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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4221 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 4221

    To amend title 38, United States Code, to provide for improved 
 acquisition practices by the Department of Veterans Affairs, and for 
                            other purposes.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                            December 8, 2009

Mr. Buyer (for himself, Mr. Roe of Tennessee, Mr. Bilbray, Mr. Lamborn, 
Mr. Brown of South Carolina, and Mr. Boozman) introduced the following 
bill; which was referred to the Committee on Veterans' Affairs, and in 
  addition to the Committee on Oversight and Government Reform, for a 
 period to be subsequently determined by the Speaker, in each case for 
consideration of such provisions as fall within the jurisdiction of the 
                          committee concerned

_______________________________________________________________________

                                 A BILL

 
    To amend title 38, United States Code, to provide for improved 
 acquisition practices by the Department of Veterans Affairs, and for 
                            other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Department of Veterans Affairs 
Acquisition Improvement Act of 2009''.

SEC. 2. ASSISTANT SECRETARY OF VETERANS AFFAIRS FOR ACQUISITION, 
              CONSTRUCTION, AND ASSET MANAGEMENT; ADDITIONAL DEPUTY 
              ASSISTANT SECRETARIES.

    (a) In General.--Section 308 of title 38, United States Code, is 
amended--
            (1) in subsection (b), by adding at the end the following 
        new paragraph:
            ``(12) Acquisition, Construction, and Asset Management.''; 
        and
            (2) in subsection (d)--
                    (A) in paragraph (1), by striking ``19'' and 
                inserting ``26''; and
                    (B) by inserting at the end the following new 
                paragraph:
    ``(3) The Secretary shall assign one Deputy Assistant Secretary to 
each of the following areas of responsibility:
            ``(A) Information technology acquisition.
            ``(B) Acquisition services for the Veterans Benefits 
        Administration, the National Cemetery Administration, and the 
        Department headquarters.
            ``(C) Construction acquisitions and leasing.
            ``(D) Acquisition services for the Veterans Health 
        Administration.
            ``(E) National contracts, including contracts for health 
        care products and services awarded by the National Acquisition 
        Center (other than contracts for information technology).
            ``(F) Policy.
            ``(G) Asset Enterprise Management and Logistics.''.
    (b) Deadline for Appointments.--By not later than one year after 
the date of the enactment of this Act, the Secretary of Veterans 
Affairs shall assign an individual to carry out the responsibilities of 
the Assistant Secretary for Acquisition, Construction, and Asset 
Management, pursuant to paragraph (12) of section 308(b) of title 38, 
United States Code, as added by subsection (a), and individuals to 
carry out the responsibilities of the Deputy Assistant Secretaries 
pursuant to section 308(d) of such title, as amended by subsection (a).

SEC. 3. CHIEF ACQUISITION OFFICER.

    (a) Establishment.--Chapter 3 of title 38, United States Code, is 
amended by inserting after section 310 the following new section:
``Sec. 310A. Chief Acquisition Officer; other acquisition officers
    ``(a) Establishment.--There is in the Department a Chief 
Acquisition Officer. The Assistant Secretary for Acquisition, 
Construction, and Asset Management shall serve as the Chief Acquisition 
Officer.
    ``(b) Responsibilities.--In addition to the responsibilities of the 
Chief Acquisition Officer under section 16 of the Office of Federal 
Procurement Policy Act (41 U.S.C. 414), the Chief Acquisition Officer 
shall carry out the following additional responsibilities:
            ``(1) Managing and monitoring the performance of Department 
        acquisition activities.
            ``(2) Advising the Secretary on appropriate business 
        strategies to meet the missions of the Department.
            ``(3) Awarding and administering contracts and purchases.
            ``(4) Increasing the use of full and open competition in 
        the acquisitions processes of the Department.
            ``(5) Increasing the appropriate use of performance-based 
        contracting and performance specifications in such processes.
            ``(6) Ensuring that acquisitions decisions are consistent 
        with applicable laws.
            ``(7) Managing the direction of acquisition policy for the 
        Department.
            ``(8) Establishing clear lines of authority, 
        accountability, and responsibility for decision making within 
        the Department with respect to acquisitions.
            ``(9) Developing and maintaining an acquisition career 
        management program.
    ``(c) Qualifications.--The individual appointed as Chief 
Acquisition Officer shall have the following qualifications:
            ``(1) Executive experience in acquisition in the Federal 
        Government--
                    ``(A) managing large projects or having 
                responsibility for managing a corporate-type supply 
                chain function;
                    ``(B) defining and achieving performance results;
                    ``(C) developing, negotiating, delivering, and 
                managing successful and complex business arrangements 
                across large organizations with competing interests;
                    ``(D) building and managing executive relationships 
                across organizational and functional boundaries; and
                    ``(E) successfully using strategic resource 
                management to achieve organizational goals.
            ``(2) Knowledge of the Federal Acquisition Regulation.
            ``(3) Knowledge of the Federal budget, appropriations, and 
        legislative processes.
    ``(d) Acquisition Workforce.--All employees of the Department whose 
responsibilities relate to acquisition shall report directly to the 
Chief Acquisition Officer. Beginning on the date of the enactment of 
this section, no new employee may be hired as a Head of Contracting 
Authority or Chief Logistics Officer unless the Principal Deputy 
Assistant Secretary for Acquisition, Construction, and Asset Management 
approves the hire.
    ``(e) Principal Deputy Assistant Secretary for Acquisition, 
Construction, and Asset Management.--(1) There is in the Department a 
Principal Deputy Assistant Secretary for Acquisition, Construction, and 
Asset Management. The Principal Deputy Assistance Secretary for 
Acquisition, Construction, and Asset Management shall be the senior 
procurement executive for the Department and shall report directly to 
the Chief Acquisition Officer.
    ``(2) The position of Principal Deputy Assistant Secretary for 
Acquisition, Construction, and Asset Management shall for all purposes 
be considered to be a career reserve position within the meaning of 
section 3132(a)(8) of title 5.
    ``(3) The Principal Deputy Assistant Secretary for Acquisition, 
Construction, and Asset Management shall have primary responsibility 
for the following:
            ``(A) Acquisition policy and oversight.
            ``(B) Oversight of the Office of the Business Ombudsman, 
        including the Competition Advocate and the Office of Business 
        Oversight.
            ``(C) Training, management, and oversight of the 
        acquisition workforce, including the Acquisition Academy of the 
        Department.
            ``(D) Management and oversight of the Deputy Assistant 
        Secretary responsible for awarding and administering contracts 
        and purchases.
    ``(f) Deputy Assistant Secretaries for Acquisition.--There are in 
the Department seven Deputy Assistant Secretaries for Acquisition who 
shall report directly to the Principal Deputy Assistant for 
Acquisition, Construction, and Asset Management. The Secretary or the 
Secretary's designee shall assign to each Deputy Assistant Secretary 
one of the following functions:
            ``(1) Information technology acquisition.
            ``(2) Acquisition services for the Veterans Benefits 
        Administration, the National Cemetery Administration and the 
        Department headquarters.
            ``(3) Construction acquisition and leasing.
            ``(4) Veterans Health Administration acquisition.
            ``(5) National contracts, including contracts for health 
        care products and services awarded by the National Acquisition 
        Center.
            ``(6) Policy.
            ``(7) Asset enterprise management and logistics.''.
    (b) Clerical Amendment.--The table of sections at the beginning of 
such chapter is amended by inserting after the item relating to section 
310 the following new item:

``310A. Chief Acquisition Officer; other acquisition officers.''.
    (c) Deadline for Designations.--
            (1) Deadline for plan.--Not later than 180 days after the 
        date of the enactment of this Act, the Secretary of Veterans 
        Affairs shall submit to Congress a plan for implementing 
        section 310A of title 38, United States Code, as added by 
        subsection (a).
            (2) Deadline for implementation.--Not later than 18 months 
        after the date of the enactment of this Act, the Secretary of 
        Veterans Affairs shall fully implement the plan submitted under 
        paragraph (1).

SEC. 4. ACQUISITION POLICY OF DEPARTMENT OF VETERANS AFFAIRS.

    (a) Department-Wide Policy Required.--
            (1) Requirement.--Subchapter II of chapter 81 of title 38, 
        United States Code, is amended by adding at the end the 
        following new section:
``Sec. 8129. Department-wide acquisition policy
    ``(a) Policy Required.--The Secretary shall establish and maintain 
a comprehensive Department-wide acquisition program under which the 
Secretary shall develop, implement, and enforce a streamlined approach 
to entering into contracts and purchasing goods and services. Such 
program shall include the elements described in subsection (b).
    ``(b) Elements.--The Secretary shall ensure that the Department-
wide acquisition program includes the following elements:
            ``(1) The centralization under the Chief Acquisition 
        Officer of all contracting activities of the Department, 
        including purchasing, and including all contracting activities 
        carried out by each Administration and staff office of the 
        Department as of the date of the enactment of this section.
            ``(2) The establishment of acquisition goals to meet the 
        mission needs of the Department.
            ``(3) The development of Department requirements with 
        respect to acquisition.
            ``(4) The establishment of an overall acquisition strategy 
        for the Department.
            ``(5) Soliciting and awarding contracts.
            ``(6) The management of acquisition system and contract 
        performance.
    ``(c) Acquisition Requirements.--(1) Except as provided in 
paragraph (2), an acquisition of any health care item by the Department 
shall be made through the use of a Federal supply schedule 65 or 66 
contract awarded by the Department or a national contract that is 
awarded by or approved by the Department.
    ``(2)(A) Paragraph (1) does not apply to an acquisition of a health 
care item in any of the following cases:
            ``(i) An acquisition necessary to meet a current or near-
        term medical emergency at a medical center.
            ``(ii) An acquisition for an item not listed in the Federal 
        supply schedule or as part of a national contract and for which 
        there is a valid clinical need.
            ``(iii) An acquisition for a specialized health care item 
        not listed in the Federal supply schedule or as part of a 
        national contract for the special needs of an individual 
        patient who has one of the special needs identified in section 
        1706(b) of this title and who has a valid clinical need for the 
        item.
            ``(iv) An acquisition that is part of an approved sharing 
        agreement between the Department of Defense and the Department 
        of Veterans Affairs with demonstrable cost-per-item savings for 
        an item listed on the Federal supply schedule or a national 
        contract.
    ``(B) An acquisition referred to in any of clauses (i) through (v) 
of subparagraph (A) may be made only if the acquisition is specifically 
authorized in advance in writing by the Secretary. The authority of the 
Secretary under the preceding sentence with respect to contracts 
awarded by the Department may be delegated only to the Assistant 
Secretary for Acquisition, Construction, and Asset Management.
    ``(3) Before entering into either a new Federal supply schedule 
contract or a new national contract, the Chief Acquisition Officer may 
amend any clause of the Federal Acquisition Regulation otherwise 
required to be included in the contract in such manner as the Chief 
Acquisition Officer determines necessary to protect the interests of 
the Government.
    ``(4) In the case of an emergency acquisition of a health care item 
under paragraph (2)(B), the quantity of the item procured may not 
exceed the quantity of that item that meets the reasonably foreseeable 
need for the item at the medical facility concerned until resupply can 
be achieved through an acquisition action other than an emergency 
acquisition.
    ``(d) Procedures To Assure Compliance.--(1) The Secretary shall 
establish procedures to assure compliance by each Department medical 
facility with the provisions of this section and with applicable 
Federal and Department acquisition regulations.
    ``(2) The procedures established by the Secretary under paragraph 
(1) shall be designed to maximize the availability of health care items 
and the use of the Federal supply schedule by the Department.
    ``(3) The procedures established by the Secretary under paragraph 
(1) shall include procedures designed to standardize items at the 
local, regional, or national level to provide special patient 
populations (as identified in section 1706(b) of this title) with the 
range and types of health care items required to meet their clinical 
and quality-of-life needs.
    ``(4) The Advisory Committee on Prosthetics and Special-
Disabilities Programs established under section 543 of this title shall 
review the procedures referred to in paragraph (3), including the 
implementation of those procedures.
    ``(e) Annual Goals.--(1) The Secretary shall establish annual goals 
for Department medical facilities for the purchase of health care items 
from Federal supply schedule contracts and national contracts meeting 
the requirements of subsection (d). Such goals shall be designed to 
maximize the percentage of such purchases that are made through such 
contracts.
    ``(2) Achievement of the goals established under this subsection 
shall be an element in the performance standards for employees of the 
Department who have the authority and responsibility for achieving 
those goals.
    ``(f) Relationship to Other Provisions of Law.--A provision of law 
that is inconsistent with any provision of this section shall not 
apply, to the extent of the inconsistency, to the acquisition of a 
health care item for the Department.
    ``(g) Report.--(1) Not later than December 31 each year, the 
Secretary shall submit to the Committees on Veterans' Affairs of the 
Senate and House of Representatives a report on the acquisition of 
health care items during the preceding fiscal year. Each such report 
shall include, for the year covered by the report, the following:
            ``(A) The total dollar amount of all items listed in 
        Federal supply schedule 65 or 66 and the total dollar value of 
        the exceptions to subsection (c)(1) under each of clauses (i), 
        (ii), (ii), (iv), and (v) of subsection (c)(2)(A), shown by 
        medical facility.
            ``(B) A detailed explanation for such exceptions, 
        including--
                    ``(i) any uses of emergency acquisition authority 
                at Department medical facilities;
                    ``(ii) any authorizations under subsection 
                (c)(2)(A) for acquisition of items not listed on the 
                Federal supply schedules or on national contracts; and
                    ``(iii) any exceptions granted for special health 
                care needs of veterans with disabilities described in 
                section 1706(b) of this title.
            ``(C) An analysis of sharing agreements between the 
        Department and the Department of Defense, including the basic 
        sharing initiative and the division of financial responsibility 
        between the two Departments.
            ``(D) The stated Department goal under each acquisition 
        preference program, together with an assessment of the 
        performance of the Department toward achievement of such goals, 
        including any goals for contracting with businesses that are 
        owned and controlled by veterans or veterans with service-
        connected disabilities.
    ``(2) The Advisory Committee on Prosthetics and Special-
Disabilities Programs of the Department shall submit comments on each 
report under paragraph (1) before the report is submitted under that 
paragraph, and the Secretary shall include those comments in the report 
as submitted.
    ``(3) For the purposes of this subsection:
            ``(A) The term `health care item' includes any item other 
        than services listed in any Federal Supply Classification other 
        than Federal supply schedule 65 or 66 over which the Department 
        has been delegated authority.
            ``(B) The term `national contract' means a contract for the 
        acquisition of an item that is entered into by the National 
        Acquisition Center of the Department or another Department 
        acquisition activity, as authorized by the Secretary, that is 
        available for use by all Department medical facilities.
            ``(C) The term `valid clinical need' means a clinical need 
        that is valid in the professional judgment of an appropriate 
        clinician. Such term applies to health care items, prosthetic 
        appliances, sensory or mobility aids and supplies that are 
        prescribed by a physician for special patient populations such 
        as veterans with spinal cord dysfunction, blindness, 
        amputations, and other veterans included in section 1706(b) of 
        this title.
            ``(D) The term `Federal supply schedule contract' means a 
        contract that is awarded and administered by the National 
        Acquisition Center of the Department, under a delegation of 
        authority as of the date of the enactment of this section or a 
        contract that is awarded and administered by the Department 
        under regulations prescribed under section 8130 of this title.
            ``(E) The term `emergency acquisition' means an acquisition 
        necessary to meet an emergency need affecting the health or 
        safety of a person being furnished health care services by the 
        Department.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of such chapter is amended by inserting after the 
        item relating to section 8128 the following new item:

``8129. Department-wide acquisition policy.''.
    (b) Deadline for Implementation.--The acquisition policy required 
by section 8129 of title 38, United States Code, as added by subsection 
(a), shall be fully implemented by the date that is 18 months after the 
date of the enactment of this Act.

SEC. 5. AUTHORITY FOR SECRETARY OF VETERANS AFFAIRS TO ENTER INTO 
              CERTAIN PERSONAL SERVICES CONTRACTS.

    (a) Contracts for Scarce Medical Specialist Services.--Section 
7409(a) of title 38, United States Code, is amended, in the first 
sentence, by inserting ``, including personal services contracts,'' 
after ``contracts''.
    (b) Sharing of Health Care Resources With Department of Defense.--
Section 8111(a) of such title is amended by inserting ``, including 
personal services contracts,'' after ``contracts''.
    (c) Sharing of Health Care Resources.--Section 8153(a) of such 
title is amended by inserting ``, including a personal services 
contract,'' after ``contract''.
    (d) Deadline for Regulations.--Not later than 180 days after the 
date of the enactment of this Act, the Secretary of Veterans Affairs 
shall prescribe regulations to carry out the amendments made by this 
section.

SEC. 6. AWARD AND ADMINISTRATION OF CERTAIN FEDERAL SUPPLY SCHEDULES BY 
              SECRETARY OF VETERANS AFFAIRS.

    (a) Expansion of Definition of Competitive Procedures.--Section 
309(b) of the Federal Property and Administrative Services Act of 1949 
(41 U.S.C. 259) is amended--
            (1) in paragraph (4), by striking ``and'' at the end;
            (2) in paragraph (5), by striking the period and inserting 
        ``; and''; and
            (3) by adding at the end the following new paragraph:
            ``(6) the procedures established by the Secretary of 
        Veterans Affairs for the use of certain Federal supply 
        schedules, pursuant to regulations prescribed under section 
        8130 of title 38, United States Code, if--
                    ``(A) the procedures provide that the use of any 
                such supply schedule has been open to all responsible 
                sources; and
                    ``(B) orders and contracts under such procedures 
                result in the lowest cost alternative to meet the needs 
                of the Government.''.
    (b) Authority of Secretary of Veterans Affairs.--
            (1) In general.--Subchapter II of chapter 81 of title 38, 
        United States Code, as amended by section 3, is further amended 
        by adding at the end the following new section:
``Sec. 8130. Award and administration of certain Federal supply 
              schedules
    ``(a) Regulations.--The Secretary shall prescribe regulations to 
provide procedures for soliciting, negotiating, awarding, and 
administering the Federal supply schedules described in subsection (c).
    ``(b) Contract Clause Requirements.--The regulations prescribed 
under subsection (a) shall require that a contract entered into by the 
Secretary under a Federal supply schedule shall include pre- and post-
award audit clauses, an economic price adjustment clause, a price 
reductions clause, and a price adjustment for failure to provide 
accurate information clause.
    ``(c) Applicability.--This section shall apply with respect to any 
Federal supply schedule for which the authority to administer such 
schedule is transferred from the Administrator of General Services to 
the Secretary of Veterans Affairs, whether such authority is 
transferred before, on, or after the date of the enactment of this 
section.''.
            (2) General services administration rules and 
        regulations.--Until the Secretary of Veterans Affairs 
        prescribes regulations under section 8130(a) of title 38, 
        United States Code (as added by paragraph (1)), the Secretary 
        shall comply with the rules and regulations relating to the 
        Federal supply schedules prescribed by the Administrator of 
        General Services that were in effect on the date of the 
        enactment of this Act.
            (3) Clerical amendment.--The table of sections at the 
        beginning of such chapter is amended by inserting after the 
        item relating to section 8130, as added by section 3, the 
        following new item:

``8130. Administration of Federal supply schedule.''.
            (4) Deadline for regulations.--Not later than 180 days 
        after the date of the enactment of this Act, the Secretary of 
        Veterans Affairs shall prescribe the regulations required under 
        section 8130 of title 38, United States Code, as added by 
        paragraph (1).

SEC. 7. IMPROVEMENT OF DEPARTMENT OF VETERANS AFFAIRS SMALL BUSINESS 
              CONTRACTING GOALS.

    (a) Additional Requirement.--Section 8127(c) of title 38, United 
States Code, is amended--
            (1) in paragraph (2), by striking ``and'' at the end;
            (2) in paragraph (3), by striking the period and inserting 
        the following: ``; and''; and
            (3) by adding at the end the following new paragraph:
            ``(4) in the case of a contract for the purchase of a 
        commercial item, the vendor of the item is a manufacturer or a 
        regular dealer.''.
    (b) Complaint Process for Use of Restricted Competition.--
Subsection (d) of such section is amended--
            (1) by striking ``Except as provided'' and inserting ``(1) 
        Except as provided''; and
            (2) by adding at the end the following new paragraph:
    ``(2) Any complaint regarding the noncompliance of a contracting 
officer with this subsection shall be submitted to the Secretary.''.
    (c) Eligibility.--Subsection (e) of such section is amended--
            (1) by striking ``only if the small business concern and 
        the veteran'' and all that follows and inserting ``only if--''; 
        and
            (2) by adding at the end the following new paragraphs:
            ``(1) the small business concern and the veteran owner of 
        the small business concern are listed in the database of 
        veteran-owned businesses maintained by the Secretary under 
        subsection (f);
            ``(2) the Secretary has performed the verification 
        functions of the Secretary under paragraph (4) of such 
        subsection with respect to the small business concern; and
            ``(3) the contract is only for the procurement of a good or 
        service with an North American Industry Classification System 
        code specified by the Secretary under paragraph (9) of that 
        subsection for the small business concern.''.
    (d) Database.--Subsection (f) of such section is amended by adding 
at the end the following new paragraphs:
    ``(7) The Secretary may not include in the database a small 
business concern that is the vendor of a commercial item unless the 
concern is the manufacturer or regular dealer of the item, unless the 
Secretary specifically provides for a waiver of such requirement for 
such concern.
    ``(8) The Secretary shall establish specific criteria to be used in 
carrying out the verification functions under paragraph (4), including 
criteria requiring specific documentation and certifications from each 
small business concern proposed to be included in the database.
    ``(9) For each small business concern included in the database, the 
Secretary shall specify the North American Industry Classification 
System code or codes of the goods and services that may be procured by 
the Department from such concern.''.
    (e) Definitions.--Subsection (l) of such section is amended by 
adding at the end the following new items:
            ``(3) The term `commercial item' has the meaning given that 
        term in section 4(12) of the Office of Federal Procurement 
        Policy Act (41 U.S.C. 203(12)) as long as items and services 
        directly relating to the sale of such a commercial item are 
        offered to commercial customers.
            ``(4) The term `management and daily business operations' 
        includes--
                    ``(A) with respect to a contract for the provision 
                of services, the services to be performed by a contract 
                awarded under this section; and
                    ``(B) with respect to a contract for the provision 
                of goods that are not manufactured by the small 
                business concern in question, the provision of services 
                relating directly to the sale of such goods.
            ``(5) The term `regular dealer' with respect to any 
        contract means a person who owns, operates, or maintains a 
        store, warehouse, or other establishment in which the 
        commodities or goods of the general character described by the 
        specifications and required under the contract are bought, kept 
        in stock, and sold to the public in the usual course of 
        business.''.
    (f) Deadline for Establishment of Criteria.--Not later than 180 
days after the date of the enactment of this Act, the Secretary of 
Veterans Affairs shall establish criteria for the use of sole source 
contracts for Department of Veterans Affairs contracts above the 
simplified acquisition threshold.
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