set forth the circumstances under which a par19 ticular source may be excluded pursuant to this subsection.

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

21 BUSINESS CONCERNS AND CERTAIN OTHER ENTITIES.—

22 The head of an agency may provide for the procurement

23 of property or services covered by this section using com24 petitive procedures, but excluding concerns other than small

25 business concerns in furtherance of sections 9 and 15 of the
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1 Small Business Act (15 U.S.C. 638, 644) and concerns other

2 than small business concerns, historically Black colleges and

3 universities, and minority institutions in furtherance of

4 section 2323 of this title.

5 ‘‘(d) PROCEDURES OTHER THAN COMPETITIVE PRO6 CEDURES.—(1) Procedures other than competitive proce7 dures may be used for purchasing property and services

8 only when the use of competitive procedures is not feasible

9 or appropriate. Standards for determining when the use of

10 competitive procedures is not feasible or appropriate shall

11 be set forth in the Federal Acquisition Regulation. Each

12 procurement using procedures other than competitive proce13 dures (other than a procurement for commercial items using

14 simplified procedures or a procurement in an amount not

15 greater than the simplified acquisition threshold) shall be

16 justified in writing and approved in accordance with the

17 Federal Acquisition Regulation.

18 ‘‘(2) In the case of a procurement using procedures

19 that preclude all but one source from responding (herein20 after in this subsection referred to as a ‘sole source procure21 ment’), the Federal Acquisition Regulation shall provide for

22 justification and approval under paragraph (1) of such pro23 curement under standards that set forth limited cir24 cumstances for such sole source procurements, including cir25 cumstances when—
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1 ‘‘(A) the property or services needed by the agen2 cy are available from only one responsible source and

3 no other type of property or services will satisfy the

4 needs of the agency;

5 ‘‘(B) the agency’s need for the property or serv6 ices is of such an unusual and compelling urgency

7 that the United States would be seriously injured un8 less the agency is permitted to award the contract for

9 the property or services to a particular source;

10 ‘‘(C) it is necessary to award the contract to a

11 particular source in order (i) to maintain a facility,

12 producer, manufacturer, or other supplier available

13 for furnishing property or services in case of a na14 tional emergency or to achieve industrial mobiliza15 tion, (ii) to establish or maintain an essential engi16 neering, research, or development capability to be pro17 vided by an educational or other nonprofit institution

18 or a federally funded research and development cen19 ter, or (iii) to procure the services of an expert for

20 use, in any litigation or dispute (including any rea21 sonably foreseeable litigation or dispute) involving the

22 Federal Government, in any trial, hearing, or pro23 ceeding before any court, administrative tribunal, or

24 agency, or in any part of an alternative dispute reso-
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1 lution process, whether or not the expert is expected

2 to testify;

3 ‘‘(D) the terms of an international agreement or

4 a treaty between the United States and a foreign gov5 ernment or international organization, or the written

6 directions of a foreign government reimbursing the

7 agency for the cost of the procurement of the property

8 or services for such government, have the effect of re9 quiring the award of the contract for the property or

10 services to a particular source;

11 ‘‘(E) subject to section 2304f, a statute expressly

12 authorizes or requires that the procurement be made

13 through another agency or from a specified source, or

14 the agency’s need is for a brand-name commercial

15 item for authorized resale;

16 ‘‘(F) the disclosure of the agency’s needs would

17 compromise the national security unless the agency is

18 permitted to award the contract for the property or

19 services needed by the agency to a particular source;

20 or

21 ‘‘(G) the head of the agency—

22 ‘‘(i) determines that it is necessary in the

23 public interest to award the contract for the

24 property or services needed by the agency to a
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1 particular source in the particular procurement

2 concerned, and

3 ‘‘(ii) notifies the Congress in writing of such

4 determination not less than 30 days before the

5 award of the contract.

6 ‘‘(3) The authority of the head of an agency under

7 paragraph (2)(G) may not be delegated.

8 ‘‘(e) SIMPLIFIED PROCEDURES.—(1) In order to pro9 mote efficiency and economy in contracting and to avoid

10 unnecessary burdens for agencies and contractors, the Fed11 eral Acquisition Regulation shall provide for special sim12 plified procedures for purchases of property and services for

13 amounts not greater than the simplified acquisition thresh14 old.

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

16 above the simplified acquisition threshold may not be di17 vided into several purchases or contracts for lesser amounts

18 in order to use the simplified procedures required by para19 graph (1).

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

21 agency shall ensure that competition is obtained to the max22 imum extent practicable consistent with the particular Gov23 ernment requirement.

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

25 following laws, purchases or contracts awarded after using
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1 procedures other than sealed-bid procedures shall be treated

2 as if they were made with sealed-bid procedures:

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

4 ‘‘(2) The Act entitled ‘An Act relating to the rate

5 of wages for laborers and mechanics employed on pub6 lic buildings of the United States and the District of

7 Columbia by contractors and subcontractors, and for

8 other purposes’, approved March 3, 1931 (commonly

9 referred to as the ‘Davis-Bacon Act’) (40 U.S.C.

10 276a—276a–5).’’.

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

12 amended by inserting before section 2305 a new section—

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

14 follows:

15 ‘‘§ 2304f. Merit-based selection’’;

16 and

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

18 section 2304 of such title, as in effect on the day be19 fore the date of the enactment of this Act, modified—

20 (i) by striking out the subsection designa21 tion;

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

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

24 thereof ‘‘section’’ each place it appears;
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1 (iii) in paragraph (2)(C), by striking out

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

3 ‘‘subsection (a)’’;

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

5 (3), and (4) as subsections (a), (b), (c), and (d),

6 respectively; and

7 (v) in subsection (b) (as so redesignated), by

8 redesignating subparagraphs (A), (B), and (C)

9 as paragraphs (1), (2), and (3), respectively.

10 (3) The table of sections at the beginning of such chap11 ter is amended by inserting before the item relating section

12 2305 the following new item:

‘‘2304 f. Merit-based selection.’’.

13 (b) CIVILIAN AGENCY ACQUISITIONS.—(1) Section 303

14 of the Federal Property and Administrative Services Act

15 of 1949 (41 U.S.C. 253) is amended to read as follows:

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

17 ‘‘(a) COMPETITION.—(1) Except as provided in sub18 sections (b), (c), and (e) and except in the case of procure19 ment procedures otherwise expressly authorized by statute,

20 an executive agency in conducting a procurement for prop21 erty or services—

22 ‘‘(A) shall obtain full and open competition—

23 ‘‘(i) that provides open access, and

24 ‘‘(ii) that is consistent with the need to effi25 ciently fulfill the Government’s requirements,
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1 through the use of competitive procedures in accord2 ance with this chapter and the Federal Acquisition

3 Regulation; and

4 ‘‘(B) shall use the competitive procedure or com5 bination of competitive procedures that is best suited

6 under the circumstances of the procurement.

7 ‘‘(2) In determining the competitive procedure appro8 priate under the circumstances, an executive agency—

9 ‘‘(A) shall solicit sealed bids if—

10 ‘‘(i) time permits the solicitation, submis11 sion, and evaluation of sealed bids;

12 ‘‘(ii) the award will be made on the basis

13 of price and other price-related factors;

14 ‘‘(iii) it is not necessary to conduct discus15 sions with the responding sources about their

16 bids; and

17 ‘‘(iv) there is a reasonable expectation of re18 ceiving more than one sealed bid; and

19 ‘‘(B) shall request competitive proposals if sealed

20 bids are not appropriate under clause (A).

21 ‘‘(b) EXCLUSION OF PARTICULAR SOURCE.—An execu22 tive agency may provide for the procurement of property

23 or services covered by this chapter using competitive proce24 dures but excluding a particular source in order to establish

25 or maintain an alternative source or sources of supply for
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1 that property or service. The Federal Acquisition Regula2 tion shall set forth the circumstances under which a par3 ticular source may be excluded pursuant to this subsection.

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

5 BUSINESS CONCERNS AND CERTAIN OTHER ENTITIES.—An

6 executive agency may provide for the procurement of prop7 erty or services covered by this section using competitive

8 procedures, but excluding concerns other than small busi9 ness concerns in furtherance of sections 9 and 15 of the

10 Small Business Act (15 U.S.C. 638, 644) and concerns other

11 than small business concerns, historically Black colleges and

12 universities, and minority institutions in furtherance of

13 section 7102 of the Federal Acquisition Streamlining Act

14 of 1994 (15 U.S.C. 644 note).

15 ‘‘(d) PROCEDURES OTHER THAN COMPETITIVE PRO16 CEDURES.—(1) Procedures other than competitive proce17 dures may be used for purchasing property and services

18 only when the use of competitive procedures is not feasible

19 or appropriate. Standards for determining when the use of

20 competitive procedures is not feasible or appropriate shall

21 be set forth in the Federal Acquisition Regulation. Each

22 procurement using procedures other than competitive proce23 dures (other than a procurement for commercial items using

24 simplified procedures or a procurement in an amount not

25 greater than the simplified acquisition threshold) shall be
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1 justified in writing and approved in accordance with the

2 Federal Acquisition Regulation.

3 ‘‘(2) In the case of a procurement using procedures

4 that preclude all but one source from responding (herein5 after in this subsection referred to as a ‘sole source procure6 ment’), the Federal Acquisition Regulation shall provide for

7 justification and approval under paragraph (1) of such pro8 curement under standards that set forth limited cir9 cumstances for such sole source procurements, including cir10 cumstances when—

11 ‘‘(A) the property or services needed by the exec12 utive agency are available from only one responsible

13 source and no other type of property or services will

14 satisfy the needs of the executive agency;

15 ‘‘(B) the executive agency’s need for the property

16 or services is of such an unusual and compelling ur17 gency that the United States would be seriously in18 jured unless the executive agency is permitted to

19 award the contract for the property or services to a

20 particular source;

21 ‘‘(C) it is necessary to award the contract to a

22 particular source in order (i) to maintain a facility,

23 producer, manufacturer, or other supplier available

24 for furnishing property or services in case of a na25 tional emergency or to achieve industrial mobiliza-
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1 tion, (ii) to establish or maintain an essential engi2 neering, research, or development capability to be pro3 vided by an educational or other nonprofit institution

4 or a federally funded research and development cen5 ter, or (iii) to procure the services of an expert for

6 use, in any litigation or dispute (including any rea7 sonably foreseeable litigation or dispute) involving the

8 Federal Government, in any trial, hearing, or pro9 ceeding before any court, administrative tribunal, or

10 agency, or in any part of an alternative dispute reso11 lution process, whether or not the expert is expected

12 to testify;

13 ‘‘(D) the terms of an international agreement or

14 treaty between the United States Government and a

15 foreign government or international organization, or

16 the written directions of a foreign government reim17 bursing the executive agency for the cost of the pro18 curement of the property or services for such govern19 ment, have the effect of requiring the award of the

20 contract for the property or services to a particular

21 source;

22 ‘‘(E) subject to section 303M, a statute expressly

23 authorizes or requires that the procurement be made

24 through another executive agency or from a specified
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1 source, or the agency’s need is for a brand-name com2 mercial item for authorized resale;

3 ‘‘(F) the disclosure of the executive agency’s

4 needs would compromise the national security unless

5 the agency is permitted to award the contract for the

6 property or services needed by the agency to a par7 ticular source; or

8 ‘‘(G) the head of the executive agency—

9 ‘‘(i) determines that it is necessary in the

10 public interest to award the contract for the

11 property or services needed by the agency to a

12 particular source in the particular procurement

13 concerned, and

14 ‘‘(ii) notifies the Congress in writing of such

15 determination not less than 30 days before the

16 award of the contract.

17 ‘‘(3) The authority of the head of an executive agency

18 under paragraph (2)(G) may not be delegated.

19 ‘‘(e) SIMPLIFIED PROCEDURES.—(1) In order to pro20 mote efficiency and economy in contracting and to avoid

21 unnecessary burdens for agencies and contractors, the Fed22 eral Acquisition Regulation shall provide for special sim23 plified procedures for purchases of property and services for

24 amounts not greater than the simplified acquisition thresh25 old.
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1 ‘‘(2)(A) The Administrator of General Services shall

2 prescribe regulations that provide special simplified proce3 dures for acquisitions of leasehold interests in real property

4 at rental rates that do not exceed the simplified acquisition

5 threshold.

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

7 or rates under a multiyear lease do not exceed the simplified

8 acquisition threshold if the average annual amount of the

9 rent payable for the period of the lease does not exceed the

10 simplified acquisition threshold.

11 ‘‘(3) A proposed purchase or contract or for an amount

12 above the simplified acquisition threshold may not be di13 vided into several purchases or contracts for lesser amounts

14 in order to use the simplified procedures required by para15 graph (1).

16 ‘‘(4) In using simplified procedures, an executive agen17 cy shall ensure that competition is obtained to the maxi18 mum extent practicable consistent with the particular Gov19 ernment requirement.’’.

20 (2) Title III of the Federal Property and Administra21 tive Services Act of 1949 (41 U.S.C. 251 et seq.) is amended

22 by inserting after section 303L a new section—

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

24 follows:
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1 ‘‘SEC. 303M. MERIT-BASED SELECTION.’’;

2 and

3 (B) the text of which consists of subsection (h) of

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

5 the date of the enactment of this Act, modified—

6 (i) by striking out the subsection designa7 tion;

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

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

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

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

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

13 ‘‘subsection (a)’’;

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

15 (3), and (4) as subsections (a), (b), (c), and (d),

16 respectively; and

17 (v) in subsection (b) (as so redesignated), by

18 redesignating subparagraphs (A), (B), and (C)

19 as paragraphs (1), (2), and (3), respectively.

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

21 Administrative Services Act of 1949 (contained in section

22 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.’’;

25 and
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1 (B) by inserting after the item relating to section

2 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 expected

15 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)—

21 (A) by amending subparagraph (B) of

22 paragraph (2) to read as follows:

23 ‘‘(B) state whether the acquisition is to be

24 conducted pursuant to a contractor verification

25 system (as provided pursuant to section 35) or
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1 whether the offeror, its product, or its service oth2 erwise must meet a qualification requirement in

3 order to be eligible for award and, if so, identify

4 the criteria to be used in determining such eligi5 bility;’’; and

6 (B) by amending paragraph (4) to read as

7 follows:

8 ‘‘(4) a statement that all responsible sources may

9 submit for consideration a bid, proposal, or

10 quotation;’’.

11 (d) EXECUTIVE AGENCY RESPONSIBILITIES.—(1) Sec12 tion 16 of the Office of Federal Procurement Policy Act (41

13 U.S.C. 414) is amended—

14 (A) by striking out ‘‘achieve’’ in the matter pre15 ceding paragraph (1) and inserting in lieu thereof

16 ‘‘promote’’; and

17 (B) by amending paragraph (1) to read as fol18 lows:

19 ‘‘(1) to implement competition that provides

20 open access for responsible sources in the procurement

21 of property or services by the executive agency by es22 tablishing policies, procedures, and practices that are

23 consistent with the need to efficiently fulfill the Gov24 ernment’s requirements;’’.
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1 (2) Section 20 of such Act (41 U.S.C. 418) is amended

2 in subsection (a)(2)(A) by striking out ‘‘serving in a posi3 tion authorized for such executive agency on the date of en4 actment of the Competition in Contracting Act of 1984’’.

5 SEC. 102. DEFINITIONS RELATING TO COMPETITION RE6 QUIREMENTS.

7 (a) DEFINITION.—Paragraphs (5) and (6) of section

8 4 of the Office of Federal Procurement Policy Act (41

9 U.S.C. 403) are amended to read as follows:

10 ‘‘(5) The term ‘competitive procedures’ means

11 procedures under which an agency enters into a con12 tract pursuant to full and open competition that pro13 vides open access and is consistent with the need to

14 efficiently fulfill the Government’s requirements.

15 ‘‘(6) The term ‘open access’, when used with re16 spect to a procurement, means that all responsible

17 sources are permitted to submit sealed bids or com18 petitive proposals on the procurement.’’.

19 (b) CONFORMING AMENDMENTS.—

20 (1) OFFICE OF FEDERAL PROCUREMENT POLICY

21 ACT.—Section 20 of the Office of Federal Procurement

22 Policy Act is amended—

23 (A) in subsection (b)(1), subsection

24 (b)(3)(A), and subsection (c), by inserting after

25 ‘‘full and open competition’’ the following: ‘‘that
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1 provides open access and is consistent with the

2 need to efficiently fulfill the Government’s re3 quirements’’ each place it appears; and

4 (B) in subsection (b)(4)(C), by striking out

5 ‘‘to full and open competition that remain’’ and

6 inserting in lieu thereof ‘‘that remain to achiev7 ing full and open competition that provides open

8 access and is consistent with the need to effi9 ciently fulfill the Government’s requirements’’.

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

11 amended—

12 (A) in section 2302(2), by striking out the

13 first sentence and inserting in lieu thereof the

14 following: ‘‘The term ‘competitive procedures’

15 means procedures under which an agency enters

16 into a contract pursuant to full and open com17 petition that provides open access and is consist18 ent with the need to efficiently fulfill the Govern19 ment’s requirements.’’;

20 (B) in section 2302(3)(D), by striking out

21 ‘‘full and open competition’’ and inserting in

22 lieu thereof ‘‘open access’’;

23 (C) in section 2323(e)(3), by striking out

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

25 thereof ‘‘procedures other than’’; and
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1 (D) in section 2323(i)(3)(A), by striking out

2 ‘‘full and open’’.

3 (3) FEDERAL PROPERTY AND ADMINISTRATIVE

4 SERVICES ACT.—Title III of the Federal Property and

5 Administrative Services Act of 1949 (41 U.S.C. 251

6 et seq.) is amended—

7 (A) in section 309(b), by striking out the

8 first sentence and inserting in lieu thereof the

9 following: ‘‘The term ‘competitive procedures’

10 means procedures under which an executive

11 agency enters into a contract pursuant to full

12 and open competition that provides open access

13 and is consistent with the need to efficiently ful14 fill the Government’s requirements.’’;

15 (B) in section 309(c)(4), by striking out

16 ‘‘full and open competition’’ and inserting in

17 lieu thereof ‘‘open access’’; and

18 (C) in section 304B(a)(2)(B), by striking

19 out ‘‘encouraging full and open competition or’’.

20 (4) OTHER LAWS.—Section 7102 of the Federal

21 Acquisition Streamlining Act of 1994 (108 Stat.

22 3367; 15 U.S.C. 644 note) is amended in subsection

23 (a)(1)(A) by striking out ‘‘less than full and open

24 competition’’ and inserting in lieu thereof ‘‘procedures

25 other than competitive procedures’’.
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1 SEC. 103. CONTRACT SOLICITATION AMENDMENTS.

2 (a) ARMED SERVICES ACQUISITIONS.—Section 2305 of

3 title 10, United States Code, is amended—

4 (1) in subsection (a)(1)—

5 (A) by striking out subparagraph (A) and

6 inserting in lieu thereof the following: ‘‘(A) In

7 preparing for the procurement of property or

8 services, the head of an agency shall use advance

9 procurement planning and market research.’’;

10 (B) by striking out subparagraph (B); and

11 (C) by redesignating subparagraph (C) as

12 subparagraph (B) and in that subparagraph by

13 striking out ‘‘For the purposes of subparagraphs

14 (A) and (B), the’’ and inserting in lieu thereof

15 ‘‘Each solicitation under this chapter shall in16 clude specifications that include restrictive provi17 sions or conditions only to the extent necessary

18 to satisfy the needs of the agency or as author19 ized by law. The’’;

20 (2) in subsection (a)(2), by inserting after

21 ‘‘(other than for’’ the following: ‘‘a procurement for

22 commercial items using simplified procedures or’’;

23 and

24 (3) in subsection (b)(4)(A)(i), by striking out

25 ‘‘all’’ and inserting in lieu thereof ‘‘the’’.
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1 (b) CIVILIAN AGENCY ACQUISITIONS.—(1) Section

2 303A of the Federal Property and Administrative Services

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

4 (A) in subsection (a)—

5 (i) by striking out paragraph (1) and in6 serting in lieu thereof the following: ‘‘(1) In pre7 paring for the procurement of property or serv8 ices, an executive agency shall use advance pro9 curement planning and market research.’’;

10 (ii) by striking out paragraph (2); and

11 (iii) by redesignating paragraph (3) as

12 paragraph (2) and in that paragraph by strik13 ing out ‘‘For the purposes of paragraphs (1) and

14 (2), the’’ and inserting in lieu there of ‘‘Each so15 licitation under this title shall include specifica16 tions that include restrictive provisions or condi17 tions only to the extent necessary to satisfy the

18 needs of the executive agency or as authorized by

19 law. The’’; and

20 (B) in subsection (b), by inserting after ‘‘(other

21 than for’’ the following: ‘‘a procurement for commer22 cial items using simplified procedures or’’.

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

24 253b) is amended by striking out ‘‘all’’ and inserting in

25 lieu thereof ‘‘the’’.
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1 SEC. 104. PREAWARD DEBRIEFINGS.

2 (a) ARMED SERVICES ACQUISITIONS.—Section

3 2305(b) of title 10, United States Code, is amended—

4 (1) by striking out subparagraph (F) of para5 graph (5);

6 (2) by redesignating paragraph (6) as para7 graph (8); and

8 (3) by inserting after paragraph (5) the follow9 ing new paragraphs:

10 ‘‘(6)(A) When the contracting officer excludes an

11 offeror submitting a competitive proposal from the competi12 tive range (or otherwise excludes such an offeror from fur13 ther consideration prior to the final source selection deci14 sion), the excluded offeror may request in writing, within

15 three days after the date on which the excluded offeror re16 ceives notice of its exclusion, a debriefing prior to award.

17 The contracting officer shall make every effort to debrief the

18 unsuccessful offeror as soon as practicable and may refuse

19 the request for a debriefing if it is not in the best interests

20 of the Government to conduct a debriefing at that time.

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

22 excluded offeror in accordance with paragraph (5) of this

23 section only if that offeror requested and was refused a

24 preaward debriefing under subparagraph (A) of this para25 graph.
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1 ‘‘(C) The debriefing conducted under this subsection

2 shall include—

3 ‘‘(i) the executive agency’s evaluation of the sig4 nificant elements in the offeror’s offer;

5 ‘‘(ii) a summary of the rationale for the offeror’s

6 exclusion; and

7 ‘‘(iii) reasonable responses to relevant questions

8 posed by the debriefed offeror as to whether source se9 lection procedures set forth in the solicitation, appli10 cable regulations, and other applicable authorities

11 were followed by the executive agency.

12 ‘‘(D) The debriefing conducted pursuant to this sub13 section may not disclose the number or identity of other

14 offerors and shall not disclose information about the con15 tent, ranking, or evaluation of other offerors’ proposals.

16 ‘‘(7) The contracting officer shall include a summary

17 of any debriefing conducted under paragraph (5) or (6) in

18 the contract file.’’.

19 (b) CIVILIAN AGENCY ACQUISITIONS.—Section 303B of

20 the Federal Property and Administrative Services Act of

21 1949 (41 U.S.C. 253b) is amended—

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

23 (e);
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1 (2) by redesignating subsections (f), (g), (h), and

2 (i) as subsections (h), (i), (j), and (k), respectively;

3 and

4 (3) by inserting after subsection (e) the following

5 new subsections:

6 ‘‘(f)(1) When the contracting officer excludes an offeror

7 submitting a competitive proposal from the competitive

8 range (or otherwise excludes such an offeror from further

9 consideration prior to the final source selection decision),

10 the excluded offeror may request in writing, within 3 days

11 after the date on which the excluded offeror receives notice

12 of its exclusion, a debriefing prior to award. The contract13 ing officer shall make every effort to debrief the unsuccessful

14 offeror as soon as practicable and may refuse the request

15 for a debriefing if it is not in the best interests of the Gov16 ernment to conduct a debriefing at that time.

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

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

19 section only if that offeror requested and was refused a

20 preaward debriefing under paragraph (1) of this subsection.

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

22 shall include—

23 ‘‘(A) the executive agency’s evaluation of the sig24 nificant elements in the offeror’s offer;
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1 ‘‘(B) a summary of the rationale for the offeror’s

2 exclusion; and

3 ‘‘(C) reasonable responses to relevant questions

4 posed by the debriefed offeror as to whether source se5 lection procedures set forth in the solicitation, appli6 cable regulations, and other applicable authorities

7 were followed by the executive agency.

8 ‘‘(4) The debriefing conducted pursuant to this sub9 section may not disclose the number or identity of other

10 offerors and shall not disclose information about the con11 tent, ranking, or evaluation of other offerors’ proposals.

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

13 of any debriefing conducted under subsection (e) or (f) in

14 the contract file.’’.

15 SEC. 105. CONTRACT TYPES.

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

17 2306 of title 10, United States Code, is amended—

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

19 subsection (a) the following: ‘‘, based on market condi20 tions, established commercial practice (if any) for the

21 product or service being acquired, and sound business

22 judgment’’;

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

24 and (h); and
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1 (C) by redesignating subsection (g) as subsection

2 (b).

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

4 as follows:

5 ‘‘§ 2306. Contract types’’.

6 (3) The item relating to section 2306 in the table of

7 sections at the beginning of chapter 137 of such title is

8 amended to read as follows:

‘‘2306. Contract types.’’.

9 (b) CIVILIAN AGENCY ACQUISITIONS.—(1) Section 304

10 of the Federal Property and Administrative Services Act

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

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

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

14 based on market conditions, established commercial

15 practice (if any) for the product or service being ac16 quired, and sound business judgment’’;

17 (B) by striking out ‘‘Every contract awarded’’ in

18 the second sentence of subsection (a) and all that fol19 lows through the end of the subsection; and

20 (C) in subsection (b), by striking out ‘‘used,’’ in

21 the first sentence and all that follows through the end

22 of the subsection and inserting in lieu thereof ‘‘used.’’.

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

24 as follows:
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1 ‘‘SEC. 304. CONTRACT TYPES.’’.

2 (3) The item relating to section 304 in the table of

3 contents for such Act (contained in section 1(b)) is amended

4 to read as follows:

‘‘Sec. 304. Contract types.’’.

5 (c) CONFORMING REPEALS.—(1) Sections 4540, 7212,

6 and 9540 of title 10, United States Code, are repealed.

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

8 433 of such title is amended by striking out the item relat9 ing to section 4540.

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

11 631 of such title is amended by striking out the item relat12 ing to section 7212.

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

14 933 of such title is amended by striking out the item relat15 ing to section 9540.

16 (d) CIVIL WORKS AUTHORITY.—(1) Part IV of subtitle

17 A of title 10, United States Code, is amended—

18 (A) by transferring section 2855 to the end of

19 chapter 137; and

20 (B) by striking out the section heading and sub21 section (a) of such section and inserting in lieu there22 of the following:
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1 ‘‘§ 2332. Contracts for architectural and engineering

2 services

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

4 the military departments may enter into contracts for ar5 chitectural and engineering services in connection with a

6 military construction or family housing project or for other

7 Department of Defense or military department purposes.

8 Such contracts shall be awarded in accordance with the

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

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

11 137 of such title is amended by adding at the end the follow12 ing new item:

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

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

14 169 of such title is amended by striking out the item relat15 ing to section 2855.

16 SEC. 106. CONTRACTOR PERFORMANCE.

17 (a) REQUIREMENT FOR SYSTEM.—The Office of Fed18 eral Procurement Policy Act (41 U.S.C. 401 et seq.) is

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

20 ‘‘SEC. 35. CONTRACTOR PERFORMANCE.

21 ‘‘(a) VERIFICATION SYSTEM.—

22 ‘‘(1) REQUIREMENT.—The Federal Acquisition

23 Regulation shall provide for a contractor verification

24 system in accordance with this section.
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1 ‘‘(2) PROCEDURES.—The Federal Acquisition

2 Regulation shall provide procedures for the head of an

3 executive agency to follow in order to verify a con4 tractor as eligible to compete for contracts to furnish

5 property or services that are procured by the executive

6 agency on a recurring basis.

7 ‘‘(3) NOTIFICATION.—The procedures shall in8 clude a requirement that the head of an executive

9 agency provide for the publication of appropriate no10 tification about the verification system in the Com11 merce Business Daily.

12 ‘‘(b) EVALUATION.—(1) Under the procedures referred

13 to in subsection (a)(2), the head of an executive agency in

14 granting a verification to a contractor shall use the follow15 ing factors as the basis of the evaluation:

16 ‘‘(A) The efficiency and effectiveness of its busi17 ness practices.

18 ‘‘(B) The level of quality of its product or serv19 ice.

20 ‘‘(C) Past performance of the contractor with re21 gard to the particular property or service.

22 ‘‘(2)(A) The evaluation of past performance may in23 clude performance under—

24 ‘‘(i) a contract with an executive agency of the

25 Federal Government;
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1 ‘‘(ii) a contract with an agency of a State or

2 local government; or

3 ‘‘(iii) a contract with an entity in the private

4 sector.

5 ‘‘(B) The procedures shall include a requirement that,

6 in the case of a contractor with respect to which there is

7 no information on past contract performance or with re8 spect to which information on past contract performance

9 is not available, the contractor may not be evaluated favor10 ably or unfavorably on the factor of past performance.

11 ‘‘(c) OPPORTUNITY FOR ALL INTERESTED SOURCES.—

12 The Federal Acquisition Regulation shall provide proce13 dures for ensuring that all interested sources, including

14 small businesses, have a fair opportunity to be considered

15 for verification under the verification system.

16 ‘‘(d) PROCUREMENT FROM VERIFIED CONTRAC17 TORS.—The Federal Acquisition Regulation shall provide

18 procedures under which the head of an executive agency

19 may enter into a contract for the procurement of property

20 or services referred to in subsection (a)(2) on the basis of

21 a competition in accordance with section 2304 of title 10,

22 United States Code, or section 303 of the Federal Property

23 and Administrative Services Act of 1949 (41 U.S.C. 253)

24 for contractors verified with respect to such property or

25 services pursuant to the contractor verification system.
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1 ‘‘(e) TERMINATION OF VERIFICATION.—The Federal

2 Acquisition Regulation shall provide procedures under

3 which the head of an executive agency—

4 ‘‘(1) may provide for the termination of a ver5 ification granted a contractor under this section upon

6 the expiration of a period specified by the head of an

7 executive agency;

8 ‘‘(2) may revoke a verification granted a con9 tractor under this section upon a determination that

10 the quality of performance of the contractor does not

11 meet standards applied by the head of the executive

12 agency as of the time of the revocation decision; and

13 ‘‘(3) may provide that a contractor whose ver14 ification is terminated or revoked will have a fair op15 portunity to be considered for reentry into the ver16 ification system.

17 ‘‘(f) SPECIAL APPLICABILITY RULE.—Notwithstanding

18 section 34, the verification system shall apply to the pro19 curement of commercial items.’’.

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

21 Code, is repealed. Section 303C of the Federal Property and

22 Administrative Services Act of 1949 (41 U.S.C. 253c) is

23 repealed.

24 (c) CLERICAL AMENDMENTS.—(1) The table of con25 tents for the Office of Federal Procurement Policy Act (con-
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1 tained in section 1(b)) is amended by adding at the end

2 the following new item:

‘‘Sec. 35. Contractor performance.’’.

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

4 137 of title 10, United States Code, is amended by striking

5 out the item relating to section 2319.

6 (3) The table of contents for the Federal Property and

7 Administrative Services Act of 1949 (contained in section

8 1(b)) is amended by striking out the item relating to section

9 303C.

10 TITLE II—COMMERCIAL ITEMS

11 SEC. 201. COMMERCIAL ITEM EXCEPTION TO REQUIREMENT

12 FOR COST OR PRICING DATA AND INFORMA13 TION LIMITATIONS.

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

15 (b), (c), and (d) of section 2306a of title 10, United States

16 Code, are amended to read as follows:

17 ‘‘(b) EXCEPTIONS.—

18 ‘‘(1) IN GENERAL.—Submission of cost or pric19 ing data shall not be required under subsection (a) in

20 the case of a contract, a subcontract, or modification

21 of a contract or subcontract—

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

23 based on—

24 ‘‘(i) adequate price competition; or

25 ‘‘(ii) prices set by law or regulation;
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1 ‘‘(B) for the acquisition of a commercial

2 item; or

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

4 of the procuring activity, without delegation, de5 termines that the requirements of this section

6 may be waived and justifies in writing the rea7 sons for such determination.

8 ‘‘(2) MODIFICATIONS OF CONTRACTS AND SUB9 CONTRACTS FOR COMMERCIAL ITEMS.—In the case of

10 a modification of a contract or subcontract for a com11 mercial item that is not covered by the exception on

12 the submission of cost or pricing data in paragraph

13 (1)(A) or (1)(B), submission of cost or pricing data

14 shall not be required under subsection (a) if—

15 ‘‘(A) the contract or subcontract being

16 modified is a contract or subcontract for which

17 submission of cost or pricing data may not be

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

19 (1)(B); and

20 ‘‘(B) the modification would not change the

21 contract or subcontract, as the case may be, from

22 a contract or subcontract for the acquisition of

23 a commercial item to a contract or subcontract

24 for the acquisition of an item other than a com25 mercial item.
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1 ‘‘(c) AUTHORITY TO REQUIRE COST OR PRICING DATA

2 ON BELOW-THRESHOLD CONTRACTS.—(1) Subject to para3 graph (2), when certified cost or pricing data are not re4 quired to be submitted by subsection (a) for a contract, sub5 contract, or modification of a contract or subcontract, such

6 data may nevertheless be required to be submitted by the

7 head of the procuring activity, but only if the head of the

8 procuring activity determines that such data are necessary

9 for the evaluation by the agency of the reasonableness of

10 the price of the contract, subcontract, or modification of a

11 contract or subcontract. In any case in which the head of

12 the procuring activity requires such data to be submitted

13 under this subsection, the head of the procuring activity

14 shall justify in writing the reason for such requirement.

15 ‘‘(2) The head of the procuring activity may not re16 quire certified cost or pricing data to be submitted under

17 this paragraph for any contract or subcontract, or modi18 fication of a contract or subcontract, covered by the excep19 tions in subparagraph (A) or (B) of subsection (b)(1).

20 ‘‘(3) The head of a procuring activity may not delegate

21 functions under this paragraph.

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

23 Federal Acquisition Regulation shall include the following:

24 ‘‘(1) Provisions concerning the types of informa25 tion that contracting officers may consider in deter-
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1 mining whether the price of a procurement to the

2 Government is fair and reasonable when certified cost

3 or pricing data are not required to be submitted

4 under this section, including appropriate information

5 on the prices at which the same item or similar items

6 have previously been sold that is adequate for evaluat7 ing the reasonableness of the price of the proposed

8 contract or subcontract for the procurement.

9 ‘‘(2) Reasonable limitations on requests for sales

10 data relating to commercial items.

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

12 shall, to the maximum extent practicable, limit the

13 scope of any request for information relating to com14 mercial items from an offeror to only that informa15 tion that is in the form regularly maintained by the

16 offeror in commercial operations.

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

18 relating to commercial items that is exempt from dis19 closure under section 552(b) of title 5 shall not be dis20 closed by the Federal Government.’’.

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

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

23 (B) by redesignating subsection (i) as subsection

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

2 amended by striking out subsection (c).

3 (b) CIVILIAN AGENCY ACQUISITIONS.—(1) Subsections

4 (b), (c) and (d) of section 304A of the Federal Property

5 and Administrative Services Act of 1949 (41 U.S.C. 254b)

6 are amended to read as follows:

7 ‘‘(b) EXCEPTIONS.—

8 ‘‘(1) IN GENERAL.—Submission of cost or pric9 ing data shall not be required under subsection (a) in

10 the case of a contract, a subcontract, or a modifica11 tion of a contract or subcontract—

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

13 based on—

14 ‘‘(i) adequate price competition; or

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

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

17 item; or

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

19 of the procuring activity, without delegation, de20 termines that the requirements of this section

21 may be waived and justifies in writing the rea22 sons for such determination.

23 ‘‘(2) MODIFICATIONS OF CONTRACTS AND SUB24 CONTRACTS FOR COMMERCIAL ITEMS.—In the case of

25 a modification of a contract or subcontract for a com-
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1 mercial item that is not covered by the exception on

2 the submission of cost or pricing data in paragraph

3 (1)(A) or (1)(B), submission of cost or pricing data

4 shall not be required under subsection (a) if—

5 ‘‘(A) the contract or subcontract being

6 modified is a contract or subcontract for which

7 submission of cost or pricing data may not be

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

9 (1)(B); and

10 ‘‘(B) the modification would not change the

11 contract or subcontract, as the case may be, from

12 a contract or subcontract for the acquisition of

13 a commercial item to a contract or subcontract

14 for the acquisition of an item other than a com15 mercial item.

16 ‘‘(c) AUTHORITY TO REQUIRE COST OR PRICING DATA

17 ON BELOW-THRESHOLD CONTRACTS.—(1) Subject to para18 graph (2), when certified cost or pricing data are not re19 quired to be submitted by subsection (a) for a contract, sub20 contract, or modification of a contract or subcontract, such

21 data may nevertheless be required to be submitted by the

22 head of the procuring activity, but only if the head of the

23 procuring activity determines that such data are necessary

24 for the evaluation by the agency of the reasonableness of

25 the price of the contract, subcontract, or modification of a
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1 contract or subcontract. In any case in which the head of

2 the procuring activity requires such data to be submitted

3 under this subsection, the head of the procuring activity

4 shall justify in writing the reason for such requirement.

5 ‘‘(2) The head of the procuring activity may not re6 quire certified cost or pricing data to be submitted under

7 this paragraph for any contract or subcontract, or modi8 fication of a contract or subcontract, covered by the excep9 tions in subparagraph (A) or (B) of subsection (b)(1).

10 ‘‘(3) The head of a procuring activity may not delegate

11 the functions under this paragraph.

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

13 Federal Acquisition Regulation shall include the following:

14 ‘‘(1) Provisions concerning the types of informa15 tion that contracting officers may consider in deter16 mining whether the price of a procurement to the

17 Government is fair and reasonable when certified cost

18 or pricing data are not required to be submitted

19 under this section, including appropriate information

20 on the prices at which the same item or similar items

21 have previously been sold that is adequate for evaluat22 ing the reasonableness of the price of the proposed

23 contract or subcontract for the procurement.

24 ‘‘(2) Reasonable limitations on requests for sales

25 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 dis9 closure under section 552(b) of title 5 shall not be dis10 closed 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 subsection

14 (h).

15 SEC. 202. APPLICATION OF SIMPLIFIED PROCEDURES TO

16 COMMERCIAL ITEMS.

17 (a) ARMED SERVICES ACQUISITIONS.—Section

18 2304(e) of title 10, United States Code, as amended by sec19 tion 101(a), is further amended—

20 (1) in paragraph (1), by inserting after ‘‘special

21 simplified procedures’’ the following: ‘‘for purchases of

22 commercial items and’’; and

23 (2) by adding at the end the following new para24 graph:
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1 ‘‘(4) The Federal Acquisition Regulation shall provide

2 that, in the case of a purchase of commercial items in an

3 amount greater than the simplified acquisition threshold,

4 the head of an agency—

5 ‘‘(A) may not conduct the purchase on a sole

6 source basis unless the need to do so is justified in

7 writing and approved in accordance with the Federal

8 Acquisition Regulation; and

9 ‘‘(B) shall include in the contract file a written

10 description of the procedures used in awarding the

11 contract and the number of offers received.’’.

12 (b) CIVILIAN AGENCY ACQUISITIONS.—Section 303(e)

13 of the Federal Property and Administrative Services Act

14 of 1949 (41 U.S.C. 253), as amended by section 101(b), is

15 further amended—

16 (1) in paragraph (1), by inserting after ‘‘special

17 simplified procedures’’ the following: ‘‘for purchases of

18 commercial items and’’; and

19 (2) by adding at the end the following new para20 graph:

21 ‘‘(5) The Federal Acquisition Regulation shall provide

22 that, in the case of a purchase of commercial items in an

23 amount greater than the simplified acquisition threshold,

24 an executive agency—
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1 ‘‘(A) may not conduct the purchase on a sole

2 source basis unless the need to do so is justified in

3 writing and approved in accordance with the Federal

4 Acquisition Regulation; and

5 ‘‘(B) shall include in the contract file a written

6 description of the procedures used in awarding the

7 contract and the number of offers received.’’.

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

9 Federal Procurement Policy Act (41 U.S.C. 416) is amend10 ed—

11 (1) in subsection (a)(5) (as redesignated by sec12 tion 101(c))—

13 (A) by striking out ‘‘limited’’; and

14 (B) by inserting before ‘‘submission’’ the fol15 lowing: ‘‘issuance of solicitations and the’’; and

16 (2) in subsection (b)(6), by striking out ‘‘thresh17 old—’’ and inserting in lieu thereof ‘‘threshold, or a

18 contract for the procurement of commercial items

19 using simplified procedures—’’.

20 SEC. 203. AMENDMENT TO DEFINITION OF COMMERCIAL

21 ITEMS.

22 Section 4(12)(F) of the Office of Federal Procurement

23 Policy Act (41 U.S.C. 403(12)(F)) is amended by striking

24 out ‘‘catalog’’.
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1 SEC. 204. INAPPLICABILITY OF COST ACCOUNTING STAND2 ARDS TO CONTRACTS AND SUBCONTRACTS

3 FOR COMMERCIAL ITEMS.

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

5 Federal Procurement Policy Act (41 U.S.C. 422(f)(2)) is

6 amended—

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

8 lieu thereof the following:

9 ‘‘(i) Contracts or subcontracts for the acquisition

10 of commercial items.’’; and

11 (2) by striking out clause (iii).

12 TITLE III—ADDITIONAL REFORM

13 PROVISIONS

14 SEC. 301. GOVERNMENT RELIANCE ON THE PRIVATE SEC15 TOR.

16 (a) GOVERNMENT RELIANCE ON THE PRIVATE SEC17 TOR.—The Office of Federal Procurement Policy Act (41

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

19 16 the following new section:

20 ‘‘SEC. 17. GOVERNMENT RELIANCE ON THE PRIVATE SEC21 TOR.

22 ‘‘It is the policy of the Federal Government to rely on

23 the private sector to supply the products and services the

24 Federal Government needs.’’.

25 (b) CLERICAL AMENDMENT.—The table of contents for

26 the Office of Federal Procurement Policy Act (contained in
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1 section 1(b)) is amended by inserting after the item relating

2 to section 16 the following new item:

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

3 SEC. 302. ELIMINATION OF CERTAIN CERTIFICATION RE4 QUIREMENTS.

5 (a) ELIMINATION OF CERTAIN STATUTORY CERTIFI6 CATION REQUIREMENTS.—(1)(A) Section 2410 of title 10,

7 United States Code, is amended—

8 (i) in the heading, by striking out ‘‘: certifi9 cation’’; and

10 (ii) in subsection (a)—

11 (I) in the heading, by striking out ‘‘CER12 TIFICATION’’;

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

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

15 thereof ‘‘unless—’’; and

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

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

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

19 sections at the beginning of chapter 141 of such title is

20 amended to read as follows:

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

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

22 amended in paragraph (2) by striking out ‘‘certification

23 and’’.
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1 (3) Section 1352(b)(2) of title 31, United States Code,

2 is amended—

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

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

5 end of subparagraph (A).

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

7 1988 (41 U.S.C. 701) is amended—

8 (A) in subsection (a)(1), by striking out ‘‘has

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

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

11 (B) in subsection (a)(2), by striking out ‘‘con12 tract includes a certification by the individual’’ and

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

14 (C) in subsection (b)(1)—

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

16 (ii) by redesignating subparagraph (B) as

17 subparagraph (A) and in that subparagraph by

18 striking out ‘‘such certification by failing to

19 carry out’’; and

20 (iii) by redesignating subparagraph (C) as

21 subparagraph (B).

22 (b) ELIMINATION OF CERTAIN REGULATORY CERTIFI23 CATION REQUIREMENTS.—

24 (1) CURRENT CERTIFICATION REQUIREMENTS.—

25 (A) Not later than 210 days after the date of the en-
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1 actment of this Act, any certification required of con2 tractors or offerors by the Federal Acquisition Regula3 tion that is not specifically imposed by statute shall

4 be removed by the Administrator for Federal Procure5 ment Policy from the Federal Acquisition Regulation

6 unless—

7 (i) written justification for such certifi8 cation is provided to the Administrator by the

9 Federal Acquisition Regulatory Council; and

10 (ii) the Administrator approves in writing

11 the retention of such certification.

12 (B)(i) Not later than 210 days after the date of

13 the enactment of this Act, any certification required

14 of contractors or offerors by a procurement regulation

15 of an executive agency that is not specifically imposed

16 by statute shall be removed by the head of the execu17 tive agency from such regulation unless—

18 (I) written justification for such certifi19 cation is provided to the head of the executive

20 agency by the senior procurement executive; and

21 (II) the head of the executive agency ap22 proves in writing the retention of such certifi23 cation.
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1 (ii) For purposes of clause (i), the term ‘‘head of

2 the executive agency’’ with respect to a military de3 partment means the Secretary of Defense.

4 (iii) The Secretary of Defense may delegate his

5 duties under this subparagraph only to the Under

6 Secretary of Defense for Acquisition and Technology.

7 (2) FUTURE CERTIFICATION REQUIREMENTS.—

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

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

10 (i) by amending the heading to read as fol11 lows:

12 ‘‘SEC. 29. CONTRACT CLAUSES AND CERTIFICATIONS.’’;

13 (ii) by inserting ‘‘(a) NONSTANDARD CON14 TRACT CLAUSES.—’’ before ‘‘The Federal Acqui15 sition’’; and

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

17 subsection:

18 ‘‘(b) PROHIBITION ON CERTIFICATION REQUIRE19 MENTS.—(1) A requirement for a certification by a contrac20 tor or offeror may not be included in the Federal Acquisi21 tion Regulation unless—

22 ‘‘(A) the certification is specifically imposed by

23 statute; or

24 ‘‘(B) written justification for such certification is

25 provided to the Administrator for Federal Procure-
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1 ment Policy by the Federal Acquisition Regulatory

2 Council, and the Administrator approves in writing

3 the inclusion of such certification.

4 ‘‘(2)(A) A requirement for a certification by a contrac5 tor or offeror may not be included in a procurement regula6 tion of an executive agency unless—

7 ‘‘(i) the certification is specifically imposed by

8 statute; or

9 ‘‘(ii) written justification for such certification is

10 provided to the head of the executive agency by the

11 senior procurement executive of the agency, and the

12 head of the executive agency approves in writing the

13 inclusion of such certification.

14 ‘‘(B) For purposes of subparagraph (A), the term ‘head

15 of the executive agency’ with respect to a military depart16 ment means the Secretary of Defense.

17 ‘‘(C) The Secretary of Defense may delegate his duties

18 under this paragraph only to the Under Secretary of De19 fense for Acquisition and Technology.’’.

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

21 of contents for the Office of Federal Procurement Pol22 icy Act (contained in section 1(b)) (41 U.S.C. 401

23 note) is amended to read as follows:

‘‘Sec. 29. Contract clauses and certifications.’’.
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1 SEC. 303. AMENDMENT TO COMMENCEMENT AND EXPIRA2 TION OF AUTHORITY TO CONDUCT CERTAIN

3 TESTS OF PROCUREMENT PROCEDURES.

4 Subsection (j) of section 5061 of the Federal Acquisi5 tion Streamlining Act of 1994 (41 U.S.C. 413 note) is

6 amended to read as follows:

7 ‘‘(j) COMMENCEMENT AND EXPIRATION OF AUTHOR8 ITY.—The authority to conduct a test under subsection (a)

9 in an agency and to award contracts under such a test shall

10 take effect on August 1, 1995, and shall expire on August

11 1, 2000. Contracts entered into before such authority expires

12 in an agency pursuant to a test shall remain in effect, not13 withstanding the expiration of the authority to conduct the

14 test under this section.’’.

15 SEC. 304. INTERNATIONAL COMPETITIVENESS.

16 (a) REPEAL OF PROVISION RELATING TO RESEARCH,

17 DEVELOPMENT, AND PRODUCTION COSTS.—

18 (1) Subject to paragraph (2), section 21(e) of the

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

20 amended—

21 (A) by inserting ‘‘and’’ after the semicolon

22 at the end of paragraph (1)(A);

23 (B) by striking out subparagraph (B) of

24 paragraph (1);

25 (C) by redesignating subparagraph (C) of

26 paragraph (1) as subparagraph (B);
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1 (D) by striking out paragraph (2); and

2 (E) by redesignating paragraph (3) as

3 paragraph (2).

4 (2) Paragraph (1) shall be effective only if—

5 (A) the President, in the budget of the

6 President for fiscal year 1997, proposes legisla7 tion that if enacted would be qualifying offset8 ting legislation; and

9 (B) there is enacted by October 1, 1996,

10 qualifying offsetting legislation.

11 (3) If the conditions in paragraph (2) are met,

12 then the amendments made by paragraph (1) shall

13 take effect on October 1, 1996.

14 (4) For purposes of this subsection:

15 (A) The term ‘‘qualifying offsetting legisla16 tion’’ means legislation that includes provisions

17 that—

18 (i) offset fully the estimated revenues

19 lost as a result of the amendments made by

20 paragraph (1) for each of the fiscal years

21 1997 through 2000;

22 (ii) expressly state that they are en23 acted for the purpose of the offset described

24 in clause (i); and
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1 (iii) are included in full on the PayGo

2 scorecard.

3 (B) The term ‘‘PayGo scorecard’’ means the

4 estimates that are made with respect to fiscal

5 years through fiscal year 2000 by the Director of

6 the Congressional Budget Office and the Director

7 of the Office of Management and Budget under

8 section 252(d) of the Balanced Budget and

9 Emergency Deficit Control Act of 1985.

10 (b) EFFECTIVE DATES.—The amendments made by

11 subsection (a) shall be effective with respect to sales agree12 ments pursuant to sections 21 and 22 of the Arms Export

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

14 the period beginning on October 1, 1996, and ending on

15 September 30, 2000.

16 SEC. 305. PROCUREMENT INTEGRITY.

17 (a) AMENDMENT OF PROCUREMENT INTEGRITY PROVI18 SION.—Section 27 of the Office of Federal Procurement Pol19 icy Act (41 U.S.C. 423) is amended to read as follows:

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

21 CONTRACTOR BID OR PROPOSAL INFORMA22 TION OR SOURCE SELECTION INFORMATION.

23 ‘‘(a) PROHIBITION ON DISCLOSING PROCUREMENT IN24 FORMATION.—(1) A person described in paragraph (2) shall

25 not, other than as provided by law, knowingly disclose con-
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1 tractor bid or proposal information or source selection in2 formation before the award of a Federal agency procure3 ment contract to which the information relates.

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

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

6 of the United States, or a person who is acting or has

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

8 advised the United States with respect to, a Federal

9 agency procurement; and

10 ‘‘(B) by virtue of that office, employment, or re11 lationship has or had access to contractor bid or pro12 posal information or source selection information.

13 ‘‘(b) PROHIBITION ON OBTAINING PROCUREMENT IN14 FORMATION.—A person shall not, other than as provided

15 by law, knowingly obtain contractor bid or proposal infor16 mation or source selection information before the award of

17 a Federal agency procurement contract to which the infor18 mation relates.

19 ‘‘(c) PROHIBITION ON DISCLOSING OR OBTAINING

20 PROCUREMENT INFORMATION IN CONNECTION WITH A

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

22 by law, knowingly violate the terms of a protective order

23 described in paragraph (2) by disclosing or obtaining con24 tractor bid or proposal information or source selection in25 formation related to the procurement contract concerned.
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1 ‘‘(2) Paragraph (1) applies to any protective order is2 sued by the Defense Board or the Civilian Board in connec3 tion with a protest against the award or proposed award

4 of a Federal agency procurement contract.

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

6 ‘‘(1) CRIMINAL PENALTIES.—

7 ‘‘(A) Whoever engages in conduct constitut8 ing an offense under subsection (a), (b), or (c)

9 shall be imprisoned for not more than one year

10 or fined as provided under title 18, United

11 States Code, or both.

12 ‘‘(B) Whoever engages in conduct constitut13 ing an offense under subsection (a), (b), or (c)

14 for the purpose of either—

15 ‘‘(i) exchanging the information cov16 ered by such subsection for anything of

17 value, or

18 ‘‘(ii) obtaining or giving anyone a

19 competitive advantage in the award of a

20 Federal agency procurement contract,

21 shall be imprisoned for not more than 15 years

22 or fined as provided under title 18, United

23 States Code, or both.

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

25 may bring a civil action in the appropriate United
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1 States district court against any person who engages

2 in conduct constituting an offense under subsection

3 (a), (b), or (c). Upon proof of such conduct by a pre4 ponderance of the evidence, the person is subject to a

5 civil penalty. An individual who engages in such con6 duct is subject to a civil penalty of not more than

7 $50,000 for each violation plus twice the amount of

8 compensation which the individual received or offered

9 for the prohibited conduct. An organization that en10 gages in such conduct is subject to a civil penalty of

11 not more than $500,000 for each violation plus twice

12 the amount of compensation which the organization

13 received or offered for the prohibited conduct.

14 ‘‘(3) ADMINISTRATIVE ACTIONS.—(A) If a Fed15 eral agency receives information that a contractor or

16 a person has engaged in conduct constituting an of17 fense under subsection (a), (b), or (c), the Federal

18 agency shall consider taking one or more of the fol19 lowing actions, as appropriate:

20 ‘‘(i) Cancellation of the Federal agency pro21 curement, if a contract has not yet been award22 ed.

23 ‘‘(ii) Rescission of a contract with respect to

24 which—
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1 ‘‘(I) the contractor or someone acting

2 for the contractor has been convicted for an

3 offense under subsection (a), (b), or (c), or

4 ‘‘(II) the head of the agency that

5 awarded the contract has determined, based

6 upon a preponderance of the evidence, that

7 the contractor or someone acting for the

8 contractor has engaged in conduct constitut9 ing such an offense.

10 ‘‘(iii) Initiation of suspension or debarment

11 proceedings for the protection of the Government

12 in accordance with procedures in the Federal Ac13 quisition Regulation.

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

15 pursuant to the procedures in chapter 75 of title

16 5, United States Code, or other applicable law or

17 regulation.

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

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

20 is entitled to recover, in addition to any penalty pre21 scribed by law, the amount expended under the con22 tract.

23 ‘‘(C) For purposes of any suspension or debar24 ment proceedings initiated pursuant to subparagraph

25 (A)(iii), engaging in conduct constituting an offense
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1 under subsection (a), (b), or (c) affects the present re2 sponsibility of a Government contractor or sub3 contractor.

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

5 ‘‘(1) The term ‘contractor bid or proposal infor6 mation’ means any of the following information sub7 mitted to a Federal agency as part of or in connec8 tion with a bid or proposal to enter into a Federal

9 agency procurement contract, if that information has

10 not been previously made available to the public or

11 disclosed publicly:

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

13 section 2306a(h) of title 10, United States Code,

14 with respect to procurements subject to that sec15 tion, and section 304A(h) of Federal Property

16 and Administrative Services Act of 1949 (41

17 U.S.C. 254b(h), with respect to procurements

18 subject to that section).

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

20 ‘‘(C) Proprietary information about manu21 facturing processes, operations, or techniques

22 marked by the contractor in accordance with ap23 plicable law or regulation.
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1 ‘‘(D) Information marked by the contractor

2 as ‘contractor bid or proposal information’, in

3 accordance with applicable law or regulation.

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

5 means any of the following information prepared for

6 use by a Federal agency for the purpose of evaluating

7 a bid or proposal to enter into a Federal agency pro8 curement contract, if that information has not been

9 previously made available to the public or disclosed

10 publicly:

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

12 Federal agency solicitation for sealed bids, or

13 lists of those bid prices before public bid opening.

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

15 response to a Federal agency solicitation, or lists

16 of those proposed costs or prices.

17 ‘‘(C) Source selection plans.

18 ‘‘(D) Technical evaluation plans.

19 ‘‘(E) Technical evaluations of proposals.

20 ‘‘(F) Cost or price evaluations of proposals.

21 ‘‘(G) Competitive range determinations that

22 identify proposals that have a reasonable chance

23 of being selected for award of a contract.

24 ‘‘(H) Rankings of bids, proposals, or com25 petitors.
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1 ‘‘(I) The reports and evaluations of source

2 selection panels, boards, or advisory councils.

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

4 selection information’ based on a case-by-case de5 termination by the head of the agency, his des6 ignee, or the contracting officer that its disclo7 sure would jeopardize the integrity or successful

8 completion of the Federal agency procurement to

9 which the information relates.

10 ‘‘(3) The term ‘Federal agency’ has the meaning

11 provided such term in section 3 of the Federal Prop12 erty and Administrative Services Act of 1949 (40

13 U.S.C. 472).

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

15 means the acquisition (by using competitive proce16 dures and awarding a contract) of goods or services

17 (including construction) from non-Federal sources by

18 a Federal agency using appropriated funds.

19 ‘‘(5) The term ‘contracting officer’ means a per20 son who, by appointment in accordance with applica21 ble regulations, has the authority to enter into a Fed22 eral agency procurement contract on behalf of the

23 Government and to make determinations and findings

24 with respect to such a contract.
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1 ‘‘(6) The term ‘protest’ means a written objection

2 by an interested party to the award or proposed

3 award of a Federal agency procurement contract,

4 pursuant to title IV of the Federal Acquisition Re5 form Act of 1995.

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

7 a protest against the award or proposed award of a Federal

8 agency procurement contract alleging an offense under sub9 section (a), (b), or (c), of this section, nor may the Defense

10 Board or the Civilian Board consider such an allegation

11 in deciding a protest, unless that person reported to the

12 Federal agency responsible for the procurement information

13 that the person believed constituted evidence of the offense

14 no later than 14 days after the person first discovered the

15 possible offense.

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

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

18 its receipt by, any person or class of persons author19 ized, in accordance with applicable agency regula20 tions or procedures, to receive that information;

21 ‘‘(2) restrict a contractor from disclosing its own

22 bid or proposal information or the recipient from re23 ceiving that information;

24 ‘‘(3) restrict the disclosure or receipt of informa25 tion relating to a Federal agency procurement after
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1 it has been canceled by the Federal agency before con2 tract award unless the Federal agency plans to re3 sume the procurement;

4 ‘‘(4) prohibit individual meetings between a Fed5 eral agency employee and an offeror or potential

6 offeror for, or a recipient of, a contract or subcontract

7 under a Federal agency procurement, provided that

8 unauthorized disclosure or receipt of contractor bid or

9 proposal information or source selection information

10 does not occur;

11 ‘‘(5) authorize the withholding of information

12 from, nor restrict its receipt by, Congress, a commit13 tee or subcommittee of Congress, the Comptroller Gen14 eral, a Federal agency, or an inspector general of a

15 Federal agency;

16 ‘‘(6) authorize the withholding of information

17 from, nor restrict its receipt by, the Defense Board or

18 the Civilian Board in the course of a protest against

19 the award or proposed award of a Federal agency

20 procurement contract; or

21 ‘‘(7) limit the applicability of any requirements,

22 sanctions, contract penalties, and remedies established

23 under any other law or regulation.’’.

24 (b) REPEALS.—The following provisions of law are re25 pealed:
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1 (1) Sections 2397, 2397a, 2397b, and 2397c of

2 title 10, United States Code.

3 (2) Section 33 of the Federal Energy Adminis4 tration Act of 1974 (15 U.S.C. 789).

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

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

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

8 (5) The first section 19 of the Federal Non9 nuclear Energy Research and Development Act of

10 1974 (42 U.S.C. 5918).

11 (c) CLERICAL AMENDMENTS.—

12 (1) The table of sections at the beginning of

13 chapter 141 of title 10, United States Code, is amend14 ed by striking out the items relating to sections 2397,

15 2397a, 2397b, and 2397c.

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

17 chapter 15 of title 18, United States Code, is amended

18 by striking out the item relating to section 281.

19 (3) Section 32 of the Office of Federal Procure20 ment Policy Act (41 U.S.C. 428) is amended by redes21 ignating subsections (d), (e), (f), and (g) as sub22 sections (c), (d), (e), and (f), respectively.
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1 SEC. 306. FURTHER ACQUISITION STREAMLINING PROVI2 SIONS.

3 (a) PURPOSE OF OFFICE OF FEDERAL PROCUREMENT

4 POLICY.—(1) Section 5(a) of the Office of Federal Procure5 ment Policy Act (41 U.S.C. 404) is amended to read as

6 follows:

7 ‘‘(a) To promote economy, efficiency, and effectiveness

8 in the procurement of property and services by the executive

9 branch of the Federal Government, there shall be an Office

10 of Federal Procurement Policy (hereinafter referred to as

11 the ‘Office’) in the Office of Management and Budget to pro12 vide overall direction of Government-wide procurement

13 policies, regulations, procedures, and forms for executive

14 agencies.’’.

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

16 402) are repealed.

17 (b) REPEAL OF REPORT REQUIREMENT.—Section 8 of

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

19 407) is repealed.

20 (c) REPEAL OF OBSOLETE PROVISIONS.—(1) Sections

21 10 and 11 of the Office of Federal Procurement Policy Act

22 (41 U.S.C. 409 and 410) are repealed.

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

24 for the Office of Federal Procurement Policy Act (contained

25 in section 1(b)) is amended by striking out the items relat26 ing to sections 2, 3, 8, 10, and 11.
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1 SEC. 307. JUSTIFICATION OF MAJOR DEFENSE ACQUISI2 TION PROGRAMS NOT MEETING GOALS.

3 Section 2220(b) of title 10, United States Code, is

4 amended by adding at the end the following: ‘‘In addition,

5 the Secretary shall include in such annual report a jus6 tification for the continuation of any program that—

7 ‘‘(1) is more than 50 percent over the cost goal

8 established for the development, procurement, or oper9 ational phase of the program;

10 ‘‘(2) fails to achieve at least 50 percent of the

11 performance capability goals established for the devel12 opment, procurement, or operational phase of the pro13 gram; or

14 ‘‘(3) is more than 50 percent behind schedule, as

15 determined in accordance with the schedule goal es16 tablished for the development, procurement, or oper17 ational phase of the program.’’.

18 SEC. 308. ENHANCED PERFORMANCE INCENTIVES FOR AC19 QUISITION WORKFORCE.

20 (a) ARMED SERVICES ACQUISITIONS.—Subsection (b)

21 of section 5001 of the Federal Acquisition Streamlining Act

22 of 1994 (Public Law 103–355; 108 Stat. 3350; 10 U.S.C.

23 2220 note) is amended—

24 (1) by redesignating paragraphs (1) and (2) as

25 subparagraphs (A) and (B), respectively;
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1 (2) by designating the second sentence as para2 graph (2);

3 (3) by inserting ‘‘(1)’’ after ‘‘(b) ENHANCED SYS4 TEM OF PERFORMANCE INCENTIVES.—’’; and

5 (4) by adding at the end the following:

6 ‘‘(3) The Secretary shall include in the enhanced sys7 tem of incentives the following:

8 ‘‘(A) Pay bands.

9 ‘‘(B) Significant and material pay and pro10 motion incentives to be awarded, and significant and

11 material unfavorable personnel actions to be imposed,

12 under the system exclusively, or primarily, on the

13 basis of the contributions of personnel to the perform14 ance of the acquisition program in relation to cost

15 goals, performance goals, and schedule goals.

16 ‘‘(C) Provisions for pay incentives and pro17 motion incentives to be awarded under the system.’’.

18 (b) CIVILIAN AGENCY ACQUISITIONS.—Subsection (c)

19 of section 5051 of the Federal Acquisition Streamlining Act

20 of 1994 (Public Law 103–355; 108 Stat. 3351; 41 U.S.C.

21 263 note) is amended—

22 (1) by redesignating subparagraphs (A) and (B)

23 of paragraph (2) as clauses (i) and (ii), respectively;

24 (2) by redesignating paragraphs (1) and (2) as

25 subparagraphs (A) and (B), respectively;
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1 (3) by inserting ‘‘(1)’’ after ‘‘(c) ENHANCED SYS2 TEM OF PERFORMANCE INCENTIVES.—’’; and

3 (4) by adding at the end the following:

4 ‘‘(2) The Deputy Director shall include in the en5 hanced system of incentives under paragraph (1)(B) the fol6 lowing:

7 ‘‘(A) Pay bands.

8 ‘‘(B) Significant and material pay and pro9 motion incentives to be awarded, and significant and

10 material unfavorable personnel actions to be imposed,

11 under the system exclusively, or primarily, on the

12 basis of the contributions of personnel to the perform13 ance of the acquisition program in relation to cost

14 goals, performance goals, and schedule goals.

15 ‘‘(C) Provisions for pay incentives and pro16 motion incentives to be awarded under the system.’’.

17 SEC. 309. RESULTS ORIENTED ACQUISITION PROGRAM

18 CYCLE.

19 Section 5002(a) of the Federal Acquisition Streamlin20 ing Act of 1994 (Public Law 103–355; 108 Stat. 3350) is

21 amended—

22 (1) by inserting ‘‘(1)’’ before ‘‘to ensure’’; and

23 (2) by striking out the period at the end and in24 serting in lieu thereof the following: ‘‘; (2) to ensure

25 that the regulations compress the time periods associ-
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1 ated with developing, procuring, and making oper2 ational new systems; and (3) to ensure that Depart3 ment of Defense directives relating to development

4 and procurement of information systems (numbered

5 in the 8000 series) and the Department of Defense di6 rectives numbered in the 5000 series are consolidated

7 into one series of directives that is consistent with

8 such compressed time periods.’’.

9 SEC. 310. RAPID CONTRACTING GOAL.

10 (a) GOAL.—The Office of Federal Procurement Policy

11 Act, as amended by section 106, is further amended by add12 ing at the end the following new section:

13 ‘‘SEC. 36. RAPID CONTRACTING GOAL.

14 ‘‘The Administrator for Federal Procurement Policy

15 shall establish a goal of reducing by 50 percent the time

16 necessary for executive agencies to acquire an item for the

17 user of that item.’’.

18 (b) CLERICAL AMENDMENT.—The table of contents for

19 such Act, contained in section 1(b), is amended by adding

20 at the end the following new item:

‘‘Sec. 36. Rapid contracting goal.’’.

21 SEC. 311. ENCOURAGEMENT OF MULTIYEAR CONTRACTING.

22 (a) ARMED SERVICES ACQUISITIONS.—Section

23 2306b(a) of title 10, United States Code, is amended in the

24 matter preceding paragraph (1) by striking out ‘‘may’’ and
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1 inserting in lieu thereof ‘‘shall, to the maximum extent pos2 sible,’’.

3 (b) CIVILIAN AGENCY ACQUISITIONS.—Section

4 304B(a) of the Federal Property and Administrative Serv5 ices Act of 1949 (41 U.S.C. 254c(a)) is amended in the mat6 ter preceding paragraph (1) by striking out ‘‘may’’ and in7 serting in lieu thereof ‘‘shall, to the maximum extent pos8 sible,’’.

9 SEC. 312. CONTRACTOR SHARE OF GAINS AND LOSSES

10 FROM COST, SCHEDULE, AND PERFORMANCE

11 EXPERIENCE.

12 (a) ARMED SERVICES ACQUISITIONS.—(1) Chapter

13 137 of title 10, United States Code, is amended by inserting

14 after section 2306b the following new section:

15 ‘‘§ 2306c. Contractor share of gains and losses from

16 cost, schedule, and performance experi17 ence

18 ‘‘The Federal Acquisition Regulation shall contain

19 provisions to ensure that, for any cost-type contract or in20 centive-type contract, the contractor may be rewarded for

21 contract performance exceeding the contract cost, schedule,

22 or performance parameters to the benefit of the United

23 States and may be penalized for failing to adhere to cost,

24 schedule, or performance parameters to the detriment of the

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

3 2306b the following new item:

‘‘2306c. Contractor share of gains and losses from cost, schedule, and performance

experience.’’.

4 (b) CIVILIAN AGENCY ACQUISITIONS.—(1) Title III of

5 the Federal Property and Administrative Services Act of

6 1949 (41 U.S.C. 251 et seq.) is amended by inserting after

7 section 304C the following new section:

8 ‘‘SEC. 304D. CONTRACTOR SHARE OF GAINS AND LOSSES

9 FROM COST, SCHEDULE, AND PERFORMANCE

10 EXPERIENCE.

11 ‘‘The Federal Acquisition Regulation shall contain

12 provisions to ensure that, for any cost-type contract or in13 centive-type contract, the contractor may be rewarded for

14 contract performance exceeding the contract cost, schedule,

15 or performance parameters to the benefit of the United

16 States and may be penalized for failing to adhere to cost,

17 schedule, or performance parameters to the detriment of the

18 United States.’’.

19 (2) The table of contents for such Act, contained in

20 section 1(b), is amended by inserting after the item relating

21 to section 304C the following new item:

‘‘Sec. 304D. Contractor share of gains and losses from cost, schedule, and performance experience.’’.
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1 SEC. 313. PHASE FUNDING OF DEFENSE ACQUISITION PRO2 GRAMS.

3 Chapter 131 of title 10, United States Code, is amend4 ed by adding at the end the following new section:

5 ‘‘§ 2221. Funding for results oriented acquisition pro6 gram cycle

7 ‘‘Before initial funding is made available for the devel8 opment, procurement, or operational phase of an acquisi9 tion program for which an authorization of appropriations

10 is required by section 114 of this title, the Secretary of De11 fense shall submit to Congress information about the objec12 tives and plans for the conduct of that phase and the fund13 ing requirements for the entire phase. The information shall

14 identify the intended user of the system to be acquired under

15 the program and shall include objective, quantifiable cri16 teria for assessing the extent to which the objectives and

17 goals determined pursuant to section 2435 of this title are

18 achieved.’’.

19 (2) The table of sections at the beginning of such chap20 ter is amended by adding at the end the following new item:

‘‘2221. Funding for results oriented acquisition program cycle.’’.

21 SEC. 314. IMPROVED DEPARTMENT OF DEFENSE CONTRACT

22 PAYMENT PROCEDURES.

23 (a) REVIEW AND IMPROVEMENT OF PROCEDURES.—

24 The Comptroller General of the United States shall review

25 commercial practices regarding accounts payable and, con-
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1 sidering the results of the review, develop standards for the

2 Secretary of Defense to consider using for improving the

3 contract payment procedures and financial management

4 systems of the Department of Defense.

5 (b) GAO REPORT.—Not later than September 30,

6 1996, the Comptroller General shall submit to Congress a

7 report containing the following matters:

8 (1) The weaknesses in the financial management

9 processes of the Department of Defense.

10 (2) Deviations of the Department of Defense pay11 ment procedures and financial management systems

12 from the standards developed pursuant to subsection

13 (a), expressed quantitatively.

14 (3) The officials of the Department of Defense

15 who are responsible for resolving the deviations.

16 SEC. 315. CONSIDERATION OF PAST PERFORMANCE IN AS17 SIGNMENT TO ACQUISITION POSITIONS.

18 (a) REQUIREMENT.—Section 1701(a) of title 10,

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

20 following: ‘‘The policies and procedures shall provide that

21 education and training in acquisition matters, and past

22 performance of acquisition responsibilities, are major fac23 tors in the selection of personnel for assignment to acquisi24 tion positions in the Department of Defense.’’.
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1 (b) PERFORMANCE REQUIREMENTS FOR ASSIGN2 MENT.—(1) Section 1723(a) of title 10, United States Code,

3 is amended by inserting ‘‘, including requirements relating

4 to demonstrated past performance of acquisition duties,’’ in

5 the first sentence after ‘‘experience requirements’’.

6 (2) Section 1724(a)(2) of such title is amended by in7 serting before the semicolon at the end the following: ‘‘and

8 have demonstrated proficiency in the performance of acqui9 sition duties in the contracting position or positions pre10 viously held’’.

11 (3) Section 1735 of such title is amended—

12 (A) in subsection (b)—

13 (i) by striking out ‘‘and’’ at the end of

14 paragraph (2);

15 (ii) by striking out the period at the end of

16 paragraph (3) and inserting in lieu thereof ‘‘;

17 and’’; and

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

19 ‘‘(4) must have demonstrated proficiency in the

20 performance of acquisition duties.’’;

21 (B) in subsection (c)—

22 (i) by striking out ‘‘and’’ at the end of

23 paragraph (2);
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1 (ii) by striking out the period at the end of

2 paragraph (3) and inserting in lieu thereof ‘‘;

3 and’’; and

4 (iii) by adding at the end the following:

5 ‘‘(4) must have demonstrated proficiency in the

6 performance of acquisition duties.’’;

7 (C) in subsection (d), by inserting before the pe8 riod at the end the following: ‘‘, and have dem9 onstrated proficiency in the performance of acquisi10 tion duties’’; and

11 (D) in subsection (e), by inserting before the pe12 riod at the end the following: ‘‘, and have dem13 onstrated proficiency in the performance of acquisi14 tion duties’’.

15 SEC. 316. ADDITIONAL DEPARTMENT OF DEFENSE PILOT

16 PROGRAMS.

17 (a) ADDITIONAL PROGRAM AUTHORIZED FOR PAR18 TICIPATION IN DEFENSE ACQUISITION PILOT PROGRAM.—

19 Section 5064 of the Federal Acquisition Streamlining Act

20 of 1994 (P.L. 103–355; 108 Stat. 3359) is amended as fol21 lows:

22 (1) Subsection (a) is amended by adding at the

23 end the following new paragraph:

24 ‘‘(6) JOINT STANDOFF WEAPON UNITARY VARIANT

25 (JSOW-UV).—The Joint Standoff Weapon Unitary
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1 Variant program with respect to all contracts directly

2 related to the development and procurement of an air3 delivered, standoff weapon that incorporates a global

4 positioning system-aided inertial navigation system,

5 a data link capability, and a unitary warhead.’’.

6 (2) Subsection (c) is amended—

7 (A) by striking out ‘‘and’’ at the end of

8 paragraph (1);

9 (B) by striking out the period at the end of

10 paragraph (2) and inserting in lieu thereof ‘‘;

11 and’’; and

12 (C) by adding at the end the following new

13 paragraph:

14 ‘‘(3) with respect to the program described in

15 subsection (a)(6)—

16 ‘‘(A) to apply any amendment or repeal of

17 a provision of law made in the Federal Acquisi18 tion Reform Act of 1995 to the pilot program be19 fore the effective date of such amendment or re20 peal; and

21 ‘‘(B) to apply to a procurement of items

22 other than commercial items under such pro23 gram any waiver or exception applicable under

24 the Federal Acquisition Streamlining Act of

25 1994 (Public Law 103–355) or the Federal Ac-
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1 quisition Reform Act of 1995 (or an amendment

2 made by a provision of either Act) in the case

3 of commercial items before the effective date of

4 such provision (or amendment), to the extent

5 that the Secretary determines necessary to test

6 the application of such waiver or exception to

7 procurements of items other than commercial

8 items.’’.

9 (b) DEFENSE ACQUISITION FACILITY-WIDE PILOT

10 PROGRAM.—

11 (1) AUTHORITY TO CONDUCT FACILITY-WIDE

12 PILOT PROGRAM.—The Secretary of Defense may con13 duct a pilot program, to be known as the ‘‘defense fa14 cility-wide pilot program’’, for the purpose of deter15 mining the potential for increasing the efficiency and

16 effectiveness of the acquisition process in facilities.

17 (2) SCOPE OF PROGRAM.—At a facility des18 ignated as a participant in the pilot program, the

19 pilot program shall consist of the following:

20 (A) All contracts and subcontracts for de21 fense supplies and services that are performed at

22 the facility.

23 (B) All contracts and subcontracts per24 formed elsewhere that the Secretary determines

25 are directly and substantially related to the pro-
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1 duction of defense supplies and services at the fa2 cility and are necessary for the pilot program.

3 (3) DESIGNATION OF PARTICIPATING FACILI4 TIES.—(A) The Secretary may designate up to three

5 facilities as participants in the defense facility-wide

6 pilot program.

7 (B) Subject to paragraph (7), the Secretary may

8 determine the scope and duration of a designation

9 made under this paragraph.

10 (4) CRITERIA FOR DESIGNATION.—The Secretary

11 may designate a facility under paragraph (3) only if

12 the Secretary determines that all or substantially all

13 of the contracts to be awarded and performed at the

14 facility after the designation, and all or substantially

15 all of the subcontracts to be awarded under those con16 tracts and performed at the facility after the designa17 tion, will be—

18 (A) for the production of supplies or services

19 on a firm-fixed price basis;

20 (B) awarded without requiring the contrac21 tors or subcontractors to provide certified cost or

22 pricing data pursuant to section 2306a of title

23 10, United States Code; and

24 (C) awarded and administered without the

25 application of cost accounting standards under
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1 section 26(f) of the Office of Federal Procurement

2 Policy Act (41 U.S.C. 422(f)).

3 (5) EXEMPTION FROM CERTAIN REQUIRE4 MENTS.—In the case of a contract or subcontract that

5 is to be performed at a facility designated for partici6 pation in the defense facility-wide pilot program and

7 that is subject to section 2306a of title 10, United

8 States Code, or section 26(f) of the Office of Federal

9 Procurement Policy Act (41 U.S.C. 422(f)), the Sec10 retary of Defense may exempt such contract or sub11 contract from the requirement to obtain certified cost

12 or pricing data under such section 2306a or the re13 quirement to apply mandatory cost accounting stand14 ards under such section 26(f) if the Secretary deter15 mines that the contract or subcontract—

16 (A) is within the scope of the pilot program

17 (as described in paragraph (2)); and

18 (B) is fairly and reasonably priced based

19 on information other than certified cost and

20 pricing data.

21 (6) SPECIAL AUTHORITY.—The authority pro22 vided under paragraph (1) may include authority for

23 the Secretary of Defense—

24 (A) to apply any amendment or repeal of a

25 provision of law made in this Act to the pilot
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1 program before the effective date of such amend2 ment or repeal; and

3 (B) to apply to a procurement of items

4 other than commercial items under such pro5 gram—

6 (i) any authority provided in the Fed7 eral Acquisition Streamlining Act of 1994

8 (Public Law 103–355) (or in an amend9 ment made by a provision of that Act) to

10 waive a provision of law in the case of com11 mercial items, and

12 (ii) any exception applicable under

13 this Act or the Federal Acquisition Stream14 lining Act of 1994 (Public Law 103–355)

15 (or an amendment made by a provision of

16 either Act) in the case of commercial items,

17 before the effective date of such provision (or

18 amendment) to the extent that the Secretary de19 termines necessary to test the application of such

20 waiver or exception to procurements of items

21 other than commercial items.

22 (7) APPLICABILITY.—(A) Paragraphs (5) and

23 (6) apply with respect to—
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1 (i) a contract that is awarded or modified

2 during the period described in subparagraph

3 (B); and

4 (ii) a contract that is awarded before the be5 ginning of such period and is to be performed

6 (or may be performed), in whole or in part, dur7 ing such period.

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

9 is the period that begins 45 days after the date of the

10 enactment of this Act and ends on September 30,

11 1998.

12 (8) COMMERCIAL PRACTICES ENCOURAGED.—

13 With respect to contracts and subcontracts within the

14 scope of the defense facility-wide pilot program, the

15 Secretary of Defense may, to the extent the Secretary

16 determines appropriate and in accordance with the

17 law, adopt commercial practices in the administra18 tion of contracts and subcontracts. Such commercial

19 practices may include elimination of Government

20 audit and access to records provisions; incorporation

21 of commercial oversight, inspection, and acceptance

22 procedures; use of alternative dispute resolution tech23 niques (including arbitration); and elimination of

24 contract provisions authorizing the Government to

25 make unilateral changes to contracts.
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1 SEC. 317. VALUE ENGINEERING FOR FEDERAL AGENCIES.

2 (a) USE OF VALUE ENGINEERING.—The Office of Fed3 eral Procurement Policy Act (41 U.S.C. 401 et seq.), as

4 amended by section 310, is further amended by adding at

5 the end the following new section:

6 ‘‘SEC. 37. VALUE ENGINEERING.

7 ‘‘(a) IN GENERAL.—Each executive agency shall estab8 lish and maintain effective value engineering procedures

9 and processes.

10 ‘‘(b) THRESHOLD.—The procedures and processes es11 tablished pursuant to subsection (a) shall be applied to those

12 programs, projects, systems, and products of an executive

13 agency that, in a ranking of all programs, projects, systems,

14 and products of the agency according to greatest dollar

15 value, are within the highest 20th percentile.

16 ‘‘(c) DEFINITION.—As used in this section, the term

17 ‘value engineering’ means a team effort, performed by

18 qualified agency or contractor personnel, directed at ana19 lyzing the functions of a program, project, system, product,

20 item of equipment, building, facility, service, or supply for

21 the purpose of achieving the essential functions at the lowest

22 life-cycle cost that is consistent with required or improved

23 performance, reliability, quality, and safety.’’.
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1 (b) CLERICAL AMENDMENT.—The table of contents for

2 such Act, contained in section 1(b), is amended by adding

3 at the end the following new item:

‘‘Sec. 37. Value engineering.’’.

4 SEC. 318. ACQUISITION WORKFORCE.

5 (a) ACQUISITION WORKFORCE.—(1) The Office of Fed6 eral Procurement Policy Act (41 U.S.C. 401 et seq.), as

7 amended by section 317, is further amended by adding at

8 the end the following new section:

9 ‘‘SEC. 38. ACQUISITION WORKFORCE.

10 ‘‘(a) APPLICABILITY.—This section does not apply to

11 an executive agency that is subject to chapter 87 of title

12 10, United States Code.

13 ‘‘(b) MANAGEMENT POLICIES.—

14 ‘‘(1) POLICIES AND PROCEDURES.—The head of

15 each executive agency, after consultation with the Ad16 ministrator for Federal Procurement Policy, shall es17 tablish policies and procedures for the effective man18 agement (including accession, education, training, ca19 reer development, and performance incentives) of the

20 acquisition workforce of the agency. The development

21 of acquisition workforce policies under this section

22 shall be carried out consistent with the merit system

23 principles set forth in paragraphs (1) and (2) of sec24 tion 2301(b) of title 5, United States Code.
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1 ‘‘(2) UNIFORM IMPLEMENTATION.—The head of

2 each executive agency shall ensure that, to the maxi3 mum extent practicable, acquisition workforce policies

4 and procedures established are uniform in their im5 plementation throughout the agency.

6 ‘‘(3) GOVERNMENT-WIDE POLICIES AND EVALUA7 TION.—The Administrator shall issue policies to pro8 mote uniform implementation of this section by exec9 utive agencies, with due regard for differences in pro10 gram requirements among agencies that may be ap11 propriate and warranted in view of the agency mis12 sion. The Administrator shall coordinate with the

13 Deputy Director for Management of the Office of

14 Management and Budget to ensure that such policies

15 are consistent with the policies and procedures estab16 lished and enhanced system of incentives provided

17 pursuant to section 5051(c) of the Federal Acquisition

18 Streamlining Act of 1994 (41 U.S.C. 263 note). The

19 Administrator shall evaluate the implementation of

20 the provisions of this section by executive agencies.

21 ‘‘(c) SENIOR PROCUREMENT EXECUTIVE AUTHORITIES

22 AND RESPONSIBILITIES.—Subject to the authority, direc23 tion, and control of the head of an executive agency, the

24 senior procurement executive of the agency shall carry out

25 all powers, functions, and duties of the head of the agency
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1 with respect to implementation of this section. The senior

2 procurement executive shall ensure that the policies of the

3 head of the executive agency established in accordance with

4 this section are implemented throughout the agency.

5 ‘‘(d) MANAGEMENT INFORMATION SYSTEMS.—The Ad6 ministrator shall ensure that the heads of executive agencies

7 collect and maintain standardized information on the ac8 quisition workforce related to implementation of this sec9 tion. To the maximum extent practicable, such data re10 quirements shall conform to standards established by the Of11 fice of Personnel Management for the Central Personnel

12 Data File.

13 ‘‘(e) ACQUISITION WORKFORCE.—The programs estab14 lished by this section shall apply to all employees in the

15 General Schedule Contracting series (GS–1102) and the

16 General Schedule Purchasing series (GS–1105), and to any

17 employees regardless of series who have been appointed as

18 contracting officers whose authority exceeds the micro-pur19 chase threshold, as that term is defined in section 32(g).

20 The head of each executive agency may include employees

21 in other series who perform acquisition or acquisition-relat22 ed functions.

23 ‘‘(f) CAREER DEVELOPMENT.—

24 ‘‘(1) CAREER PATHS.—The head of each execu25 tive agency shall ensure that appropriate career paths
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1 for personnel who desire to pursue careers in acquisi2 tion are identified in terms of the education, training,

3 experience, and assignments necessary for career pro4 gression to the most senior acquisition positions. The

5 head of each executive agency shall make information

6 available on such career paths.

7 ‘‘(2) CRITICAL DUTIES AND TASKS.—For each

8 career path, the head of each executive agency shall

9 identify the critical acquisition-related duties and

10 tasks in which, at minimum, employees of the agency

11 in the career path shall be competent to perform at

12 full performance grade levels. For this purpose, the

13 head of the executive agency shall provide appropriate

14 coverage of the critical duties and tasks identified by

15 the Director of the Federal Acquisition Institute.

16 ‘‘(3) MANDATORY TRAINING AND EDUCATION.—

17 For each career path, the head of each executive agen18 cy shall establish requirements for the completion of

19 course work and related on-the-job training in the

20 critical acquisition-related duties and tasks of the ca21 reer path. The head of each executive agency shall also

22 encourage employees to maintain the currency of their

23 acquisition knowledge and generally enhance their

24 knowledge of related acquisition management dis-
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1 ciplines through academic programs and other self-de2 velopmental activities.

3 ‘‘(4) PERFORMANCE INCENTIVES.—The head of

4 each executive agency, acting through the senior pro5 curement executive for the agency, shall provide for

6 an enhanced system of incentives for the encourage7 ment of excellence in the acquisition workforce which

8 rewards performance of employees that contribute to

9 achieving the agency’s performance goals. The system

10 of incentives shall include provisions that—

11 ‘‘(A) relate pay to performance;

12 ‘‘(B) provide for consideration, in personnel

13 evaluations and promotion decisions, of the ex14 tent to which the performance of personnel con15 tributed to achieving the agency’s performance

16 goals; and

17 ‘‘(C) provide pay and promotion incentives

18 to be awarded, and unfavorable personnel actions

19 to be imposed, under the system on the basis of

20 the contributions of personnel to achieving the

21 agency’s performance goals.

22 ‘‘(g) QUALIFICATION REQUIREMENTS.—

23 ‘‘(1) GENERAL SCHEDULE CONTRACTING SERIES

24 (GS–1102).—
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1 ‘‘(A) ENTRY LEVEL QUALIFICATIONS.—The

2 Director of the Office of Personnel Management

3 shall require that, after October 1, 1996, a per4 son may not be appointed to a position in the

5 GS–1102 occupational series unless the person—

6 ‘‘(i) has received a baccalaureate degree

7 from an accredited educational institution

8 authorized to grant baccalaureate degrees,

9 ‘‘(ii) has completed at least 24 semester

10 credit hours (or the equivalent) of study

11 from an accredited institution of higher

12 education in any of the following dis13 ciplines: accounting, business finance, law,

14 contracts, purchasing, economics, industrial

15 management, marketing, quantitative meth16 ods, or organization and management, or

17 ‘‘(iii) has passed a written test deter18 mined by the Administrator for Federal

19 Procurement Policy, after consultation with

20 the Director of the Office of Personnel Man21 agement, to demonstrate the judgmental

22 skills necessary for positions in this series.

23 ‘‘(B) QUALIFICATIONS FOR SENIOR CON24 TRACTING POSITIONS.—The Director of the Office

25 of Personnel Management shall require that,
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1 after October 1, 1996, persons may be appointed

2 to positions at and above full performance grade

3 levels in the GS–1102 occupational series only if

4 those persons—

5 ‘‘(i) have satisfied the educational re6 quirement either of subparagraph (A)(i) or

7 (A)(ii),

8 ‘‘(ii) have successfully completed all

9 training required for the position under

10 subsection (f)(3), and

11 ‘‘(iii) have satisfied experience and

12 other requirements established by the Direc13 tor for such positions.

14 However, this requirement shall apply to persons

15 employed on October 1, 1996, in GS–1102 posi16 tions at those grade levels only as a prerequisite

17 for promotion to a GS–1102 position at a higher

18 grade.

19 ‘‘(2) GENERAL SCHEDULE PURCHASING SERIES

20 (GS–1105).—The Director of the Office of Personnel

21 Management shall require that, after October 1, 1996,

22 a person may not be appointed to a position in the

23 GS–1105 occupational series unless the person—
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1 ‘‘(A) has successfully completed 2 years of

2 course work from an accredited educational in3 stitution authorized to grant degrees, or

4 ‘‘(B) has passed a written test determined

5 by the Administrator for Federal Procurement

6 Policy, after consultation with the Director of the

7 Office of Personnel Management, to demonstrate

8 the judgmental skills necessary for positions in

9 this series.

10 ‘‘(3) CONTRACTING OFFICERS.—The head of each

11 executive agency shall require that, beginning after

12 October 1, 1996, a person may be appointed as a con13 tracting officer with authority to award or admin14 ister contracts for amounts above the micro-purchase

15 threshold, as that term is defined in section 32(g),

16 only if the person—

17 ‘‘(A) has successfully completed all manda18 tory training required of an employee in an

19 equivalent GS–1102 or 1105 position under sub20 section (f)(3); and

21 ‘‘(B) meets experience and other require22 ments established by the head of the agency,

23 based on the dollar value and complexity of the

24 contracts that the employee will be authorized to
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1 award or administer under the appointment as

2 a contracting officer.

3 ‘‘(4) EXCEPTIONS.—(A) The requirements set

4 forth in paragraphs (1) and (2), as applicable, shall

5 not apply to any person employed in the GS–1102 or

6 GS–1105 series on October 1, 1996.

7 ‘‘(B) Employees of an executive agency who do

8 not satisfy the full qualification requirements for ap9 pointment as a contracting officer under paragraph

10 (3) may be appointed as a contracting officer for a

11 temporary period of time under procedures established

12 by the agency head. The procedures shall—

13 ‘‘(i) require that the person have completed

14 a significant portion of the required training,

15 ‘‘(ii) require a plan be established for the

16 balance of the required training,

17 ‘‘(iii) specify a period of time for comple18 tion of the training, and

19 ‘‘(iv) include provisions for withdrawing or

20 terminating the appointment prior to the sched21 uled expiration date, where appropriate.

22 ‘‘(5) WAIVER.—The senior procurement executive

23 for an executive agency may waive any or all of the

24 qualification requirements of paragraphs (1) and (2)

25 for a person if the person possesses significant poten-
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1 tial for advancement to levels of greater responsibility

2 and authority, based on demonstrated job perform3 ance and qualifying experience. This authority may

4 not be redelegated by the senior procurement execu5 tive. With respect to each waiver granted under this

6 subsection, the senior procurement executive shall set

7 forth in writing the rationale for the decision to

8 waive such requirements.

9 ‘‘(h) PROGRAM ESTABLISHMENT AND IMPLEMENTA10 TION.—

11 ‘‘(1) FUNDING LEVELS.—(A) The head of an ex12 ecutive agency shall request in the budget for a fiscal

13 year for the agency—

14 ‘‘(i) for education and training under this

15 section, an amount equal to no less than 2.5 per16 cent of the base aggregate salary cost of the ac17 quisition workforce subject to this section for that

18 fiscal year; and

19 ‘‘(ii) for salaries of the acquisition

20 workforce, an amount equal to no more than

21 97.5 percent of such base aggregate salary cost.

22 ‘‘(B) The head of the executive agency shall set

23 forth separately the funding levels requested in the

24 budget justification documents submitted in support
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1 of the President’s budget submitted to Congress under

2 section 1105 of title 31, United States Code.

3 ‘‘(C) Funds appropriated for education and

4 training under this section may not be obligated or

5 used for any other purpose.

6 ‘‘(2) INTERAGENCY AGREEMENTS.—The head of

7 an executive agency may enter into a written agree8 ment with another agency to participate in programs

9 established under this section on a reimbursable basis.

10 ‘‘(3) TUITION ASSISTANCE.—Notwithstanding the

11 prohibition in section 4107(b) of title 5, United States

12 Code, the head of each executive agency may provide

13 for tuition reimbursement and education (including a

14 full-time course of study leading to a degree) for ac15 quisition personnel in the agency related to the pur16 poses of this section.

17 ‘‘(4) INTERN PROGRAMS.—The head of each exec18 utive agency may establish intern programs in order

19 to recruit highly qualified and talented individuals

20 and provide them with opportunities for accelerated

21 promotions, career broadening assignments, and spec22 ified training for advancement to senior acquisition

23 positions. For such programs, the head of an executive

24 agency, without regard to the provisions of title 5,

25 United States Code, may appoint individuals to com-
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1 petitive GS–5, GS–7, or GS–9 positions in the Gen2 eral Schedule Contracting series (GS–1102) who have

3 graduated from baccalaureate or master’s programs

4 in purchasing or contracting from accredited edu5 cational institutions authorized to grant bacca6 laureate and master’s degrees.

7 ‘‘(5) COOPERATIVE EDUCATION PROGRAM.—The

8 head of each executive agency may establish an agen9 cywide cooperative education credit program for ac10 quisition positions. Under the program, the head of

11 the executive agency may enter into cooperative ar12 rangements with one or more accredited institutions

13 of higher education which provide for such institu14 tions to grant undergraduate credit for work per15 formed in such position.

16 ‘‘(6) SCHOLARSHIP PROGRAM.—

17 ‘‘(A) ESTABLISHMENT.—Where deemed ap18 propriate, the head of each executive agency may

19 establish a scholarship program for the purpose

20 of qualifying individuals for acquisition posi21 tions in the agency.

22 ‘‘(B) ELIGIBILITY.—To be eligible to par23 ticipate in a scholarship program established

24 under this paragraph by an executive agency, an

25 individual must—
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1 ‘‘(i) be accepted for enrollment or be

2 currently enrolled as a full-time student at

3 an accredited educational institution au4 thorized to grant baccalaureate or graduate

5 degrees (as appropriate);

6 ‘‘(ii) be pursuing a course of education

7 that leads toward completion of a bachelor’s,

8 master’s, or doctor’s degree (as appropriate)

9 in a qualifying field of study, as determined

10 by the head of the agency;

11 ‘‘(iii) sign an agreement described in

12 subparagraph (C) under which the partici13 pant agrees to serve a period of obligated

14 service in the agency in an acquisition posi15 tion in return for payment of educational

16 assistance as provided in the agreement;

17 and

18 ‘‘(iv) meet such other requirements as

19 the head of the agency prescribes.

20 ‘‘(C) AGREEMENT.—An agreement between

21 the head of an executive agency and a partici22 pant in a scholarship program established under

23 this paragraph shall be in writing, shall be

24 signed by the participant, and shall include the

25 following provisions:
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1 ‘‘(i) The agreement of the head of the

2 agency to provide the participant with edu3 cational assistance for a specified number of

4 school years, not to exceed 4, during which

5 the participant is pursuing a course of edu6 cation in a qualifying field of study. The

7 assistance may include payment of tuition,

8 fees, books, laboratory expenses, and a sti9 pend.

10 ‘‘(ii) The participant’s agreement—

11 ‘‘(I) to accept such educational as12 sistance,

13 ‘‘(II) to maintain enrollment and

14 attendance in the course of education

15 until completed,

16 ‘‘(III) while enrolled in such

17 course, to maintain an acceptable level

18 of academic standing (as prescribed by

19 the head of the agency), and

20 ‘‘(IV) after completion of the

21 course of education, to serve as a full22 time employee in an acquisition posi23 tion in the agency for a period of time

24 of one calendar year for each school

25 year or part thereof for which the par-
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1 ticipant was provided a scholarship

2 under the program.

3 ‘‘(D) REPAYMENT.—(i) Any person partici4 pating in a program established under this

5 paragraph shall agree to pay to the United

6 States the total amount of educational assistance

7 provided to the person under the program if the

8 person is voluntarily separated from the agency

9 or involuntarily separated for cause from the

10 agency before the end of the period for which the

11 person has agreed to continue in the service of

12 the agency in an acquisition position.

13 ‘‘(ii) If an employee fails to fulfill the agree14 ment to pay to the Government the total amount

15 of educational assistance provided to the person

16 under the program, a sum equal to the amount

17 of the educational assistance may be recovered by

18 the Government from the employee (or the estate

19 of the employee) by setoff against accrued pay,

20 compensation, amount of retirement credit, or

21 other amount due the employee from the Govern22 ment; and by such other method as is provided

23 by law for the recovery of amounts owing to the

24 Government.
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1 ‘‘(iii) The head of an executive agency may

2 waive in whole or in part a repayment required

3 under this paragraph if the head of the agency

4 determines the recovery would be against equity

5 and good conscience or would be contrary to the

6 best interests of the United States.

7 ‘‘(E) TERMINATION OF AGREEMENT.—There

8 shall be no requirement that a position be offered

9 to a person after such person successfully com10 pletes a course of education required by an

11 agreement under this paragraph. If no position

12 is offered, the agreement shall be considered ter13 minated.’’.

14 (2) The table of contents for such Act, contained in

15 section 1(b), is amended by adding at the end the following

16 new item:

‘‘Sec. 38. Acquisition workforce.’’.

17 (b) ADDITIONAL AMENDMENTS.—Section 6(d)(5) of the

18 Office of Federal Procurement Policy Act (41 U.S.C. 405),

19 is amended—

20 (1) in subparagraph (A), by striking out ‘‘Gov21 ernment-wide career management programs for a pro22 fessional procurement work force’’ and inserting in

23 lieu thereof ‘‘the development of a professional acqui24 sition workforce Government-wide’’;

25 (2) in subparagraph (B)—
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1 (A) by striking out ‘‘procurement by the’’

2 and inserting in lieu thereof ‘‘acquisition by

3 the’’; and

4 (B) by striking out ‘‘and’’ at the end of the

5 subparagraph; and

6 (3) by striking out subparagraph (C) and insert7 ing in lieu thereof the following:

8 ‘‘(C) administer the provisions of section

9 38;

10 ‘‘(D) collect data and analyze acquisition

11 workforce data from the Office of Personnel Man12 agement, the heads of executive agencies, and,

13 through periodic surveys, from individual em14 ployees;

15 ‘‘(E) periodically analyze acquisition career

16 fields to identify critical competencies, duties,

17 tasks, and related academic prerequisites, skills,

18 and knowledge;

19 ‘‘(F) coordinate and assist agencies in iden20 tifying and recruiting highly qualified can21 didates for acquisition fields;

22 ‘‘(G) develop instructional materials for ac23 quisition personnel in coordination with private

24 and public acquisition colleges and training fa25 cilities;
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1 ‘‘(H) evaluate the effectiveness of training

2 and career development programs for acquisition

3 personnel;

4 ‘‘(I) promote the establishment and utiliza5 tion of academic programs by colleges and uni6 versities in acquisition fields;

7 ‘‘(J) facilitate, to the extent requested by

8 agencies, interagency intern and training pro9 grams; and

10 ‘‘(K) perform other career management or

11 research functions as directed by the Adminis12 trator.’’.

13 TITLE IV—STREAMLINING OF

14 DISPUTE RESOLUTION

15 Subtitle A—General Provisions

16 SEC. 401. DEFINITIONS.

17 (a) IN GENERAL.—The Office of Federal Procurement

18 Policy Act (41 U.S.C. 401 et seq.) is amended by adding

19 at the end the following:

20 ‘‘TITLE II—DISPUTE

21 RESOLUTION

22 ‘‘Subtitle A—General Provisions

23 ‘‘SEC. 201. DEFINITIONS.

24 ‘‘In this title:
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1 ‘‘(1) The term ‘Defense Board’ means the De2 partment of Defense Board of Contract Appeals estab3 lished pursuant to section 8(a) of the Contract Dis4 putes Act of 1978 (41 U.S.C. 607).

5 ‘‘(2) The term ‘Civilian Board’ means the Civil6 ian Board of Contract Appeals established pursuant

7 to section 8(b) of the Contract Disputes Act of 1978

8 (41 U.S.C. 607).

9 ‘‘(3) The term ‘Board judge’ means a member of

10 the Defense Board or the Civilian Board, as the case

11 may be.

12 ‘‘(4) The term ‘Chairman’ means the Chairman

13 of the Defense Board or the Civilian Board, as the

14 case may be.

15 ‘‘(5) The term ‘Board concerned’ means—

16 ‘‘(A) the Defense Board with respect to mat17 ters within its jurisdiction; and

18 ‘‘(B) the Civilian Board with respect to

19 matters within its jurisdiction.

20 ‘‘(6) The term ‘executive agency’—

21 ‘‘(A) for purposes of contract disputes under

22 section 213—

23 ‘‘(i) with respect to contract disputes

24 under the jurisdiction of the Defense Board,

25 means the Department of Defense, the De-
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1 partment of the Army, the Department of

2 the Navy, or the Department of the Air

3 Force; and

4 ‘‘(ii) with respect to contract disputes

5 under the jurisdiction of the Civilian

6 Board, has the meaning given by section

7 2(2) of the Contract Disputes Act of 1978

8 (41 U.S.C. 601(2)) except that the term does

9 not include the Department of Defense, the

10 Department of the Army, the Department of

11 the Navy, and the Department of the Air

12 Force; and

13 ‘‘(B) for purposes of protests under section

14 214—

15 ‘‘(i) with respect to protests under the

16 jurisdiction of the Defense Board, means the

17 Department of Defense, the Department of

18 the Army, the Department of the Navy, or

19 the Department of the Air Force; and

20 ‘‘(ii) with respect to protests under the

21 jurisdiction of the Civilian Board, has the

22 meaning given by section 4(1) of this Act

23 except that the term does not include the

24 Department of Defense, the Department of
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1 the Army, the Department of the Navy, and

2 the Department of the Air Force.

3 ‘‘(7) The term ‘alternative means of dispute reso4 lution’ has the meaning given by section 571(3) of

5 title 5, United States Code.

6 ‘‘(8) The term ‘protest’ means a written objection

7 by an interested party to any of the following:

8 ‘‘(A) A solicitation or other request by an

9 executive agency for offers for a contract for the

10 procurement of property or services.

11 ‘‘(B) The cancellation of such a solicitation

12 or other request.

13 ‘‘(C) An award or proposed award of such

14 a contract.

15 ‘‘(D) A termination or cancellation of an

16 award of such a contract, if the written objection

17 contains an allegation that the termination or

18 cancellation is based in whole or in part on im19 proprieties concerning the award of the contract.

20 ‘‘(9) The term ‘interested party’, with respect to

21 a contract or a solicitation or other request for offers,

22 means an actual or prospective bidder or offeror

23 whose direct economic interest would be affected by

24 the award of the contract or by failure to award the

25 contract.
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1 ‘‘(10) The term ‘prevailing party’, with respect

2 to a determination of the Board under section

3 214(h)(2) that a decision of a contracting officer vio4 lates a statute or regulation, means a party that dem5 onstrated such violation.’’.

6 (b) CONFORMING AMENDMENTS.—The Office of Fed7 eral Procurement Policy Act (41 U.S.C. 401 et seq.) is fur8 ther amended—

9 (1) by inserting the following before section 1:

10 ‘‘TITLE I—FEDERAL PROCURE11 MENT POLICY GENERALLY’’;

12 and

13 (2) in section 4, by striking out ‘‘As used in this

14 Act:’’ and inserting in lieu thereof ‘‘Except as other15 wise specifically provided, as used in this Act:’’.

16 Subtitle B—Establishment of Civil17 ian and Defense Boards of Con18 tract Appeals

19 SEC. 411. ESTABLISHMENT.

20 Subsections (a) and (b) of section 8 of the Contract

21 Disputes Act of 1978 (41 U.S.C. 607) are amended to read

22 as follows:

23 ‘‘(a) There is established in the Department of Defense

24 a board of contract appeals to be known as the Department

25 of Defense Board of Contract Appeals.
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1 ‘‘(b) There is established in the General Services Ad2 ministration a board of contract appeals to be known as

3 the Civilian Board of Contract Appeals.’’.

4 SEC. 412. MEMBERSHIP.

5 The Office of Federal Procurement Policy Act (41

6 U.S.C. 401 et seq.), as amended by section 401, is further

7 amended by adding at the end the following:

8 ‘‘SEC. 202. MEMBERSHIP.

9 ‘‘(a) APPOINTMENT.—(1)(A) The Defense Board shall

10 consist of judges appointed by the Chairman, without re11 gard to political affiliation and solely on the basis of the

12 professional qualifications required to perform the duties

13 and responsibilities of a Defense Board judge, from a reg14 ister of applicants maintained by the Defense Board.

15 ‘‘(B) The Civilian Board shall consist of judges ap16 pointed by the Chairman, without regard to political affili17 ation and solely on the basis of the professional qualifica18 tions required to perform the duties and responsibilities of

19 a Civilian Board judge, from a register of applicants main20 tained by the Civilian Board.

21 ‘‘(2) The members of the Defense Board and the Civil22 ian Board shall be selected and appointed to serve in the

23 same manner as administrative law judges appointed pur24 suant to section 3105 of title 5, United States Code, with

25 an additional requirement that such members shall have
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1 had not fewer than five years of experience in public con2 tract law.

3 ‘‘(3) Notwithstanding paragraph (2) and subject to

4 subsection (b), the following persons shall serve as Board

5 judges:

6 ‘‘(A) For the Defense Board, any full-time mem7 ber of the Armed Services Board of Contract Appeals

8 serving as such on the day before the effective date of

9 this title.

10 ‘‘(B) For the Civilian Board, any full-time mem11 ber of any agency board of contract appeals other

12 than the Armed Services Board of Contract Appeals

13 serving as such on the day before the effective date of

14 this title.

15 ‘‘(C) For either the Defense Board or the Civil16 ian Board, any person serving on the day before the

17 date of the enactment of this title in a position at a

18 level of assistant general counsel or higher with au19 thority delegated from the Comptroller General to de20 cide bid protests under subchapter V of chapter 35 of

21 title 31, United States Code.

22 ‘‘(b) REMOVAL.—Members of the Defense Board and

23 the Civilian Board shall be subject to removal in the same

24 manner as administrative law judges, as provided in sec25 tion 7521 of title 5, United States Code.
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1 ‘‘(c) COMPENSATION.—Compensation for the Chair2 man of the Defense Board and the Chairman of the Civilian

3 Board and all other members of each Board shall be deter4 mined under section 5372a of title 5, United States Code.’’.

5 SEC. 413. CHAIRMAN.

6 The Office of Federal Procurement Policy Act (41

7 U.S.C. 401 et seq.), as amended by section 412, is further

8 amended by adding at the end the following:

9 ‘‘SEC. 203. CHAIRMAN.

10 ‘‘(a) DESIGNATION.—(1)(A) The Chairman of the De11 fense Board shall be designated by the Secretary of Defense

12 to serve for a term of five years. The Secretary shall select

13 the Chairman from among sitting judges each of whom has

14 had at least five years of service—

15 ‘‘(i) as a member of the Armed Services Board

16 of Contract Appeals; or

17 ‘‘(ii) in a position at a level of assistant general

18 counsel or higher with authority delegated from the

19 Comptroller General to decide bid protests under sub20 chapter V of chapter 35 of title 31, United States

21 Code (as in effect on the day before the effective date

22 of this title).

23 ‘‘(B) The Chairman of the Civilian Board shall be des24 ignated by the Administrator of General Services to serve

25 for a term of five years. The Administrator shall select the
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1 Chairman from among sitting judges each of whom has had

2 at least five years of service—

3 ‘‘(i) as a member of an agency board of contract

4 appeals other than the Armed Services Board of Con5 tract Appeals; or

6 ‘‘(ii) in a position at a level of assistant general

7 counsel or higher with authority delegated from the

8 Comptroller General to decide bid protests under sub9 chapter V of chapter 35 of title 31, United States

10 Code (as in effect on the day before the effective date

11 of this title).

12 ‘‘(2) A Chairman of a Board may continue to serve

13 after the expiration of the Chairman’s term until a succes14 sor has taken office. A Chairman may be reappointed any

15 number of times.

16 ‘‘(b) RESPONSIBILITIES.—The Chairman of the De17 fense Board or the Civilian Board, as the case may be, shall

18 be responsible on behalf of the Board for the executive and

19 administrative operation of the Board, including functions

20 of the Board with respect to the following:

21 ‘‘(1) The selection, appointment, and fixing of

22 the compensation of such personnel, pursuant to part

23 III of title 5, United States Code, as the Chairman

24 considers necessary or appropriate, including a Clerk
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1 of the Board, a General Counsel, and clerical and

2 legal assistance for Board judges.

3 ‘‘(2) The supervision of personnel employed by or

4 assigned to the Board, and the distribution of work

5 among such personnel.

6 ‘‘(3) The operation of an Office of the Clerk of

7 the Board, including the receipt of all filings made

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

9 maintenance of all records of the Board.

10 ‘‘(4) The prescription of such rules and regula11 tions as the Chairman considers necessary or appro12 priate for the administration and management of the

13 Board.

14 ‘‘(c) VICE CHAIRMEN.—The Chairman of the Defense

15 Board or the Civilian Board, as the case may be, may des16 ignate up to four other Board judges as Vice Chairmen. The

17 Chairman may divide the Board into two divisions, one

18 for handling contract disputes and one for handling pro19 tests, and, if such division is made, shall assign a Vice

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

21 the order designated by the Chairman, shall act in the place

22 and stead of the Chairman during the absence of the Chair23 man.’’.
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1 SEC. 414. RULEMAKING AUTHORITY.

2 The Office of Federal Procurement Policy Act (41

3 U.S.C. 401 et seq.), as amended by section 413, is further

4 amended by adding at the end the following:

5 ‘‘SEC. 204. RULEMAKING AUTHORITY.

6 ‘‘The Chairman of the Defense Board and the Chair7 man of the Civilian Board shall jointly issue and main8 tain—

9 ‘‘(1) such procedural rules and regulations as are

10 necessary to the exercise of the functions of the Boards

11 under sections 213 and 214; and

12 ‘‘(2) statements of policy of general applicability

13 with respect to such functions.’’.

14 SEC. 415. AUTHORIZATION OF APPROPRIATIONS.

15 The Office of Federal Procurement Policy Act (41

16 U.S.C. 401 et seq.), as amended by section 414, is further

17 amended by adding at the end the following:

18 ‘‘SEC. 205. AUTHORIZATION OF APPROPRIATIONS.

19 ‘‘There are authorized to be appropriated for fiscal

20 year 1997 and each succeeding fiscal year such sums as

21 may be necessary to carry out the provisions of this title.

22 Funds for the activities of each Board shall be separately

23 appropriated for such purpose. Funds appropriate pursu24 ant to this section shall remain available until expended.’’.
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1 Subtitle C—Functions of Defense

2 and Civilian Boards of Contract

3 Appeals

4 SEC. 421. ALTERNATIVE DISPUTE RESOLUTION SERVICES.

5 The Office of Federal Procurement Policy Act (41

6 U.S.C. 401 et seq.), as amended by section 415, is further

7 amended by adding at the end the following:

8 ‘‘Subtitle B—Functions of the De9 fense and Civilian Boards of

10 Contract Appeals

11 ‘‘SEC. 211. ALTERNATIVE DISPUTE RESOLUTION SERVICES.

12 ‘‘(a) REQUIREMENT TO PROVIDE SERVICES UPON RE13 QUEST.—The Defense Board and the Civilian Board shall

14 each provide alternative means of dispute resolution for any

15 disagreement regarding a contract or prospective contract

16 of an executive agency upon the request of all parties to

17 the disagreement.

18 ‘‘(b) PERSONNEL QUALIFIED TO ACT.—Each Board

19 judge and each attorney employed by the Board concerned

20 shall be considered to be qualified to act for the purpose

21 of conducting alternative means of dispute resolution under

22 this section.

23 ‘‘(c) SERVICES TO BE PROVIDED WITHOUT

24 CHARGE.—Any services provided by the Board concerned
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1 or any Board judge or employee pursuant to this section

2 shall be provided without charge.

3 ‘‘(d) RECUSAL OF CERTAIN PERSONNEL UPON RE4 QUEST.—In the event that a matter which is presented to

5 the Board concerned for alternative means of dispute resolu6 tion, pursuant to this section, later becomes the subject of

7 formal proceedings before such Board, any Board judge or

8 employee who was involved in the alternative means of dis9 pute resolution shall, if requested by any party to the for10 mal proceeding, take no part in that proceeding.’’.

11 SEC. 422. ALTERNATIVE DISPUTE RESOLUTION OF DIS12 PUTES AND PROTESTS SUBMITTED TO

13 BOARDS.

14 The Office of Federal Procurement Policy Act (41

15 U.S.C. 401 et seq.), as amended by section 421, is further

16 amended by adding at the end the following:

17 ‘‘SEC. 212. ALTERNATIVE DISPUTE RESOLUTION OF DIS18 PUTES AND PROTESTS SUBMITTED TO

19 BOARDS.

20 ‘‘With reasonable promptness after the submission to

21 the Defense Board or the Civilian Board of a contract dis22 pute under section 213 or a bid protest under section 214,

23 a Board judge to whom the contract dispute or protest is

24 assigned shall request the parties to meet with a Board

25 judge, or an attorney employed by the Board concerned, for
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1 the purpose of attempting to resolve the dispute or protest

2 through alternative means of dispute resolution. Formal

3 proceedings in the appeal shall then be suspended until such

4 time as any party or a Board judge to whom the dispute

5 or protest is assigned determines that alternative means of

6 dispute resolution are not appropriate for resolution of the

7 dispute or protest.’’.

8 SEC. 423. CONTRACT DISPUTES.

9 The Office of Federal Procurement Policy Act (41

10 U.S.C. 401 et seq.), as amended by section 422, is further

11 amended by adding at the end the following:

12 ‘‘SEC. 213. CONTRACT DISPUTES.

13 ‘‘The Defense Board shall have jurisdiction as provided

14 by section 8(a) of the Contract Disputes Act of 1978 (41

15 U.S.C. 601–613). The Civilian Board shall have jurisdic16 tion as provided by section 8(b) of such Act.’’.

17 SEC. 424. PROTESTS.

18 The Office of Federal Procurement Policy Act (41

19 U.S.C. 401 et seq.), as amended by section 423, is further

20 amended by adding at the end the following:

21 ‘‘SEC. 214. PROTESTS.

22 ‘‘(a) REVIEW REQUIRED UPON REQUEST.—Upon re23 quest of an interested party in connection with any pro24 curement conducted by an executive agency, the Defense

25 Board or the Civilian Board, as the case may be, shall re-
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1 view, as provided in this section, any decision by the head

2 of the executive agency alleged to violate a statute or regula3 tion. A decision or order of the Board concerned pursuant

4 to this section shall not be subject to interlocutory appeal

5 or review.

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

7 the Board concerned may consider all evidence that is rel8 evant to the decision under protest. It shall accord a pre9 sumption of correctness to the decision under protest. The

10 protester may rebut such presumption by showing, by a pre11 ponderance of the evidence, that the decision was arbitrary

12 or capricious or violated a statute or regulation.

13 ‘‘(c) NOTIFICATION.—Within one day after the receipt

14 of a protest, the Board concerned shall notify the executive

15 agency involved of the protest.

16 ‘‘(d) SUSPENSION OF CONTRACT AWARD.—(1) Except

17 as provided in paragraph (2) of this subsection, a contract

18 may not be awarded in any procurement after the executive

19 agency has received notice of a protest with respect to such

20 procurement from the Board concerned and while the pro21 test is pending.

22 ‘‘(2) The head of the procuring activity responsible for

23 award of a contract may authorize the award of the con24 tract (notwithstanding a protest of which the executive

25 agency has notice under this section)—
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1 ‘‘(A) upon a written finding that urgent and

2 compelling circumstances which significantly affect

3 interests of the United States will not permit waiting

4 for the decision of the Board concerned under this sec5 tion; and

6 ‘‘(B) after the Board concerned is advised of that

7 finding.

8 ‘‘(3) A finding may not be made under paragraph

9 (2)(A) of this subsection unless the award of the contract

10 is otherwise likely to occur within 30 days after the making

11 of such finding.

12 ‘‘(4) The suspension of the award under paragraph (1)

13 shall not preclude the executive agency concerned from con14 tinuing the procurement process up to but not including

15 the award of the contract.

16 ‘‘(e) SUSPENSION OF CONTRACT PERFORMANCE.—(1)

17 A contractor awarded an executive agency contract may,

18 during the period described in paragraph (4), begin per19 formance of the contract and engage in any related activi20 ties that result in obligations being incurred by the United

21 States under the contract unless the contracting officer re22 sponsible for the award of the contract withholds authoriza23 tion to proceed with performance of the contract.

24 ‘‘(2) The contracting officer may withhold an author25 ization to proceed with performance of the contract during
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1 the period described in paragraph (4) if the contracting of2 ficer determines in writing that—

3 ‘‘(A) a protest is likely to be filed; and

4 ‘‘(B) the immediate performance of the contract

5 is not in the best interests of the United States.

6 ‘‘(3)(A) If the executive agency awarding the contract

7 receives notice of a protest in accordance with this section

8 during the period described in paragraph (4)—

9 ‘‘(i) the contracting officer may not authorize

10 performance of the contract to begin while the protest

11 is pending; or

12 ‘‘(ii) if authorization for contract performance to

13 proceed was not withheld in accordance with para14 graph (2) before receipt of the notice, the contracting

15 officer shall immediately direct the contractor to cease

16 performance under the contract and to suspend any

17 related activities that may result in additional obli18 gations being incurred by the United States under

19 that contract.

20 ‘‘(B) Performance and related activities suspended

21 pursuant to subparagraph (A)(ii) by reason of a protest

22 may not be resumed while the protest is pending.

23 ‘‘(C) The head of the procuring activity may authorize

24 the performance of the contract (notwithstanding a protest
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1 of which the executive agency has notice under this sec2 tion)—

3 ‘‘(i) upon a written finding that urgent and

4 compelling circumstances that significantly affect in5 terests of the United States will not permit waiting

6 for the decision concerning the protest by the Board

7 concerned; and

8 ‘‘(ii) after the Board concerned is notified of that

9 finding.

10 ‘‘(4) The period referred to in paragraphs (2) and

11 (3)(A), with respect to a contract, is the period beginning

12 on the date of the contract award and ending on the later

13 of—

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

15 the contract award; or

16 ‘‘(B) the date that is 5 days after the debriefing

17 date offered to an unsuccessful offeror for any debrief18 ing that is requested and, when requested, is required.

19 ‘‘(f) The authority of the head of the procuring activity

20 to make findings and to authorize the award and perform21 ance of contracts under subsections (d) and (e) of this sec22 tion may not be delegated.

23 ‘‘(g) PROCEDURES.—

24 ‘‘(1) PROCEEDINGS AND DISCOVERY.—The Board

25 concerned shall conduct proceedings and allow such
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1 discovery to the minimum extent necessary for the ex2 peditious, fair, and cost-effective resolution of the pro3 test. The Board concerned shall limit discovery to ma4 terial which is relevant to the grounds of protest or

5 to such affirmative defenses as the executive agency

6 involved, or any intervenor supporting the agency,

7 may raise.

8 ‘‘(2) PRIORITY.—The Board concerned shall give

9 priority to protests filed under this section over con10 tract disputes and alternative dispute services. Except

11 as provided in paragraph (3), the Board concerned

12 shall issue its final decision within 65 days after the

13 date of the filing of the protest, unless the Chairman

14 determines that the specific and unique circumstances

15 of the protest require a longer period, in which case

16 the Board concerned shall issue such decision within

17 the longer period determined by the Chairman. An

18 amendment that adds a new ground of protest should

19 be resolved, to the maximum extent practicable, with20 in the time limits established for resolution of the ini21 tial protest.

22 ‘‘(3) THRESHOLD.—(A) Except as provided in

23 subparagraph (B), any protest in which the antici24 pated value of the contract award that will result

25 from the protested procurement, as estimated by the
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1 executive agency involved, is less than $20,000,000

2 shall be considered under simplified rules of proce3 dure. Such simplified rules shall provide that discov4 ery in such protests shall be in writing only. Such

5 protests shall be decided by a single Board judge. The

6 Board concerned shall issue its final decision in each

7 such protest within 40 days after the date of the filing

8 of the protest, unless the Chairman determines that

9 the specific and unique circumstances of the protest

10 require a longer period, in which case the Board con11 cerned shall issue such decision within the longer pe12 riod determined by the Chairman.

13 ‘‘(B) If the Chairman of the Board concerned de14 termines that special and unique circumstances of a

15 protest that would otherwise qualify for the simplified

16 rules described in subparagraph (A), including the

17 complexity of a protest, requires the use of full proce18 dures as described in paragraphs (1) and (2), the

19 Chairman shall use such procedures in lieu of the

20 simplified rules described in subparagraph (A).

21 ‘‘(4) CALCULATION OF TIME FOR ADR.—In cal22 culating time for purposes of paragraph (2) or (3) of

23 this subsection, any days during which proceedings

24 are suspended for the purpose of attempting to resolve
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1 the protest by alternative means of dispute resolution,

2 up to a maximum of 20 days, shall not be counted.

3 ‘‘(5) DISMISSAL OF FRIVOLOUS PROTESTS.—The

4 Board concerned may dismiss a protest that the

5 Board concerned determines—

6 ‘‘(A) is frivolous,

7 ‘‘(B) has been brought or pursued in bad

8 faith; or

9 ‘‘(C) does not state on its face a valid basis

10 for protest.

11 ‘‘(6) PAYMENT OF COSTS FOR FRIVOLOUS PRO12 TESTS.—(A) If the Board concerned expressly finds

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

14 or has been brought or pursued in bad faith, the

15 Board concerned shall declare that the protester or

16 other interested party who joins the protest is liable

17 to the United States for payment of the costs described

18 in subparagraph (B) unless—

19 ‘‘(i) special circumstances would make such

20 payment unjust; or

21 ‘‘(ii) the protester obtains documents or

22 other information after the protest is filed with

23 the Board concerned that establishes that the

24 protest or a portion of the protest is frivolous or

25 has been brought or pursued in bad faith, and
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1 the protester then promptly withdraws the pro2 test or portion of the protest.

3 ‘‘(B) The costs referred to in subparagraph (A)

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

5 reviewing the protest, or of reviewing that portion of

6 the protest for which the finding is made, including

7 the fees and other expenses (as defined in section

8 2412(d)(2)(A) of title 28, United States Code) in9 curred by the United States in defending the protest.

10 ‘‘(h) DECISIONS AND CORRECTIVE ACTIONS ON PRO11 TESTS.—(1) In making a decision on protests filed under

12 this section, the Board concerned shall accord due weight

13 to the goals of economic and efficient procurement, and

14 shall take due account of the rule of prejudicial error.

15 ‘‘(2) If the Board concerned determines that a decision

16 of the head of the executive agency violates a statute or regu17 lation, the Board concerned may order the agency (or its

18 head) to take such corrective action as the Board concerned

19 considers appropriate. Corrective action includes requiring

20 that the executive agency—

21 ‘‘(A) refrain from exercising any of its options

22 under the contract;

23 ‘‘(B) recompete the contract immediately;

24 ‘‘(C) issue a new solicitation;

25 ‘‘(D) terminate the contract;
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1 ‘‘(E) award a contract consistent with the re2 quirements of such statute and regulation;

3 ‘‘(F) implement any combination of require4 ments under subparagraphs (A), (B), (C), (D), and

5 (E); or

6 ‘‘(G) implement such other actions as the Board

7 concerned determines necessary.

8 ‘‘(3) If the Board concerned orders corrective action

9 after the contract award, the affected contract shall be pre10 sumed valid as to all goods or services delivered and accept11 ed under the contract before the corrective action was or12 dered.

13 ‘‘(4) Any agreement that provides for the dismissal of

14 a protest and involves a direct or indirect expenditure of

15 appropriated funds shall be submitted to the Board con16 cerned and shall be made a part of the public record (subject

17 to any protective order considered appropriate by the Board

18 concerned) before dismissal of the protest.

19 ‘‘(i) AUTHORITY TO DECLARE ENTITLEMENT TO

20 COSTS.—(1)(A) Whenever the Board concerned determines

21 that a decision of a contracting officer violates a statute

22 or regulation, it may, in accordance with section 1304 of

23 title 31, United States Code, further declare an appropriate

24 prevailing party to be entitled to the costs of—
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1 ‘‘(i) filing and pursuing the protest, including

2 reasonable attorneys’ fees and consultant and expert

3 witness fees, and

4 ‘‘(ii) bid and proposal preparation.

5 ‘‘(B) No party (other than a small business concern

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

7 Act)) may be declared entitled under this paragraph to costs

8 for—

9 ‘‘(i) consultant and expert witness fees that ex10 ceed the highest rate of compensation for expert wit11 nesses paid by the Federal Government, or

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

13 unless the Board concerned, on a case by case basis,

14 determines that an increase in the cost of living or a

15 special factor, such as the limited availability of

16 qualified attorneys for the proceedings involved, justi17 fies a higher fee.

18 ‘‘(2) Payment of amounts due from an agency under

19 paragraph (1) or under the terms of a settlement agreement

20 under subsection (h)(4) shall be made from the appropria21 tion made by section 1304 of title 31, United States Code,

22 for the payment of judgments. The executive agency con23 cerned shall reimburse that appropriation account out of

24 funds available for the procurement.
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1 ‘‘(j) APPEALS.—A final decision of the Board con2 cerned may be appealed as set forth in section 8(g)(1) of

3 the Contract Disputes Act of 1978 by the head of the execu4 tive agency concerned and by any interested party, includ5 ing interested parties who intervene in any protest filed

6 under this section.

7 ‘‘(k) ADDITIONAL RELIEF.—Nothing contained in this

8 section shall affect the power of the Board concerned to

9 order any additional relief which it is authorized to provide

10 under any statute or regulation.

11 ‘‘(l) NONEXCLUSIVITY OF REMEDIES.—Nothing con12 tained in this section shall affect the right of any interested

13 party to file a protest with the contracting agency or to

14 file an action in the United States Court of Federal Claims

15 or in a United States district court.’’.

16 SEC. 425. APPLICABILITY TO CERTAIN CONTRACTS.

17 The Office of Federal Procurement Policy Act (41

18 U.S.C. 401 et seq.), as amended by section 424, is further

19 amended by adding at the end the following:

20 ‘‘SEC. 215. APPLICABILITY TO CERTAIN CONTRACTS.

21 ‘‘(a) CONTRACTS AT OR BELOW THE SIMPLIFIED AC22 QUISITION THRESHOLD.—Notwithstanding section 33 of

23 this Act, the authority conferred on the Defense Board and

24 the Civilian Board by this title is applicable to contracts
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1 in amounts not greater than the simplified acquisition

2 threshold.

3 ‘‘(b) CONTRACTS FOR COMMERCIAL ITEMS.—Notwith4 standing section 34 of this Act, the authority conferred on

5 the Defense Board and the Civilian Board by this title is

6 applicable to contracts for the procurement of commercial

7 items.’’.

8 Subtitle D—Repeal of Other Stat9 utes Authorizing Administrative

10 Protests

11 SEC. 431. REPEALS.

12 (a) GSBCA PROVISIONS.—Subsection (f) of the Brooks

13 Automatic Data Processing Act (section 111 of the Federal

14 Property and Administrative Services Act of 1949; 40

15 U.S.C. 759) is repealed.

16 (b) GAO PROVISIONS.—(1) Subchapter V of chapter

17 35 of title 31, United States Code (31 U.S.C. 3551–3556)

18 is repealed.

19 (2) The analysis for chapter 35 of such title is amended

20 by striking out the items relating to sections 3551 through

21 3556 and the heading for subchapter V.
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1 Subtitle E—Transfers and Transi2 tional, Savings, and Conforming

3 Provisions

4 SEC. 441. TRANSFER AND ALLOCATION OF APPROPRIA5 TIONS AND PERSONNEL.

6 (a) TRANSFERS.—

7 (1) ARMED SERVICES BOARD OF CONTRACT AP8 PEALS.—The personnel employed in connection with,

9 and the assets, liabilities, contracts, property, records,

10 and unexpended balance of appropriations, authoriza11 tions, allocations, and other funds employed, held,

12 used, arising from, available to, or to be made avail13 able in connection with the functions vested by law in

14 the Armed Services Board of Contract Appeals estab15 lished pursuant to section 8 of the Contract Disputes

16 Act of 1978 (41 U.S.C. 607) (as in effect on the day

17 before the effective date of this Act), shall be trans18 ferred to the Department of Defense Board of Contract

19 Appeals for appropriate allocation by the Chairman

20 of that Board.

21 (2) OTHER BOARDS OF CONTRACTS APPEALS.—

22 The personnel employed in connection with, and the

23 assets, liabilities, contracts, property, records, and un24 expended balance of appropriations, authorizations,

25 allocations, and other funds employed, held, used,
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1 arising from, available to, or to be made available in

2 connection with the functions vested by law in the

3 boards of contract appeals established pursuant to sec4 tion 8 of the Contract Disputes Act of 1978 (41

5 U.S.C. 607) other than the Armed Services Board of

6 Contract Appeals (as in effect on the day before the

7 effective date of this Act), shall be transferred to the

8 Civilian Board of Contract Appeals for appropriate

9 allocation by the Chairman of that Board.

10 (3) COMPTROLLER GENERAL.—(A) One-third (as

11 determined by the Comptroller General) of the person12 nel employed in connection with, and one-third (as

13 determined by the Comptroller General) of the assets,

14 liabilities, contracts, property, records, and unex15 pended balance of appropriations, authorizations, al16 locations, and other funds employed, held, used, aris17 ing from, available to, or to be made available in con18 nection with the functions vested by law in the Comp19 troller General pursuant to subchapter V of chapter

20 35 of title 31, United States Code (as in effect on the

21 day before the effective date of this Act), shall be

22 transferred to the Civilian Board of Contract Appeals

23 for appropriate allocation by the Chairman of that

24 Board.
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1 (B) Two-thirds (as determined by the Comptrol2 ler General) of the personnel employed in connection

3 with, and two-thirds (as determined by the Comptrol4 ler General) of the assets, liabilities, contracts, prop5 erty, records, and unexpended balance of appropria6 tions, authorizations, allocations, and other funds em7 ployed, held, used, arising from, available to, or to be

8 made available in connection with the functions vest9 ed by law in the Comptroller General pursuant to

10 subchapter V of chapter 35 of title 31, United States

11 Code (as in effect on the day before the effective date

12 of this Act), shall be transferred to the Department of

13 Defense Board of Contract Appeals for appropriate

14 allocation by the Chairman of that Board.

15 (b) EFFECT ON PERSONNEL.—Personnel transferred

16 pursuant to this title shall not be separated or reduced in

17 compensation for one year after such transfer, except for

18 cause.

19 (c) REGULATIONS.—(1) The Department of Defense

20 Board of Contract Appeals and the Civilian Board of Con21 tract Appeals shall each prescribe regulations for the release

22 of competing employees in a reduction in force that gives

23 due effect to—

24 (A) efficiency or performance ratings;

25 (B) military preference; and
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1 (C) tenure of employment.

2 (2) In prescribing the regulations, the Board concerned

3 shall provide for military preference in the same manner

4 as set forth in subchapter I of chapter 35 of title 5, United

5 States Code.

6 SEC. 442. TERMINATIONS AND SAVINGS PROVISIONS.

7 (a) TERMINATION OF BOARDS OF CONTRACT AP8 PEALS.—On the effective date of this title, the boards of con9 tract appeals established pursuant to section 8 of the Con10 tract Disputes Act of 1978 (41 U.S.C. 607) (as in effect

11 on the day before the effective date of this Act) shall termi12 nate.

13 (b) SAVINGS PROVISION FOR CONTRACT DISPUTE

14 MATTERS PENDING BEFORE BOARDS.—(1) The provisions

15 of this title shall not affect any proceedings (other than bid

16 protests pending before the board of contract appeals of the

17 General Services Administration) pending on the effective

18 date of this Act before any board of contract appeals de19 scribed in subsection (a).

20 (2) In the case of any such proceedings pending before

21 the Armed Services Board of Contract Appeals, the proceed22 ings shall be continued by the Department of Defense Board

23 of Contract Appeals, and orders which were issued in any

24 such proceeding by the Armed Services Board of Contract

25 Appeals shall continue in effect until modified, terminated,
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1 superseded, or revoked by the Department of Defense Board

2 of Contract Appeals, by a court of competent jurisdiction,

3 or by operation of law.

4 (3) In the case of any such proceedings pending before

5 an agency board of contract appeals other than the Armed

6 Services Board of Contract Appeals, the proceedings shall

7 be continued by the Civilian Board of Contract Appeals,

8 and orders which were issued in any such proceeding by

9 the agency board shall continue in effect until modified, ter10 minated, superseded, or revoked by the Civilian Board of

11 Contract Appeals, by a court of competent jurisdiction, or

12 by operation of law.

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

14 protest may be submitted to the Comptroller General pursu15 ant to section 3553(a) of title 31, United States Code, or

16 to the board of contract appeals for the General Services

17 Administration pursuant to the Brooks Automatic Data

18 Processing Act (40 U.S.C. 759) on or after the effective date

19 of this Act.

20 (2) In the case of bid protest proceedings pending be21 fore the board of contract appeals of the General Services

22 Administration on the effective date of this Act, the proceed23 ings shall be continued by the Civilian Board of Contract

24 Appeals. The provisions repealed by section 431(a) shall

25 continue to apply to such proceedings until the Civilian
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1 Board of Contract Appeals determines such proceedings

2 have been completed.

3 (3) The provisions repealed by section 431(b) shall con4 tinue to apply to proceedings pending on the effective date

5 of this title before the Comptroller General pursuant to those

6 provisions, until the Comptroller General determines such

7 proceedings have been completed.

8 SEC. 443. CONTRACT DISPUTES AUTHORITY OF BOARDS.

9 (a) Section 2 of the Contract Disputes Act of 1978 (41

10 U.S.C. 601) is amended—

11 (1) by amending paragraph (6) to read as fol12 lows:

13 ‘‘(6) the term ‘Defense Board’ means the Depart14 ment of Defense Board of Contract Appeals estab15 lished under section 8(a) of this Act;’’;

16 (2) by redesignating paragraph (7) as para17 graph (8); and

18 (3) by inserting after paragraph (6) the follow19 ing new paragraph (7):

20 ‘‘(7) the term ‘Civilian Board’ means the Civil21 ian Board of Contract Appeals established under sec22 tion 8(b) of this Act; and’’.

23 (b) Section 6(c)(6) of the Contract Disputes Act of

24 1978 (41 U.S.C. 605(c)(6)) is amended—
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1 (1) by striking out ‘‘court or an agency board of

2 contract appeals’’ and inserting in lieu thereof ‘‘court,

3 the Defense Board, or the Civilian Board’’;

4 (2) by striking out ‘‘an agency board of contract

5 appeals’’ in the third sentence and inserting in lieu

6 thereof ‘‘the Defense Board or the Civilian Board’’;

7 and

8 (3) by striking out ‘‘agency board’’ and inserting

9 in lieu thereof ‘‘the Board concerned’’.

10 (c) Section 7 of the Contract Disputes Act of 1978 (41

11 U.S.C. 606) is amended by striking out ‘‘an agency board

12 of contract appeals’’ and inserting in lieu thereof ‘‘the De13 fense Board or the Civilian Board’’.

14 (d) Section 8 of the Contract Disputes Act of 1978 (41

15 U.S.C. 607), as amended by section 411, is further amend16 ed—

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

18 ‘‘DEFENSE AND CIVILIAN BOARDS OF CONTRACT APPEALS’’;

19 (2) by striking out subsection (c);

20 (3) in subsection (d)—

21 (A) by striking out the first sentence and

22 inserting in lieu thereof the following:

23 ‘‘The Defense Board shall have jurisdiction to decide any

24 appeal from a decision of a contracting officer of the De25 partment of Defense, the Department of the Army, the De26 partment of the Navy, or the Department of the Air Force
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1 relative to a contract made by that department. The Civil2 ian Board shall have jurisdiction to decide any appeal from

3 a decision of a contracting officer of any executive agency

4 (other than the Department of Defense or the Department

5 of the Army, the Navy, or the Air Force) relative to a con6 tract made by that agency.’’; and

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

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

9 ‘‘the Board concerned’’;

10 (4) in subsection (e), by striking out ‘‘An agency

11 board shall provide’’ and inserting in lieu thereof

12 ‘‘The Defense Board and the Civilian Board shall

13 each provide,’’;

14 (5) in subsection (f), by striking out ‘‘each agen15 cy board’’ and inserting in lieu thereof ‘‘the Defense

16 Board and the Civilian Board’’;

17 (6) in subsection (g)—

18 (A) in the first sentence of paragraph (1),

19 by striking out ‘‘an agency board of contract ap20 peals’’ and inserting in lieu thereof ‘‘the Defense

21 Board or the Civilian Board, as the case may

22 be,’’;

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

24 (C) by redesignating paragraph (3) as

25 paragraph (2); and
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1 (7) by striking out subsections (h) and (i).

2 (e) Section 9 of the Contract Disputes Act of 1978 (41

3 U.S.C. 608) is amended—

4 (1) in subsection (a), by striking out ‘‘each agen5 cy board’’ and inserting in lieu thereof ‘‘the Defense

6 Board and the Civilian Board’’; and

7 (2) in subsection (b), by striking out ‘‘the agency

8 board’’ and inserting in lieu thereof ‘‘the Board con9 cerned’’.

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

11 (41 U.S.C. 609) is amended—

12 (1) in subsection (a)—

13 (A) in the first sentence of paragraph (1)—

14 (i) by striking out ‘‘Except as provided

15 in paragraph (2), and in’’ and inserting in

16 lieu thereof ‘‘In’’; and

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

18 and inserting in lieu thereof ‘‘the Defense

19 Board or the Civilian Board’’;

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

21 (C) by redesignating paragraph (3) as

22 paragraph (2), and in that paragraph by strik23 ing out ‘‘or (2)’’;

24 (2) in subsection (b)—
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1 (A) by striking out ‘‘any agency board’’ and

2 inserting in lieu thereof ‘‘the Defense Board or

3 the Civilian Board’’; and

4 (B) by striking out ‘‘the agency board’’ and

5 inserting in lieu thereof ‘‘the Board concerned’’;

6 (3) in subsection (c)—

7 (A) by striking out ‘‘an agency board’’ and

8 inserting in lieu of each ‘‘the Defense Board or

9 the Civilian Board’’; and

10 (B) by striking out ‘‘the agency board’’ and

11 inserting in lieu thereof ‘‘the Board concerned’’;

12 and

13 (4) in subsection (d)—

14 (A) by striking out ‘‘one or more agency

15 boards’’ and inserting in lieu thereof ‘‘the De16 fense Board or the Civilian Board (or both)’’;

17 and

18 (B) by striking out ‘‘or among the agency

19 boards involved’’ and inserting in lieu thereof

20 ‘‘one or both of the Boards’’.

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 Defense Board or the Civilian

2 Board’’; 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 Defense Board or the Civilian 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 agency

11 board of contract appeals’’ and inserting in lieu

12 thereof ‘‘the Defense Board or the Civilian Board’’;

13 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 Defense Board or the Civilian Board

17 from’’.

18 SEC. 444. REFERENCES TO AGENCY BOARDS OF CONTRACT

19 APPEALS.

20 (a) DEFENSE BOARD.—Any reference to the Armed

21 Services Board of Contract Appeals in any provision of law

22 or in any rule, regulation, or other paper of the United

23 States shall be treated as referring to the Department of

24 Defense Board of Contract Appeals.
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1 (b) CIVILIAN BOARD.—Any reference to an agency

2 board of contract appeals other than the Armed Services

3 Board of Contract Appeals in any provision of law or in

4 any rule, regulation, or other paper of the United States

5 shall be treated as referring to the Civilian Board of Con6 tract Appeals.

7 SEC. 445. CONFORMING AMENDMENTS.

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

9 Code, is amended—

10 (1) in subsection (a)(1), by striking out ‘‘an

11 agency board of contract appeals appointed under

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

13 inserting in lieu thereof ‘‘the Department of Defense

14 Board of Contract Appeals or the Civilian Board of

15 Contract Appeals appointed under section 202 of the

16 Office of Federal Procurement Policy Act’’; and

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

18 agency board of contract appeals’’ and inserting in

19 lieu thereof ‘‘the Department of Defense Board of Con20 tract Appeals or the Civilian Board of Contract Ap21 peals’’.

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

23 States Code, is amended—

24 (A) in paragraph (1), by striking out ‘‘sub25 chapter V of chapter 35 of title 31’’ and inserting in
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1 lieu thereof ‘‘title II of the Office of Federal Procure2 ment Policy Act’’; and

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

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

5 (A) in paragraph (1), by striking out ‘‘subpara6 graphs (A) through (F) of subsection (b)(1) of section

7 3554 of title 31’’ and inserting in lieu thereof ‘‘section

8 214(h)(2) of the Office of Federal Procurement Policy

9 Act’’; and

10 (B) in paragraph (2), by striking out ‘‘para11 graph (1) of section 3554(c) of title 31 within the lim12 its referred to in paragraph (2)’’ and inserting in

13 lieu thereof ‘‘subparagraph (A) of section 214(i)(1) of

14 the Office of Federal Procurement Policy Act within

15 the limits referred to in subparagraph (B)’’.

16 (c) FEDERAL PROPERTY AND ADMINISTRATIVE SERV17 ICES ACT OF 1949.—(1) Section 303B(j) (as redesignated

18 by section 104(b)(2)) of the Federal Property and Adminis19 trative Services Act of 1949 (41 U.S.C. 253b(h)) is amend20 ed—

21 (A) in paragraph (1), by striking out ‘‘sub22 chapter V of chapter 35 of title 31, United States

23 Code’’ and inserting in lieu thereof ‘‘title II of the Of24 fice of Federal Procurement Policy Act’’; and

25 (B) by striking out paragraph (3).
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1 (2) Section 303B(k) (as redesignated by section

2 104(b)(2)) of such Act (41 U.S.C. 253b(i)) is amended—

3 (A) in paragraph (1), by striking out ‘‘in sub4 paragraphs (A) through (F) of subsection (b)(1) of

5 section 3554 of title 31, United States Code’’ and in6 serting in lieu thereof ‘‘section 214(h)(2) of the Office

7 of Federal Procurement Policy Act’’; and

8 (B) in paragraph (2), by striking out ‘‘para9 graph (1) of section 3554(c) of such title within the

10 limits referred to in paragraph (2)’’ and inserting in

11 lieu thereof ‘‘subparagraph (A) of section 214(i)(1) of

12 the Office of Federal Procurement Policy Act within

13 the limits referred to in subparagraph (B)’’.

14 (d) OFFICE OF FEDERAL PROCUREMENT POLICY

15 ACT.—The table of contents for the Office of Federal Pro16 curement Policy Act (contained in section 1(b)) is amend17 ed—

18 (1) by inserting the following before the item re19 lating to section 1:

‘‘TITLE I—FEDERAL PROCUREMENT POLICY GENERALLY’’;

20 and

21 (2) by adding at the end the following:

‘‘TITLE II—DISPUTE RESOLUTION

‘‘SUBTITLE A—GENERAL PROVISIONS

‘‘Sec. 201. Definitions.

‘‘Sec. 202. Membership.

‘‘Sec. 203. Chairman.

‘‘Sec. 204. Rulemaking authority.
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‘‘Sec. 205. Authorization of appropriations.

‘‘SUBTITLE B—FUNCTIONS OF THE DEFENSE AND CIVILIAN BOARDS OF

CONTRACT APPEALS

‘‘Sec. 211. Alternative dispute resolution services.

‘‘Sec. 212. Alternative dispute resolution of disputes and protests submitted to

Boards.

‘‘Sec. 213. Contract disputes.

‘‘Sec. 214. Protests.

‘‘Sec. 215. Applicability to certain contracts.’’.

1 Subtitle F—Effective Date; Interim

2 Appointment and Rules

3 SEC. 451. EFFECTIVE DATE.

4 This title and the amendments made by this title shall

5 take effect on October 1, 1996.

6 SEC. 452. INTERIM APPOINTMENT.

7 (a) DEFENSE BOARD.—The judge serving as chairman

8 of the Armed Services Board of Contract Appeals on the

9 date of the enactment of this Act shall serve as Chairman

10 of the Department of Defense Board of Contract Appeals

11 during the two-year period beginning on the effective date

12 of this title, unless such individual resigns such position

13 or the position otherwise becomes vacant before the expira14 tion of such period. The authority vested in the Secretary

15 of Defense by section 203(a) of the Office of Federal Procure16 ment Policy Act (as added by section 413) shall take effect

17 upon the expiration of such two-year period or on the date

18 such position is vacated, whichever occurs earlier.

19 (b) CIVILIAN BOARD.—The judge serving as chairman

20 of the board of contract appeals of the General Services Ad-
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1 ministration on the date of the enactment of this Act shall

2 serve as Chairman of the Civilian Board of Contract Ap3 peals during the two-year period beginning on the effective

4 date of this title, unless such individual resigns such posi5 tion or the position otherwise becomes vacant before the ex6 piration of such period. The authority vested in the Admin7 istrator of General Services by section 203(a) of the Office

8 of Federal Procurement Policy Act (as added by section

9 413) shall take effect upon the expiration of such two-year

10 period or on the date such position is vacated, whichever

11 occurs earlier.

12 SEC. 453. INTERIM RULES.

13 (a) RULES OF PROCEDURE.—Until such date as rules

14 of procedure are promulgated pursuant to section 204 of

15 the Office of Federal Procurement Policy Act (as added by

16 section 414)—

17 (1) for protests, the rules of procedure of the

18 board of contract appeals of the General Services Ad19 ministration, as in effect on the day before the effec20 tive date of this Act, shall be the rules of procedure

21 for both the Department of Defense Board of Contract

22 Appeals and the Civilian Board of Contract Appeals;

23 and

24 (2) for contract disputes—
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1 (A) the rules of procedure of the board of

2 contract appeals of the General Services Admin3 istration, as in effect on the day before the effec4 tive date of this Act, shall be the rules of proce5 dure for the Civilian Board of Contract Appeals;

6 and

7 (B) the rules of procedure of the Armed

8 Services Board of Contract Appeals, as in effect

9 on the day before the effective date of this Act,

10 shall be the rules of procedure for the Depart11 ment of Defense Board of Contract Appeals.

12 (b) RULES REGARDING BOARD JUDGES.—(1) Until

13 such date as the Department of Defense Board of Contract

14 Appeals (in this paragraph referred to as the ‘‘Defense

15 Board’’) promulgates rules governing the establishment and

16 maintenance of a register of eligible applicants and the se17 lection of Board judges, the rules of the Armed Services

18 Board of Contract Appeals governing the establishment and

19 maintenance of a register of eligible applicants and the se20 lection of board members (as in effect on the day before the

21 effective date of this Act) shall be the rules of the Defense

22 Board governing the establishment and maintenance of a

23 register of eligible applicants and the selection of Board

24 judges, except that any provisions of the rules of the Armed

25 Services Board of Contract Appeals that authorize any in-
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1 dividual other than the chairman of such board to select

2 a Defense Board judge shall have no effect.

3 (2) Until such date as the Civilian Board of Contract

4 Appeals (in this paragraph referred to as the ‘‘Civilian

5 Board’’) promulgates rules governing the establishment and

6 maintenance of a register of eligible applicants and the se7 lection of Board judges, the rules of the board of contract

8 appeals of the General Services Administration governing

9 the establishment and maintenance of a register of eligible

10 applicants and the selection of board members (as in effect

11 on the day before the effective date of this Act) shall be the

12 rules of the Civilian Board governing the establishment and

13 maintenance of a register of eligible applicants and the se14 lection of Board judges, except that any provisions of the

15 rules of the board of contract appeals of the General Services

16 Administration that authorize any individual other than

17 the chairman of such board to select a Civilian Board judge

18 shall have no effect.

19 TITLE V—EFFECTIVE DATES AND

20 IMPLEMENTATION

21 SEC. 501. EFFECTIVE DATE AND APPLICABILITY.

22 (a) EFFECTIVE DATE.—Except as otherwise provided

23 in this title, this title and the amendments made by this

24 title shall take effect on the date of the enactment of this

25 Act.
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1 (b) APPLICABILITY OF AMENDMENTS.—(1) An amend2 ment made by this title shall apply, in the manner pre3 scribed in the final regulations promulgated pursuant to

4 section 502 to implement such amendment, with respect to

5 any solicitation that is issued, any unsolicited proposal

6 that is received, and any contract entered into pursuant

7 to such a solicitation or proposal, on or after the date de8 scribed in paragraph (3).

9 (2) An amendment made by this title shall also apply,

10 to the extent and in the manner prescribed in the final regu11 lations promulgated pursuant to section 502 to implement

12 such amendment, with respect to any matter related to—

13 (A) a contract that is in effect on the date de14 scribed in paragraph (3);

15 (B) an offer under consideration on the date de16 scribed in paragraph (3); or

17 (C) any other proceeding or action that is ongo18 ing on the date described in paragraph (3).

19 (3) The date referred to in paragraphs (1) and (2) is

20 the date specified in such final regulations. The date so

21 specified shall be October 1, 1996, or any earlier date that

22 is not within 30 days after the date on which such final

23 regulations are published.
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1 SEC. 502. IMPLEMENTING REGULATIONS.

2 (a) PROPOSED REVISIONS.—Proposed revisions to the

3 Federal Acquisition Regulation and such other proposed

4 regulations (or revisions to existing regulations) as may be

5 necessary to implement this title shall be published in the

6 Federal Register not later than 210 days after the date of

7 the enactment of this Act.

8 (b) PUBLIC COMMENT.—The proposed regulations de9 scribed in subsection (a) shall be made available for public

10 comment for a period of not less than 60 days.

11 (c) FINAL REGULATIONS.—Final regulations shall be

12 published in the Federal Register not later than 330 days

13 after the date of enactment of this Act.

14 (d) MODIFICATIONS.—Final regulations promulgated

15 pursuant to this section to implement an amendment made

16 by this title may provide for modification of an existing

17 contract without consideration upon the request of the con18 tractor.

19 (e) SAVINGS PROVISIONS.—(1) Nothing in this title

20 shall be construed to affect the validity of any action taken

21 or any contract entered into before the date specified in the

22 regulations pursuant to section 501(b)(3) except to the ex23 tent and in the manner prescribed in such regulations.

24 (2) Except as specifically provided in this title, noth25 ing in this title shall be construed to require the renegoti-
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1 ation or modification of contracts in existence on the date

2 of the enactment of this Act.

3 (3) Except as otherwise provided in this title, a law

4 amended by this title shall continue to be applied according

5 to the provisions thereof as such law was in effect on the

6 day before the date of the enactment of this Act until—

7 (A) the date specified in final regulations imple8 menting the amendment of that law (as promulgated

9 pursuant to this section); or

10 (B) if no such date is specified in regulations,

11 October 1, 1996.

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