IIA

104TH CONGRESS

1ST SESSION H. R. 1670

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 18 (legislative day, SEPTEMBER 5), 1995

Received; read twice and referred to the Committee on Governmental Affairs

AN ACT

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,
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1 SECTION 1. SHORT TITLE.

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

3 Reform Act of 1995’’.

4 SEC. 2. TABLE OF CONTENTS.

5 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.

Sec. 107. Two-phase selection procedures.

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.

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.
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Sec. 319. Demonstration project relating to certain personnel management policies and procedures.

Sec. 320. Cooperative purchasing.

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; Regulations and Appointment of Chairmen

Sec. 451. Effective date.

Sec. 452. Regulations.

Sec. 453. Appointment of chairmen of defense board and civilian board.

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 stat11 ute, the head of an agency in conducting a procurement

12 for 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 ef16 ficiently 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

21 combination of competitive procedures that is best

22 suited 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

9 receiving more than one sealed bid; and

10 ‘‘(B) shall request competitive proposals if

11 sealed bids are not appropriate under clause (A).

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

13 head of an agency may provide for the procurement of

14 property or services covered by this title using competitive

15 procedures but excluding a particular source in order to

16 establish or maintain an alternative source or sources of

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

19 which a particular source may be excluded pursuant to

20 this subsection.

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

22 BUSINESS CONCERNS AND CERTAIN OTHER ENTITIES.—

23 The head of an agency may provide for the procurement

24 of property or services covered by this section using com25 petitive procedures, but excluding concerns other than
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1 small business concerns in furtherance of sections 9 and

2 15 of the Small Business Act (15 U.S.C. 638, 644) and

3 concerns other than small business concerns, historically

4 Black colleges and universities, and minority institutions

5 in furtherance of section 2323 of this title.

6 ‘‘(d) PROCEDURES OTHER THAN COMPETITIVE PRO7 CEDURES.—(1) Procedures other than competitive proce8 dures may be used for purchasing property and services

9 only when the use of competitive procedures is not feasible

10 or appropriate. Standards for determining when the use

11 of competitive procedures is not feasible or appropriate

12 shall be set forth in the Federal Acquisition Regulation.

13 Each procurement using procedures other than competi14 tive procedures (other than a procurement for commercial

15 items using simplified procedures or a procurement in an

16 amount not greater than the simplified acquisition thresh17 old) shall be justified in writing and approved in accord18 ance with the Federal Acquisition Regulation.

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

20 that preclude all but one source from responding (herein21 after in this subsection referred to as a ‘sole source pro22 curement’), the Federal Acquisition Regulation shall pro23 vide for justification and approval under paragraph (1) of

24 such procurement under standards that set forth limited
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1 circumstances for such sole source procurements, includ2 ing circumstances when—

3 ‘‘(A) the property or services needed by the

4 agency are available from only one responsible

5 source and no other type of property or services will

6 satisfy the needs of the agency;

7 ‘‘(B) the agency’s need for the property or serv8 ices is of such an unusual and compelling urgency

9 that the United States would be seriously injured

10 unless the agency is permitted to award the contract

11 for the property or services to a particular source;

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

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

14 producer, manufacturer, or other supplier available

15 for furnishing property or services in case of a na16 tional emergency or to achieve industrial mobiliza17 tion, (ii) to establish or maintain an essential engi18 neering, research, or development capability to be

19 provided by an educational or other nonprofit insti20 tution or a federally funded research and develop21 ment center, or (iii) to procure the services of an ex22 pert for use, in any litigation or dispute (including

23 any reasonably foreseeable litigation or dispute) in24 volving the Federal Government, in any trial, hear25 ing, or proceeding before any court, administrative
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1 tribunal, or agency, or in any part of an alternative

2 dispute resolution process, whether or not the expert

3 is expected to testify;

4 ‘‘(D) the terms of an international agreement

5 or a treaty between the United States and a foreign

6 government or international organization, or the

7 written directions of a foreign government reimburs8 ing the agency for the cost of the procurement of the

9 property or services for such government, have the

10 effect of requiring the award of the contract for the

11 property or services to a particular source;

12 ‘‘(E) subject to section 2304f, a statute ex13 pressly authorizes or requires that the procurement

14 be made through another agency or from a specified

15 source, or the agency’s need is for a brand-name

16 commercial item for authorized resale;

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

18 compromise the national security unless the agency

19 is permitted to award the contract for the property

20 or services needed by the agency to a particular

21 source; or

22 ‘‘(G) the head of the agency—

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

24 public interest to award the contract for the

25 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

4 such determination not less than 30 days before

5 the 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

11 Federal Acquisition Regulation shall provide for special

12 simplified procedures for purchases of property and serv13 ices for amounts not greater than the simplified acquisi14 tion threshold.

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

18 amounts in order to use the simplified procedures required

19 by paragraph (1).

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

21 agency shall ensure that competition is obtained to the

22 maximum extent practicable consistent with the particular

23 Government 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 treat2 ed 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

5 rate of wages for laborers and mechanics employed

6 on public buildings of the United States and the

7 District of Columbia by contractors and subcontrac8 tors, and for other purposes’, approved March 3,

9 1931 (commonly referred to as the ‘Davis-Bacon

10 Act’) (40 U.S.C. 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)

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

19 before the date of the enactment of this Act, modi20 fied—

21 (i) by striking out the subsection designa22 tion;

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

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

25 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

6 (d), respectively; and

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

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

9 (C) as paragraphs (1), (2), and (3), respec10 tively.

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

12 chapter is amended by inserting before the item relating

13 section 2305 the following new item:

‘‘2304 f. Merit-based selection.’’.

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

15 303 of the Federal Property and Administrative Services

16 Act of 1949 (41 U.S.C. 253) is amended to read as fol17 lows:

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

19 ‘‘(a) COMPETITION.—(1) Except as provided in sub20 sections (b), (c), and (e) and except in the case of procure21 ment procedures otherwise expressly authorized by stat22 ute, an executive agency in conducting a procurement for

23 property or services—

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

25 ‘‘(i) that provides open access, and
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1 ‘‘(ii) that is consistent with the need to ef2 ficiently fulfill the Government’s requirements,

3 through the use of competitive procedures in accord4 ance with this title and the Federal Acquisition Reg5 ulation; and

6 ‘‘(B) shall use the competitive procedure or

7 combination of competitive procedures that is best

8 suited under the circumstances of the procurement.

9 ‘‘(2) In determining the competitive procedure appro10 priate under the circumstances, an executive agency—

11 ‘‘(A) shall solicit sealed bids if—

12 ‘‘(i) time permits the solicitation, submis13 sion, and evaluation of sealed bids;

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

15 of price and other price-related factors;

16 ‘‘(iii) it is not necessary to conduct discus17 sions with the responding sources about their

18 bids; and

19 ‘‘(iv) there is a reasonable expectation of

20 receiving more than one sealed bid; and

21 ‘‘(B) shall request competitive proposals if

22 sealed bids are not appropriate under clause (A).

23 ‘‘(b) EXCLUSION OF PARTICULAR SOURCE.—An ex24 ecutive agency may provide for the procurement of prop25 erty or services covered by this title using competitive pro-
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1 cedures but excluding a particular source in order to es2 tablish or maintain an alternative source or sources of

3 supply for that property or service. The Federal Acquisi4 tion Regulation shall set forth the circumstances under

5 which a particular source may be excluded pursuant to

6 this subsection.

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

8 BUSINESS CONCERNS AND CERTAIN OTHER ENTITIES.—

9 An executive agency may provide for the procurement of

10 property or services covered by this section using competi11 tive procedures, but excluding concerns other than small

12 business concerns in furtherance of sections 9 and 15 of

13 the Small Business Act (15 U.S.C. 638, 644) and con14 cerns other than small business concerns, historically

15 Black colleges and universities, and minority institutions

16 in furtherance of section 7102 of the Federal Acquisition

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

18 ‘‘(d) PROCEDURES OTHER THAN COMPETITIVE PRO19 CEDURES.—(1) Procedures other than competitive proce20 dures may be used for purchasing property and services

21 only when the use of competitive procedures is not feasible

22 or appropriate. Standards for determining when the use

23 of competitive procedures is not feasible or appropriate

24 shall be set forth in the Federal Acquisition Regulation.

25 Each procurement using procedures other than competi-
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1 tive procedures (other than a procurement for commercial

2 items using simplified procedures or a procurement in an

3 amount not greater than the simplified acquisition thresh4 old) shall be justified in writing and approved in accord5 ance with the Federal Acquisition Regulation.

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

7 that preclude all but one source from responding (herein8 after in this subsection referred to as a ‘sole source pro9 curement’), the Federal Acquisition Regulation shall pro10 vide for justification and approval under paragraph (1) of

11 such procurement under standards that set forth limited

12 circumstances for such sole source procurements, includ13 ing circumstances when—

14 ‘‘(A) the property or services needed by the ex15 ecutive agency are available from only one respon16 sible source and no other type of property or services

17 will satisfy the needs of the executive agency;

18 ‘‘(B) the executive agency’s need for the prop19 erty or services is of such an unusual and compelling

20 urgency that the United States would be seriously

21 injured unless the executive agency is permitted to

22 award the contract for the property or services to a

23 particular source;

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

25 particular source in order (i) to maintain a facility,
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1 producer, manufacturer, or other supplier available

2 for furnishing property or services in case of a na3 tional emergency or to achieve industrial mobiliza4 tion, (ii) to establish or maintain an essential engi5 neering, research, or development capability to be

6 provided by an educational or other nonprofit insti7 tution or a federally funded research and develop8 ment center, or (iii) to procure the services of an ex9 pert for use, in any litigation or dispute (including

10 any reasonably foreseeable litigation or dispute) in11 volving the Federal Government, in any trial, hear12 ing, or proceeding before any court, administrative

13 tribunal, or agency, or in any part of an alternative

14 dispute resolution process, whether or not the expert

15 is expected to testify;

16 ‘‘(D) the terms of an international agreement

17 or treaty between the United States Government and

18 a foreign government or international organization,

19 or the written directions of a foreign government re20 imbursing the executive agency for the cost of the

21 procurement of the property or services for such

22 government, have the effect of requiring the award

23 of the contract for the property or services to a par24 ticular source;
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1 ‘‘(E) subject to section 303M, a statute ex2 pressly authorizes or requires that the procurement

3 be made through another executive agency or from

4 a specified source, or the agency’s need is for a

5 brand-name commercial item for authorized resale;

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

7 needs would compromise the national security unless

8 the agency is permitted to award the contract for

9 the property or services needed by the agency to a

10 particular source; or

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

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

13 public interest to award the contract for the

14 property or services needed by the agency to a

15 particular source in the particular procurement

16 concerned, and

17 ‘‘(ii) notifies the Congress in writing of

18 such determination not less than 30 days before

19 the award of the contract.

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

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

22 ‘‘(e) SIMPLIFIED PROCEDURES.—(1) In order to pro23 mote efficiency and economy in contracting and to avoid

24 unnecessary burdens for agencies and contractors, the

25 Federal Acquisition Regulation shall provide for special
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1 simplified procedures for purchases of property and serv2 ices for amounts not greater than the simplified acquisi3 tion threshold.

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

5 prescribe regulations that provide special simplified proce6 dures for acquisitions of leasehold interests in real prop7 erty at rental rates that do not exceed the simplified acqui8 sition threshold.

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

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

11 simplified acquisition threshold if the average annual

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

13 not exceed the simplified acquisition threshold.

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

15 amount above the simplified acquisition threshold may not

16 be divided into several purchases or contracts for lesser

17 amounts in order to use the simplified procedures required

18 by paragraph (1).

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

20 agency shall ensure that competition is obtained to the

21 maximum extent practicable consistent with the particular

22 Government requirement.’’.

23 (2) Title III of the Federal Property and Administra24 tive Services Act of 1949 (41 U.S.C. 251 et seq.) is

25 amended by inserting after section 303L a new section—
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1 (A) the designation and heading for which is as

2 follows:

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

4 and

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

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

7 before the date of the enactment of this Act, modi8 fied—

9 (i) by striking out the subsection designa10 tion;

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

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

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

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

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

16 ‘‘subsection (a)’’;

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

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

19 (d), respectively; and

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

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

22 (C) as paragraphs (1), (2), and (3), respec23 tively.
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1 (3) The table of contents for the Federal Property

2 and Administrative Services Act of 1949 (contained in sec3 tion 1(b)) is amended—

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

5 303 and inserting in lieu thereof the following:

‘‘Sec. 303. Contracts: competition requirements.’’;

6 and

7 (B) by inserting after the item relating to sec8 tion 303L the following new item:

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

9 (c) REVISIONS TO PROCUREMENT NOTICE PROVI10 SIONS.—Section 18 of the Office of Federal Procurement

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

12 (1) in subsection (a)—

13 (A) in subparagraph (B) of paragraph

14 (1)—

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

16 and all that follows through the end of the

17 subparagraph and inserting in lieu thereof

18 ‘‘subsection (b); and’’; and

19 (ii) by inserting after ‘‘property or

20 services’’ the following: ‘‘for a price ex21 pected to exceed $10,000 but not to exceed

22 $25,000’’;

23 (B) by striking out paragraph (4); and
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1 (C) by redesignating paragraphs (5) and

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

3 (2) in subsection (b)—

4 (A) by amending subparagraph (B) of

5 paragraph (2) to read as follows:

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

7 conducted pursuant to a contractor verification

8 system (as provided pursuant to section 35) or

9 whether the offeror, its product, or its service

10 otherwise must meet a qualification require11 ment in order to be eligible for award and, if

12 so, identify the criteria to be used in determin13 ing such eligibility;’’; and

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

15 follows:

16 ‘‘(4) a statement that all responsible sources

17 may submit for consideration a bid, proposal, or

18 quotation;’’.

19 (d) EXECUTIVE AGENCY RESPONSIBILITIES.—(1)

20 Section 16 of the Office of Federal Procurement Policy

21 Act (41 U.S.C. 414) is amended—

22 (A) by striking out ‘‘achieve’’ in the matter pre23 ceding paragraph (1) and inserting in lieu thereof

24 ‘‘promote’’; and
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1 (B) by amending paragraph (1) to read as fol2 lows:

3 ‘‘(1) to implement competition that provides

4 open access for responsible sources in the procure5 ment of property or services by the executive agency

6 by establishing policies, procedures, and practices

7 that are consistent with the need to efficiently fulfill

8 the Government’s requirements;’’.

9 (2) Section 20 of such Act (41 U.S.C. 418) is amend10 ed in subsection (a)(2)(A) by striking out ‘‘serving in a

11 position authorized for such executive agency on the date

12 of enactment of the Competition in Contracting Act of

13 1984’’.

14 SEC. 102. DEFINITIONS RELATING TO COMPETITION RE15 QUIREMENTS.

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

17 4 of the Office of Federal Procurement Policy Act (41

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

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

20 procedures under which an agency enters into a con21 tract pursuant to full and open competition that pro22 vides open access and is consistent with the need to

23 efficiently fulfill the Government’s requirements.

24 ‘‘(6) The term ‘open access’, when used with re25 spect to a procurement, means that all responsible
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1 sources are permitted to submit sealed bids or com2 petitive proposals on the procurement.’’.

3 (b) CONFORMING AMENDMENTS.—

4 (1) OFFICE OF FEDERAL PROCUREMENT POL5 ICY ACT.—Section 20 of the Office of Federal Pro6 curement Policy Act is amended—

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

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

9 ‘‘full and open competition’’ the following: ‘‘that

10 provides open access and is consistent with the

11 need to efficiently fulfill the Government’s re12 quirements’’ each place it appears; and

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

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

15 inserting in lieu thereof ‘‘that remain to achiev16 ing full and open competition that provides

17 open access and is consistent with the need to

18 efficiently fulfill the Government’s require19 ments’’.

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

21 amended—

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

23 first sentence and inserting in lieu thereof the

24 following: ‘‘The term ‘competitive procedures’

25 means procedures under which an agency enters
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1 into a contract pursuant to full and open com2 petition that provides open access and is con3 sistent with the need to efficiently fulfill the

4 Government’s requirements.’’;

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

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

7 lieu thereof ‘‘open access’’;

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

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

10 thereof ‘‘procedures other than’’; and

11 (D) in section 2323(i)(3)(A), by striking

12 out ‘‘full and open’’.

13 (3) FEDERAL PROPERTY AND ADMINISTRATIVE

14 SERVICES ACT.—Title III of the Federal Property

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

16 251 et seq.) is amended—

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

18 first sentence and inserting in lieu thereof the

19 following: ‘‘The term ‘competitive procedures’

20 means procedures under which an executive

21 agency enters into a contract pursuant to full

22 and open competition that provides open access

23 and is consistent with the need to efficiently

24 fulfill the Government’s requirements.’’;
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1 (B) in section 309(c)(4), by striking out

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

3 lieu thereof ‘‘open access’’; and

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

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

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

7 Acquisition Streamlining Act of 1994 (108 Stat.

8 3367; 15 U.S.C. 644 note) is amended in subsection

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

10 competition’’ and inserting in lieu thereof ‘‘proce11 dures other than competitive procedures’’.

12 SEC. 103. CONTRACT SOLICITATION AMENDMENTS.

13 (a) ARMED SERVICES ACQUISITIONS.—Section 2305

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

15 (1) in subsection (a)(1)—

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

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

18 preparing for the procurement of property or

19 services, the head of an agency shall use ad20 vance procurement planning and market re21 search.’’;

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

23 (C) by redesignating subparagraph (C) as

24 subparagraph (B) and in that subparagraph by

25 striking out ‘‘For the purposes of subpara-
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1 graphs (A) and (B), the’’ and inserting in lieu

2 thereof ‘‘Each solicitation under this chapter

3 shall include specifications that include restric4 tive provisions or conditions only to the extent

5 necessary to satisfy the needs of the agency or

6 as authorized by law. The’’;

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

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

9 commercial items using simplified procedures or’’;

10 and

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

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

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

14 303A of the Federal Property and Administrative Services

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

16 (A) in subsection (a)—

17 (i) by striking out paragraph (1) and in18 serting in lieu thereof the following: ‘‘(1) In

19 preparing for the procurement of property or

20 services, an executive agency shall use advance

21 procurement planning and market research.’’;

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

23 (iii) by redesignating paragraph (3) as

24 paragraph (2) and in that paragraph by strik25 ing out ‘‘For the purposes of paragraphs (1)
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1 and (2), the’’ and inserting in lieu there of

2 ‘‘Each solicitation under this title shall include

3 specifications that include restrictive provisions

4 or conditions only to the extent necessary to

5 satisfy the needs of the executive agency or as

6 authorized by law. The’’; and

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

8 than for’’ the following: ‘‘a procurement for commer9 cial items using simplified procedures or’’.

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

11 253b) is amended by striking out ‘‘all’’ and inserting in

12 lieu thereof ‘‘the’’.

13 SEC. 104. PREAWARD DEBRIEFINGS.

14 (a) ARMED SERVICES ACQUISITIONS.—Section

15 2305(b) of title 10, United States Code, is amended—

16 (1) by striking out subparagraph (F) of para17 graph (5);

18 (2) by redesignating paragraph (6) as para19 graph (8); and

20 (3) by inserting after paragraph (5) the follow21 ing new paragraphs:

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

23 offeror submitting a competitive proposal from the com24 petitive range (or otherwise excludes such an offeror from

25 further consideration prior to the final source selection de-
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1 cision), the excluded offeror may request in writing, within

2 three days after the date on which the excluded offeror

3 receives notice of its exclusion, a debriefing prior to award.

4 The contracting officer shall make every effort to debrief

5 the unsuccessful offeror as soon as practicable but may

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

7 interests of the Government to conduct a debriefing at

8 that time.

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

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

11 section only if that offeror requested and was refused a

12 preaward debriefing under subparagraph (A) of this para13 graph.

14 ‘‘(C) The debriefing conducted under this subsection

15 shall include—

16 ‘‘(i) the executive agency’s evaluation of the sig17 nificant elements in the offeror’s offer;

18 ‘‘(ii) a summary of the rationale for the

19 offeror’s exclusion; and

20 ‘‘(iii) reasonable responses to relevant questions

21 posed by the debriefed offeror as to whether source

22 selection procedures set forth in the solicitation, ap23 plicable regulations, and other applicable authorities

24 were followed by the executive agency.
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1 ‘‘(D) The debriefing conducted pursuant to this sub2 section may not disclose the number or identity of other

3 offerors and shall not disclose information about the con4 tent, ranking, or evaluation of other offerors’ proposals.

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

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

7 in the contract file.’’.

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

9 of the Federal Property and Administrative Services Act

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

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

12 (e);

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

14 and (i) as subsections (h), (i), (j), and (k), respec15 tively; and

16 (3) by inserting after subsection (e) the follow17 ing new subsections:

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

19 offeror submitting a competitive proposal from the com20 petitive range (or otherwise excludes such an offeror from

21 further consideration prior to the final source selection de22 cision), the excluded offeror may request in writing, within

23 3 days after the date on which the excluded offeror re24 ceives notice of its exclusion, a debriefing prior to award.

25 The contracting officer shall make every effort to debrief
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1 the unsuccessful offeror as soon as practicable but may

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

3 interests of the Government to conduct a debriefing at

4 that time.

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

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

7 section only if that offeror requested and was refused a

8 preaward debriefing under paragraph (1) of this sub9 section.

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

11 shall include—

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

13 significant elements in the offeror’s offer;

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

15 offeror’s exclusion; and

16 ‘‘(C) reasonable responses to relevant questions

17 posed by the debriefed offeror as to whether source

18 selection procedures set forth in the solicitation, ap19 plicable regulations, and other applicable authorities

20 were followed by the executive agency.

21 ‘‘(4) The debriefing conducted pursuant to this sub22 section may not disclose the number or identity of other

23 offerors and shall not disclose information about the con24 tent, ranking, or evaluation of other offerors’ proposals.
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1 ‘‘(g) The contracting officer shall include a summary

2 of any debriefing conducted under subsection (e) or (f)

3 in the contract file.’’.

4 SEC. 105. CONTRACT TYPES.

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

6 2306 of title 10, United States Code, is amended—

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

8 subsection (a) the following: ‘‘, based on market con9 ditions, established commercial practice (if any) for

10 the product or service being acquired, and sound

11 business judgment’’;

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

13 and (h); and

14 (C) by redesignating subsection (g) as sub15 section (b).

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

17 as follows:

18 ‘‘§ 2306. Contract types’’.

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

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

21 amended to read as follows:

‘‘2306. Contract types.’’.

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

23 304 of the Federal Property and Administrative Services

24 Act of 1949 (41 U.S.C. 254) is amended—
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1 (A) by inserting before the period at the end of

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

3 based on market conditions, established commercial

4 practice (if any) for the product or service being ac5 quired, and sound business judgment’’;

6 (B) by striking out ‘‘Every contract awarded’’

7 in the second sentence of subsection (a) and all that

8 follows through the end of the subsection; and

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

10 the first sentence and all that follows through the

11 end of the subsection and inserting in lieu thereof

12 ‘‘used.’’.

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

14 as follows:

15 ‘‘SEC. 304. CONTRACT TYPES.’’.

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

17 contents for such Act (contained in section 1(b)) is amend18 ed to read as follows:

‘‘Sec. 304. Contract types.’’.

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

20 7212, and 9540 of title 10, United States Code, are re21 pealed.

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

23 433 of such title is amended by striking out the item relat24 ing to section 4540.
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1 (3) The table of sections at the beginning of chapter

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

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

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

7 (d) CIVIL WORKS AUTHORITY.—(1) Part IV of sub8 title A of title 10, United States Code, is amended—

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

10 chapter 137; and

11 (B) by striking out the section heading and

12 subsection (a) of such section and inserting in lieu

13 thereof the following:

14 ‘‘§ 2332. Contracts for architectural and engineering

15 services

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

17 of the military departments may enter into contracts for

18 architectural and engineering services in connection with

19 a military construction or family housing project or for

20 other Department of Defense or military department pur21 poses. Such contracts shall be awarded in accordance with

22 the Brooks Architect-Engineers Act (40 U.S.C. 541 et

23 seq.).’’.
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1 (2) The table of sections at the beginning of chapter

2 137 of such title is amended by adding at the end the

3 following new item:

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

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

5 169 of such title is amended by striking out the item relat6 ing to section 2855.

7 SEC. 106. CONTRACTOR PERFORMANCE.

8 (a) REQUIREMENT FOR SYSTEM.—The Office of Fed9 eral Procurement Policy Act (41 U.S.C. 401 et seq.) is

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

11 ‘‘SEC. 35. CONTRACTOR PERFORMANCE.

12 ‘‘(a) VERIFICATION SYSTEM.—

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

14 Regulation shall provide for a contractor verification

15 system in accordance with this section.

16 ‘‘(2) PROCEDURES.—The Federal Acquisition

17 Regulation shall provide procedures for the head of

18 an executive agency to follow in order to verify a

19 contractor as eligible to compete for contracts to fur20 nish property or services that are procured by the

21 executive agency on a recurring basis.

22 ‘‘(3) NOTIFICATION.—The procedures shall in23 clude a requirement that the head of an executive

24 agency provide for the publication of appropriate no-
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1 tification about the verification system in the Com2 merce Business Daily.

3 ‘‘(b) EVALUATION.—(1) Under the procedures re4 ferred to in subsection (a)(2), the head of an executive

5 agency in granting a verification to a contractor shall use

6 the following factors as the basis of the evaluation:

7 ‘‘(A) The efficiency and effectiveness of its

8 business practices.

9 ‘‘(B) The level of quality of its product or serv10 ice.

11 ‘‘(C) Past performance of the contractor with

12 regard to the particular property or service.

13 ‘‘(2)(A) The evaluation of past performance may in14 clude performance under—

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

16 Federal Government;

17 ‘‘(ii) a contract with an agency of a State or

18 local government; or

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

20 sector.

21 ‘‘(B) The procedures shall include a requirement

22 that, in the case of a contractor with respect to which

23 there is no information on past contract performance or

24 with respect to which information on past contract per25 formance is not available, the contractor may not be evalu-
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1 ated favorably or unfavorably on the factor of past per2 formance.

3 ‘‘(c) OPPORTUNITY FOR ALL INTERESTED

4 SOURCES.—The Federal Acquisition Regulation shall pro5 vide procedures for ensuring that all interested sources,

6 including small businesses, have a fair opportunity to be

7 considered for verification under the verification system.

8 ‘‘(d) PROCUREMENT FROM VERIFIED CONTRAC9 TORS.—The Federal Acquisition Regulation shall provide

10 procedures under which the head of an executive agency

11 may enter into a contract for the procurement of property

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

13 of a competition in accordance with section 2304 of title

14 10, United States Code, or section 303 of the Federal

15 Property and Administrative Services Act of 1949 (41

16 U.S.C. 253) for contractors verified with respect to such

17 property or services pursuant to the contractor verification

18 system.

19 ‘‘(e) TERMINATION OF VERIFICATION.—The Federal

20 Acquisition Regulation shall provide procedures under

21 which the head of an executive agency—

22 ‘‘(1) may provide for the termination of a ver23 ification granted a contractor under this section

24 upon the expiration of a period specified by the head

25 of an executive agency;
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1 ‘‘(2) may revoke a verification granted a con2 tractor under this section upon a determination that

3 the quality of performance of the contractor does not

4 meet standards applied by the head of the executive

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

6 ‘‘(3) may provide that a contractor whose ver7 ification is terminated or revoked will have a fair op8 portunity to be considered for reentry into the ver9 ification system.

10 ‘‘(f) SPECIAL APPLICABILITY RULE.—Notwithstand11 ing section 34, the verification system shall apply to the

12 procurement of commercial items.’’.

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

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

15 Property and Administrative Services Act of 1949 (41

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

17 (c) CLERICAL AMENDMENTS.—(1) The table of con18 tents for the Office of Federal Procurement Policy Act

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

20 end the following new item:

‘‘Sec. 35. Contractor performance.’’.

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

22 137 of title 10, United States Code, is amended by strik23 ing out the item relating to section 2319.

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

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

2 to section 303C.

3 SEC. 107. TWO-PHASE SELECTION PROCEDURES.

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

5 137 of title 10, United States Code, is amended by insert6 ing after section 2305 the following new section:

7 ‘‘§ 2305a. Two-phase selection procedures

8 ‘‘(a) AUTHORIZATION.—Unless the traditional acqui9 sition approach of design-bid-build is used or another ac10 quisition procedure authorized by law is used, the head

11 of an agency shall use the two-phase selection procedures

12 authorized in this section for entering into a contract for

13 the design and construction of a public building, facility,

14 or work when a determination is made under subsection

15 (b) that the procedures are appropriate for use.

16 ‘‘(b) CRITERIA FOR USE.—A contracting officer shall

17 make a determination whether two-phase selection proce18 dures are appropriate for use for entering into a contract

19 for the design and construction of a public building, facil20 ity, or work when the contracting officer anticipates that

21 three or more offers will be received for such contract, de22 sign work must be performed before an offeror can develop

23 a price or cost proposal for such contract, the offeror will

24 incur a substantial amount of expense in preparing the
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1 offer, and the contracting officer has considered informa2 tion such as the following:

3 ‘‘(1) The extent to which the project require4 ments have been adequately defined.

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

6 project.

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

8 contractors.

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

10 two-phase selection procedures.

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

12 the two-phase selection process.

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

14 ‘‘(c) PROCEDURES DESCRIBED.—Two-phase selec15 tion procedures consist of the following:

16 ‘‘(1) The agency develops, either in-house or by

17 contract, a scope of work statement for inclusion in

18 the solicitation that defines the project and provides

19 prospective offerors with sufficient information re20 garding the Government’s requirements (which may

21 include criteria and preliminary design, budget pa22 rameters, and schedule or delivery requirements) to

23 enable the offerors to submit proposals which meet

24 the Government’s needs. When the two-phase selec25 tion procedure is used for design and construction of
39

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1 a public building, facility, or work and the agency

2 contracts for development of the scope of work state3 ment, the agency shall contract for architectural/en4 gineering services as defined by and in accordance

5 with the Brooks Architect-Engineers Act (40 U.S.C.

6 541 et seq.).

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

8 proposals that—

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

10 ‘‘(i) technical approach; and

11 ‘‘(ii) technical qualifications; and

12 ‘‘(B) do not include—

13 ‘‘(i) detailed design information; or

14 ‘‘(ii) cost or price information.

15 ‘‘(3) The evaluation factors to be used in evalu16 ating phase-one proposals are stated in the solicita17 tion and include specialized experience and technical

18 competence, capability to perform, past performance

19 of the offeror’s team (including the architect-engi20 neer and construction members of the team if the

21 project is for the construction of a public building,

22 facility, or work) and other appropriate factors, ex23 cept that cost-related or price-related evaluation fac24 tors are not permitted. Each solicitation establishes

25 the relative importance assigned to the evaluation
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1 factors and subfactors that must be considered in

2 the evaluation of phase-one proposals. The agency

3 evaluates phase-one proposals on the basis of the

4 phase-one evaluation factors set forth in the solicita5 tion.

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

7 highly qualified the number of offerors specified in

8 the solicitation to provide the property or services

9 under the contract and requests the selected offerors

10 to submit phase-two competitive proposals that in11 clude technical proposals and cost or price informa12 tion. Each solicitation establishes with respect to

13 phase two—

14 ‘‘(A) the technical submission for the pro15 posal, including design concepts or proposed so16 lutions to requirements addressed within the

17 scope of work (or both), and

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

19 including cost or price, that must be considered

20 in the evaluations of proposals in accordance

21 with section 2305(b)(4) of this title.

22 The contracting officer separately evaluates the sub23 missions described in subparagraphs (A) and (B).

24 ‘‘(5) The agency awards the contract in accord25 ance with section 2305(b)(4) of this title.
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1 ‘‘(d) SOLICITATION TO STATE NUMBER OF

2 OFFERORS TO BE SELECTED FOR PHASE TWO RE3 QUESTS FOR COMPETITIVE PROPOSALS.—A solicitation

4 issued pursuant to the procedures described in subsection

5 (c) shall state the maximum number of offerors that are

6 to be selected to submit competitive proposals pursuant

7 to subsection (c)(4). The maximum number specified in

8 the solicitation shall not exceed 5 unless the agency deter9 mines with respect to an individual solicitation that a spec10 ified number greater than 5 is in the Government’s inter11 est and is consistent with the purposes and objectives of

12 the two-phase selection process.

13 ‘‘(e) REQUIREMENT FOR GUIDANCE AND REGULA14 TIONS.—The Federal Acquisition Regulatory Council, es15 tablished by section 25(a) of the Office of Federal Pro16 curement Policy Act (41 U.S.C. 421(a)), shall provide

17 guidance and promulgate regulations—

18 ‘‘(1) regarding the factors that may be consid19 ered in determining whether the two-phase contract20 ing procedures authorized by subsection (a) are ap21 propriate for use in individual contracting situations;

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

23 selecting contractors; and

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

25 used Government-wide.’’.
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1 (2) The table of sections at the beginning of chapter

2 137 of such title is amended by adding after the item re3 lating to section 2305 the following new item:

‘‘2305a. Two-phase selection procedures.’’.

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

5 of the Federal Property and Administrative Services Act

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

7 after section 303L the following new section:

8 ‘‘(a) AUTHORIZATION.—Unless the ‘traditional’ ac9 quisition approach of design-bid-build is used or another

10 acquisition procedure authorized by law is used, the head

11 of an executive agency shall use the two-phase selection

12 procedures authorized in this section for entering into a

13 contract for the design and construction of a public build14 ing, facility, or work when a determination is made under

15 subsection (b) that the procedures are appropriate for use.

16 The two-phase selection procedures authorized in this sec17 tion may also be used for entering into a contract for the

18 acquisition of property or services other than construction

19 services when such a determination is made.

20 ‘‘(b) CRITERIA FOR USE.—A contracting officer shall

21 make a determination whether two-phase selection proce22 dures are appropriate for use for entering into a contract

23 for the design and construction of a public building, facil24 ity, or work when the contracting officer anticipates that

25 three or more offers will be received for such contract, de-
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1 sign work must be performed before an offeror can develop

2 a price or cost proposal for such contract, the offeror will

3 incur a substantial amount of expense in preparing the

4 offer, and the contracting officer has considered informa5 tion such as the following:

6 ‘‘(1) The extent to which the project require7 ments have been adequately defined.

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

9 project.

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

11 contractors.

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

13 two-phase selection procedures.

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

15 the two-phase selection process.

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

17 ‘‘(c) PROCEDURES DESCRIBED.—Two-phase selec18 tion procedures consist of the following:

19 ‘‘(1) The agency develops, either in-house or by

20 contract, a scope of work statement for inclusion in

21 the solicitation that defines the project and provides

22 prospective offerors with sufficient information re23 garding the Government’s requirements (which may

24 include criteria and preliminary design, budget pa25 rameters, and schedule or delivery requirements) to
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1 enable the offerors to submit proposals which meet

2 the Government’s needs. When the two-phase selec3 tion procedure is used for design and construction of

4 a public building, facility, or work and the agency

5 contracts for development of the scope of work state6 ment, the agency shall contract for architectural/en7 gineering services as defined by and in accordance

8 with the Brooks Architect-Engineers Act (40 U.S.C.

9 541 et seq.).

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

11 proposals that—

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

13 ‘‘(i) technical approach; and

14 ‘‘(ii) technical qualifications; and

15 ‘‘(B) do not include—

16 ‘‘(i) detailed design information; or

17 ‘‘(ii) cost or price information.

18 ‘‘(3) The evaluation factors to be used in evalu19 ating phase-one proposals are stated in the solicita20 tion and include specialized experience and technical

21 competence, capability to perform, past performance

22 of the offeror’s team (including the architect-engi23 neer and construction members of the team if the

24 project is for the construction of a public building,

25 facility, or work) and other appropriate factors, ex-
45

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1 cept that cost-related or price-related evaluation fac2 tors are not permitted. Each solicitation establishes

3 the relative importance assigned to the evaluation

4 factors and subfactors that must be considered in

5 the evaluation of phase-one proposals. The agency

6 evaluates phase-one proposals on the basis of the

7 phase-one evaluation factors set forth in the solicita8 tion.

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

10 highly qualified the number of offerors specified in

11 the solicitation to provide the property or services

12 under the contract and requests the selected offerors

13 to submit phase-two competitive proposals that in14 clude technical proposals and cost or price informa15 tion. Each solicitation establishes with respect to

16 phase two—

17 ‘‘(A) the technical submission for the pro18 posal, including design concepts or proposed so19 lutions to requirements addressed within the

20 scope of work (or both), and

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

22 including cost or price, that must be considered

23 in the evaluations of proposals in accordance

24 with section 303B(d).
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1 The contracting officer separately evaluates the sub2 missions described in subparagraphs (A) and (B).

3 ‘‘(5) The agency awards the contract in accord4 ance with section 303B of this title.

5 ‘‘(d) SOLICITATION TO STATE NUMBER OF

6 OFFERORS TO BE SELECTED FOR PHASE TWO RE7 QUESTS FOR COMPETITIVE PROPOSALS.—A solicitation

8 issued pursuant to the precedures described in subsection

9 (c) shall state the maximum number of offerors that are

10 to be selected to submit competitive proposals pursuant

11 to subsection (c)(4). The maximum number specified in

12 the solicitation shall not exceed 5 unless the agency deter13 mines with respect to an individual solicitation that a spec14 ified number greater than 5 is in the Government’s inter15 est and is consistent with the purposes and objectives of

16 the two-phase selection process.

17 ‘‘(e) REQUIREMENT FOR GUIDANCE AND REGULA18 TIONS.—The Federal Acquisition Regulatory Council, es19 tablished by section 25(a) of the Office of Federal Pro20 curement Policy Act (41 U.S.C. 421(a)), shall provide

21 guidance and promulgate regulations—

22 ‘‘(1) regarding the factors that may be consid23 ered in determining whether the two-phase contract24 ing procedures authorized by subsection (a) are ap25 propriate for use in individual contracting situations;
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1 ‘‘(2) regarding the factors that may be used in

2 selecting contractors; and

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

4 used Government-wide.’’.

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

6 is amended by inserting after the item relating to section

7 303L the following new item:

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

8 TITLE II—COMMERCIAL ITEMS

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

12 (a) ARMED SERVICES ACQUISITIONS.—(1) Sub13 sections (b), (c), and (d) of section 2306a of title 10, Unit14 ed States Code, are amended to read as follows:

15 ‘‘(b) EXCEPTIONS.—

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

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

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

21 based on—

22 ‘‘(i) adequate price competition; or

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

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

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

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

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

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

8 of a modification of a contract or subcontract for a

9 commercial item that is not covered by the exception

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

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

13 ‘‘(A) the contract or subcontract being

14 modified is a contract or subcontract for which

15 submission of cost or pricing data may not be

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

17 (1)(B); and

18 ‘‘(B) the modification would not change

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

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

23 than a commercial item.

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

25 DATA ON BELOW-THRESHOLD CONTRACTS.—(1) Subject
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1 to paragraph (2), when certified cost or pricing data are

2 not required to be submitted by subsection (a) for a con3 tract, subcontract, or modification of a contract or sub4 contract, such data may nevertheless be required to be

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

6 if the head of the procuring activity determines that such

7 data are necessary for the evaluation by the agency of the

8 reasonableness of the price of the contract, subcontract,

9 or modification of a contract or subcontract. In any case

10 in which the head of the procuring activity requires such

11 data to be submitted under this subsection, the head of

12 the procuring activity shall justify in writing the reason

13 for such requirement.

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

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

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

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

22 Federal Acquisition Regulation shall include the following:

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

2 cost or pricing data are not required to be submitted

3 under this section, including appropriate information

4 on the prices at which the same item or similar

5 items have previously been sold that is adequate for

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

8 ‘‘(2) Reasonable limitations on requests for

9 sales data relating to commercial items.

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

11 shall, to the maximum extent practicable, limit the

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

15 offeror in commercial operations.

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

17 relating to commercial items that is exempt from

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

19 be disclosed by the Federal Government.’’.

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

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

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

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

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

3 Property and Administrative Services Act of 1949 (41

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

5 ‘‘(b) EXCEPTIONS.—

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

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

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

11 based on—

12 ‘‘(i) adequate price competition; or

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

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

15 item; or

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

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

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

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

23 of a modification of a contract or subcontract for a

24 commercial item that is not covered by the exception

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

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

3 ‘‘(A) the contract or subcontract being

4 modified is a contract or subcontract for which

5 submission of cost or pricing data may not be

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

7 (1)(B); and

8 ‘‘(B) the modification would not change

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

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

13 than a commercial item.

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

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

16 to paragraph (2), when certified cost or pricing data are

17 not required to be submitted by subsection (a) for a con18 tract, subcontract, or modification of a contract or sub19 contract, such data may nevertheless be required to be

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

21 if the head of the procuring activity determines that such

22 data are necessary for the evaluation by the agency of the

23 reasonableness of the price of the contract, subcontract,

24 or modification of a contract or subcontract. In any case

25 in which the head of the procuring activity requires such
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1 data to be submitted under this subsection, the head of

2 the procuring activity shall justify in writing the reason

3 for such requirement.

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

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

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

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

12 Federal Acquisition Regulation shall include the following:

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

16 Government is fair and reasonable when certified

17 cost or pricing data are not required to be submitted

18 under this section, including appropriate information

19 on the prices at which the same item or similar

20 items have previously been sold that is adequate for

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

23 ‘‘(2) Reasonable limitations on requests for

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

2 shall, to the maximum extent practicable, limit the

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

6 offeror in commercial operations.

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

8 relating to commercial items that is exempt from

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

10 be disclosed by the Federal Government.’’.

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

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

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

15 SEC. 202. APPLICATION OF SIMPLIFIED PROCEDURES TO

16 COMMERCIAL ITEMS.

17 (a) ARMED SERVICES ACQUISITIONS.—Section

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

19 section 101(a), is further amended—

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

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

22 of commercial items and’’; and

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

24 paragraph:
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1 ‘‘(4) The Federal Acquisition Regulation shall pro2 vide that, in the case of a purchase of commercial items

3 in an amount greater than the simplified acquisition

4 threshold, 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

13 303(e) of the Federal Property and Administrative Serv14 ices Act of 1949 (41 U.S.C. 253), as amended by section

15 101(b), is further amended—

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

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

18 of commercial items and’’; and

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

20 paragraph:

21 ‘‘(5) The Federal Acquisition Regulation shall pro22 vide that, in the case of a purchase of commercial items

23 in an amount greater than the simplified acquisition

24 threshold, 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

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

10 amended—

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

15 following: ‘‘issuance of solicitations and the’’;

16 and

17 (2) in subsection (b)(6), by striking out

18 ‘‘threshold—’’ and inserting in lieu thereof ‘‘thresh19 old, or a contract for the procurement of commercial

20 items using simplified procedures—’’.

21 SEC. 203. AMENDMENT TO DEFINITION OF COMMERCIAL

22 ITEMS.

23 Section 4(12)(F) of the Office of Federal Procure24 ment Policy Act (41 U.S.C. 403(12)(F)) is amended by

25 striking 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

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

6 is amended—

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

8 lieu thereof the following:

9 ‘‘(i) Contracts or subcontracts for the acquisi10 tion 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

23 on the private sector to supply the products and services

24 the Federal Government needs.’’.

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

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

2 item relating 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

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

20 is amended to read as follows:

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

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

22 is 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

2 Code, is amended—

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

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

5 the 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 CER23 TIFICATION REQUIREMENTS.—

24 (1) CURRENT CERTIFICATION REQUIRE25 MENTS.—(A) Not later than 210 days after the date
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1 of the enactment of this Act, any certification re2 quired of contractors or offerors by the Federal Ac3 quisition Regulation that is not specifically imposed

4 by statute shall be removed by the Administrator for

5 Federal Procurement Policy from the Federal Acqui6 sition Regulation 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

13 of the enactment of this Act, any certification re14 quired of contractors or offerors by a procurement

15 regulation of an executive agency that is not specifi16 cally imposed by statute shall be removed by the

17 head of the executive agency from such regulation

18 unless—

19 (I) written justification for such certifi20 cation is provided to the head of the executive

21 agency by the senior procurement executive;

22 and

23 (II) the head of the executive agency ap24 proves in writing the retention of such certifi25 cation.
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1 (ii) For purposes of clause (i), the term ‘‘head

2 of the executive agency’’ with respect to a military

3 department 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 Tech7 nology.

8 (2) FUTURE CERTIFICATION REQUIREMENTS.—

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

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

11 (i) by amending the heading to read as fol12 lows:

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

14 (ii) by inserting ‘‘(a) NONSTANDARD CON15 TRACT CLAUSES.—’’ before ‘‘The Federal Ac16 quisition’’; and

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

18 subsection:

19 ‘‘(c) PROHIBITION ON CERTIFICATION REQUIRE20 MENTS.—(1) A requirement for a certification by a con21 tractor or offeror may not be included in the Federal Ac22 quisition Regulation unless—

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

24 statute; or
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1 ‘‘(B) written justification for such certification

2 is provided to the Administrator for Federal Pro3 curement Policy by the Federal Acquisition Regu4 latory Council, and the Administrator approves in

5 writing the inclusion of such certification.

6 ‘‘(2)(A) A requirement for a certification by a con7 tractor or offeror may not be included in a procurement

8 regulation of an executive agency unless—

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

10 statute; or

11 ‘‘(ii) written justification for such certification

12 is provided to the head of the executive agency by

13 the senior procurement executive of the agency, and

14 the head of the executive agency approves in writing

15 the inclusion of such certification.

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

17 ‘head of the executive agency’ with respect to a military

18 department means the Secretary of Defense.

19 ‘‘(C) The Secretary of Defense may delegate his du20 ties under this paragraph only to the Under Secretary of

21 Defense for Acquisition and Technology.’’.

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

23 of contents for the Office of Federal Procurement

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

25 401 note) is amended to read as follows:

‘‘Sec. 29. Contract clauses and certifications.’’.
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1 (c) POLICY OF CONGRESS.—Section 29 of the Office

2 of Federal Procurement Policy Act (41 U.S.C. 425) is fur3 ther amended by adding after subsection (a) the following

4 new subsection:

5 ‘‘(b) CONSTRUCTION OF CERTIFICATION REQUIRE6 MENTS.—A provision of law may not be construed as re7 quiring a certification by a contractor or offeror in a pro8 curement made or to be made by the Federal Government

9 unless that provision of law specifically refers to this sub10 section and provides that, notwithstanding this subsection,

11 such a certification shall be required.’’.

12 SEC. 303. AMENDMENT TO COMMENCEMENT AND EXPIRA13 TION OF AUTHORITY TO CONDUCT CERTAIN

14 TESTS OF PROCUREMENT PROCEDURES.

15 Subsection (j) of section 5061 of the Federal Acquisi16 tion Streamlining Act of 1994 (41 U.S.C. 413 note) is

17 amended to read as follows:

18 ‘‘(j) COMMENCEMENT AND EXPIRATION OF AUTHOR19 ITY.—The authority to conduct a test under subsection

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

21 shall take effect on October 1, 1996, and shall expire on

22 October 1, 2000. Contracts entered into before such au23 thority expires in an agency pursuant to a test shall re24 main in effect, notwithstanding the expiration of the au25 thority to conduct the test under this section.’’.
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1 SEC. 304. INTERNATIONAL COMPETITIVENESS.

2 (a) REPEAL OF PROVISION RELATING TO RESEARCH,

3 DEVELOPMENT, AND PRODUCTION COSTS.—

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

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

6 amended—

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

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

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

10 paragraph (1);

11 (C) by redesignating subparagraph (C) of

12 paragraph (1) as subparagraph (B);

13 (D) by striking out paragraph (2); and

14 (E) by redesignating paragraph (3) as

15 paragraph (2).

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

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

18 President for fiscal year 1997, proposes legisla19 tion that if enacted would be qualifying offset20 ting legislation; and

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

22 qualifying offsetting legislation.

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

24 then the amendments made by paragraph (1) shall

25 take effect on October 1, 1996.

26 (4) For purposes of this subsection:
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1 (A) The term ‘‘qualifying offsetting legisla2 tion’’ means legislation that includes provisions

3 that—

4 (i) offset fully the estimated revenues

5 lost as a result of the amendments made

6 by paragraph (1) for each of the fiscal

7 years 1997 through 2000;

8 (ii) expressly state that they are en9 acted for the purpose of the offset de10 scribed in clause (i); and

11 (iii) are included in full on the PayGo

12 scorecard.

13 (B) The term ‘‘PayGo scorecard’’ means

14 the estimates that are made with respect to fis15 cal years through fiscal year 2000 by the Direc16 tor of the Congressional Budget Office and the

17 Director of the Office of Management and

18 Budget under section 252(d) of the Balanced

19 Budget and Emergency Deficit Control Act of

20 1985.

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

22 subsection (a) shall be effective with respect to sales agree23 ments pursuant to sections 21 and 22 of the Arms Export

24 Control Act (22 U.S.C. 2761 and 2762) entered into dur-
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1 ing the period beginning on October 1, 1996, and ending

2 on September 30, 2000.

3 SEC. 305. PROCUREMENT INTEGRITY.

4 (a) AMENDMENT OF PROCUREMENT INTEGRITY PRO5 VISION.—Section 27 of the Office of Federal Procurement

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

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

8 CONTRACTOR BID OR PROPOSAL INFORMA9 TION OR SOURCE SELECTION INFORMATION.

10 ‘‘(a) PROHIBITION ON DISCLOSING PROCUREMENT

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

12 shall not, other than as provided by law, knowingly dis13 close contractor bid or proposal information or source se14 lection information before the award of a Federal agency

15 procurement contract to which the information relates.

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

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

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

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

20 has advised the United States with respect to, a

21 Federal agency procurement; and

22 ‘‘(B) by virtue of that office, employment, or re23 lationship has or had access to contractor bid or pro24 posal information or source selection information.
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1 ‘‘(b) PROHIBITION ON OBTAINING PROCUREMENT

2 INFORMATION.—A person shall not, other than as pro3 vided by law, knowingly obtain contractor bid or proposal

4 information or source selection information before the

5 award of a Federal agency procurement contract to which

6 the information relates.

7 ‘‘(c) PROHIBITION ON DISCLOSING OR OBTAINING

8 PROCUREMENT INFORMATION IN CONNECTION WITH A

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

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

11 described in paragraph (2) by disclosing or obtaining con12 tractor bid or proposal information or source selection in13 formation related to the procurement contract concerned.

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

15 issued by the Defense Board or the Civilian Board in con16 nection with a protest against the award or proposed

17 award of a Federal agency procurement contract.

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

19 ‘‘(1) CRIMINAL PENALTIES.—

20 ‘‘(A) Whoever engages in conduct con21 stituting an offense under subsection (a), (b),

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

23 one year or fined as provided under title 18,

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

3 or (c) for the purpose of either—

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

6 value, or

7 ‘‘(ii) obtaining or giving anyone a

8 competitive advantage in the award of a

9 Federal agency procurement contract,

10 shall be imprisoned for not more than 15 years

11 or fined as provided under title 18, United

12 States Code, or both.

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

14 may bring a civil action in the appropriate United

15 States district court against any person who engages

16 in conduct constituting an offense under subsection

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

18 preponderance of the evidence, the person is subject

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

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

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

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

24 that engages in such conduct is subject to a civil

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

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

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

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

10 ‘‘(i) Cancellation of the Federal agency

11 procurement, if a contract has not yet been

12 awarded.

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

14 to which—

15 ‘‘(I) the contractor or someone acting

16 for the contractor has been convicted for

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

18 or

19 ‘‘(II) the head of the agency that

20 awarded the contract has determined,

21 based upon a preponderance of the evi22 dence, that the contractor or someone act23 ing for the contractor has engaged in con24 duct constituting such an offense.
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1 ‘‘(iii) Initiation of suspension or debarment

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

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

6 pursuant to the procedures in chapter 75 of

7 title 5, United States Code, or other applicable

8 law or regulation.

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

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

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

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

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

18 present responsibility of a Government contractor or

19 subcontractor.

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

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

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

2 disclosed publicly:

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

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

5 Code, with respect to procurements subject to

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

7 Property and Administrative Services Act of

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

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

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

13 marked by the contractor in accordance with

14 applicable law or regulation.

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

17 in accordance with applicable law or regulation.

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

19 means any of the following information prepared for

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

22 procurement contract, if that information has not

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

2 Federal agency solicitation for sealed bids, or

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

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

6 response to a Federal agency solicitation, or

7 lists of those proposed costs or prices.

8 ‘‘(C) Source selection plans.

9 ‘‘(D) Technical evaluation plans.

10 ‘‘(E) Technical evaluations of proposals.

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

13 ‘‘(G) Competitive range determinations

14 that identify proposals that have a reasonable

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

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

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

20 selection panels, boards, or advisory councils.

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

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

23 determination by the head of the agency, his

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

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

5 Property and Administrative Services Act of 1949

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

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

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

10 (including construction) from non-Federal sources

11 by a Federal agency using appropriated funds.

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

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

15 a Federal agency procurement contract on behalf of

16 the Government and to make determinations and

17 findings with respect to such a contract.

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

20 award of a Federal agency procurement contract,

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

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

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

2 the Defense Board or the Civilian Board consider such

3 an allegation in deciding a protest, unless that person re4 ported to the Federal agency responsible for the procure5 ment information that the person believed constituted evi6 dence of the offense no later than 14 days after the person

7 first discovered the possible offense.

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

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

10 its receipt by, any person or class of persons author11 ized, in accordance with applicable agency regula12 tions or procedures, to receive that information;

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

14 own bid or proposal information or the recipient

15 from receiving that information;

16 ‘‘(3) restrict the disclosure or receipt of infor17 mation relating to a Federal agency procurement

18 after it has been canceled by the Federal agency be19 fore contract award unless the Federal agency plans

20 to resume the procurement;

21 ‘‘(4) prohibit individual meetings between a

22 Federal agency employee and an offeror or potential

23 offeror for, or a recipient of, a contract or sub24 contract under a Federal agency procurement, pro25 vided that unauthorized disclosure or receipt of con-
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1 tractor bid or proposal information or source selec2 tion information does not occur;

3 ‘‘(5) authorize the withholding of information

4 from, nor restrict its receipt by, Congress, a commit5 tee or subcommittee of Congress, the Comptroller

6 General, a Federal agency, or an inspector general

7 of a Federal agency;

8 ‘‘(6) authorize the withholding of information

9 from, nor restrict its receipt by, the Defense Board

10 or the Civilian Board in the course of a protest

11 against the award or proposed award of a Federal

12 agency procurement contract; or

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

14 sanctions, contract penalties, and remedies estab15 lished under any other law or regulation.’’.

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

17 repealed:

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

19 title 10, United States Code.

20 (2) Section 33 of the Federal Energy Adminis21 tration Act of 1974 (15 U.S.C. 789).

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

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

24 Federal Procurement Policy Act (41 U.S.C. 428).
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1 (5) The first section 19 of the Federal Non2 nuclear Energy Research and Development Act of

3 1974 (42 U.S.C. 5918).

4 (c) CLERICAL AMENDMENTS.—

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

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

7 amended by striking out the items relating to sec8 tions 2397, 2397a, 2397b, and 2397c.

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

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

11 amended by striking out the item relating to section

12 281.

13 (3) Section 32 of the Office of Federal Procure14 ment Policy Act (41 U.S.C. 428) is amended by re15 designating subsections (d), (e), (f), and (g) as sub16 sections (c), (d), (e), and (f), respectively.

17 SEC. 306. FURTHER ACQUISITION STREAMLINING PROVI18 SIONS.

19 (a) PURPOSE OF OFFICE OF FEDERAL PROCURE20 MENT POLICY.—(1) Section 5(a) of the Office of Federal

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

22 read as follows:

23 ‘‘(a) To promote economy, efficiency, and effective24 ness in the procurement of property and services by the

25 executive branch of the Federal Government, there shall
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1 be an Office of Federal Procurement Policy (hereinafter

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

3 and Budget to provide overall direction of Government4 wide procurement policies, regulations, procedures, and

5 forms for executive agencies.’’.

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

7 402) are repealed.

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

9 of the Office of Federal Procurement Policy Act (41

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

11 (c) REPEAL OF OBSOLETE PROVISIONS.—(1) Sec12 tions 10 and 11 of the Office of Federal Procurement Pol13 icy Act (41 U.S.C. 409 and 410) are repealed.

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

15 for the Office of Federal Procurement Policy Act (con16 tained in section 1(b)) is amended by striking out the

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

18 (e) REPEAL OF DATA COLLECTION REQUIRE19 MENT.—Subsection (h) of section 111 of the Federal

20 Property and Administrative Services Act of 1949 (40

21 U.S.C. 759) is repealed.

22 SEC. 307. JUSTIFICATION OF MAJOR DEFENSE ACQUISI23 TION PROGRAMS NOT MEETING GOALS.

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

25 amended by adding at the end the following: ‘‘In addition,
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1 the Secretary shall include in such annual report a jus2 tification for the continuation of any program that—

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

4 established for the development, procurement, or

5 operational phase of the program;

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

7 performance capability goals established for the de8 velopment, procurement, or operational phase of the

9 program; or

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

11 as determined in accordance with the schedule goal

12 established for the development, procurement, or

13 operational phase of the program.’’.

14 SEC. 308. ENHANCED PERFORMANCE INCENTIVES FOR AC15 QUISITION WORKFORCE.

16 (a) ARMED SERVICES ACQUISITIONS.—Subsection

17 (b) of section 5001 of the Federal Acquisition Streamlin18 ing Act of 1994 (Public Law 103–355; 108 Stat. 3350;

19 10 U.S.C. 2220 note) is amended—

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

21 subparagraphs (A) and (B), respectively;

22 (2) by designating the second sentence as para23 graph (2);

24 (3) by inserting ‘‘(1)’’ after ‘‘(b) ENHANCED

25 SYSTEM OF PERFORMANCE INCENTIVES.—’’; and
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1 (4) by adding at the end the following:

2 ‘‘(3) The Secretary shall include in the enhanced sys3 tem of incentives the following:

4 ‘‘(A) Pay bands.

5 ‘‘(B) Significant and material pay and pro6 motion incentives to be awarded, and significant and

7 material unfavorable personnel actions to be im8 posed, under the system exclusively, or primarily, on

9 the basis of the contributions of personnel to the

10 performance of the acquisition program in relation

11 to cost goals, performance goals, and schedule goals.

12 ‘‘(C) Provisions for pay incentives and pro13 motion incentives to be awarded under the system.’’.

14 (b) CIVILIAN AGENCY ACQUISITIONS.—Subsection

15 (c) of section 5051 of the Federal Acquisition Streamlin16 ing Act of 1994 (Public Law 103–355; 108 Stat. 3351;

17 41 U.S.C. 263 note) is amended—

18 (1) by redesignating subparagraphs (A) and

19 (B) of paragraph (2) as clauses (i) and (ii), respec20 tively;

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

22 subparagraphs (A) and (B), respectively;

23 (3) by inserting ‘‘(1)’’ after ‘‘(c) ENHANCED

24 SYSTEM OF PERFORMANCE INCENTIVES.—’’; and

25 (4) by adding at the end the following:
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1 ‘‘(2) The Deputy Director shall include in the en2 hanced system of incentives under paragraph (1)(B) the

3 following:

4 ‘‘(A) Pay bands.

5 ‘‘(B) Significant and material pay and pro6 motion incentives to be awarded, and significant and

7 material unfavorable personnel actions to be im8 posed, under the system exclusively, or primarily, on

9 the basis of the contributions of personnel to the

10 performance of the acquisition program in relation

11 to cost goals, performance goals, and schedule goals.

12 ‘‘(C) Provisions for pay incentives and pro13 motion incentives to be awarded under the system.’’.

14 SEC. 309. RESULTS ORIENTED ACQUISITION PROGRAM

15 CYCLE.

16 Section 5002(a) of the Federal Acquisition Stream17 lining Act of 1994 (Public Law 103–355; 108 Stat. 3350)

18 is amended—

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

20 (2) by striking out the period at the end and

21 inserting in lieu thereof the following: ‘‘; (2) to en22 sure that the regulations compress the time periods

23 associated with developing, procuring, and making

24 operational new systems; and (3) to ensure that De25 partment of Defense directives relating to develop-
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1 ment and procurement of information systems (num2 bered in the 8000 series) and the Department of De3 fense directives numbered in the 5000 series are

4 consolidated into one series of directives that is con5 sistent with such compressed time periods.’’.

6 SEC. 310. RAPID CONTRACTING GOAL.

7 (a) GOAL.—The Office of Federal Procurement Pol8 icy Act, as amended by section 106, is further amended

9 by adding at the end the following new section:

10 ‘‘SEC. 36. RAPID CONTRACTING GOAL.

11 ‘‘The Administrator for Federal Procurement Policy

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

13 necessary for executive agencies to acquire an item for the

14 user of that item.’’.

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

16 for such Act, contained in section 1(b), is amended by add17 ing at the end the following new item:

‘‘Sec. 36. Rapid contracting goal.’’.

18 SEC. 311. ENCOURAGEMENT OF MULTIYEAR CONTRACTING.

19 (a) ARMED SERVICES ACQUISITIONS.—Section

20 2306b(a) of title 10, United States Code, is amended in

21 the matter preceding paragraph (1) by striking out ‘‘may’’

22 and inserting in lieu thereof ‘‘shall, to the maximum ex23 tent possible,’’.

24 (b) CIVILIAN AGENCY ACQUISITIONS.—Section

25 304B(a) of the Federal Property and Administrative Serv-
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1 ices Act of 1949 (41 U.S.C. 254c(a)) is amended in the

2 matter preceding paragraph (1) by striking out ‘‘may’’

3 and inserting in lieu thereof ‘‘shall, to the maximum ex4 tent possible,’’.

5 SEC. 312. CONTRACTOR SHARE OF GAINS AND LOSSES

6 FROM COST, SCHEDULE, AND PERFORMANCE

7 EXPERIENCE.

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

9 137 of title 10, United States Code, is amended by insert10 ing after section 2306b the following new section:

11 ‘‘§ 2306c. Contractor share of gains and losses from

12 cost, schedule, and performance experi13 ence

14 ‘‘The Federal Acquisition Regulation shall contain

15 provisions to ensure that, for any cost-type contract or in16 centive-type contract, the contractor may be rewarded for

17 contract performance exceeding the contract cost, sched18 ule, or performance parameters to the benefit of the Unit19 ed States and may be penalized for failing to adhere to

20 cost, schedule, or performance parameters to the det21 riment of the United States.’’.

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

23 chapter is amended by inserting after the item relating

24 to section 2306b the following new item:

‘‘2306c. Contractor share of gains and losses from cost, schedule, and performance experience.’’.
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1 (b) CIVILIAN AGENCY ACQUISITIONS.—(1) Title III

2 of the Federal Property and Administrative Services Act

3 of 1949 (41 U.S.C. 251 et seq.) is amended by inserting

4 after section 304C the following new section:

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

6 FROM COST, SCHEDULE, AND PERFORMANCE

7 EXPERIENCE.

8 ‘‘The Federal Acquisition Regulation shall contain

9 provisions to ensure that, for any cost-type contract or in10 centive-type contract, the contractor may be rewarded for

11 contract performance exceeding the contract cost, sched12 ule, or performance parameters to the benefit of the Unit13 ed States and may be penalized for failing to adhere to

14 cost, schedule, or performance parameters to the det15 riment of the United States.’’.

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

17 section 1(b), is amended by inserting after the item relat18 ing to section 304C the following new item:

‘‘Sec. 304D. Contractor share of gains and losses from cost, schedule, and performance experience.’’.

19 SEC. 313. PHASE FUNDING OF DEFENSE ACQUISITION PRO20 GRAMS.

21 Chapter 131 of title 10, United States Code, is

22 amended by adding at the end the following new section:
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1 ‘‘§ 2221. Funding for results oriented acquisition pro2 gram cycle

3 ‘‘Before initial funding is made available for the de4 velopment, procurement, or operational phase of an acqui5 sition program for which an authorization of appropria6 tions is required by section 114 of this title, the Secretary

7 of Defense shall submit to Congress information about the

8 objectives and plans for the conduct of that phase and the

9 funding requirements for the entire phase. The informa10 tion shall identify the intended user of the system to be

11 acquired under the program and shall include objective,

12 quantifiable criteria for assessing the extent to which the

13 objectives and goals determined pursuant to section 2435

14 of this title are achieved.’’.

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

16 chapter is amended by adding at the end the following

17 new item:

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

18 SEC. 314. IMPROVED DEPARTMENT OF DEFENSE CON19 TRACT PAYMENT PROCEDURES.

20 (a) REVIEW AND IMPROVEMENT OF PROCEDURES.—

21 The Comptroller General of the United States shall review

22 commercial practices regarding accounts payable and, con23 sidering the results of the review, develop standards for

24 the Secretary of Defense to consider using for improving
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1 the contract payment procedures and financial manage2 ment systems of the Department of Defense.

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

4 1996, the Comptroller General shall submit to Congress

5 a report containing the following matters:

6 (1) The weaknesses in the financial manage7 ment processes of the Department of Defense.

8 (2) Deviations of the Department of Defense

9 payment procedures and financial management sys10 tems from the standards developed pursuant to sub11 section (a), expressed quantitatively.

12 (3) The officials of the Department of Defense

13 who are responsible for resolving the deviations.

14 SEC. 315. CONSIDERATION OF PAST PERFORMANCE IN AS15 SIGNMENT TO ACQUISITION POSITIONS.

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

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

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

19 education and training in acquisition matters, and past

20 performance of acquisition responsibilities, are major fac21 tors in the selection of personnel for assignment to acqui22 sition positions in the Department of Defense.’’.

23 (b) PERFORMANCE REQUIREMENTS FOR ASSIGN24 MENT.—(1) Section 1723(a) of title 10, United States

25 Code, is amended by inserting ‘‘, including requirements
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1 relating to demonstrated past performance of acquisition

2 duties,’’ in the first sentence after ‘‘experience require3 ments’’.

4 (2) Section 1724(a)(2) of such title is amended by

5 inserting before the semicolon at the end the following:

6 ‘‘and have demonstrated proficiency in the performance of

7 acquisition duties in the contracting position or positions

8 previously held’’.

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

10 (A) in subsection (b)—

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

12 paragraph (2);

13 (ii) by striking out the period at the end

14 of paragraph (3) and inserting in lieu thereof ‘‘;

15 and’’; and

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

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

18 performance of acquisition duties.’’;

19 (B) in subsection (c)—

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

21 paragraph (2);

22 (ii) by striking out the period at the end

23 of paragraph (3) and inserting in lieu thereof ‘‘;

24 and’’; and

25 (iii) by adding at the end the following:
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1 ‘‘(4) must have demonstrated proficiency in the

2 performance of acquisition duties.’’;

3 (C) in subsection (d), by inserting before the

4 period at the end the following: ‘‘, and have dem5 onstrated proficiency in the performance of acquisi6 tion duties’’; and

7 (D) in subsection (e), by inserting before the

8 period at the end the following: ‘‘, and have dem9 onstrated proficiency in the performance of acquisi10 tion duties’’.

11 SEC. 316. ADDITIONAL DEPARTMENT OF DEFENSE PILOT

12 PROGRAMS.

13 (a) AUTHORITY TO CONDUCT DEFENSE FACILITY14 WIDE PILOT PROGRAM.—The Secretary of Defense may

15 conduct a pilot program, to be known as the ‘‘defense fa16 cility-wide pilot program’’, for the purpose of determining

17 the potential for increasing the efficiency and effectiveness

18 of the acquisition process in facilities.

19 (b) SCOPE OF PROGRAM.—At a facility designated as

20 a participant in the pilot program, the pilot program shall

21 consist of the following:

22 (1) All contracts and subcontracts for defense

23 supplies and services that are performed at the facil24 ity.
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1 (2) All contracts and subcontracts performed

2 elsewhere that the Secretary determines are directly

3 and substantially related to the production of de4 fense supplies and services at the facility and are

5 necessary for the pilot program.

6 (c) DESIGNATION OF PARTICIPATING FACILITIES.—

7 (1) The Secretary may designate up to two facilities as

8 participants in the defense facility-wide pilot program.

9 (2) Subject to subsection (g), the Secretary may de10 termine the scope and duration of a designation made

11 under this paragraph.

12 (d) CRITERIA FOR DESIGNATION.—(1) Not later

13 than 90 days after the date of the enactment of this Act,

14 the Secretary shall provide to the congressional defense

15 committees a detailed description of the proposed criteria

16 to be used in selecting facilities for designation as partici17 pants in the defense facility-wide pilot program. The Sec18 retary may not select any facilities for participation in the

19 program until at least 30 days have passed after providing

20 such criteria.

21 (2) After selecting both facilities for designation as

22 participants in the program, the Secretary shall notify the

23 congressional defense committees of the selection and sub24 mit a description—
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1 (A) of the management goals and objectives in2 tended to be achieved for each facility selected; and

3 (B) of the method by which the Secretary in4 tends to monitor and measure the performance of

5 the selected facilities in meeting such management

6 goals and objectives.

7 (3)(A) In developing the criteria referred to para8 graph (1), the Secretary shall ensure that such criteria

9 reflect the following objectives:

10 (i) A significant reduction of the cost to the

11 Government for programs carried out at the des12 ignated facilities.

13 (ii) A reduction of the schedule associated with

14 programs carried out at the designated facilities.

15 (iii) An increased used of commercial practices

16 and procedures for programs carried at the des17 ignated facilities.

18 (iv) That the designation of a facility under

19 subsection (c) does not place a competing domestic

20 manufacturer at a significant competitive disadvan21 tage.

22 (B) The criteria shall also require that, with respect

23 to any facility designated under subsection (c), all or sub24 stantially all of the contracts to be awarded and performed

25 at the facility after the designation, and all or substan-
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1 tially all of the subcontracts to be awarded under those

2 contracts and performed at the facility after the designa3 tion, will be—

4 (i) for the production of supplies or services on

5 a firm-fixed price basis;

6 (ii) awarded without requiring the contractors

7 or subcontractors to provide certified cost or pricing

8 data pursuant to section 2306a of title 10, United

9 States Code; and

10 (iii) awarded and administered without the ap11 plication of cost accounting standards under section

12 26(f) of the Office of Federal Procurement Policy

13 Act (41 U.S.C. 422(f)).

14 (e) EXEMPTION FROM CERTAIN REQUIREMENTS.—

15 In the case of a contract or subcontract that is to be per16 formed at a facility designated for participation in the de17 fense facility-wide pilot program and that is subject to sec18 tion 2306a of title 10, United States Code, or section 26(f)

19 of the Office of Federal Procurement Policy Act (41

20 U.S.C. 422(f)), the Secretary of Defense may exempt such

21 contract or subcontract from the requirement to obtain

22 certified cost or pricing data under such section 2306a or

23 the requirement to apply mandatory cost accounting

24 standards under such section 26(f) if the Secretary deter25 mines that the contract or subcontract—
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1 (1) is within the scope of the pilot program (as

2 described in subsection (b)); and

3 (2) is fairly and reasonably priced based on in4 formation other than certified cost and pricing data.

5 (f) SPECIAL AUTHORITY.—The authority provided

6 under subsection (a) may include authority for the Sec7 retary of Defense—

8 (1) to apply any amendment or repeal of a pro9 vision of law made in this Act to the pilot program

10 before the effective date of such amendment or re11 peal; and

12 (2) to apply to a procurement of items other

13 than commercial items under such program—

14 (A) any authority provided in the Federal

15 Acquisition Streamlining Act of 1994 (Public

16 Law 103–355) (or in an amendment made by

17 a provision of that Act) to waive a provision of

18 law in the case of commercial items, and

19 (B) any exception applicable under this

20 Act or the Federal Acquisition Streamlining Act

21 of 1994 (Public Law 103–355) (or an amend22 ment made by a provision of either Act) in the

23 case of commercial items,

24 before the effective date of such provision (or

25 amendment) to the extent that the Secretary deter-
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1 mines necessary to test the application of such waiv2 er or exception to procurements of items other than

3 commercial items.

4 (g) APPLICABILITY.—(1) Subsections (e) and (f)

5 apply with respect to—

6 (A) a contract that is awarded or modified dur7 ing the period described in paragraph (2); and

8 (B) a contract that is awarded before the begin9 ning of such period and is to be performed (or may

10 be performed), in whole or in part, during such pe11 riod.

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

13 period that begins 45 days after the date of the enactment

14 of this Act and ends on September 30, 1998.

15 (h) COMMERCIAL PRACTICES ENCOURAGED.—With

16 respect to contracts and subcontracts within the scope of

17 the defense facility-wide pilot program, the Secretary of

18 Defense may, to the extent the Secretary determines ap19 propriate and in accordance with the law, adopt commer20 cial practices in the administration of contracts and sub21 contracts. Such commercial practices may include elimi22 nation of Government audit and access to records provi23 sions; incorporation of commercial oversight, inspection,

24 and acceptance procedures; use of alternative dispute reso25 lution techniques (including arbitration); and elimination
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1 of contract provisions authorizing the Government to

2 make unilateral changes to contracts.

3 SEC. 317. VALUE ENGINEERING FOR FEDERAL AGENCIES.

4 (a) USE OF VALUE ENGINEERING.—The Office of

5 Federal Procurement Policy Act (41 U.S.C. 401 et seq.),

6 as amended by section 310, is further amended by adding

7 at the end the following new section:

8 ‘‘SEC. 37. VALUE ENGINEERING.

9 ‘‘(a) IN GENERAL.—Each executive agency shall es10 tablish and maintain effective value engineering proce11 dures and processes.

12 ‘‘(b) THRESHOLD.—The procedures and processes

13 established pursuant to subsection (a) shall be applied to

14 those programs, projects, systems, and products of an ex15 ecutive agency that, in a ranking of all programs, projects,

16 systems, and products of the agency according to greatest

17 dollar value, are within the highest 20th percentile.

18 ‘‘(c) DEFINITION.—As used in this section, the term

19 ‘value engineering’ means a team effort, performed by

20 qualified agency or contractor personnel, directed at ana21 lyzing the functions of a program, project, system, prod22 uct, item of equipment, building, facility, service, or supply

23 for the purpose of achieving the essential functions at the

24 lowest life-cycle cost that is consistent with required or

25 improved performance, reliability, quality, and safety.’’.
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1 (b) CLERICAL AMENDMENT.—The table of contents

2 for such Act, contained in section 1(b), is amended by add3 ing at the end the following new item:

‘‘Sec. 37. Value engineering.’’.

4 SEC. 318. ACQUISITION WORKFORCE.

5 (a) ACQUISITION WORKFORCE.—(1) The Office of

6 Federal Procurement Policy Act (41 U.S.C. 401 et seq.),

7 as amended by section 317, is further amended by adding

8 at 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

15 of each executive agency, after consultation with the

16 Administrator for Federal Procurement Policy, shall

17 establish policies and procedures for the effective

18 management (including accession, education, train19 ing, career development, and performance incentives)

20 of the acquisition workforce of the agency. The de21 velopment of acquisition workforce policies under

22 this section shall be carried out consistent with the

23 merit system principles set forth in paragraphs (1)

24 and (2) of section 2301(b) of title 5, United States

25 Code.
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1 ‘‘(2) UNIFORM IMPLEMENTATION.—The head

2 of each executive agency shall ensure that, to the

3 maximum extent practicable, acquisition workforce

4 policies and procedures established are uniform in

5 their implementation throughout the agency.

6 ‘‘(3) GOVERNMENT-WIDE POLICIES AND EVAL7 UATION.—The Administrator shall issue policies to

8 promote uniform implementation of this section by

9 executive agencies, with due regard for differences in

10 program requirements among agencies that may be

11 appropriate and warranted in view of the agency

12 mission. The Administrator shall coordinate with the

13 Deputy Director for Management of the Office of

14 Management and Budget to ensure that such poli15 cies are consistent with the policies and procedures

16 established and enhanced system of incentives pro17 vided pursuant to section 5051(c) of the Federal Ac18 quisition Streamlining Act of 1994 (41 U.S.C. 263

19 note). The Administrator shall evaluate the imple20 mentation of the provisions of this section by execu21 tive agencies.

22 ‘‘(c) SENIOR PROCUREMENT EXECUTIVE AUTHORI23 TIES AND RESPONSIBILITIES.—Subject to the authority,

24 direction, and control of the head of an executive agency,

25 the senior procurement executive of the agency shall carry
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1 out all powers, functions, and duties of the head of the

2 agency with respect to implementation of this section. The

3 senior procurement executive shall ensure that the policies

4 of the head of the executive agency established in accord5 ance with this section are implemented throughout the

6 agency.

7 ‘‘(d) MANAGEMENT INFORMATION SYSTEMS.—The

8 Administrator shall ensure that the heads of executive

9 agencies collect and maintain standardized information on

10 the acquisition workforce related to implementation of this

11 section. To the maximum extent practicable, such data re12 quirements shall conform to standards established by the

13 Office of Personnel Management for the Central Personnel

14 Data File.

15 ‘‘(e) ACQUISITION WORKFORCE.—The programs es16 tablished by this section shall apply to all employees in

17 the General Schedule Contracting series (GS–1102) and

18 the General Schedule Purchasing series (GS–1105), and

19 to any employees regardless of series who have been ap20 pointed as contracting officers whose authority exceeds the

21 micro-purchase threshold, as that term is defined in sec22 tion 32(g). The head of each executive agency may include

23 employees in other series who perform acquisition or ac24 quisition-related functions.

25 ‘‘(f) CAREER DEVELOPMENT.—
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1 ‘‘(1) CAREER PATHS.—The head of each execu2 tive agency shall ensure that appropriate career

3 paths for personnel who desire to pursue careers in

4 acquisition are identified in terms of the education,

5 training, experience, and assignments necessary for

6 career progression to the most senior acquisition po7 sitions. The head of each executive agency shall

8 make information available on such career paths.

9 ‘‘(2) CRITICAL DUTIES AND TASKS.—For each

10 career path, the head of each executive agency shall

11 identify the critical acquisition-related duties and

12 tasks in which, at minimum, employees of the agen13 cy in the career path shall be competent to perform

14 at full performance grade levels. For this purpose,

15 the head of the executive agency shall provide appro16 priate coverage of the critical duties and tasks iden17 tified by the Director of the Federal Acquisition In18 stitute.

19 ‘‘(3) MANDATORY TRAINING AND EDU20 CATION.—For each career path, the head of each ex21 ecutive agency shall establish requirements for the

22 completion of course work and related on-the-job

23 training in the critical acquisition-related duties and

24 tasks of the career path. The head of each executive

25 agency shall also encourage employees to maintain
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1 the currency of their acquisition knowledge and gen2 erally enhance their knowledge of related acquisition

3 management disciplines through academic programs

4 and other self-developmental activities.

5 ‘‘(4) PERFORMANCE INCENTIVES.—The head of

6 each executive agency, acting through the senior

7 procurement executive for the agency, shall provide

8 for an enhanced system of incentives for the encour9 agement of excellence in the acquisition workforce

10 which rewards performance of employees that con11 tribute to achieving the agency’s performance goals.

12 The system of incentives shall include provisions

13 that—

14 ‘‘(A) relate pay to performance;

15 ‘‘(B) provide for consideration, in person16 nel evaluations and promotion decisions, of the

17 extent to which the performance of personnel

18 contributed to achieving the agency’s perform19 ance goals; and

20 ‘‘(C) provide pay and promotion incentives

21 to be awarded, and unfavorable personnel ac22 tions to be imposed, under the system on the

23 basis of the contributions of personnel to

24 achieving the agency’s performance goals.

25 ‘‘(g) QUALIFICATION REQUIREMENTS.—
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1 ‘‘(1) GENERAL SCHEDULE CONTRACTING SE2 RIES (GS–1102).—

3 ‘‘(A) ENTRY LEVEL QUALIFICATIONS.—

4 The Director of the Office of Personnel Man5 agement shall require that, after October 1,

6 1996, a person may not be appointed to a posi7 tion in the GS–1102 occupational series unless

8 the person—

9 ‘‘(i) has received a baccalaureate de10 gree from an accredited educational insti11 tution authorized to grant baccalaureate

12 degrees,

13 ‘‘(ii) has completed at least 24 semes14 ter credit hours (or the equivalent) of

15 study from an accredited institution of

16 higher education in any of the following

17 disciplines: accounting, business finance,

18 law, contracts, purchasing, economics, in19 dustrial management, marketing, quan20 titative methods, or organization and man21 agement, or

22 ‘‘(iii) has passed a written test deter23 mined by the Administrator for Federal

24 Procurement Policy, after consultation

25 with the Director of the Office of Person-
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1 nel Management, to demonstrate the

2 judgmental skills necessary for positions in

3 this series.

4 ‘‘(B) QUALIFICATIONS FOR SENIOR CON5 TRACTING POSITIONS.—The Director of the Of6 fice of Personnel Management shall require

7 that, after October 1, 1996, persons may be ap8 pointed to positions at and above full perform9 ance grade levels in the GS–1102 occupational

10 series only if those persons—

11 ‘‘(i) have satisfied the educational re12 quirement either of subparagraph (A)(i) or

13 (A)(ii),

14 ‘‘(ii) have successfully completed all

15 training required for the position under

16 subsection (f)(3), and

17 ‘‘(iii) have satisfied experience and

18 other requirements established by the Di19 rector for such positions.

20 However, this requirement shall apply to per21 sons employed on October 1, 1996, in GS–1102

22 positions at those grade levels only as a pre23 requisite for promotion to a GS–1102 position

24 at a higher grade.
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1 ‘‘(2) GENERAL SCHEDULE PURCHASING SERIES

2 (GS–1105).—The Director of the Office of Personnel

3 Management shall require that, after October 1,

4 1996, a person may not be appointed to a position

5 in the GS–1105 occupational series unless the per6 son—

7 ‘‘(A) has successfully completed 2 years of

8 course work from an accredited educational in9 stitution authorized to grant degrees, or

10 ‘‘(B) has passed a written test determined

11 by the Administrator for Federal Procurement

12 Policy, after consultation with the Director of

13 the Office of Personnel Management, to dem14 onstrate the judgmental skills necessary for po15 sitions in this series.

16 ‘‘(3) CONTRACTING OFFICERS.—The head of

17 each executive agency shall require that, beginning

18 after October 1, 1996, a person may be appointed

19 as a contracting officer with authority to award or

20 administer contracts for amounts above the micro21 purchase threshold, as that term is defined in sec22 tion 32(g), only if the person—

23 ‘‘(A) has successfully completed all manda24 tory training required of an employee in an
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1 equivalent GS–1102 or 1105 position under

2 subsection (f)(3); and

3 ‘‘(B) meets experience and other require4 ments established by the head of the agency,

5 based on the dollar value and complexity of the

6 contracts that the employee will be authorized

7 to award or administer under the appointment

8 as a contracting officer.

9 ‘‘(4) EXCEPTIONS.—(A) The requirements set

10 forth in paragraphs (1) and (2), as applicable, shall

11 not apply to any person employed in the GS–1102

12 or GS–1105 series on October 1, 1996.

13 ‘‘(B) Employees of an executive agency who do

14 not satisfy the full qualification requirements for ap15 pointment as a contracting officer under paragraph

16 (3) may be appointed as a contracting officer for a

17 temporary period of time under procedures estab18 lished by the agency head. The procedures shall—

19 ‘‘(i) require that the person have completed

20 a significant portion of the required training,

21 ‘‘(ii) require a plan be established for the

22 balance of the required training,

23 ‘‘(iii) specify a period of time for comple24 tion of the training, and
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1 ‘‘(iv) include provisions for withdrawing or

2 terminating the appointment prior to the sched3 uled expiration date, where appropriate.

4 ‘‘(5) WAIVER.—The senior procurement execu5 tive for an executive agency may waive any or all of

6 the qualification requirements of paragraphs (1) and

7 (2) for a person if the person possesses significant

8 potential for advancement to levels of greater re9 sponsibility and authority, based on demonstrated

10 job performance and qualifying experience. This au11 thority may not be redelegated by the senior pro12 curement executive. With respect to each waiver

13 granted under this subsection, the senior procure14 ment executive shall set forth in writing the ration15 ale for the decision to waive such requirements.

16 ‘‘(h) PROGRAM ESTABLISHMENT AND IMPLEMENTA17 TION.—

18 ‘‘(1) FUNDING LEVELS.—(A) The head of an

19 executive agency shall request in the budget for a

20 fiscal year for the agency—

21 ‘‘(i) for education and training under this

22 section, an amount equal to no less than 2.5

23 percent of the base aggregate salary cost of the

24 acquisition workforce subject to this section for

25 that fiscal year; and
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1 ‘‘(ii) for salaries of the acquisition

2 workforce, an amount equal to no more than

3 97.5 percent of such base aggregate salary cost.

4 ‘‘(B) The head of the executive agency shall set

5 forth separately the funding levels requested in the

6 budget justification documents submitted in support

7 of the President’s budget submitted to Congress

8 under section 1105 of title 31, United States Code.

9 ‘‘(C) Funds appropriated for education and

10 training under this section may not be obligated or

11 used for any other purpose.

12 ‘‘(2) INTERAGENCY AGREEMENTS.—The head

13 of an executive agency may enter into a written

14 agreement with another agency to participate in pro15 grams established under this section on a reimburs16 able basis.

17 ‘‘(3) TUITION ASSISTANCE.—Notwithstanding

18 the prohibition in section 4107(b) of title 5, United

19 States Code, the head of each executive agency may

20 provide for tuition reimbursement and education (in21 cluding a full-time course of study leading to a de22 gree) for acquisition personnel in the agency related

23 to the purposes of this section.

24 ‘‘(4) INTERN PROGRAMS.—The head of each ex25 ecutive agency may establish intern programs in
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1 order to recruit highly qualified and talented individ2 uals and provide them with opportunities for acceler3 ated promotions, career broadening assignments,

4 and specified training for advancement to senior ac5 quisition positions. For such programs, the head of

6 an executive agency, without regard to the provisions

7 of title 5, United States Code, may appoint individ8 uals to competitive GS–5, GS–7, or GS–9 positions

9 in the General Schedule Contracting series (GS–

10 1102) who have graduated from baccalaureate or

11 master’s programs in purchasing or contracting

12 from accredited educational institutions authorized

13 to grant baccalaureate and master’s degrees.

14 ‘‘(5) COOPERATIVE EDUCATION PROGRAM.—

15 The head of each executive agency may establish an

16 agencywide cooperative education credit program for

17 acquisition positions. Under the program, the head

18 of the executive agency may enter into cooperative

19 arrangements with one or more accredited institu20 tions of higher education which provide for such in21 stitutions to grant undergraduate credit for work

22 performed in such position.

23 ‘‘(6) SCHOLARSHIP PROGRAM.—

24 ‘‘(A) ESTABLISHMENT.—Where deemed

25 appropriate, the head of each executive agency
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1 may establish a scholarship program for the

2 purpose of qualifying individuals for acquisition

3 positions in the agency.

4 ‘‘(B) ELIGIBILITY.—To be eligible to par5 ticipate in a scholarship program established

6 under this paragraph by an executive agency,

7 an individual must—

8 ‘‘(i) be accepted for enrollment or be

9 currently enrolled as a full-time student at

10 an accredited educational institution au11 thorized to grant baccalaureate or grad12 uate degrees (as appropriate);

13 ‘‘(ii) be pursuing a course of edu14 cation that leads toward completion of a

15 bachelor’s, master’s, or doctor’s degree (as

16 appropriate) in a qualifying field of study,

17 as determined by the head of the agency;

18 ‘‘(iii) sign an agreement described in

19 subparagraph (C) under which the partici20 pant agrees to serve a period of obligated

21 service in the agency in an acquisition po22 sition in return for payment of educational

23 assistance as provided in the agreement;

24 and
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1 ‘‘(iv) meet such other requirements as

2 the head of the agency prescribes.

3 ‘‘(C) AGREEMENT.—An agreement be4 tween the head of an executive agency and a

5 participant in a scholarship program established

6 under this paragraph shall be in writing, shall

7 be signed by the participant, and shall include

8 the following provisions:

9 ‘‘(i) The agreement of the head of the

10 agency to provide the participant with edu11 cational assistance for a specified number

12 of school years, not to exceed 4, during

13 which the participant is pursuing a course

14 of education in a qualifying field of study.

15 The assistance may include payment of

16 tuition, fees, books, laboratory expenses,

17 and a stipend.

18 ‘‘(ii) The participant’s agreement—

19 ‘‘(I) to accept such educational

20 assistance,

21 ‘‘(II) to maintain enrollment and

22 attendance in the course of education

23 until completed,

24 ‘‘(III) while enrolled in such

25 course, to maintain an acceptable level
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1 of academic standing (as prescribed

2 by the head of the agency), and

3 ‘‘(IV) after completion of the

4 course of education, to serve as a full5 time employee in an acquisition posi6 tion in the agency for a period of time

7 of one calendar year for each school

8 year or part thereof for which the par9 ticipant was provided a scholarship

10 under the program.

11 ‘‘(D) REPAYMENT.—(i) Any person partici12 pating in a program established under this

13 paragraph shall agree to pay to the United

14 States the total amount of educational assist15 ance provided to the person under the program

16 if the person is voluntarily separated from the

17 agency or involuntarily separated for cause

18 from the agency before the end of the period for

19 which the person has agreed to continue in the

20 service of the agency in an acquisition position.

21 ‘‘(ii) If an employee fails to fulfill the

22 agreement to pay to the Government the total

23 amount of educational assistance provided to

24 the person under the program, a sum equal to

25 the amount of the educational assistance may
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1 be recovered by the Government from the em2 ployee (or the estate of the employee) by setoff

3 against accrued pay, compensation, amount of

4 retirement credit, or other amount due the em5 ployee from the Government; and by such other

6 method as is provided by law for the recovery

7 of amounts owing to the Government.

8 ‘‘(iii) The head of an executive agency may

9 waive in whole or in part a repayment required

10 under this paragraph if the head of the agency

11 determines the recovery would be against equity

12 and good conscience or would be contrary to the

13 best interests of the United States.

14 ‘‘(E) TERMINATION OF AGREEMENT.—

15 There shall be no requirement that a position

16 be offered to a person after such person suc17 cessfully completes a course of education re18 quired by an agreement under this paragraph.

19 If no position is offered, the agreement shall be

20 considered terminated.’’.

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

22 section 1(b), is amended by adding at the end the follow23 ing new item:

‘‘Sec. 38. Acquisition workforce.’’.
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1 (b) ADDITIONAL AMENDMENTS.—Section 6(d)(5) of

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

3 405), is amended—

4 (1) in subparagraph (A), by striking out ‘‘Gov5 ernment-wide career management programs for a

6 professional procurement work force’’ and inserting

7 in lieu thereof ‘‘the development of a professional ac8 quisition workforce Government-wide’’;

9 (2) in subparagraph (B)—

10 (A) by striking out ‘‘procurement by the’’

11 and inserting in lieu thereof ‘‘acquisition by

12 the’’; and

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

14 the subparagraph; and

15 (3) by striking out subparagraph (C) and in16 serting in lieu thereof the following:

17 ‘‘(C) administer the provisions of section

18 38;

19 ‘‘(D) collect data and analyze acquisition

20 workforce data from the Office of Personnel

21 Management, the heads of executive agencies,

22 and, through periodic surveys, from individual

23 employees;

24 ‘‘(E) periodically analyze acquisition career

25 fields to identify critical competencies, duties,
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1 tasks, and related academic prerequisites, skills,

2 and knowledge;

3 ‘‘(F) coordinate and assist agencies in

4 identifying and recruiting highly qualified can5 didates for acquisition fields;

6 ‘‘(G) develop instructional materials for ac7 quisition personnel in coordination with private

8 and public acquisition colleges and training fa9 cilities;

10 ‘‘(H) evaluate the effectiveness of training

11 and career development programs for acquisi12 tion personnel;

13 ‘‘(I) promote the establishment and utiliza14 tion of academic programs by colleges and uni15 versities in acquisition fields;

16 ‘‘(J) facilitate, to the extent requested by

17 agencies, interagency intern and training pro18 grams; and

19 ‘‘(K) perform other career management or

20 research functions as directed by the Adminis21 trator.’’.
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1 SEC. 319. DEMONSTRATION PROJECT RELATING TO CER2 TAIN PERSONNEL MANAGEMENT POLICIES

3 AND PROCEDURES.

4 (a) COMMENCEMENT.—The Secretary of Defense is

5 encouraged to take such steps as may be necessary to pro6 vide for the commencement of a demonstration project,

7 the purpose of which would be to determine the feasibility

8 or desirability of one or more proposals for improving the

9 personnel management policies or procedures that apply

10 with respect to the acquisition workforce of the Depart11 ment of Defense.

12 (b) TERMS AND CONDITIONS.—

13 (1) IN GENERAL.—Except as otherwise pro14 vided in this subsection, any demonstration project

15 described in subsection (a) shall be subject to section

16 4703 of title 5, United States Code, and all other

17 provisions of such title that apply with respect to

18 any demonstration project under such section.

19 (2) EXCEPTIONS.—Subject to paragraph (3), in

20 applying section 4703 of title 5, United States Code,

21 with respect to a demonstration project described in

22 subsection (a)—

23 (A) ‘‘180 days’’ in subsection (b)(4) of

24 such section shall be deemed to read ‘‘120

25 days’’;
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1 (B) ‘‘90 days’’ in subsection (b)(6) of such

2 section shall be deemed to read ‘‘30 days’’; and

3 (C) subsection (d)(1)(A) of such section

4 shall be disregarded.

5 (3) CONDITION.—Paragraph (2) shall not apply

6 with respect to a demonstration project unless it—

7 (A) involves only the acquisition workforce

8 of the Department of Defense (or any part

9 thereof); and

10 (B) commences during the 3-year period

11 beginning on the date of the enactment of this

12 Act.

13 (c) DEFINITION.—For purposes of this section, the

14 term ‘‘acquisition workforce’’ refers to the persons serving

15 in acquisition positions within the Department of Defense,

16 as designated pursuant to section 1721(a) of title 10,

17 United States Code.

18 SEC. 320. COOPERATIVE PURCHASING.

19 (a) DELAY IN OPENING CERTAIN FEDERAL SUPPLY

20 SCHEDULES TO USE BY STATE, LOCAL, AND INDIAN

21 TRIBAL GOVERNMENTS.—The Administrator of General

22 Services may not use the authority of section 201(b)(2)

23 of the Federal Property and Administrative Services Act

24 of 1949 (40 U.S.C. 481(b)(2)) to provide for the use of
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1 Federal supply schedules of the General Services Adminis2 tration until after the later of—

3 (1) the date on which the 14-month period be4 ginning on the date of the enactment of this Act ex5 pires; or

6 (2) the date on which all of the following condi7 tions are met:

8 (A) The Administrator has considered the

9 report of the Comptroller General required by

10 subsection (b).

11 (B) The Administrator has submitted com12 ments on such report to the congressional com13 mittees as required by subsection (c).

14 (C) A period of 30 days after the date of

15 submission of such comments to the congres16 sional committees referred to in subsection (d)

17 has expired.

18 (b) REPORT.—Not later than one year after the date

19 of the enactment of this Act, the Comptroller General shall

20 submit to the Administrator of General Services and to

21 the congressional committees referred to in subsection (d)

22 a report on the implementation of section 201(b) of the

23 Federal Property and Administrative Services Act of

24 1949. The report shall include the following:
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1 (1) An assessment of the effect on industry, in2 cluding small businesses and local dealers, of provid3 ing for the use of Federal supply schedules by the

4 entities described in section 201(b)(2)(A) of the

5 Federal Property and Administrative Services Act of

6 1949.

7 (2) An assessment of the effect on such entities

8 of providing for the use of Federal supply schedules

9 by them.

10 (c) COMMENTS ON REPORT BY ADMINISTRATOR.—

11 Not later than 30 days after receiving the report of the

12 Comptroller General required by subsection (b), the Ad13 ministrator of General Services shall submit to the con14 gressional committees referred to in subsection (d) com15 ments on the report, including the Administrator’s com16 ments on whether the Administrator plans to provide any

17 Federal supply schedule for the use of any entity described

18 in section 201(b)(2)(A) of the Federal Property and Ad19 ministrative Services Act of 1949.

20 (d) CONGRESSIONAL COMMITTEES.—The report re21 quired by subsection (b) and the comments required by

22 subsection (c) shall be submitted to the Governmental Af23 fairs Committee of the Senate and the Committee on Gov24 ernment Reform and Oversight of the House of Represent25 atives.
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1 (e) CALCULATION OF 30-DAY PERIOD.—For pur2 poses of subsection (a)(2)(C), the calculation of the 30-

3 day period shall exclude Saturdays, Sundays, and holi4 days, and any day on which neither House of Congress

5 is in session because of an adjournment sine die, a recess

6 of more than 3 days, or an adjournment of more than

7 3 days.

8 TITLE IV—STREAMLINING OF

9 DISPUTE RESOLUTION

10 Subtitle A—General Provisions

11 SEC. 401. DEFINITIONS.

12 (a) IN GENERAL.—The Office of Federal Procure13 ment Policy Act (41 U.S.C. 401 et seq.) is amended by

14 adding at the end the following:

15 ‘‘TITLE II—DISPUTE

16 RESOLUTION

17 ‘‘Subtitle A—General Provisions

18 ‘‘SEC. 201. DEFINITIONS.

19 ‘‘In this title:

20 ‘‘(1) The term ‘Defense Board’ means the De21 partment of Defense Board of Contract Appeals es22 tablished pursuant to section 8(a) of the Contract

23 Disputes Act of 1978 (41 U.S.C. 607).

24 ‘‘(2) The term ‘Civilian Board’ means the Civil25 ian Board of Contract Appeals established pursuant
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1 to section 8(b) of the Contract Disputes Act of 1978

2 (41 U.S.C. 607).

3 ‘‘(3) The term ‘Board judge’ means a member

4 of the Defense Board or the Civilian Board, as the

5 case may be.

6 ‘‘(4) The term ‘Chairman’ means the Chairman

7 of the Defense Board or the Civilian Board, as the

8 case may be.

9 ‘‘(5) The term ‘Board concerned’ means—

10 ‘‘(A) the Defense Board with respect to

11 matters within its jurisdiction; and

12 ‘‘(B) the Civilian Board with respect to

13 matters within its jurisdiction.

14 ‘‘(6) The term ‘executive agency’—

15 ‘‘(A) with respect to contract disputes and

16 protests under the jurisdiction of the Defense

17 Board, means the Department of Defense, the

18 Department of the Army, the Department of

19 the Navy, or the Department of the Air Force;

20 and

21 ‘‘(B) with respect to contract disputes and

22 protests under the jurisdiction of the Civilian

23 Board, has the meaning given by section 4(1)

24 of this Act except that the term does not in25 clude the Department of Defense, the Depart-
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1 ment of the Army, the Department of the Navy,

2 and the Department of the Air Force.

3 ‘‘(7) The term ‘alternative means of dispute

4 resolution’ has the meaning given by section 571(3)

5 of title 5, United States Code.

6 ‘‘(8) The term ‘protest’ means a written objec7 tion 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

10 the 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 ‘‘(9) The term ‘interested party’, with respect

16 to a contract or a solicitation or other request for of17 fers, means an actual or prospective bidder or

18 offeror whose direct economic interest would be af19 fected by the award of the contract or by failure to

20 award the contract.

21 ‘‘(10) The term ‘prevailing party’, with respect

22 to a determination of the Board under section

23 214(h)(2) that a decision of the head of an executive

24 agency is arbitrary or capricious or violates a statute

25 or regulation, means a party that showed that the
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1 decision was arbitrary or capricious or violated a

2 statute or regulation.’’.

3 (b) CONFORMING AMENDMENTS.—The Office of

4 Federal Procurement Policy Act (41 U.S.C. 401 et seq.)

5 is further amended—

6 (1) by inserting the following before section 1:

7 ‘‘TITLE I—FEDERAL PROCURE8 MENT POLICY GENERALLY’’;

9 and

10 (2) in section 4, by striking out ‘‘As used in

11 this Act:’’ and inserting in lieu thereof ‘‘Except as

12 otherwise specifically provided, as used in this Act:’’.

13 Subtitle B—Establishment of Civil14 ian and Defense Boards of Con15 tract Appeals

16 SEC. 411. ESTABLISHMENT.

17 Subsections (a) and (b) of section 8 of the Contract

18 Disputes Act of 1978 (41 U.S.C. 607) are amended to

19 read as follows:

20 ‘‘(a) There is established in the Department of De21 fense a board of contract appeals to be known as the De22 partment of Defense Board of Contract Appeals.

23 ‘‘(b) There is established in the General Services Ad24 ministration a board of contract appeals to be known as

25 the Civilian Board of Contract Appeals.’’.
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1 SEC. 412. MEMBERSHIP.

2 The Office of Federal Procurement Policy Act (41

3 U.S.C. 401 et seq.), as amended by section 401, is further

4 amended by adding at the end the following:

5 ‘‘SEC. 202. MEMBERSHIP.

6 ‘‘(a) APPOINTMENT.—(1)(A) The Defense Board

7 shall consist of judges appointed by the Secretary of De8 fense from a register of applicants maintained by the De9 fense Board, in accordance with rules issued by the De10 fense Board for establishing and maintaining a register

11 of eligible applicants and selecting Defense Board judges.

12 The Secretary shall appoint a judge without regard to po13 litical affiliation and solely on the basis of the professional

14 qualifications required to perform the duties and respon15 sibilities of a Defense Board judge.

16 ‘‘(B) The Civilian Board shall consist of judges ap17 pointed by the Administrator of General Services from a

18 register of applicants maintained by the Civilian Board,

19 in accordance with rules issued by the Civilian Board for

20 establishing and maintaining a register of eligible appli21 cants and selecting Civilian Board judges. The Adminis22 trator shall appoint a judge without regard to political af23 filiation and solely on the basis of the professional quali24 fications required to perform the duties and responsibil25 ities of a Civilian Board judge.
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1 ‘‘(2) The members of the Defense Board and the Ci2 vilian Board shall be selected and appointed to serve in

3 the same manner as administrative law judges appointed

4 pursuant to section 3105 of title 5, United States Code,

5 with an additional requirement that such members shall

6 have had not fewer than five years of experience in public

7 contract law.

8 ‘‘(3) Notwithstanding paragraph (2) and subject to

9 subsection (b), the following persons shall serve as Board

10 judges:

11 ‘‘(A) For the Defense Board, any full-time

12 member of the Armed Services Board of Contract

13 Appeals serving as such on the day before the effec14 tive date of this title.

15 ‘‘(B) For the Civilian Board, any full-time

16 member of any agency board of contract appeals

17 other than the Armed Services Board of Contract

18 Appeals serving as such on the day before the effec19 tive date of this title.

20 ‘‘(C) For either the Defense Board or the Civil21 ian Board, any person serving on the day before the

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

23 assistant general counsel or higher with authority

24 delegated from the Comptroller General to decide
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1 bid protests under subchapter V of chapter 35 of

2 title 31, United States Code.

3 ‘‘(b) REMOVAL.—Members of the Defense Board and

4 the Civilian Board shall be subject to removal in the same

5 manner as administrative law judges, as provided in sec6 tion 7521 of title 5, United States Code.

7 ‘‘(c) COMPENSATION.—Compensation for the Chair8 man of the Defense Board and the Chairman of the Civil9 ian Board and all other members of each Board shall be

10 determined under section 5372a of title 5, United States

11 Code.’’.

12 SEC. 413. CHAIRMAN.

13 The Office of Federal Procurement Policy Act (41

14 U.S.C. 401 et seq.), as amended by section 412, is further

15 amended by adding at the end the following:

16 ‘‘SEC. 203. CHAIRMAN.

17 ‘‘(a) DESIGNATION.—(1)(A) The Chairman of the

18 Defense Board shall be designated by the Secretary of De19 fense to serve for a term of five years. The Secretary shall

20 select the Chairman from among sitting judges each of

21 whom has had at least five years of service—

22 ‘‘(i) as a member of the Armed Services Board

23 of Contract Appeals; or

24 ‘‘(ii) in a position at a level of assistant general

25 counsel or higher with authority delegated from the
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1 Comptroller General to decide bid protests under

2 subchapter V of chapter 35 of title 31, United

3 States Code (as in effect on the day before the effec4 tive date of this title).

5 ‘‘(B) The Chairman of the Civilian Board shall be

6 designated by the Administrator of General Services to

7 serve for a term of five years. The Administrator shall se8 lect the Chairman from among sitting judges each of

9 whom has had at least five years of service—

10 ‘‘(i) as a member of an agency board of con11 tract appeals other than the Armed Services Board

12 of Contract Appeals; or

13 ‘‘(ii) in a position at a level of assistant general

14 counsel or higher with authority delegated from the

15 Comptroller General to decide bid protests under

16 subchapter V of chapter 35 of title 31, United

17 States Code (as in effect on the day before the effec18 tive date of this title).

19 ‘‘(2) A Chairman of a Board may continue to serve

20 after the expiration of the Chairman’s term until a succes21 sor has taken office. A Chairman may be reappointed any

22 number of times.

23 ‘‘(b) RESPONSIBILITIES.—The Chairman of the De24 fense Board or the Civilian Board, as the case may be,

25 shall be responsible on behalf of the Board for the execu-
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1 tive and administrative operation of the Board, including

2 functions of the Board with respect to the following:

3 ‘‘(1) The selection, appointment, and fixing of

4 the compensation of such personnel, pursuant to

5 part III of title 5, United States Code, as the Chair6 man considers necessary or appropriate, including a

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

8 and legal assistance for Board judges.

9 ‘‘(2) The supervision of personnel employed by

10 or assigned to the Board, and the distribution of

11 work among such personnel.

12 ‘‘(3) The operation of an Office of the Clerk of

13 the Board, including the receipt of all filings made

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

15 maintenance of all records of the Board.

16 ‘‘(4) The prescription of such rules and regula17 tions as the Chairman considers necessary or appro18 priate for the administration and management of the

19 Board.

20 ‘‘(c) VICE CHAIRMEN.—The Chairman of the De21 fense Board or the Civilian Board, as the case may be,

22 may designate up to four other Board judges as Vice

23 Chairmen. The Chairman may divide the Board into two

24 divisions, one for handling contract disputes and one for

25 handling protests, and, if such division is made, shall as-
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1 sign a Vice Chairman to head each division. The Vice

2 Chairmen, in the order designated by the Chairman, shall

3 act in the place and stead of the Chairman during the

4 absence of the Chairman.’’.

5 SEC. 414. RULEMAKING AUTHORITY.

6 The Office of Federal Procurement Policy Act (41

7 U.S.C. 401 et seq.), as amended by section 413, is further

8 amended by adding at the end the following:

9 ‘‘SEC. 204. RULEMAKING AUTHORITY.

10 ‘‘(a) IN GENERAL.—Except as provided by section

11 452 of the Federal Acquisition Reform Act of 1995, the

12 Chairman of the Defense Board and the Chairman of the

13 Civilian Board shall jointly issue and maintain—

14 ‘‘(1) such procedural rules and regulations as

15 are necessary to the exercise of the functions of the

16 Boards under sections 213 and 214; and

17 ‘‘(2) statements of policy of general applicabil18 ity with respect to such functions.

19 ‘‘(b) BOARD PROCEDURES.—In issuing procedural

20 rules and regulations for the exercise of the Boards’ pro21 test function under section 214, the Chairmen shall take

22 due notice of executive agency procedures for the resolu23 tion of protests as a discretionary alternative to resolution

24 of protests by the Boards and shall ensure that the rules

25 and regulations governing the time for filing protests with
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1 the Boards make appropriate allowance for the use of such

2 executive agency procedures by interested parties.’’.

3 SEC. 415. AUTHORIZATION OF APPROPRIATIONS.

4 The Office of Federal Procurement Policy Act (41

5 U.S.C. 401 et seq.), as amended by section 414, is further

6 amended by adding at the end the following:

7 ‘‘SEC. 205. AUTHORIZATION OF APPROPRIATIONS.

8 ‘‘There are authorized to be appropriated for fiscal

9 year 1997 and each succeeding fiscal year such sums as

10 may be necessary to carry out the provisions of this title.

11 Funds for the activities of each Board shall be separately

12 appropriated for such purpose. Funds appropriate pursu13 ant to this section shall remain available until expended.’’.

14 Subtitle C—Functions of Defense

15 and Civilian Boards of Contract

16 Appeals

17 SEC. 421. ALTERNATIVE DISPUTE RESOLUTION SERVICES.

18 The Office of Federal Procurement Policy Act (41

19 U.S.C. 401 et seq.), as amended by section 415, is further

20 amended by adding at the end the following:
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1 ‘‘Subtitle B—Functions of the De2 fense and Civilian Boards of

3 Contract Appeals

4 ‘‘SEC. 211. ALTERNATIVE DISPUTE RESOLUTION SERVICES.

5 ‘‘(a) REQUIREMENT TO PROVIDE SERVICES UPON

6 REQUEST.—The Defense Board and the Civilian Board

7 shall each provide alternative means of dispute resolution

8 for any disagreement regarding a contract or prospective

9 contract of an executive agency upon the request of all

10 parties to the disagreement.

11 ‘‘(b) PERSONNEL QUALIFIED TO ACT.—Each Board

12 judge and each attorney employed by the Board concerned

13 shall be considered to be qualified to act for the purpose

14 of conducting alternative means of dispute resolution

15 under this section.

16 ‘‘(c) SERVICES TO BE PROVIDED WITHOUT

17 CHARGE.—Any services provided by the Board concerned

18 or any Board judge or employee pursuant to this section

19 shall be provided without charge.

20 ‘‘(d) RECUSAL OF CERTAIN PERSONNEL UPON RE21 QUEST.—In the event that a matter which is presented

22 to the Board concerned for alternative means of dispute

23 resolution, pursuant to this section, later becomes the sub24 ject of formal proceedings before such Board, any Board

25 judge or employee who was involved in the alternative
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1 means of dispute resolution shall, if requested by any

2 party to the formal proceeding, take no part in that pro3 ceeding.’’.

4 SEC. 422. ALTERNATIVE DISPUTE RESOLUTION OF DIS5 PUTES AND PROTESTS SUBMITTED TO

6 BOARDS.

7 The Office of Federal Procurement Policy Act (41

8 U.S.C. 401 et seq.), as amended by section 421, is further

9 amended by adding at the end the following:

10 ‘‘SEC. 212. ALTERNATIVE DISPUTE RESOLUTION OF DIS11 PUTES AND PROTESTS SUBMITTED TO

12 BOARDS.

13 ‘‘With reasonable promptness after the submission to

14 the Defense Board or the Civilian Board of a contract dis15 pute under section 213 or a bid protest under section 214,

16 a Board judge to whom the contract dispute or protest

17 is assigned shall request the parties to meet with a Board

18 judge, or an attorney employed by the Board concerned,

19 for the purpose of attempting to resolve the dispute or

20 protest through alternative means of dispute resolution.

21 Formal proceedings in the appeal shall then be suspended

22 until such time as any party or a Board judge to whom

23 the dispute or protest is assigned determines that alter24 native means of dispute resolution are not appropriate for

25 resolution of the dispute or protest.’’.
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1 SEC. 423. CONTRACT DISPUTES.

2 The Office of Federal Procurement Policy Act (41

3 U.S.C. 401 et seq.), as amended by section 422, is further

4 amended by adding at the end the following:

5 ‘‘SEC. 213. CONTRACT DISPUTES.

6 ‘‘The Defense Board shall have jurisdiction as pro7 vided by section 8(a) of the Contract Disputes Act of 1978

8 (41 U.S.C. 601–613). The Civilian Board shall have juris9 diction as provided by section 8(b) of such Act.’’.

10 SEC. 424. PROTESTS.

11 The Office of Federal Procurement Policy Act (41

12 U.S.C. 401 et seq.), as amended by section 423, is further

13 amended by adding at the end the following:

14 ‘‘SEC. 214. PROTESTS.

15 ‘‘(a) REVIEW REQUIRED UPON REQUEST.—Upon re16 quest of an interested party in connection with any pro17 curement conducted by an executive agency, the Defense

18 Board or the Civilian Board, as the case may be, shall

19 review, as provided in this section, any decision by the

20 head of the executive agency alleged to be arbitrary or ca21 pricious or to violate a statute or regulation. A decision

22 or order of the Board concerned pursuant to this section

23 shall not be subject to interlocutory appeal or review.

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

25 the Board concerned may consider all evidence that is rel26 evant to the decision under protest. The protester may
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1 prevail only by showing that the decision was arbitrary

2 or capricious or violated a statute or regulation.

3 ‘‘(c) NOTIFICATION.—Within one day after the re4 ceipt of a protest, the Board concerned shall notify the

5 executive agency involved of the protest.

6 ‘‘(d) SUSPENSION OF CONTRACT AWARD.—(1) Ex7 cept as provided in paragraph (2) of this subsection, a

8 contract may not be awarded in any procurement after

9 the executive agency has received notice of a protest with

10 respect to such procurement from the Board concerned

11 and while the protest is pending.

12 ‘‘(2) The head of the procuring activity responsible

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

14 contract (notwithstanding a protest of which the executive

15 agency has notice under this section)—

16 ‘‘(A) upon a written finding that urgent and

17 compelling circumstances which significantly affect

18 interests of the United States will not permit wait19 ing for the decision of the Board concerned under

20 this section; and

21 ‘‘(B) after the Board concerned is advised of

22 that finding.

23 ‘‘(3) A finding may not be made under paragraph

24 (2)(A) of this subsection unless the award of the contract
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1 is otherwise likely to occur within 30 days after the mak2 ing of such finding.

3 ‘‘(4) The suspension of the award under paragraph

4 (1) shall not preclude the executive agency concerned from

5 continuing the procurement process up to but not includ6 ing the award of the contract.

7 ‘‘(e) SUSPENSION OF CONTRACT PERFORMANCE.—

8 (1) A contractor awarded an executive agency contract

9 may, during the period described in paragraph (4), begin

10 performance of the contract and engage in any related ac11 tivities that result in obligations being incurred by the

12 United States under the contract unless the contracting

13 officer responsible for the award of the contract withholds

14 authorization to proceed with performance of the contract.

15 ‘‘(2) The contracting officer may withhold an author16 ization to proceed with performance of the contract during

17 the period described in paragraph (4) if the contracting

18 officer determines in writing that—

19 ‘‘(A) a protest is likely to be filed; and

20 ‘‘(B) the immediate performance of the contract

21 is not in the best interests of the United States.

22 ‘‘(3)(A) If the executive agency awarding the contract

23 receives notice of a protest in accordance with this section

24 during the period described in paragraph (4)—
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1 ‘‘(i) the contracting officer may not authorize

2 performance of the contract to begin while the pro3 test is pending; or

4 ‘‘(ii) if authorization for contract performance

5 to proceed was not withheld in accordance with

6 paragraph (2) before receipt of the notice, the con7 tracting officer shall immediately direct the contrac8 tor to cease performance under the contract and to

9 suspend any related activities that may result in ad10 ditional obligations being incurred by the United

11 States under that contract.

12 ‘‘(B) Performance and related activities suspended

13 pursuant to subparagraph (A)(ii) by reason of a protest

14 may not be resumed while the protest is pending.

15 ‘‘(C) The head of the procuring activity may author16 ize the performance of the contract (notwithstanding a

17 protest of which the executive agency has notice under this

18 section)—

19 ‘‘(i) upon a written finding that urgent and

20 compelling circumstances that significantly affect in21 terests of the United States will not permit waiting

22 for the decision concerning the protest by the Board

23 concerned; and

24 ‘‘(ii) after the Board concerned is notified of

25 that finding.
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1 ‘‘(4) The period referred to in paragraphs (2) and

2 (3)(A), with respect to a contract, is the period beginning

3 on the date of the contract award and ending on the later

4 of—

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

6 the contract award; or

7 ‘‘(B) the date that is 5 days after the debriefing

8 date offered to an unsuccessful offeror for any de9 briefing that is requested and, when requested, is re10 quired.

11 ‘‘(f) The authority of the head of the procuring activ12 ity to make findings and to authorize the award and per13 formance of contracts under subsections (d) and (e) of this

14 section may not be delegated.

15 ‘‘(g) PROCEDURES.—

16 ‘‘(1) PROCEEDINGS AND DISCOVERY.—The

17 Board concerned shall conduct proceedings and

18 allow discovery to the minimum extent necessary for

19 the expeditious, fair, and cost-effective resolution of

20 the protest. The Board shall allow discovery only in

21 a case in which the Board determines that the writ22 ten submissions of the parties do not provide an ade23 quate basis for a fair resolution of the protest. Such

24 discovery shall be limited to material which is rel25 evant to the grounds of protest or to such affirma-
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1 tive defenses as the executive agency involved, or any

2 intervenor supporting the agency, may raise.

3 ‘‘(2) PRIORITY.—The Board concerned shall

4 give priority to protests filed under this section over

5 contract disputes and alternative dispute services.

6 Except as provided in paragraph (3), the Board con7 cerned shall issue its final decision within 65 days

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

9 Chairman determines that the specific and unique

10 circumstances of the protest require a longer period,

11 in which case the Board concerned shall issue such

12 decision within the longer period determined by the

13 Chairman. An amendment that adds a new ground

14 of protest should be resolved, to the maximum ex15 tent practicable, within the time limits established

16 for resolution of the initial protest.

17 ‘‘(3) THRESHOLD.—(A) Except as provided in

18 subparagraph (B), any protest in which the antici19 pated value of the contract award that will result

20 from the protested procurement, as estimated by the

21 executive agency involved, is less than $30,000,000

22 shall be considered under simplified rules of proce23 dure. Such simplified rules shall provide that discov24 ery in such protests shall be in writing only. Such

25 written discovery shall be the minimum necessary
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1 for the expeditious, fair, and cost-effective resolution

2 of the protest and shall be allowed only if the Board

3 determines that the written submissions of the par4 ties do not provide an adequate basis for a fair reso5 lution of the protest. Such protests shall be decided

6 by a single Board judge. The Board concerned shall

7 issue its final decision in each such protest within 45

8 days after the date of the filing of the protest, un9 less the Chairman determines that the specific and

10 unique circumstances of the protest require a longer

11 period, in which case the Board concerned shall

12 issue such decision within the longer period deter13 mined by the Chairman.

14 ‘‘(B) If the Chairman of the Board concerned

15 determines that special and unique circumstances of

16 a protest that would otherwise qualify for the sim17 plified rules described in subparagraph (A), includ18 ing the complexity of a protest, requires the use of

19 full procedures as described in paragraphs (1) and

20 (2), the Chairman shall use such procedures in lieu

21 of the simplified rules described in subparagraph

22 (A).

23 ‘‘(4) CALCULATION OF TIME FOR ADR.—In cal24 culating time for purposes of paragraph (2) or (3)

25 of this subsection, any days during which proceed-
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1 ings are suspended for the purpose of attempting to

2 resolve the protest by alternative means of dispute

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

4 be counted.

5 ‘‘(5) DISMISSAL OF FRIVOLOUS PROTESTS.—

6 The Board concerned may dismiss a protest that the

7 Board concerned determines—

8 ‘‘(A) is frivolous,

9 ‘‘(B) has been brought or pursued in bad

10 faith; or

11 ‘‘(C) does not state on its face a valid basis

12 for protest.

13 ‘‘(6) PAYMENT OF COSTS FOR FRIVOLOUS PRO14 TESTS.—(A) If the Board concerned expressly finds

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

16 or has been brought or pursued in bad faith, the

17 Board concerned shall declare that the protester or

18 other interested party who joins the protest is liable

19 to the United States for payment of the costs de20 scribed in subparagraph (B) unless—

21 ‘‘(i) special circumstances would make

22 such payment unjust; or

23 ‘‘(ii) the protester obtains documents or

24 other information after the protest is filed with

25 the Board concerned that establishes that the
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1 protest or a portion of the protest is frivolous

2 or has been brought or pursued in bad faith,

3 and the protester then promptly withdraws the

4 protest or portion of the protest.

5 ‘‘(B) The costs referred to in subparagraph (A)

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

7 reviewing the protest, or of reviewing that portion of

8 the protest for which the finding is made, including

9 the fees and other expenses (as defined in section

10 2412(d)(2)(A) of title 28, United States Code) in11 curred by the United States in defending the pro12 test.

13 ‘‘(h) DECISIONS AND CORRECTIVE ACTIONS ON PRO14 TESTS.—(1) In making a decision on protests filed under

15 this section, the Board concerned shall accord due weight

16 to the goals of economic and efficient procurement, and

17 shall take due account of the rule of prejudicial error.

18 ‘‘(2) If the Board concerned determines that a deci19 sion of the head of the executive agency is arbitrary or

20 capricious or violates a statute or regulation, the Board

21 concerned may order the agency (or its head) to take such

22 corrective action as the Board concerned considers appro23 priate. Corrective action includes requiring that the execu24 tive agency—
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1 ‘‘(A) refrain from exercising any of its options

2 under the contract;

3 ‘‘(B) recompete the contract immediately;

4 ‘‘(C) issue a new solicitation;

5 ‘‘(D) terminate the contract;

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

8 ‘‘(F) implement any combination of require9 ments under subparagraphs (A), (B), (C), (D), and

10 (E); or

11 ‘‘(G) implement such other actions as the

12 Board concerned determines necessary.

13 ‘‘(3) If the Board concerned orders corrective action

14 after the contract award, the affected contract shall be

15 presumed valid as to all goods or services delivered and

16 accepted under the contract before the corrective action

17 was ordered.

18 ‘‘(4) Any agreement that provides for the dismissal

19 of a protest and involves a direct or indirect expenditure

20 of appropriated funds shall be submitted to the Board con21 cerned and shall be made a part of the public record (sub22 ject to any protective order considered appropriate by the

23 Board concerned) before dismissal of the protest.

24 ‘‘(i) AUTHORITY TO DECLARE ENTITLEMENT TO

25 COSTS.—(1)(A) Whenever the Board concerned deter-
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1 mines that a decision of the head of an executive agency

2 is arbitrary or capricious or violates a statute or regula3 tion, it may, in accordance with section 1304 of title 31,

4 United States Code, further declare an appropriate pre5 vailing party to be entitled to the costs of—

6 ‘‘(i) filing and pursuing the protest, including

7 reasonable attorneys’ fees and consultant and expert

8 witness fees, and

9 ‘‘(ii) bid and proposal preparation.

10 ‘‘(B) No party (other than a small business concern

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

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

13 costs for—

14 ‘‘(i) consultant and expert witness fees that ex15 ceed the highest rate of compensation for expert wit16 nesses paid by the Federal Government, or

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

18 unless the Board concerned, on a case by case basis,

19 determines that an increase in the cost of living or

20 a special factor, such as the limited availability of

21 qualified attorneys for the proceedings involved, jus22 tifies a higher fee.

23 ‘‘(2) Payment of amounts due from an agency under

24 paragraph (1) or under the terms of a settlement agree25 ment under subsection (h)(4) shall be made from the ap-
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1 propriation made by section 1304 of title 31, United

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

3 agency concerned shall reimburse that appropriation ac4 count out of funds available for the procurement.

5 ‘‘(j) APPEALS.—A final decision of the Board con6 cerned may be appealed as set forth in section 8(g)(1) of

7 the Contract Disputes Act of 1978 by the head of the exec8 utive agency concerned and by any interested party, in9 cluding interested parties who intervene in any protest

10 filed under this section.

11 ‘‘(k) ADDITIONAL RELIEF.—Nothing contained in

12 this section shall affect the power of the Board concerned

13 to order any additional relief which it is authorized to pro14 vide under any statute or regulation.

15 ‘‘(l) NONEXCLUSIVITY OF REMEDIES.—Nothing con16 tained in this section shall affect the right of any inter17 ested party to file a protest with the contracting agency

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

19 Claims or in a United States district court.’’.

20 SEC. 425. APPLICABILITY TO CERTAIN CONTRACTS.

21 The Office of Federal Procurement Policy Act (41

22 U.S.C. 401 et seq.), as amended by section 424, is further

23 amended by adding at the end the following:
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1 ‘‘SEC. 215. APPLICABILITY TO CERTAIN CONTRACTS.

2 ‘‘(a) CONTRACTS AT OR BELOW THE SIMPLIFIED AC3 QUISITION THRESHOLD.—Notwithstanding section 33 of

4 this Act, the authority conferred on the Defense Board

5 and the Civilian Board by this title is applicable to con6 tracts in amounts not greater than the simplified acquisi7 tion threshold.

8 ‘‘(b) CONTRACTS FOR COMMERCIAL ITEMS.—Not9 withstanding section 34 of this Act, the authority con10 ferred on the Defense Board and the Civilian Board by

11 this title is applicable to contracts for the procurement of

12 commercial items.’’.

13 Subtitle D—Repeal of Other Stat14 utes Authorizing Administrative

15 Protests

16 SEC. 431. REPEALS.

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

18 Brooks Automatic Data Processing Act (section 111 of the

19 Federal Property and Administrative Services Act of

20 1949; 40 U.S.C. 759) is repealed.

21 (b) GAO PROVISIONS.—(1) Subchapter V of chapter

22 35 of title 31, United States Code (31 U.S.C. 3551–3556)

23 is repealed.

24 (2) The analysis for chapter 35 of such title is

25 amended by striking out the items relating to sections

26 3551 through 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 AND CORPS BOARDS OF

8 CONTRACT APPEALS.—The personnel employed in

9 connection with, and the assets, liabilities, contracts,

10 property, records, and unexpended balance of appro11 priations, authorizations, allocations, and other

12 funds employed, held, used, arising from, available

13 to, or to be made available in connection with the

14 functions vested by law in the Armed Services Board

15 of Contract Appeals and the board of contract ap16 peals of the Corps of Engineers established pursuant

17 to section 8 of the Contract Disputes Act of 1978

18 (41 U.S.C. 607) (as in effect on the day before the

19 effective date described in section 451), shall be

20 transferred to the Department of Defense Board of

21 Contract Appeals for appropriate allocation by the

22 Chairman of that Board.

23 (2) OTHER BOARDS OF CONTRACTS APPEALS.—

24 The personnel employed in connection with, and the

25 assets, liabilities, contracts, property, records, and
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1 unexpended balance of appropriations, authoriza2 tions, allocations, and other funds employed, held,

3 used, arising from, available to, or to be made avail4 able in connection with the functions vested by law

5 in the boards of contract appeals established pursu6 ant to section 8 of the Contract Disputes Act of

7 1978 (41 U.S.C. 607) (as in effect on the day before

8 the effective date described in section 451) other

9 than the Armed Services Board of Contract Appeals,

10 the board of contract appeals of the Corps of Engi11 neers, and the Postal Service Board of Contract Ap12 peals shall be transferred to the Civilian Board of

13 Contract Appeals for appropriate allocation by the

14 Chairman of that Board.

15 (3) COMPTROLLER GENERAL.—(A) One-quarter

16 (as determined by the Comptroller General) of the

17 personnel employed in connection with, and one18 quarter (as determined by the Comptroller General)

19 of the assets, liabilities, contracts, property, records,

20 and unexpended balance of appropriations, author21 izations, allocations, and other funds employed, held,

22 used, arising from, available to, or to be made avail23 able in connection with the functions vested by law

24 in the Comptroller General pursuant to subchapter

25 V of chapter 35 of title 31, United States Code (as
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1 in effect on the day before the effective date de2 scribed in section 451), shall be transferred to the

3 Civilian Board of Contract Appeals for appropriate

4 allocation by the Chairman of that Board.

5 (B) Three-quarters (as determined by the

6 Comptroller General) of the personnel employed in

7 connection with, and three-quarters (as determined

8 by the Comptroller General) of the assets, liabilities,

9 contracts, property, records, and unexpended bal10 ance of appropriations, authorizations, allocations,

11 and other funds employed, held, used, arising from,

12 available to, or to be made available in connection

13 with the functions vested by law in the Comptroller

14 General pursuant to subchapter V of chapter 35 of

15 title 31, United States Code (as in effect on the day

16 before the effective date described in section 451),

17 shall be transferred to the Department of Defense

18 Board of Contract Appeals for appropriate allocation

19 by the Chairman of that Board.

20 (b) EFFECT ON PERSONNEL.—Personnel transferred

21 pursuant to this subtitle shall not be separated or reduced

22 in compensation for one year after such transfer, except

23 for cause.

24 (c) REGULATIONS.—(1) The Department of Defense

25 Board of Contract Appeals and the Civilian Board of Con-
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1 tract Appeals shall each prescribe regulations for the re2 lease of competing employees in a reduction in force that

3 gives due effect to—

4 (A) efficiency or performance ratings;

5 (B) military preference; and

6 (C) tenure of employment.

7 (2) In prescribing the regulations, the Board con8 cerned shall provide for military preference in the same

9 manner as set forth in subchapter I of chapter 35 of title

10 5, United States Code.

11 SEC. 442. TERMINATIONS AND SAVINGS PROVISIONS.

12 (a) TERMINATION OF BOARDS OF CONTRACT AP13 PEALS.—Effective on the effective date described in sec14 tion 451, the boards of contract appeals established pursu15 ant to section 8 of the Contract Disputes Act of 1978 (41

16 U.S.C. 607) (as in effect on the day before such effective

17 date) other than the Postal Service Board of Contract Ap18 peals shall terminate.

19 (b) SAVINGS PROVISION FOR CONTRACT DISPUTE

20 MATTERS PENDING BEFORE BOARDS.—(1) This title and

21 the amendments made by this title shall not affect any

22 proceedings (other than bid protests pending before the

23 board of contract appeals of the General Services Adminis24 tration) pending on the effective date described in section
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1 451 before any board of contract appeals terminated by

2 subsection (a).

3 (2) In the case of any such proceedings pending be4 fore the Armed Services Board of Contract Appeals or the

5 board of contract appeals of the Corps of Engineers, the

6 proceedings shall be continued by the Department of De7 fense Board of Contract Appeals, and orders which were

8 issued in any such proceeding by the Armed Services

9 Board of Contract Appeals or the board of contract ap10 peals of the Corps of Engineers shall continue in effect

11 until modified, terminated, superseded, or revoked by the

12 Department of Defense Board of Contract Appeals, by a

13 court of competent jurisdiction, or by operation of law.

14 (3) In the case of any such proceedings pending be15 fore an agency board of contract appeals other than the

16 Armed Services Board of Contract Appeals or the board

17 of contract appeals of the Corps of Engineers, the proceed18 ings shall be continued by the Civilian Board of Contract

19 Appeals, and orders which were issued in any such pro20 ceeding by the agency board shall continue in effect until

21 modified, terminated, superseded, or revoked by the Civil22 ian Board of Contract Appeals, by a court of competent

23 jurisdiction, or by operation of law.

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

25 protest may be submitted to the Comptroller General pur-
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1 suant to section 3553(a) of title 31, United States Code,

2 or to the board of contract appeals for the General Serv3 ices Administration pursuant to the Brooks Automatic

4 Data Processing Act (40 U.S.C. 759) on or after the effec5 tive date described in section 451.

6 (2)(A) In the case of bid protest proceedings pending

7 before the board of contract appeals of the General Serv8 ices Administration on the effective date described in sec9 tion 451—

10 (i) with respect to bid protests involving pro11 curements of the Department of Defense, the De12 partment of the Army, the Department of the Navy,

13 and the Department of the Air Force, the proceed14 ings shall be continued by the Defense Board of

15 Contract Appeals; and

16 (ii) with respect to bid protests involving pro17 curements of any other executive agency (as defined

18 by section 4(1) of the Office of Federal Procurement

19 Policy Act (41 U.S.C. 403(1)), the proceedings shall

20 be continued by the Civilian Board of Contract Ap21 peals.

22 (B) The provisions repealed by section 431(a) shall

23 continue to apply to such proceedings until the Depart24 ment of Defense Board of Contract Appeals or the Civilian
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1 Board of Contract Appeals, as the case may be, deter2 mines such proceedings have been completed.

3 (3)(A) In the case of bid protest proceedings pending

4 before the Comptroller General on the effective date de5 scribed in section 451—

6 (i) with respect to bid protests involving pro7 curements of the Department of Defense, the De8 partment of the Army, the Department of the Navy,

9 and the Department of the Air Force, the proceed10 ings shall be continued by the Defense Board of

11 Contract Appeals;

12 (ii) with respect to bid protests involving pro13 curements of any other executive agency (as defined

14 by section 4(1) of the Office of Federal Procurement

15 Policy Act (41 U.S.C. 403(1)), the proceedings shall

16 be continued by the Civilian Board of Contract Ap17 peals; and

18 (iii) with respect to bid protests involving pro19 curements of an entity that is not an executive agen20 cy, the proceedings shall be continued by the Comp21 troller General.

22 (B) The provisions repealed by section 431(b) shall

23 continue to apply to such bid protest proceedings until the

24 Department of Defense Board of Contract Appeals, the

25 Civilian Board of Contract Appeals, or the Comptroller
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1 General, as the case may be, determines that such pro2 ceedings have been completed.

3 SEC. 443. CONTRACT DISPUTES AUTHORITY OF BOARDS.

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

5 (41 U.S.C. 601) is amended—

6 (1) in paragraph (2), by striking out ‘‘, the

7 United States Postal Service, and the Postal Rate

8 Commission’’;

9 (2) by amending paragraph (6) to read as fol10 lows:

11 ‘‘(6) the term ‘Defense Board’ means the De12 partment of Defense Board of Contract Appeals es13 tablished under section 8(a) of this Act;’’;

14 (3) by redesignating paragraph (7) as para15 graph (8); and

16 (4) by inserting after paragraph (6) the follow17 ing new paragraph (7):

18 ‘‘(7) the term ‘Civilian Board’ means the Civil19 ian Board of Contract Appeals established under

20 section 8(b) of this Act; and’’.

21 (b) Section 6(c)(6) of the Contract Disputes Act of

22 1978 (41 U.S.C. 605(c)(6)) is amended—

23 (1) by striking out ‘‘court or an agency board

24 of contract appeals’’ and inserting in lieu thereof

25 ‘‘court, the Defense Board, or the Civilian Board’’;
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1 (2) by striking out ‘‘an agency board of con2 tract appeals’’ in the third sentence and inserting in

3 lieu thereof ‘‘the Defense Board or the Civilian

4 Board’’; and

5 (3) by striking out ‘‘agency board’’ and insert6 ing in lieu thereof ‘‘the Board concerned’’.

7 (c) Section 7 of the Contract Disputes Act of 1978

8 (41 U.S.C. 606) is amended by striking out ‘‘an agency

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

10 ‘‘the Defense Board or the Civilian Board’’.

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

12 (41 U.S.C. 607), as amended by section 411, is further

13 amended—

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

15 ‘‘DEFENSE AND CIVILIAN BOARDS OF CONTRACT

16 APPEALS’’;

17 (2) by striking out subsection (c);

18 (3) in subsection (d)—

19 (A) by striking out the first sentence and

20 inserting in lieu thereof the following:

21 ‘‘The Defense Board shall have jurisdiction to decide any

22 appeal from a decision of a contracting officer of the De23 partment of Defense, the Department of the Army, the

24 Department of the Navy, or the Department of the Air

25 Force relative to a contract made by that department. The

26 Civilian Board shall have jurisdiction to decide any appeal
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1 from a decision of a contracting officer of any executive

2 agency (other than the Department of Defense, the De3 partment of the Army, the Department of the Navy, the

4 Department of the Air Force, the United States Postal

5 Service, or the Postal Rate Commission) 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 agen11 cy 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

15 agency board’’ and inserting in lieu thereof ‘‘the De16 fense 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

20 appeals’’ and inserting in lieu thereof ‘‘the De21 fense Board or the Civilian Board, as the case

22 may 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 subsection (h) and inserting

2 in lieu thereof the following:

3 ‘‘(h) There is established an agency board of contract

4 appeals to be known as the ‘Postal Service Board of Con5 tract Appeals’. Such board shall have jurisdiction to decide

6 any appeal from a decision of a contracting officer of the

7 United States Postal Service or the Postal Rate Commis8 sion relative to a contract made by either agency. Such

9 board shall consist of judges appointed by the Postmaster

10 General who shall meet the qualifications of and serve in

11 the same manner as judges of the Civilian Board of Con12 tract Appeals. This Act and title II of the Office of Fed13 eral Procurement Policy Act shall apply to contract dis14 putes before the Postal Service Board of Contract Appeals

15 in the same manner as they apply to contract disputes

16 before the Civilian Board.’’; and

17 (8) by striking out subsection (i).

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

19 (41 U.S.C. 608) is amended—

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

21 agency board’’ and inserting in lieu thereof ‘‘the De22 fense Board and the Civilian Board’’; and

23 (2) in subsection (b), by striking out ‘‘the agen24 cy board’’ and inserting in lieu thereof ‘‘the Board

25 concerned’’.
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1 (f) Section 10 of the Contract Disputes Act of 1978

2 (41 U.S.C. 609) is amended—

3 (1) in subsection (a)—

4 (A) in the first sentence of paragraph

5 (1)—

6 (i) by striking out ‘‘Except as pro7 vided in paragraph (2), and in’’ and insert8 ing in lieu thereof ‘‘In’’; and

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

10 and inserting in lieu thereof ‘‘the Defense

11 Board or the Civilian Board’’;

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

13 (C) by redesignating paragraph (3) as

14 paragraph (2), and in that paragraph by strik15 ing out ‘‘or (2)’’;

16 (2) in subsection (b)—

17 (A) by striking out ‘‘any agency board’’

18 and inserting in lieu thereof ‘‘the Defense

19 Board or the Civilian Board’’; and

20 (B) by striking out ‘‘the agency board’’

21 and inserting in lieu thereof ‘‘the Board con22 cerned’’;

23 (3) in subsection (c)—
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1 (A) by striking out ‘‘an agency board’’ and

2 inserting in lieu of each ‘‘the Defense Board or

3 the Civilian Board’’; and

4 (B) by striking out ‘‘the agency board’’

5 and inserting in lieu thereof ‘‘the Board con6 cerned’’; and

7 (4) in subsection (d)—

8 (A) by striking out ‘‘one or more agency

9 boards’’ and inserting in lieu thereof ‘‘the De10 fense Board or the Civilian Board (or both)’’;

11 and

12 (B) by striking out ‘‘or among the agency

13 boards involved’’ and inserting in lieu thereof

14 ‘‘one or both of the Boards’’.

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

16 (41 U.S.C. 610) is amended—

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

18 agency board of contract appeals’’ and inserting in

19 lieu thereof ‘‘the Defense Board or the Civilian

20 Board’’; and

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

22 agency board through the Attorney General; or upon

23 application by the board of contract appeals of the

24 Tennessee Valley Authority’’ and inserting in lieu

25 thereof ‘‘the Defense Board or the Civilian Board’’.
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1 (h) Section 13 of the Contract Disputes Act of 1978

2 (41 U.S.C. 612) is amended—

3 (1) in subsection (b), by striking out ‘‘an agen4 cy board of contract appeals’’ and inserting in lieu

5 thereof ‘‘the Defense Board or the Civilian Board’’;

6 and

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

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

9 thereof ‘‘by the Defense Board or the Civilian Board

10 from’’.

11 SEC. 444. REFERENCES TO AGENCY BOARDS OF CONTRACT

12 APPEALS.

13 (a) DEFENSE BOARD.—Any reference to the Armed

14 Services Board of Contract Appeals or the board of con15 tract appeals of the Corps of Engineers in any provision

16 of law or in any rule, regulation, or other paper of the

17 United States shall be treated as referring to the Depart18 ment of Defense Board of Contract Appeals.

19 (b) CIVILIAN BOARD.—Any reference to an agency

20 board of contract appeals other than the Armed Services

21 Board of Contract Appeals, the board of contract appeals

22 of the Corps of Engineers, or the Postal Service Board

23 of Contract Appeals in any provision of law or in any rule,

24 regulation, or other paper of the United States shall be
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1 treated as referring to the Civilian Board of Contract Ap2 peals.

3 SEC. 445. CONFORMING AMENDMENTS.

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

5 Code, is amended—

6 (1) in subsection (a)(1), by striking out ‘‘an

7 agency board of contract appeals appointed under

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

9 inserting in lieu thereof ‘‘the Department of Defense

10 Board of Contract Appeals or the Civilian Board of

11 Contract Appeals appointed under section 202 of the

12 Office of Federal Procurement Policy Act or the

13 Postal Service Board of Contract Appeals appointed

14 under section 8(h) of the Contract Disputes Act of

15 1978’’; and

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

17 agency board of contract appeals’’ and inserting in

18 lieu thereof ‘‘the Department of Defense Board of

19 Contract Appeals, the Civilian Board of Contract

20 Appeals, or the Postal Service Board of Contract

21 Appeals’’.

22 (b) TITLE 10.—(1) Section 2305(e) of title 10, Unit23 ed States Code, is amended—

24 (A) in paragraph (1), by striking out ‘‘sub25 chapter V of chapter 35 of title 31’’ and inserting
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1 in lieu thereof ‘‘title II of the Office of Federal Pro2 curement 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 sec7 tion 3554 of title 31’’ and inserting in lieu thereof

8 ‘‘section 214(h)(2) of the Office of Federal Procure9 ment Policy Act’’; and

10 (B) in paragraph (2), by striking out ‘‘para11 graph (1) of section 3554(c) of title 31 within the

12 limits referred to in paragraph (2)’’ and inserting in

13 lieu thereof ‘‘subparagraph (A) of section 214(i)(1)

14 of the Office of Federal Procurement Policy Act

15 within the limits referred to in subparagraph (B)’’.

16 (c) FEDERAL PROPERTY AND ADMINISTRATIVE

17 SERVICES ACT OF 1949.—(1) Section 303B(j) (as redes18 ignated by section 104(b)(2)) of the Federal Property and

19 Administrative Services Act of 1949 (41 U.S.C. 253b(h))

20 is amended—

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

24 Office 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

6 inserting in lieu thereof ‘‘section 214(h)(2) of the

7 Office 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)

12 of the Office of Federal Procurement Policy Act

13 within 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

19 relating to section 1:

‘‘TITLE I—FEDERAL PROCUREMENT POLICY GENERALLY’’; and

20 (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.

‘‘Sec. 205. Authorization of appropriations.
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‘‘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; Regula2 tions and Appointment of Chair3 men

4 SEC. 451. EFFECTIVE DATE.

5 Title II of the Office of Federal Procurement Policy

6 Act, as added by this title, and the amendments and re7 peals made by this title shall take effect 1 year after the

8 date of the enactment of this Act.

9 SEC. 452. REGULATIONS.

10 (a) REGULATIONS REGARDING PROTESTS AND

11 CLAIMS.—Not later than 1 year after the date of the en12 actment of this Act, the Chairman of the Armed Services

13 Board of Contract Appeals and the Chairman of the Gen14 eral Services Board of Contract Appeals, in consultation

15 with the Comptroller General with respect to protests,

16 shall jointly issue—

17 (1) such procedural rules and regulations as are

18 necessary to the exercise of the functions of the De19 partment of Defense Board of Contract Appeals and

20 the Civilian Board of Contract Appeals under sec-
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1 tions 213 and 214 of the Office of Federal Procure2 ment Policy Act (as added by this title); and

3 (2) statements of policy of general applicability

4 with respect to such functions.

5 (b) REGULATIONS REGARDING APPOINTMENT OF

6 JUDGES.—Not later than 1 year after the date of the en7 actment of this Act—

8 (1) the Chairman of the Armed Services Board

9 of Contract Appeals shall issue rules governing the

10 establishment and maintenance of a register of eligi11 ble applicants and the selection of judges for the De12 partment of Defense Board of Contract Appeals;

13 and

14 (2) the Chairman of the General Services Board

15 of Contract Appeals shall issue rules governing the

16 establishment and maintenance of a register of eligi17 ble applicants and the selection of judges for the Ci18 vilian Board of Contract Appeals.

19 SEC. 453. APPOINTMENT OF CHAIRMEN OF DEFENSE

20 BOARD AND CIVILIAN BOARD.

21 Notwithstanding section 451, not later than 1 year

22 after the date of the enactment of this Act—

23 (1) the Secretary of Defense shall appoint the

24 Chairman of the Department of Defense Board of

25 Contract Appeals; and
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1 (2) the Administrator of General Services shall

2 appoint the Chairman of the Civilian Board of Con3 tract Appeals.

4 TITLE V—EFFECTIVE DATES

5 AND IMPLEMENTATION

6 SEC. 501. EFFECTIVE DATE AND APPLICABILITY.

7 (a) EFFECTIVE DATE.—Except as otherwise provided

8 in this Act, this Act and the amendments made by this

9 Act shall take effect on the date of the enactment of this

10 Act.

11 (b) APPLICABILITY OF AMENDMENTS.—(1) An

12 amendment made by this Act shall apply, in the manner

13 prescribed in the final regulations promulgated pursuant

14 to section 502 to implement such amendment, with respect

15 to any solicitation that is issued, any unsolicited proposal

16 that is received, and any contract entered into pursuant

17 to such a solicitation or proposal, on or after the date de18 scribed in paragraph (3).

19 (2) An amendment made by this Act shall also apply,

20 to the extent and in the manner prescribed in the final

21 regulations promulgated pursuant to section 502 to imple22 ment such amendment, with respect to any matter related

23 to—

24 (A) a contract that is in effect on the date de25 scribed in paragraph (3);
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1 (B) an offer under consideration on the date

2 described in paragraph (3); or

3 (C) any other proceeding or action that is ongo4 ing on the date described in paragraph (3).

5 (3) The date referred to in paragraphs (1) and (2)

6 is the date specified in such final regulations. The date

7 so specified shall be October 1, 1996, or any earlier date

8 that is not within 30 days after the date on which such

9 final regulations are published.

10 SEC. 502. IMPLEMENTING REGULATIONS.

11 (a) PROPOSED REVISIONS.—Proposed revisions to

12 the Federal Acquisition Regulation and such other pro13 posed regulations (or revisions to existing regulations) as

14 may be necessary to implement this Act shall be published

15 in the Federal Register not later than 210 days after the

16 date of the enactment of this Act.

17 (b) PUBLIC COMMENT.—The proposed regulations

18 described in subsection (a) shall be made available for

19 public comment for a period of not less than 60 days.

20 (c) FINAL REGULATIONS.—Final regulations shall be

21 published in the Federal Register not later than 330 days

22 after the date of enactment of this Act.

23 (d) MODIFICATIONS.—Final regulations promulgated

24 pursuant to this section to implement an amendment

25 made by this Act may provide for modification of an exist-
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1 ing contract without consideration upon the request of the

2 contractor.

3 (e) SAVINGS PROVISIONS.—(1) Nothing in this Act

4 shall be construed to affect the validity of any action taken

5 or any contract entered into before the date specified in

6 the regulations pursuant to section 501(b)(3) except to the

7 extent and in the manner prescribed in such regulations.

8 (2) Except as specifically provided in this Act, noth9 ing in this Act shall be construed to require the renegoti10 ation or modification of contracts in existence on the date

11 of the enactment of this Act.

12 (3) Except as otherwise provided in this Act, a law

13 amended by this Act shall continue to be applied according

14 to the provisions thereof as such law was in effect on the

15 day before the date of the enactment of this Act until—

16 (A) the date specified in final regulations imple17 menting the amendment of that law (as promulgated

18 pursuant to this section); or

19 (B) if no such date is specified in regulations,

20 October 1, 1996.

Passed the House of Representatives September 14,

1995.

Attest: ROBIN H. CARLE,

Clerk.

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